Seldon v. State

• Citation: 824 A.2d 999,151 Md. App. 204
• Decision Date: 29 May 2003
• Docket Number: No. 597,597
• Parties: Ronald L. SELDON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

824 A.2d 999

151 Md. App. 204

Ronald L. SELDON v. STATE of Maryland.

No. 597, Sept. Term, 2002.

Court of Special Appeals of Maryland.

May 29, 2003.

Argued before MURPHY, C.J., GREENE, BISHOP and JOHN J., JR., (Ret'd, specially assigned), JJ.

MURPHY, Chief Judge:

In the Circuit Court for Anne Arundel County, Ronald L. Seldon, appellant, was convicted of possession with the intent to distribute more than 448 grams of cocaine and related violations of the Maryland Controlled Dangerous Substances Act. Appellant concedes that the evidence was sufficient to establish that he committed those offenses on July 13, 2000, but argues that the circuit court erred in denying his Motion to Suppress that evidence. Appellant now presents two questions for our review:

I. DID THE LOWER COURT ERR WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS THE SEARCH OF HIS VEHICLE THAT OCCURRED ON OCTOBER 29, 1999?

II. DID THE LOWER COURT ERR WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS THE SEARCH OF HIS VEHICLE THAT OCCURRED ON JULY 13, 2000?

For the reasons that follow, we shall answer "yes" to each question, and we shall therefore reverse the judgments of the circuit court.

Factual Background

I. The October 29, 1999 Search

On October 26, 1999, appellant drove his vehicle to Pohanka Mazda, an automobile dealership in Salisbury, Maryland.¹ On October 29, 1999, an employee of the dealership contacted the Wicomico County Police Department to report that something "suspicious" had been discovered in a vehicle that had been brought in for service. Detective Carson Wentland of the Wicomico County Police Department received the call. Before proceeding to the dealership, he contacted the Maryland State Police and requested assistance. Maryland State Police Sergeant Michael Lewis was dispatched to the dealership. When Sergeant Lewis and Detective Wentland arrived, they were directed to appellant's vehicle by Bruce Willey, the mechanic who had made the repairs, and John Fiscus, a supervisor. At the time the officers arrived, appellant's vehicle had been repaired and was ready to be picked up.

Sergeant Lewis directed Mr. Willey to drive the vehicle into the service bay area. Once the vehicle was in the service bay, Mr. Willey pointed to the section of the vehicle where he had discovered the suspicious item. Sergeant Lewis then entered the vehicle, pushed back the front seat, lifted the carpet, and observed a secret compartment.² He lifted the lid of the compartment and looked inside, but found nothing. Upon further examination of the vehicle, Sergeant Lewis discovered a second secret compartment which was located in the gas tank. This compartment, which was electrically and hydraulically powered, could not be opened by hand. Sergeant Lewis attempted to open the compartment by using his "alligator grips," but his attempt was unsuccessful. He then used a screwdriver to pry open the compartment "slightly," and was able to determine that there was no contraband in the compartment. Sergeant Lewis reported his findings to the Wicomico County Narcotics Task Force, and was told by a member of that organization that appellant was a suspected drug dealer in the area. Because no contraband was found in appellant's vehicle, the officers took no further action on this occasion.

II. The July 13, 2000 Search

On July 13, 2000, Sergeant Lewis spotted appellant's vehicle traveling eastbound on Route 50 near Annapolis, Maryland, and stopped the vehicle because it was traveling at the speed of 71 m.p.h in a posted 55 m.p.h. zone. Appellant was the sole occupant of the vehicle. Sergeant Lewis approached the passenger side of the vehicle and, through an open window, asked for appellant's license and registration. According to his suppression hearing testimony, at this point Sergeant Lewis noticed: (1) a strong odor of air freshener coming from the interior of the vehicle; (2) law enforcement decals affixed on the vehicle's windshield; (3) the "definitive odor of cocaine;" and (4) a large "wad" of money that came protruding out of appellant's pocket as appellant reached for his driver's license.³ Sergeant Lewis also testified that appellant seemed to be "extremely nervous," that appellant's "carotid pulse was pounding," and that all of these observations were consistent with illegal drug activity.

When Sergeant Lewis examined appellant's license and registration, he realized that appellant was under investigation by the Wicomico County Narcotics Task Force, and recognized appellant's vehicle as the vehicle searched nine months before at Pohanka Mazda. Sergeant Lewis returned to his vehicle and placed a call to determine the status of appellant's license. After being informed that the license was valid, Sergeant Lewis called Sergeant Michael Kenhart of the Wicomico County Narcotics Task Force. During this conversation, Sergeant Lewis stated that he had stopped appellant for a traffic violation and that he "had enough to do him," but wanted to know whether the arrest of appellant might adversely affect any Task Force investigation. Sergeant Kenhart responded that appellant was still under investigation, and he would call back with an answer. A few minutes later, Sergeant Kenhart called back, and told Sergeant Lewis that the Task Force had no objection to appellant's arrest. At this point, Sergeant Lewis called for backup and requested a canine unit,⁴ and activated a video and audio recording system that provided the suppression hearing court with the ability to review the stop from that point forward.

Sergeant Lewis again approached appellant's vehicle, and asked appellant to step out. Sergeant Lewis then asked appellant for permission to search the vehicle. Appellant refused that request. Sergeant Lewis continued to converse with and question appellant until the backup unit arrived. Once the backup unit arrived, Sergeant Lewis patted down appellant to search for any weapons.⁵ Sergeant Lewis then proceeded to search the vehicle. Almost immediately, he located the two steel compartments that he had previously searched at the dealership.⁶ The compartment located underneath the front passenger seat was empty. A search of the second compartment turned up what appeared to be one package of cocaine and two packages of marijuana, each of which was covered by a fabric softener secured by saran wrap and clear packaging tape.⁷ Appellant was arrested and charged accordingly.

III. The Circuit Court's Ruling

After a hearing on appellant's Motion to Suppress, the circuit court filed a Memorandum and Order that included the following findings of fact and conclusions of law:

Two separate searches occurred as previously outlined. The Court will therefore separately examine the constitutionality of each search.

July 13, 2000

In assessing the constitutionality of the search of Defendant's vehicle, the Court must first determine whether Sergeant Lewis' stop of the vehicle was reasonable. The Maryland Court of Special Appeals reiterated the Supreme Court guidelines that "the level of suspicion required for a stop is considerably less than the proof needed for probable cause." Lawson v. State, 120 Md.App. 610, 618, 707 A.2d 947 (1998)(citing Quince v. State, 319 Md. 430, 433, 572 A.2d 1086 (1990)); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

The initial stop of Defendant's vehicle for speeding was legitimate and reasonable. Sergeant Lewis testified that while traveling behind Defendant's vehicle, he paced Defendant speeding at approximately 71 m.p.h. in a 55 m.p.h. zone. Consequently, Sergeant Lewis was justified in stopping Defendant for a traffic infraction, which has been acknowledged by Defendant.

The Fourth Amendment protects against unlawful searches and seizures including seizures that involve only a brief detention. United States v. Mendenhall, 446 U.S. 544, 551, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). A traffic stop is a detention that implicates the Fourth Amendment. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). The Supreme Court has made it clear that a detention should only last as long as it [sic] necessary to effectuate the purpose of the stop. Ferris v. State of Maryland, 355 Md. 356, 369, 735 A.2d 491 (1999)(quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). As previously discussed, the stop, of Defendant implemented the Fourth Amendment but was a valid seizure based on probable cause-the Defendant was speeding. There are numerous cases that discuss when it is appropriate for an officer to detain a driver for further investigation, once the purpose of the traffic stop has been fulfilled. In two instances the detainment is constitutionally permissible under the Fourth Amendment: (1) the driver consents to the continuing intrusion; (2) the officer has a reasonable, articulable suspicion that a crime is being or is about to be committed. Ferris, 355 Md. at 372, 735 A.2d 491 (citing United States v. Sandoval, 29 F.3d 537, 540 (10th Cir.1994)). To determine whether a seizure has occurred under the Fourth Amendment, the test is whether in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Ferris, 355 Md. at 376, 735 A.2d 491.

Before addressing the issue of consent and reasonable suspicion, the Court must determine whether the stop of Defendant constituted one or two stops. The Court is assisted by the video tape which provides a minute by minute recordation of the stop. Sergeant Lewis stopped Defendant at approximately 1:50 p.m. and activated the recording system immediately thereafter. At 1:53 p.m. Sergeant Lewis received confirmation that Defendant's license was valid. At 2:00 p.m. Sergeant Lewis received information regarding the registration of the vehicle. Sergeant Lewis testified that in this time period he began to prepare a warning citation for the speeding offense. Sergeant

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