State v. Funkhouser

• Decision Date: 27 September 2001
• Docket Number: No. 0085,0085
• Citation: 782 A.2d 387,140 Md. App. 696
• Parties: STATE of Maryland v. Samuel Donovan FUNKHOUSER.
• Court: Court of Special Appeals of Maryland

782 A.2d 387

140 Md. App. 696

STATE of Maryland v. Samuel Donovan FUNKHOUSER.

No. 0085, Sept. Term, 2001.

Court of Special Appeals of Maryland.

September 27, 2001.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Frank Weathersbee, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellant.

Byron L. Warnken (Law Offices of Bonnie L. Warnken, on the brief), Baltimore, for appellee.

Submitted before ADKINS, CHARLES E. MOYLAN, Jr. (retired, specially assigned), and PAUL E. ALPERT (retired, specially assigned), JJ. CHARLES E. MOYLAN, Jr., Judge (Retired, Specially Assigned)

This appeal, taken by the State from an adverse pre-trial suppression ruling, was noted on March 23, 2001. The record on appeal was filed in this Court on May 21. Briefs were filed and the case was submitted on brief for consideration by us on September 7. Under the time constraints of Courts and Judicial Proceedings Article, Sect. 12-302(c)(3)(iii), the decision of this Court was required to be filed no later than September 18. Accordingly, our decision, affirming the suppression ruling and assessing costs to the State, was filed on September 12. This opinion, explaining that decision, now follows.

* * *

In the criminal appellate process, adversaries do not always meet on a level playing field. The question of who possesses the advantage, however, is not a matter of status as State or as defendant. It is rather the ad hoc circumstance of which party, on a given occasion, enjoys the luxury of being the appellee and which suffers the burden of being the appellant. There is a strong presumption—a discernible "tilt" of the playing field—in favor of the status quo.

The appellee, Samuel Donovan Funkhouser, was charged by the Anne Arundel County Police Department with the possession of cocaine with the intent to distribute it. He moved, pre-trial, to have the physical evidence suppressed on Fourth Amendment grounds. Following a hearing in the Circuit Court for Anne Arundel County, Judge Eugene M. Lerner granted the suppression motion. Pursuant to Courts and Judicial Proceedings Article, Sect. 12-302(c)(3), the State has filed the present appeal. We affirm Judge Lerner's ruling that the evidence will be suppressed.

The Seizure and Subsequent Search: An Overview

On August 1, 2000, a white Jeep Wrangler, of which Funkhouser was the driver and sole occupant, was stopped by Detective Tom McBride, Jr. for an ostensible traffic violation. The traffic stop was ultimately followed by a warrantless search of the Jeep Wrangler for possible narcotics. After that search failed to produce either narcotics or other evidence, the police took from Funkhouser's person a pouch or "fanny pack" he had strapped around his waist and searched it. It contained a substance believed to be cocaine. As a result of that discovery, Funkhouser was arrested.

At the suppression hearing, Detective McBride and Detective Michael Barclay testified for the State. Funkhouser testified for the defense. At the conclusion of the hearing, Judge Lerner, without articulating any detailed findings of fact, made his ruling in essentially conclusory terms:

I am going to grant his motion to suppress. I don't believe that [Detective Barclay] has a right to search that—to come and pull the—unbuckle that thing around his waist and just go in there and search that pouch, that pouch that he had on. I am going to grant the motion.

The twenty to twenty-five minute period of escalating investigative activity between the initial traffic stop and the ultimate search of the fanny pack analytically breaks out into three distinct stages: 1) the traffic stop; 2) the warrantless automobile search, including two proffered justifications and the question of its possible scope; and 3) what was, in effect, the search of Funkhouser's person.

If Portia's quality of mercy was twice blessed, the State's case on this appeal is thrice cursed. It is fatally flawed at each of the three analytic stages. Any one of the flaws would be sufficient to support Judge Lerner's ruling. Because an analysis of this roadside confrontation presents such a potentially instructive teaching vehicle, however, it behooves us to examine the flaw at each of the three stages.

The Initial Whren Stop

Detectives McBride and Barclay were both narcotics officers, not traffic officers. On August 1, they had received a "tip" that a suspect driving a white Jeep Wrangler was in possession of a large quantity of cocaine at a gymnasium in a mall on Ritchie Highway. Their investigative purpose was to check out that "tip." With commendable candor, they freely acknowledged that they were taking advantage of the broad investigative prerogative available to them by virtue of Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In Charity v. State, 132 Md.App. 598, 601, 753 A.2d 556 (2000), this Court described that broad prerogative:

In Whren ... the Supreme Court extended law enforcement officers a sweeping prerogative, permitting them to exploit the investigative opportunities presented to them by observing traffic infractions even when their primary, subjective intention is to look for narcotics violations.

The Fourth Amendment, Whren taught, is unconcerned with the actual subjective motivation or purpose of an officer who makes a traffic stop. The officer may be, as were Detectives McBride and Barclay here, concerned only with catching a narcotics dealer. To that end, they may wait opportunistically for a traffic violation to occur and then pounce on that opportunity. What must never be forgotten, however, is that Whren establishes as an indispensable requirement that there be an actual, objectively measurable traffic violation. Absent an actual traffic infraction, the Whren scenario is never triggered.

What is unusual about this case is that the critical Whren issue is the objective occurrence of the triggering traffic infraction. Normally we are concerned with the scope or duration of an initially valid Whren stop.

The Shifting Lenses of Appellate Review

Both Detective McBride and Detective Barclay testified that they saw Funkhouser in the Jeep Wrangler exit the mall at a red light and make a right-hand turn onto Ritchie Highway without first coming to a complete stop. On that basis, they overtook and then stopped the Jeep Wrangler. Funkhouser, by diametric contrast, testified that what the detectives said was untrue. He testified that, because of heavy traffic coming down Ritchie Highway, he was stopped "for a good two minutes" before he was able to turn onto Ritchie Highway. If that were, indeed, the case, the traffic stop was objectively bad and everything that followed from it was the tainted "fruit of the poisonous tree."

As we prepare to make our own independent constitutional appraisal of the second-level or conclusory issue of whether the traffic stop was objectively reasonable, we are faced with the familiar problem, but in an unusual posture, of which version of first-level facts from which to proceed. The detectives' version yields a good stop; Funkhouser's version yields a bad stop. The choice is that simple.

Had Judge Lerner made detailed findings of first-level facts, of course, it would be those findings we would accept, unless clearly erroneous. It was of this deference that we spoke in Charity v. State, 132 Md.App. at 606, 753 A.2d 556:

The one obvious qualification to or modification of a reviewing court's acceptance of the version of the evidence most favorable to the prevailing party, of course, is with respect to findings of first-level fact actually made by the hearing judge. Except in rare cases of clear error, we give great deference to such findings of fact when actually made. The actual findings of fact made by the hearing judge, unless clearly erroneous, "trump" the version most favorable to the prevailing party to the extent to which they might be in conflict. Again, Judge Karwacki [in In re Tariq A-R-Y, 347 Md. 484, 488-89, 701 A.2d 691 (1997)] explained:

In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to determining the credibility of witnesses and to weighing and determining first-level facts. Riddick [v. State], 319 Md. [180] at 183, 571 A.2d [1239] at 1240. When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that those findings were clearly erroneous.

When we, as in this case, however, do not have express findings of fact by the hearing judge to which to defer, we are bound to take as true that version of the facts most favorable to the prevailing party. Again in the case of In re Tariq A-R-Y, 347 Md. at 488, 701 A.2d 691, Judge Karwacki explained:

We are further limited to considering only that evidence and the inferences therefrom that are most favorable to the prevailing party on the motion, in this instance the State. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990); see also Simpler v. State, 318 Md. 311, 312, 568 A.2d 22, 22 (1990).

See also Wilkes v. State, 364 Md. 554, 569, 774 A.2d 420 (2001) ("We review the facts found by the trial court in the light most favorable to the prevailing party.").

What is at least slightly unusual about this particular appellate review of a suppression ruling is the identification of the prevailing party. Of the suppression rulings that are appealed, nine times out of ten (if not 19 times out of 20) it is the State that is the prevailing party, with all the rights, honors and privileges thereto appertaining. In Whren situations, we typically accept as controlling the testimony of the stopping officer that he, indeed, observed the traffic violation that justified the stop. To the chagrin of defense counsel, we typically reject utterly the testimony of the defendant as if it had never been...