State v. Harding

• Decision Date: 10 December 2010
• Docket Number: No. 0083, Sept. Term, 2010.,0083, Sept. Term, 2010.
• Citation: 9 A.3d 547,196 Md.App. 384
• Parties: STATE of Maryland v. Gregory Maurice HARDING.
• Court: Court of Special Appeals of Maryland

9 A.3d 547

196 Md.App. 384

STATE of Maryland

v.Gregory Maurice HARDING.

No. 0083, Sept. Term, 2010.

Court of Special Appeals of Maryland.

Dec. 10, 2010.

Brian S. Kleinbord (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellant.

Ivan J. Bates (Thomas M. Donnelly, Donnelly & Mowery LLC, on the brief) Baltimore, MD, for appellee.

Panel: ZARNOCH, GRAEFF, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

CHARLES E. MOYLAN, JR., J. (Retired, Specially Assigned).

The decision in this State appeal from an adverse pretrial suppression ruling was filed on October 7, 2010, in order to satisfy the time limit established by Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(3)(iii) (1973, 2006 Repl.Vol.). We reversed a pretrial order to suppress physical evidence. We indicated that an opinion explaining our decision would follow.

A Strip Search

With yet no direct guidance from the Supreme Court, a nation-wide debate (orseries of more or less related debates) has been raging over the extent to which the search of an individual for evidence may, in its intensity, go beyond the limits of the traditional search incident to lawful arrest and still be deemed reasonable within the contemplation of the Fourth Amendment. That debate, thus far, has produced far more heat than light. The case law and the academic commentary have been growing so prolifically that they are producing a chaotic sprawl. An effort has to be made to organize this growing mass of material into more manageable and comprehensible sub-units. Part of our goal in this opinion will be that of reducing the doctrinal clutter.

Our special concern on this appeal will be with the precise justification required to expand a routine search incident into what may be characterized as a "strip search." The law has been in a quandary about how to understand, and to explain, the relationship between the strip search and the search incident. The heart of the problem is that the strip search grows out of the search incident-but not automatically. In getting a handle on that troubled relationship, the key concepts will be 1) that a search incident does not demand particularization but 2) that a strip search (or anything more invasive) does.

Procedural Background

The Grand Jury for Baltimore County returned an indictment on October 5, 2009, charging the appellee, GregoryMaurice Harding, with the possession of cocaine with intent to distribute. The appellee moved, pretrial, to suppress the baggy of crack cocaine that fell to the floor as he took off his pants during what the suppression hearing judge described as a "strip search" at a police precinct headquarters. In ruling that the evidence would be suppressed, the judge found that the police did not have "a reasonable articulable suspicion to do the strip search":

So, the Court considered the testimony of the officers in this case who would be the only ones that could describe the reasonable articulable suspicion, as well as any of the evidence submitted, and this Court does not find reasonable articulable suspicion in this case-which the Court recognizes is a lower standard than probable cause- but this Court does not find that there was a reasonable articulable suspicion to do the strip search.

(Emphasis supplied).

Legal Antecedents To the Station House Search

There is a single limited issue before us, and that is whether there was adequate justification for the more intensive search, characterized by the judge as a "strip search," that took place at the station house after the appellee's traffic stop and ultimate roadside arrest on the evening of September 10, 2009. As the hearing judge ruled, and as we agree, all of the steps taken by the police prior to that station house search were reasonable according to the Fourth Amendment.

A. Traffic Stop:

On September 2, 2009, Detective Richard Hearn and Detective Timothy Stadler of the Vice and Narcotics Section of the Baltimore County Police Department received information from a "very reliable informant" that the appellee was selling crack cocaine out of a blue Audi, with the Maryland tag number 7EPG15, in the Towson and Parkville areas. The two detectives had been using that particular informant for between five and six months and he had provided "reliable" information in other cases that had "led to numerous CDSarrests and search warrants." Anotherdetective in the unit also stated that he had received a complaint two or three months earlier that a man named Harding was selling crack cocaine at a liquor store on Perring Parkway and McClean Boulevard.

On September 10, 2009, eight days later, Detectives Hearn and Stadler were conducting undercover surveillance on Joppa Road when they spotted the blue Audi with the license tag number that had earlier been supplied by the informant. The appellee was driving the Audi with no passengers.

The detectives called upon a marked police car, driven by Sergeant John Matthews, to make a traffic stop if the opportunity presented itself. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Sgt. Matthews paced the Audi and found that it was traveling at a speed of 50 miles per hour in a 35 mile per hour zone. Seizing the opportunity, he stopped the Audi and issued it a written warning for speeding. The hearing judge ruled that the traffic stop did not offend the Fourth Amendment.

The first issue that the Court has considered and has been raised is the validity of the traffic stop in the first place, whether or not the stop was appropriate. It's the Defendant's position that the stop was not appropriate based on what was there. However, this Court, in looking at the totality of the circumstances and the information that the police had, believes that the stop was appropriate; that there was sufficient grounds to make the stop; that based on the information-and the law is very clear that if there is sufficient information to make a stop, that the State or the government is allowed to make traffic stops and look for technical violations in order to find more information. That is totally appropriate. It's condoned by the Courts, and in this case this was a proper traffic stop.

(Emphasis supplied).

No issue in that regard is now before us.

B. The Canine Alert:

As a routine part of the traffic stop, Sgt. Matthews checked, via police radio, the appellee's driver's license number and vehicle registration. While that checking was in process, the two detectives called in a K-9 unit. Within two minutes of the initial traffic stop, Officer Samantha Roberts was on the scene with her trained drug-sniffing dog, Aaron. Aaron alerted twice on the Audi, once at the driver's side door and then again on the driver's seat. The hearing judge also ruled that this stage of the investigation passed constitutional muster.

So, then the next question is whether or not his calling in of the K-9 Unit was proper based on the evidence presented. It's the Defendant's position that basically the dog shouldn't have been called based on the information, but this Court disagrees. This Court finds there was sufficient information based on evidence that the State had-which is what the police had-to call the K-9.

There is no issue raised that the dog was called in late or it was some timing issue. It was actually very quick. So, there's no issue on that. Now, as to the second issue in terms of propriety of the K-9 unit being called in, the Court finds that was proper.

(Emphasis supplied).

There is no issue before us in this regard. Actually, of course, as long as the automobile is still properly being detained, the police need no justification for calling in the K-9 unit. The hearing judge found more than was necessary.

C. Arrest Based on K-9 Alert:

There is also no question but that Aaron's positive alert furnished probable cause for both a Carroll Doctrine search of the Audi and for the arrest of the appellee as the driver of the Audi. In State v. Ofori, 170 Md.App. 211, 229-34, 906 A.2d 1089 (2006), on which the hearing judge relied, we began this part of our analysis by quoting from Fitzgerald v. State, 153 Md.App. 601, 620, 837 A.2d 989 (2003), aff'd, 384 Md. 484, 864 A.2d 1006 (2004), and then went on:

The same degree of certainty that will support the warrantless Carroll Doctrine search of an automobile will, ipso facto, support the warrantless arrest of a suspect.

153 Md.App. at 620, 837 A.2d 989. We thought that what we there said meant that, in circumstances such as those involving a K-9 sniff, probable cause to search the vehicle is, ipso facto, probable cause to arrest, at the very least, the driver. If any further clarification is necessary, that is, indeed, what we meant.

The Supreme Court's decision in Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), is absolutely dispositive. Because of the close association between contraband in a vehicle and the driver of (or other passenger in) the vehicle, either finding the drugs in the vehicle, as in Pringle, or probable cause to believe that they are in the vehicle, as in this case, necessarily implicates the driver and passengers. Whatever the level of certainty we have reached with respect to the presence of contraband itself, its association with the occupants of the vehicle is the same. In terms of that inculpatory association, the Supreme Court's unanimous opinion observed:

We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly.

540 U.S. at 372, 124 S.Ct. 795 (emphasis supplied).

In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), the Supreme Court, as part of a hypothetical discussion, stated that a positive K-9 "alert" on a suspect's luggage would

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