State v. Jones, 1271

• Court: Court of Special Appeals of Maryland
• Citation: 653 A.2d 1040,103 Md.App. 548
• Docket Number: No. 1271,1271
• Parties: STATE of Maryland v. Samuel JONES, Jr. ,
• Decision Date: 01 September 1994

Page 548

103 Md.App. 548 653 A.2d 1040 STATE of Maryland
v.
Samuel JONES, Jr. No. 1271, Sept. Term, 1994. Court of Special Appeals of Maryland. Feb. 14, 1995.

[653 A.2d 1041]

Page 550

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

No brief or appearance by appellee.

Argued before MOYLAN, BISHOP and BLOOM, JJ.

MOYLAN, Judge.

I. Introduction

In the one-third of a century that has transpired since the Supreme Court held in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), that the Exclusionary [653 A.2d 1042] Rule of Evidence, as a sanction for a violation of the Fourth Amendment, was binding on the states, there have been untold thousands of instances in which appellate courts, state and federal, have been called upon by defendants to reverse determinations by suppression hearing judges and trial judges that probable cause, to support either a search warrant or appropriate warrantless activity, did exist. Where interlocutory appeals by the prosecution have been statutorily authorized,

Page 551

there have been hundreds, if not thousands, of instances where appellate courts have been called upon by prosecutors to reverse determinations by suppression hearing judges that probable cause did not exist.

Despite the vital and ongoing importance of the probable cause question and the frequency with which it has arisen and will continue to arise, the Supreme Court has remained through all of those years cryptically silent, in the warrantless context at least, as to what the proper standard of review should be and as to how appellate courts should handle their reviewing obligation. Incomprehensibly, the case law from the lower federal courts and from the state appellate courts alike has been almost equally bereft of any in-depth guidance as to what the appropriate standard of appellate review is--let alone as to why it is. Those unanswered questions, ironically, go to the very heart of the appellate process. ¹ In the appellate business, we think about a lot of things, but we seldom think about thinking. We tend to neglect the most basic tools of our craft.

Pursuant to the provisions of Md.Code Ann., Cts. & Jud.Proc. § 12-302(c)(3), the State is asking us to reverse the pretrial decision by Judge Raymond J. Thieme, Jr. in the Circuit Court for Anne Arundel County that certain physical evidence be suppressed. As to whether we should do so 1) because Judge Thieme was clearly erroneous in failing to find probable cause; 2) because he clearly abused his discretion in suppressing the evidence; 3) because he was wrong, as a matter of law, in failing to find probable cause; or 4) because we, without necessarily finding any error on his part, should simply "trump" his decision by way of our own de novo decision to the contrary, the State is understandably vague. In the service of its immediate purpose, any of the above will suffice. If the State gets the right answer, the question hardly matters.

Page 552

For us, however, the problem is not in finding the right answer; it is in asking the right question. What precisely was Judge Thieme's finding? What was the essential nature of that finding? What standard of appellate review should be applied to such a finding?

II. The Present Case

The appellee, Samuel Jones, Jr., was indicted by the Anne Arundel County grand jury for both the possession and the distribution of crack cocaine. On the night of December 16, 1993, Officer Sean W. Ottey recovered a quantity of crack cocaine from Jones's left front pants pocket. As the State acknowledges, as a precondition of taking this appeal pursuant to § 12-302(c)(3)(iii), the case against Jones rises or falls with the admissibility of that crack cocaine. Jones moved, pretrial, to have the cocaine suppressed on the ground that it was the product of an unconstitutional search and seizure under the Fourth Amendment. A suppression hearing was held on July 7, 1994. On August 1, Judge Thieme ruled that the evidence be suppressed.

Although three witnesses testified at the suppression hearing, we can narrow our focus onto the testimony of the State's key witness, Officer Ottey. Officer Thomas Rice also testified for the State, but his testimony did no more than corroborate that of Officer Ottey and will figure no further in our analysis. The appellee, Samuel Jones, Jr., also testified but Judge Thieme did not find his testimony to be credible and rejected it. For analytic purposes, therefore, it is as if Jones had never taken the stand. The only testimony that matters is that of Officer Ottey. Judge Thieme found Officer Ottey to be [653 A.2d 1043] credible and accepted his eyewitness account of the critical events, although not necessarily his "expert" opinion.

Officer Ottey described the neighborhood in the vicinity of Carver Street and Dorsey Avenue in Annapolis where he was on routine patrol on the evening of December 16. He characterized the area as one known to be "an open-air drug market." Judge Thieme found Officer Ottey to be credible and accepted as a fact that the area was, indeed, a well-known

Page 553

open-air drug market. Officer Ottey testified that he had received numerous complaints from citizens in the community about drug transactions taking place and that he and other Annapolis police officers had made numerous drug arrests in the area. He testified further that in the course of making those drug arrests and patting down the drug suspects, he had found weapons and crack cocaine. He testified that the crack cocaine was usually packaged in small, self-sealing, clear plastic envelopes. This characterization of the neighborhood we accept as a given, because Judge Thieme did, as we proceed with our analysis.

III. The Consent Search

Officer Ottey testified that he observed Jones standing with another individual on the corner of Carver Street and Dorsey Avenue. Officer Ottey approached Jones, told him that he was in a known drug area, and asked him why he was there. The question was apparently rhetorical for the officer did not await an answer. Officer Ottey then asked Jones "if he had any drugs or ... guns on him and if I could check him." Jones indicated that he did not have drugs or guns on his person and gave Officer Ottey permission to "check him."

Although Jones, to be sure, gave a diametrically contrary account of that prelude to the search, Judge Thieme accepted Officer Ottey's version of the events. His finding that the ensuing search was consensual had solid support in the evidence, to wit, in the testimony of Officer Ottey. ² We also accept that finding by Judge Thieme as a given for purposes of further analysis.

The ensuing consensual "check" of Jones for "drugs and/or guns" coincidentally resembled a frisk for weapons. Officer Ottey testified that he "began a pat-down, checking him, starting up at the upper part of his body working my way to the lower part of his body." We stress the merely coincidental

Page 554

nature of that resemblance, however, for this was not a "frisk" within the contemplation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). This intrusion was not based on articulable suspicion to believe that Jones was armed. It was based on consent and was, therefore, limited only by the limits imposed on that consent. ³ Consequently, there was no doctrinal requirement that it necessarily be limited in scope to a pat-down of the exterior of the clothing surface.

A consensual "check" for weapons might well be interpreted as being thus limited, but a consensual "check" for drugs could just as reasonably have been interpreted by the officer to confer permission to go into the pockets. Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). For whatever reason, however, Officer Ottey did not push the consensual "check" of Jones beyond the limits typically associated with a formal "frisk" for weapons. Although not dealing with a formal "frisk" as that term of art is used, we nonetheless end up with an indistinguishable pat-down of the exterior of the clothing surface.

In the course of that pat-down and while the consent was still operational, Officer Ottey felt something in Jones's left front pants pocket. He described his tactile sensation:

653 A.2d 1044] A: When I squeezed it, prior to him revoking consent, I could feel the numerous rock-like substances in there, and I knew right then and there that I had crack cocaine ... in his pocket

Q: Based on your training and experience, was it readily apparent what it was, the nature of the substance?

A: Yes, sir.

Page 555

What we have as a given, based on Judge Thieme's acceptance of the credibility of Officer Ottey as to his first-hand observations, is the fact that Officer Ottey, from outside Jones's pants, felt a bulge in the pocket, squeezed it, and felt "numerous rock-like substances." Whether we also have as a given Officer Ottey's conclusion that what he felt was crack cocaine is far more problematic and will be discussed in detail as our analysis progresses. What Judge Thieme said with respect to Officer Ottey's conclusion was:

I have to make my determination as to whether I am going to accept the expert's opinion based upon the facts upon which his opinion was based. And there are insufficient facts for me to accept that opinion.

At that point in the pat-down process, Officer Ottey, upon feeling the rock-like substances, asked Jones what the rock-like substances were. Rather than answer the question, Jones said, "I don't want to be checked anymore." At that point, the consent was indisputably at an end. The overarching principle with respect to consensual searches is that the scope of the consent, both in terms of the intensiveness of the search and in terms of the duration...