State v. Ott

• Decision Date: 01 September 1990
• Docket Number: No. 1218,1218
• Citation: 584 A.2d 1266,85 Md.App. 632
• Parties: STATE of Maryland v. Thomas E. OTT, III
• Court: Court of Special Appeals of Maryland

Page 632

85 Md.App. 632

584 A.2d 1266

STATE of Maryland v. Thomas E. OTT, III.

No. 1218 Sept. Term, 1990.

Court of Special Appeals of Maryland.

Jan. 29, 1991.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Lawrence A. Dorsey, Jr., State's Atty. for Frederick County of Frederick, on brief), for appellant.

Jose Felipe Anderson, Asst. Public Defender (Stephen E. Harris, Public Defender and Victoria S. Keating, Asst. Public Defender, on brief), Baltimore, for appellee.

Argued before GARRITY, ALPERT and FISCHER, JJ.

ALPERT, Judge.

In this case, the State charged Thomas E. Ott, III (appellee) with possession of a controlled dangerous substance, possession of a controlled dangerous substance with intent to distribute, and possession of drug paraphernalia. After a hearing on Ott's motion to suppress the evidence, the Circuit Court for Frederick County granted the motion and the State (appellant) appeals to us from that ruling.

FACTS

Corporal James Fogle of the Frederick County Sheriff's Office was the sole witness who testified at the suppression hearing. His testimony established the following facts:

On January 5, 1990, Corporal Fogle was on routine patrol near the Francis Scott Key Mall in Frederick, Maryland. At about 1:40 a.m., he observed two people sitting in a car in an otherwise deserted public parking lot in that mall. No signs were posted that said "No trespassing," nor were there any indicating that parking was prohibited after certain hours. In short, no restrictions had been posted at all. Fogle stopped to check the car and its occupants because of thefts and acts of vandalism that previously had occurred in the parking lot. When he decided to do so, he saw nothing suspicious occurring in the car or anywhere else nearby.

Fogle asked the two individuals their names and also asked what they were doing there. They identified themselves as Thomas Ott (seated in the driver's seat) and Sandra Sorenson (seated in the passenger's seat), and said that they were just talking. After Fogle obtained identification from each one, he radioed police headquarters to run a computer check to determine whether either of them was the subject of an outstanding warrant. Nothing in Fogle's testimony suggested that Ott's or Sorenson's responses to his initial questions were suspicious in any manner; likewise, Fogle appears to have requested written identification to run a computer check as a matter of routine. The computer check indicated that an outstanding warrant existed for Ott because of his failure to appear in a civil "non-payment" case. Fogle subsequently arrested Ott on this basis. Fogle then asked Sorenson--the car owner--to step out of the car so that the other officers on the scene could conduct a search incident to Ott's arrest. As Sorenson exited the car, Corporal Johnson spied a twenty-dollar bill rolled up into a straw that fell from her lap. Fogle confiscated the bill as evidence, recognizing that it could be used to ingest controlled dangerous substances. The officers proceeded to search the car. They discovered in the glove compartment three bags of a white powdery substance that Fogle recognized to be cocaine. In addition, they found under the passenger seat a small round mirror with a white powdery residue on it. The officers handcuffed Ott and Sorenson, and transported them both to the police station. After Ott signed a waiver of rights form, he told Corporal Smith that he was trying to sell the cocaine to get out of debt.

Corporal Fogle later determined that, in fact, no outstanding warrant existed for Ott because the bench warrant had been satisfied on December 29, 1989. Another sheriff apparently had served the warrant, but had not removed it from the computer before January 5, 1990. At the suppression hearing, the State introduced a computer printout which showed that there was an active warrant when Corporal Fogle ran the computer search.

The State rested at the conclusion of Corporal Fogle's testimony; defense counsel announced that he would not present any evidence, only argument. At that point, the State argued that Ott did not have standing to object to the vehicle search because Sorenson owned the car. Defense counsel countered that Ott indeed had standing because he had been sitting in the driver's seat. Defense counsel also argued that the court should suppress the evidence because no outstanding warrant existed when Fogle arrested Ott on January 5, 1990.

The trial court held that Ott had standing by virtue of "his sitting in the passenger seat of the vehicle at the time that the officers came up." The court further held that the officers had no probable cause "in the first place to go in like they did." Finally, the court held that the officers could not search the glove compartment incident to Ott's arrest "[b]ecause the weapons would certainly be outside the reach of Mr. Ott who was already handcuffed according to the officers." For these reasons, the court granted Ott's motion to suppress the evidence. On appeal, the State asks us to decide whether the trial court erred when it suppressed the evidence that the officers seized incident to Ott's arrest.

The Search and Seizure

The State contends that the trial court erred when it granted Ott's motion to suppress the evidence. It argues that we should reverse the trial court's decision for any one of the following three reasons: (1) Ott lacked standing to challenge the lawfulness of the vehicle search, (2) Ott's arrest was legal and the search therefore was a valid search incident to a lawful arrest, and (3) even if the arrest technically was improper because no outstanding warrant existed when Corporal Fogle arrested Ott, the officer acted in good faith so the exclusionary rule should not apply.

Because we shall hold that there was no Fourth Amendment violation, we assume arguendo that Ott had standing to challenge the lawfulness of the vehicle search and therefore need not address that issue.

A. Initial Encounter

1. Police-Citizen Encounter

The State argues that neither probable cause nor articulable suspicion was required for Corporal Fogle to approach the car and to question the occupants. We agree.

Not every encounter between police officers and citizens engages the protections of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968). These protections would apply only if a police officer "seized" a citizen during the course of such an encounter. See 3 W. LaFave Search and Seizure § 9.2(h), at 402 (1987) [hereinafter W. LaFave ]. "[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." ¹ United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); see also Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983). More than mere questioning by a police officer is required to make a reasonable person believe that he or she is not free to leave, and a number of courts have held that no seizure occurred when a police officer approached a parked car to ask the occupants a few questions. See 3 W. LaFave, supra, § 9.2(h), at 408-09 & n. 230 (1987 & Supp.1991).

In this case, Corporal Fogle approached the parked car and asked the two occupants who they were and what they were doing. They identified themselves and said that they were "just talking." In our view, this exchange did not constitute a seizure within the meaning of the Fourth Amendment. We think that a reasonable person under these circumstances would have believed that he or she was "free to leave." That is, Officer Fogle did nothing to add to the "moral and instinctive pressures to cooperate" that Ott and Sorenson might have felt by "engaging in conduct significantly beyond that accepted in social intercourse." ² See 3 W. LaFave, supra, § 9.2(h), at 412; see also supra note 1.

2. Identification Request

We further hold that the officer's subsequent request for Ott's identification ³ to run a computer check was reasonable and did not turn the consensual encounter into a seizure under the Fourth Amendment. Maryland cases have interpreted sections 13-409 ⁴ and 16-112 ⁵ of the Transportation Code to authorize police officers to request an individual's driver's license and/or vehicle registration card. See Byrd v. State, 13 Md.App. 288, 292-93, 283 A.2d 9 (1971); Taylor v. State, 9 Md.App. 402, 405-06, 264 A.2d 870 (1970); see also Beckwith v. State, 78 Md.App. 358, 362 n. 4, 553 A.2d 259 (1989), rev'd on other grounds, 320 Md. 410, 578 A.2d 220 (1990).

The facts in the case sub judice are similar to those in Taylor v. State, 9 Md.App. 402, 264 A.2d 870 (1970). In Taylor, a police officer observed two young men sitting in a car, which was parked in front of a bar in a high crime area of the city at 12:15 a.m. Id. at 404, 264 A.2d 870. Knowing that " 'it's the younger generation generally observed stealing cars,' " the officer asked James Edward Taylor, who was seated in the driver's seat, for a driver's license and vehicle registration card. Id. The officer took these documents and called the police station to determine whether the vehicle was stolen and whether there were any warrants outstanding on Taylor. Id. There were, as it happened, and the officer arrested Taylor. Id. at 404-05, 264 A.2d 870. After the arrest, the officer observed two brown envelopes on the front seat. Id. at 405, 264 A.2d 870. He knew from experience that these often were used for narcotics. Id. Examination of these envelopes revealed a "large number of capsules and a leafy substance," later determined to be methadone and marijuana. Id. The trial court admitted the narcotics into evidence over Taylor's objections. Id. Taylor appealed from his conviction of unlawful possession of narcotics,...