State v. Wallace

• Citation: 372 Md. 137,812 A.2d 291
• Decision Date: 11 December 2002
• Docket Number: No. 29,29
• Parties: STATE of Maryland v. Earmon Alvin WALLACE, Sr.
• Court: Court of Appeals of Maryland

812 A.2d 291

372 Md. 137

STATE of Maryland v. Earmon Alvin WALLACE, Sr.

No. 29, Sept. Term, 2002.

Court of Appeals of Maryland.

December 11, 2002.

Reconsideration Denied February 11, 2003.

Gary E. Bair, Solicitor General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for petitioner.

Bradford C. Peabody, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ CATHELL, Judge.

On July 26, 1999, respondent was charged in a three-count indictment with various narcotics violations arising from his arrest on July 9, 1999. On February 1, 2000, the Circuit Court for Anne Arundel County held a hearing on a pre-trial motion to suppress evidence during which respondent argued that his search was not based upon probable cause and as a result the contraband seized from him on the night of his arrest should not be permitted into evidence at trial. On February 3, 2000, the motions court filed a written opinion denying respondent's motion to suppress. On September 28, 2000, following a bench trial, respondent was convicted on an agreed statement of facts and was found guilty of possession with intent to distribute cocaine. On November 29, 2000, that court sentenced respondent to 20 years' incarceration, with all but five years suspended. On December 14, 2000, respondent noted a timely appeal to the Court of Special Appeals. On February 27, 2002, in a reported opinion, the intermediate appellate court reversed the judgment of the circuit court. Wallace v. State, 142 Md.App. 673, 791 A.2d 968 (2002). On June 10, 2002, we granted the State's Petition for Writ of Certiorari. State v. Wallace, 369 Md. 301, 799 A.2d 1262 (2002). Petitioner presents one question for our review:

"Did the Court of Special Appeals incorrectly hold that a passenger in a vehicle could not be searched after a drug dog has alerted an officer to the presence of illegal drugs in the vehicle, notwithstanding that the alert provided probable cause to believe drugs were present in the vehicle and/or on the person of one or more of the occupants of the vehicle?"

We affirm the judgment of the Court of Special Appeals, answer no to petitioner's question, and hold that the police did not have probable cause to search respondent, a passenger in the vehicle. Further, we hold that the Court of Special Appeals properly held that a positive canine alert to contraband in a vehicle, without more, does not establish probable cause to search all of the passengers in a vehicle.

I. Facts

On July 9, 2000, at approximately 3:00 a.m., Officer Jessica Hertik was driving her marked police car eastbound on Forest Drive in Annapolis, Maryland. As she approached Hilltop Lane, a forty mile per hour road, she observed a four-door Buick driving at a high rate of speed in the opposite direction. She made a U-turn and accelerated to 90 m.p.h. to catch up to the Buick. In addition to speeding, Officer Hertik saw the vehicle run a red light. Officer Hertik then activated her emergency equipment and the Buick pulled over.

Officer Hertik stopped behind the vehicle, exited her car and approached the driver's side of the Buick. Sitting inside of the vehicle was the male driver, a male front seat passenger, and three back seat passengers—respondent and two women. Officer Hertik recognized respondent and two of the other passengers from a previous encounter, although in her testimony at the suppression hearing she did not describe that encounter. She informed the driver that she had stopped the vehicle for speeding and for not stopping at a traffic light. The driver of the car complied when Officer Hertik requested to see his driver's license and car registration.

When Officer Hertik walked back to her car, she met another officer who had arrived at the scene. She was Officer Elizabeth Nelson who was on duty with Bosco, her drug detection dog.¹ Officer Hertik explained what had occurred and then proceeded to run a license check and write two tickets. In the meantime, other police units had arrived on the scene and these additional officers watched the Buick while Bosco scanned the vehicle. Bosco made two positive alerts to the presence of drugs at the front and rear seam of the driver's side front door. Officer Nelson testified that, because of various factors, i.e., air currents in the vehicle, there is little correlation between where a canine alerts and where drugs are found in the vehicle; rather it is just a general alert to the whole of the passenger compartment of the car itself.

Officer Nelson advised Officer Hertik, who was still in the process of writing tickets, that Bosco had made a positive alert on the vehicle. While Officer Nelson returned Bosco to her patrol car, Officer Hertik approached the Buick to speak with the driver. She informed the driver that she suspected that the vehicle contained drugs and asked the occupants to exit the vehicle so the police could search them.

The occupants were taken out of the car one at a time and searched while the others remained in the car. The other officers watched the occupants of the car while the searches were being conducted. Officer Jonathan Supko, one of the officers who had arrived at the scene, searched the three males. Officer Supko testified that his actions were not a mere "frisk" or "pat down" but were intended to discover anything suspicious, for "anything apparent... [w]eapons and what not." Officer Supko first searched the driver and then he searched the front seat passenger.

Officer Supko next searched respondent, who was sitting behind the front passenger seat. During the search Officer Supko felt a hard object near respondent's groin, which he said he knew was not a gun, knife, or other weapon. Officer Supko handcuffed respondent with his hands behind his back, told him he was "not under arrest at th[at] time" and walked him to a grassy area away from the road to complete the search. Officer Supko stated that he had handcuffed respondent "just for my safety and his safety."

As they walked over to the grassy area, respondent moved his hips in an apparent attempt to shake the object loose. When the officer searched respondent's groin area again, the object was gone. Officer Supko saw, however, something protruding from respondent's left pants leg, which turned out to be a clear plastic baggie containing several pieces of suspected cocaine. Respondent was placed under arrest.

The two females were searched after respondent. Officer Hertik searched one of them herself. Officer Hertik searched the vehicle only after each of the occupants of the car was searched. She found $1,155 in cash in someone's shorts in the front passenger seat and a knife in a purse in the backseat. No drugs were found in the car.

Respondent alleged at a suppression hearing that there was not probable cause for his search and, as a result, the cocaine seized from him at the time of his search should be suppressed as evidence to be used at trial. The trial court denied his suppression motion and respondent was, as indicated supra, ultimately convicted of possession with intent to distribute cocaine. On appeal, the Court of Special Appeals reversed the judgment of the circuit court and that court's denial of respondent's motion to suppress.

II. Standard of Review

Our review of a circuit court's denial of a motion to suppress evidence under the Fourth Amendment, ordinarily, is limited to the information contained in the record of the suppression hearing and not the record of the trial. Carter v. State, 367 Md. 447, 788 A.2d 646 (2002); Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999); In re Tariq A-R-Y, 347 Md. 484, 488, 701 A.2d 691, 693 (1997), cert. denied, 522 U.S. 1140, 118 S.Ct. 1105, 140 L.Ed.2d 158 (1998); Simpler v. State, 318 Md. 311, 312, 568 A.2d 22, 22 (1990); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749, 755 (1987). When there is a denial of a motion to suppress, we are further limited to considering facts in the light most favorable to the State as the prevailing party on the motion. See Scott v. State, 366 Md. 121, 143, 782 A.2d 862, 875 (2001)

; Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990); Simpler, 318 Md. at 312,

568 A.2d at 22. Even so, we review legal questions de novo, and where, as here, a party has raised a constitutional challenge to a search or seizure, we must make an independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case. See Stokes v. State, 362 Md. 407, 414, 765 A.2d 612, 615 (2001) (quoting Jones v. State, 343 Md. 448, 457-58, 682 A.2d 248, 253 (1996)); Wilkes v. State, 364 Md. 554, 569, 774 A.2d 420 (2001); In re Tariq A-R-Y, 347 Md. at 489, 701 A.2d at 693. We will not disturb the trial court's factual findings unless they are clearly erroneous. See Wengert v. State, 364 Md. 76, 84, 771 A.2d 389, 394 (2001).

III. Discussion

Petitioner contends that a positive canine alert in and of itself provides the police with probable cause to search all passengers in an automobile and that the Court of Special Appeals improperly held that the positive canine alert in this case did not give the police probable cause to search respondent on the night in question. As indicated supra, we disagree with petitioner's contention and affirm the decision of the Court of Special Appeals.

The Fourth Amendment to the United States Constitution states:

"The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

There are certain well-defined exceptions to the Fourth Amendment's requirement...