Stokeling v. State

• Decision Date: 30 December 2009
• Docket Number: No. 1126, September Term, 2008.,1126, September Term, 2008.
• Citation: 985 A.2d 175,189 Md. App. 653
• Parties: Michael Anthony STOKELING v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

985 A.2d 175

189 Md. App. 653

Michael Anthony STOKELING v. STATE of Maryland.

No. 1126, September Term, 2008.

Court of Special Appeals of Maryland.

December 30, 2009.

Brian L. Zavin (Nancy S. Forster, Public Defender, on brief), for Appellant.

Carrie J. Williams (Douglas F. Gansler, Atty. Gen., on brief), for Appellee.

Panel: EYLER, DEBORAH S., GRAEFF, and ALPERT, PAUL E. (Retired, Specially Assigned), JJ.

EYLER, DEBORAH S., J.

In the Circuit Court for Harford County, Michael Anthony Stokeling, the appellant, was charged with possession of marijuana. Before trial, he moved to suppress the marijuana from evidence as having been obtained in violation of his Fourth Amendment rights. The suppression motion was denied.

The parties proceeded with a not guilty plea on an agreed statement of facts. The appellant was convicted of possession of marijuana. He was sentenced to two years in prison, with all but one year and one day suspended, to be followed by three years' probation. He also was fined $1,000, with all but $350 suspended.

In this appeal, the appellant asks whether the circuit court erred in denying his motion to suppress. We answer in the negative, and therefore shall affirm the judgment.

FACTS AND PROCEEDINGS

The following facts were adduced at the suppression hearing.

On August 26, 2007, at about 11:20 p.m., Officer Michael Webster, of the Aberdeen Police Department, was on patrol in a marked cruiser near Route 22 and Middleton Lane, when he saw the driver of a blue four-door Chrysler make a turn without using a turn signal. He called the Chrysler's license plate in to the dispatcher and learned that the Chrysler's owner, Danielle Durazzo, had had her driver's license suspended. At that point, Officer Webster pulled the Chrysler over for a traffic stop near a 7-Eleven store at 739 West Bel Air Avenue.

The Chrysler had three occupants. Officer Webster approached the car and asked them to identify themselves. Durazzo (the owner) was driving. The appellant was the front seat passenger. A female passenger was sitting in the backseat.¹

Officer Webster noticed that Durazzo and the appellant were "very nervous," and that the appellant was "shaking" and experiencing "rapid breathing." The officer called for a K-9 unit. Within a minute or two, Officer Todd Fanning and his certified K-9 partner, Gunny, arrived on the scene.² At Officer Fanning's command, Gunny scanned the vehicle. (The appellant and the other occupants were still inside.) Gunny alerted at the rear driver's side door, and then at the front passenger's side door.

Officer Fanning did not have Gunny scan the occupants of the Chrysler individually because that would not have been safe to do. As he explained, "We're not allowed to do that. Being that the dog is an aggressive alert dog, the way he would alert if he were to find something on the subject, he would scratch or bite at that location, and that wouldn't be good." After the scan of the Chrysler, but before the occupants were removed from the vehicle, Gunny was returned to Officer Fanning's patrol car.

Officer Fanning removed the appellant from the Chrysler and "patted him down for weapons. . . ." As he did so, he noticed that the appellant "was shaking quite a lot[.]" The officer asked him "why he was so nervous, why he was shaking." In response, the appellant said "it was cold out." Actually, the outside temperature was between 75 and 80 degrees.

When performing a weapons frisk, Officer Fanning typically pats down "on the outside . . . down both legs . . . the shirt, arms, around the neck area, the waistband, and the crotch area." During this pat-down, Officer Fanning "noticed that there was something large" that felt to him "like a bag of something in [the appellant's] crotch area." Officer Fanning had some difficulty patting the appellant down in that area because the appellant "wouldn't spread his legs completely apart." Officer Fanning did not attempt to remove the bag at that time because, as he put it, "I wasn't positive and I'm not going to stick my hands down somebody's pants in front of the 7-Eleven unless I strongly believe it's a weapon or a gun, but I knew it not to be a gun or a knife." No weapons were found in the pat-down.

After telling Officer Webster about feeling the bag in the appellant's crotch area, Officer Fanning "sat [the appellant] down on the curb till Officer Webster was done with the rest of his traffic stop." The female occupants were removed from the Chrysler and patted down. No weapons were recovered from them. They also were seated on the curb.

When the pat-downs were finished, Officer Webster and Officer Fanning each performed a complete search of the Chrysler. Officer Webster found nothing. Officer Fanning "observed marijuana residue in the middle console of the vehicle and the driver's side where you put — like the opening for maps, the map compartment in the driver's side door."

Thereafter, the appellant was handcuffed, placed in the backseat of Officer Webster's patrol car, and transported to the Aberdeen Police Department for a strip search. During the drive to the station house, he remained "[q]uiet and nervous," "withdrawn," and "tight." After Officer Webster and the appellant arrived in the booking area of the police station, but before the search began, the appellant announced that he had "weed" in his crotch area and that that probably was a violation of his parole. He then "reached down in the front of his pants and pulled out a clear baggie of suspected marijuana." (No strip search was performed.)

The court denied the suppression motion. It found that the traffic stop was valid and the K-9 unit responded immediately, without any delay. (The appellant does not contest either finding.) It concluded that the alert by the K-9 to the Chrysler gave rise to probable cause to arrest the appellant and search his person; that the search by Officer Fanning revealed a baggie of something at the appellant's crotch area; and that, under Paulino v. State, 399 Md. 341, 924 A.2d 308, cert. denied, 552 U.S. 1071, 128 S.Ct. 709, 169 L.Ed.2d 571 (2007), the officers were justified in taking the appellant to the police station to complete the search, given that it would involve removing his pants.

As noted, the parties proceeded on a not guilty plea with an agreed statement of facts. After the appellant waived his right to a jury trial, the parties agreed to incorporate the facts and rulings before the motion court for purposes of preserving the record for appellate review. The facts read into the record at the not guilty plea hearing were substantially the same as those adduced at the suppression hearing, with the addition that the substance the appellant removed from his pants at the police station was tested and found to be 15.5 grams of marijuana.

DISCUSSION

The sole issue on appeal is whether the motion court should have suppressed from evidence the marijuana in the baggie that was on the appellant's person. The appellant contends that, because he merely was a non-owner passenger in the Chrysler, the K-9 alert to the Chrysler, in and of itself, did not give rise to probable cause to believe he was involved in criminal activity, so as to justify an arrest and a search incident thereto. At most, he argues, the alert gave the police reasonable, articulable suspicion to detain the occupants of the Chrysler; it did not give them reasonable, articulable suspicion of criminal activity that would justify an investigatory frisk for weapons. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Moreover, he maintains, if a Terry frisk were permissible, no additional search or seizure would have been justified based upon Officer Fanning's findings during the frisk because the incriminating nature of the item in the crotch area of his pants was not immediately apparent.

The State responds that the K-9 alert to the Chrysler generated probable cause to believe that any or all of the car's occupants were in possession of illegal drugs and therefore to arrest them and search them incident to arrest. Alternatively, the K-9 alert generated reasonable, articulable suspicion of criminal activity on the part of all the occupants of the Chrysler, sufficient to justify a Terry frisk for weapons; and when, during the frisk, Officer Fanning felt a large bag of "something" at the appellant's crotch area, that, together with the discovery of marijuana residue in the Chrysler, created probable cause to believe the appellant was in possession of illegal drugs, and to arrest him and search him incident to the arrest.

In reviewing the denial of a motion to suppress evidence, we look exclusively to the record of the suppression hearing. Bost v. State, 406 Md. 341, 349, 958 A.2d 356 (2008); Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129 (2007). We extend great deference to the fact-finding of the suppression hearing judge with respect to determining the credibilities of contradicting witnesses and to weighing and determining first-level facts. Longshore, 399 Md. at 498, 924 A.2d 1129; accord Bost, 406 Md. at 349, 958 A.2d 356. When conflicting evidence was presented, we must accept the facts as found by the hearing judge unless those findings are shown to be clearly erroneous. Longshore, 399 Md. at 498, 924 A.2d 1129; see also Haley v. State, 398 Md. 106, 131, 919 A.2d 1200 (2007) ("We review the findings of fact for clear error and do not engage in de novo fact-finding."). Furthermore, when the motion to suppress is denied, the evidence is to be reviewed in the light most favorable to the State. Bost, 406 Md. at 349, 958 A.2d 356; State v. Williams, 401 Md. 676, 678, 934 A.2d 38 (2007); Longshore, 399 Md. at 498, 924 A.2d 1129. Nevertheless, as to the ultimate, conclusory fact, we must make our own independent, constitutional appraisal by reviewing the law and applying it to the facts. Bost, 406 Md. at 349, 958 A.2d 356; Williams, 401 Md. at 678, ...