Sutton v. State

• Decision Date: 29 September 1999
• Docket Number: No. 1517,1517
• Citation: 738 A.2d 286,128 Md. App. 308
• Parties: Andre SUTTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

738 A.2d 286

128 Md. App. 308

Andre SUTTON v. STATE of Maryland.

No. 1517, Sept. Term, 1998.

Court of Special Appeals of Maryland.

September 29, 1999.

George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Patricia Jessamy, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before THIEME, ADKINS and JAMES S. GETTY (Retired, Specially Assigned), JJ.

THIEME, Judge.

Appellant was found guilty by a jury in the Circuit Court for Baltimore City of possession of cocaine and related offenses. The offenses were merged, and appellant was sentenced as a second offender to ten years of imprisonment without parole. This appeal followed and presents the following questions:

1. Did the trial court err in denying the appellant's motion to suppress?

2. Did the State fail to establish that the appellant could be sentenced as a subsequent offender?

We answer "no" to both of these questions.

Facts

On March 21, 1997, officers of the Baltimore City Police Department executed a search and seizure warrant at 2955 Clifton Avenue in Baltimore. Officer Chris Chevron testified that after the door to the residence was kicked in he went to the second floor. There, he discovered appellant Andre Sutton "sitting on the toilet in the bathroom with his clothing down around his knees."

Officers handcuffed Sutton and pulled his pants up. They then conducted a "quick cursory search of the Defendant's person ... for weapons only," and did not find any weapons at that time. The police recovered $1,760.00 in currency from Sutton's left pants pocket.¹ Sutton told the police that he had worked for this money. As Officer Chevron continued to search the second floor, he located in the front bedroom "various empty packag[es] used for controlled and dangerous substances, in addition to a small revolver silver in color with black tape around the handle." In addition, testimony at trial revealed that documents with Sutton's name thereon and a "one dollar bill folded up that contain[ed] a white powder substance" were also found.

Meanwhile, Sutton was taken downstairs, where he was again searched. Inside the crotch area of Sutton's pants, Detective Mike Wilhelm discovered a plastic bag containing 36 zip-lock bags of cocaine.²

During the suppression hearing in this case, Sutton was the only person to testify. He admitted that police seized the $1,760.00 in currency from his pants pocket, and maintained that he worked for and saved that money. Sutton testified that the cocaine was not found on his person, but that the police "showed" him a plastic bag (containing cocaine) and "said this is yours." Sutton's suppression motion was denied. A jury subsequently found Sutton guilty of possession of cocaine base with the intent to distribute it and possession of cocaine base.

Discussion

I. Standard of Review

In reviewing the denial of a motion to suppress, this Court looks to the facts adduced at the suppression hearing which are most favorable to the State as the prevailing party. In Re: Patrick Y, 124 Md.App. 604, 608-09, 723 A.2d 523 (1999). "In determining whether the denial of a motion to suppress ... is correct, the appellate court looks to the record of the suppression hearing, and does not consider the record of the trial itself." Trusty v. State, 308 Md. 658, 670, 521 A.2d 749 (1987). In considering that evidence, great deference is extended to the fact-finding of the suppression hearing judge with respect to weighing credibility and determining first-level facts. When conflicting evidence is presented, this Court accepts the facts found by the hearing judge, unless clearly erroneous. See Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990)

; Perkins v. State, 83 Md.App. 341, 346-47, 574 A.2d 356 (1990).

"When the question is whether a constitutional right ... has been violated, we make our own independent constitutional appraisal. We make the appraisal by reviewing the law and applying it to the peculiar facts of the particular case." Riddick, 319 Md. at 183, 571 A.2d 1239; see also Gamble v. State, 318 Md. 120, 128, 567 A.2d 95 (1989)

; State v. Wilson, 279 Md. 189, 202, 367 A.2d 1223 (1977); West v. State, 124 Md.App. 147, 155, 720 A.2d 1253 (1998); Walker v. State, 12 Md.App. 684, 695, 280 A.2d 260 (1971).

II. Suppression Hearing

The suppression hearing in this case was appallingly devoid of substance. While we are relatively certain that the hearing involved a motion to suppress, at no point before, during, or at the conclusion of the hearing did either party or the judge identify the specific evidence sought to be suppressed. The scant testimony presented at the hearing established that money and drugs were seized, but the court's findings and conclusions do not provide this Court with insight as to which evidence the court's ruling addressed. Thus, we are left to our own devices to discern from a Spartan record whether the denial of the general "motion to suppress" was proper.³

The parties stipulated that the police had a search warrant when they entered the premises. In addition, Sutton did not contest the propriety of the search of the premises or the seizure of any evidence therein.⁴ Thus, the sole question before the court during the suppression hearing was whether the police lawfully searched and seized evidence from Sutton's person.

Although no mention was made as to what evidence Sutton wanted suppressed, we give him the benefit of the doubt that he wanted the court to suppress all evidence seized by police during the challenged search. Sutton's testimony established that two types of evidence were seized: money and drugs. The prosecutor provided further details in her questions on cross-examination: $1,760.00 and 36 zip-lock bags containing cocaine were seized. As will become pellucid throughout this opinion, the State presented no warrant or witnesses and introduced no evidence; only the defendant testified at the hearing.

III. Motion to Suppress as to the Cocaine

First, we address the court's denial of the motion to suppress as to the cocaine. Sutton testified that the cocaine was not his, and was not seized from his person. Specifically, defense counsel asked Sutton whether he was "ever confronted with any drugs" during the encounter with police. Sutton responded that "one officer like just came out of his pocket with some— with a plastic bag and showed [it] to me and said this is yours. I said, no, that's not mine's, and before I could say that, he banged me in my mouth...." The state presented no witnesses or evidence to contradict Sutton.⁵ Therefore, the only testimony at the hearing established that the cocaine was not seized from the defendant's person. Considering the evidence in the light most favorable to the State, we infer that the cocaine was discovered and seized elsewhere on the premises. As we discussed, the defendant did not contest the search of the premises. Therefore, the cocaine was not properly the subject of the suppression motion, which was limited to the search of his person. Accordingly, the cocaine should not have been suppressed, as there was no motion before the court to suppress items seized from a search of the premises.⁶ We find that the denial of the motion to suppress as to the cocaine was proper.⁷

IV. Motion to Suppress as to the Money

Next, we address the court's denial of the motion to suppress as to the money discovered on Sutton's person. We will defer to the court's findings of fact unless clearly erroneous. At the conclusion of the suppression hearing, the court held:

Well, I believe that under the circumstances, the police had the right to enter the bathroom to find out whether CDS was being destroyed and upon finding someone there, to search them.

Now, I don't have any evidence before me that they found anything when they searched him, because the only evidence I have before me is your client's testimony that they didn't find anything. I'm presuming that the testimony of the State's witnesses will be to the contrary. But, under those circumstances, I'm not inclined to grant the motion. The motion is denied.

The court did recognize that "the only evidence" it had before it was Sutton's testimony. The court's only factual finding, that there was no evidence before it that the police "found anything when they searched" Sutton, was clearly erroneous, however, as to the money. Indeed, the only evidence before the court at the hearing, which came from the defendant himself, established just the opposite. Sutton admitted that the police found and seized money ($1,760.00) from his pants pocket, which he maintained was the only evidence the police discovered and/or seized from his person as a result of conducting the search. Accordingly, we will not defer to the trial court's erroneous factual finding.

We are thus left to consider the legal arguments made by counsel regarding the validity of the search warrant. Because the question here is whether Sutton's constitutional rights were violated, our task is to "make our own independent constitutional appraisal" by "reviewing the law and applying it to the peculiar facts of the particular case." Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990). We find ourselves in a predicament similar to that of the Court of Appeals in Wiggins v. State, 315 Md. 232, 250 n. 8, 554 A.2d 356 (1989): "our independent constitutional appraisal of the trial judge's denial of the motion to suppress ... is drastically hindered by the woeful inadequacy of the record of the hearing on the motion. A thorough winnowing of the transcript of the hearing produces mainly chaff and very little seed." Indeed, "[a]s we undertake our independent constitutional appraisal, we note initially the dearth of any findings of first-level fact, fact finding of the type to which we would...