Trusty v. State, 81

CourtCourt of Appeals of Maryland
Citation521 A.2d 749,308 Md. 658
Docket NumberNo. 81,81
PartiesTyrone TRUSTY v. STATE of Maryland. ,
Decision Date01 September 1986

Michael R. Malloy, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore City, for appellant.

Valerie V. Cloutier, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

Heroin, cocaine, marijuana and drug paraphernalia were seized from Tyrone Trusty incident to a warrantless arrest. He was charged with various violations of the controlled dangerous substances laws. His conduct during the course of the arrest prompted additional charges of resisting arrest and assault on the arresting officer. The charges against him were filed in the Circuit Court for Baltimore City. He called upon the constitutional prohibitions against unreasonable searches and seizures. 1 He filed a pretrial motion to suppress the evidence recovered from him on the ground that his arrest was illegal as lacking probable cause. Rule 4-252(a)(3). Therefore, he claimed, the seizure of the contraband was unlawful as in violation of his constitutional rights against unreasonable searches and seizures, and the exclusionary rule applied to suppress the evidence. He placed the burden on the State to prove that his constitutional rights had not been denied. 2 After a plenary hearing the trial court denied the motion. It found that there was "ample probable cause to support the search that followed."

At the ensuing trial on the merits the challenged evidence was placed before the jury. As there was no renewal of the motion and grant of a hearing de novo thereon, the previous ruling of the court was binding. Rule 4-252(g)(2). The jury convicted Trusty of all of the charges submitted to it--possession of heroin, cocaine, marijuana and drug paraphernalia resisting arrest and the assault and battery of the arresting officer. Sentences were imposed.


On direct appeal the Court of Special Appeals reversed the judgments entered on the convictions of the controlled dangerous substances laws. Upon its independent constitutional appraisal of the record of the hearing on the motion to suppress, it was unable to share the belief of the hearing court that the State had met its burden of establishing that the police had probable cause for the arrest. 3 After carefully reviewing the evidence produced at the hearing, the intermediate appellate court concluded: "[T]he State simply failed to prove affirmatively the foundation for [the arresting officer's] belief that he was witnessing a drug transaction." Trusty v. State, 67 Md.App. 620, 629, 508 A.2d 1018 (1986). It thought that the narcotic convictions "were clearly based on the introduction of the evidence, which we hold should have been suppressed...." Id. at 630, 508 A.2d 1018. Therefore, it reversed the judgments on those convictions. Id.

In the proceedings before us on Trusty's petition for a writ of certiorari to the Court of Special Appeals, the State does not challenge the reversal of the judgments on the narcotic charges. It concedes:

[T]he Court of Special Appeals was entirely correct in ruling that the State had not met its burden of proving the existence of probable cause at the suppression hearing below. That court also properly reversed the drug convictions, finding that they were based upon the physical evidence which should have been suppressed. (footnote omitted)

Thus, the propriety of the judgment of the Court of Special Appeals with respect to the narcotics offenses is not before us and that judgment stands as rendered. We, therefore, affirm the judgment of the Court of Special Appeals which reversed the "judgments [entered by the Circuit Court for Baltimore City] of conviction of possession of heroin, cocaine, marijuana and paraphernalia...." Rule 813 a.


On direct appeal the Court of Special Appeals affirmed the trial court's "judgments for conviction of assault and resisting arrest...." Trusty sought to have the intermediate appellate court review the sufficiency of the evidence to sustain these convictions. He presented the question: "Did the lower court err by denying [his] motion for judgments of acquittal because the evidence was insufficient?" See Brooks v. State, 299 Md. 146, 156-157, 472 A.2d 981 (1984); Gray v. State, 254 Md. 385, 387-388 and 393, 255 A.2d 5 (1969), cert. denied, 397 U.S. 944, 90 S.Ct. 961, 25 L.Ed.2d 126 (1970). He contended that his warrantless arrest was unlawful as not based on probable cause and that "a person may legally resist an unlawful arrest even with force." Absent a valid arrest, he argued, the evidence was insufficient to sustain the convictions of resisting arrest and assault on the arresting officer. The Court of Special Appeals found no error in the denial of the motion for judgment of acquittal, but it did so on procedural grounds. It refused to address the matter of the sufficiency of the evidence. It said that Trusty, in moving for judgment of acquittal, had failed to comply with Rule 4-324(a) in that he did not state with particularity the reasons why the motion should be granted. 67 Md.App. at 630, 508 A.2d 1018. As "such articulation" is expressly required, the intermediate appellate court declared, "we may not consider this issue on appeal." Id. See State v. Lyles, 308 Md. 129, 135, 517 A.2d 761 (1986).

In Trusty's petition for the writ of certiorari granted by us, 4 the main thrust of his attack on the challenged judgments bypassed the question whether the evidence before the jury met the test for sufficiency to sustain the convictions. He asked:

Was the affirmance of the Court of Special Appeals of [the] convictions for assault and resisting arrest erroneous in light of that court's ruling that the trial court had erred in finding that [his] arrest was legal?

As we have seen, the Court of Special Appeals ruled, and the State acknowledges, that the trial court erred in denying the motion to suppress the evidence seized from Trusty incident to his arrest. Had the trial court granted the motion as the Court of Special Appeals determined it should have done, the judicial sanction of exclusion of the evidence and our Rule which implements that sanction would have barred the use of the challenged evidence in the prosecution of Trusty. 5 As we have also seen, under the authority of its erroneous pretrial ruling, the trial court permitted the evidence to be submitted to the jury in the State's case in chief. Given the error, the question is what are the consequences?

From opening statement to closing argument the prosecution took full advantage of the denial of the motion to suppress. In the opening statement the State stressed that it would prove that heroin, cocaine and marijuana were found on Trusty's person. It told the jury that it would "see pictures of everything that was recovered from the person of Tyrone Trusty." It emphasized that chemical analysis established that the substances seized were the named narcotic drugs. This was all in the light of assertions that the arresting officer would testify that he observed Trusty passing to another person what the officer believed from his experience and training--"he's had 600 narcotic arrests, 300 involving marijuana"--were narcotics. The State then proceeded to prove what it had told the jury it would prove. The arresting officer testified that after observing Trusty on the street make what the officer believed was a deal for narcotics, he approached Trusty, identified himself as a police officer, and told Trusty that he was under arrest. Trusty fled. The officer pursued him, finally caught him, and after a struggle, subdued him with the assistance of fellow officers. Trusty was taken into custody and searched, although still resisting. The officer told the jury:

[In his] left hand he had six glassine bags containing a white powder which was analyzed and found to be heroin. Also after recovering those items, Mr. Trusty had another glassine bag which was inside of his wallet. That, too having a white powder substance, suspected heroin and he had gelatin capsules with white powder substances in it, which was suspected to be cocaine, in his pants pocket.

The officer said that a common packaging method for cocaine was gelatin capsules and for heroin, clear little plastic bags. In brown manila bags, which had fallen to the ground from Trusty's hand, were green-brown leaves suspected to be marijuana. A spoon, commonly used in connection with certain narcotics, was also found. Photographs of all the contraband seized were handed to the jury. An officer who had assisted in the apprehension of Trusty also described in fine detail what had been seized from Trusty. At the request of the prosecutor, he identified to the jury each item he described through its photograph. There was evidence by way of stipulation that a chemist who was "an expert in laboratory analysis of suspected drugs" had analyzed the substances seized and that they were heroin, cocaine and marijuana.

In the charge to the jury the court said that "possession of heroin, possession of cocaine, possession of marijuana, possession of paraphernalia ... is an offense, criminal offense...." He continued, "I instruct you that they are designated by law as controlled dangerous substances, and, two, that [Trusty's] possession was not authorized by law." He described "possession" as "the act or condition of having on one's person or taking into one's control." He told the jury that paraphernalia included "items of personal property which are used in connection with drugs" and that such items "[c]ould be, in our case ... the little ... glassine bags, the brown paper bags ..., the five...

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