Turkes v. State , 2848

• Decision Date: 26 May 2011
• Docket Number: No. 2848,Sept. Term,2009.,2848
• Citation: 20 A.3d 173,199 Md.App. 96
• Parties: Michael Anthony TURKESv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

199 Md.App. 96

20 A.3d 173

Michael Anthony TURKES

v.STATE of Maryland.

No. 2848

Sept. Term

2009.

Court of Special Appeals of Maryland.

May 26, 2011.

Peter F. Rose (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.Jessica V. Carter (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.Panel: EYLER, JAMES R., HOTTEN, J. FREDERICK SHARER, (Retired, specially assigned), JJ.JAMES R. EYLER, J.

On October 6, 2009, Michael Turkes, Jr., appellant, was tried on a not guilty agreed statement of facts in the Circuit Court for Prince George's County on charges of possession of cocaine and possession with intent to distribute cocaine. That trial followed an October 2, 2009 motions hearing, during which the court denied appellant's motion to suppress evidence. Ultimately, the court found appellant guilty of both charges. On January 8, 2010, the court sentenced appellant to twenty years of imprisonment, suspending all but eighteen months in favor of five years of supervised probation. Appellant then appealed to this Court, challenging the trial court's denial of his motion to suppress evidence. For the reasons set forth below, we shall affirm.

Factual Background

The following facts were adduced at the motions hearing. On May 2, 2009, at approximately 11:45 a.m., Officer Anthony Smith was patrolling the 6400 block of Greig Street in Prince George's County, when he observed a brown Cadillac with dark-tinted windows drive past him.

Officer Smith's testimony concerning the events that transpired was as follows. The tint on the Cadillac was so dark that Officer Smith could not see who was in the vehicle. Suspecting that the tint was darker than legally permissible, Officer Smith pulled in behind the Cadillac and activated his emergency equipment to make a traffic stop. The Cadillac pulled over immediately, and Officer Smith parked at an angle behind it. Officer Smith's vehicle was about one-half of a car length from the Cadillac, canted to the left a bit.

Appellant, the driver of the Cadillac, then turned off the ignition, exited the driver's side of his car, and quickly started walking towards an apartment building. Officer Smith told appellant to get back in his vehicle. Appellant replied that he could not open the driver's side door, so Officer Smith ordered him to open the passenger's side door. Appellant did so, and, through the passenger's side door, unlocked all the car doors. Then, appellant walked back to the driver's side door. Officer Smith was standing next to appellant when appellant opened the driver's side door. When appellant opened the door, he quickly looked to the left towards a black bag in the door well, and then looked at Officer Smith nervously. This drew Officer Smith's attention to the bag.

Officer Smith described the bag as a black plastic half-gallon sized bag (about 12 inches, or the size of a tissue box). He testified that the bag had mass to it, and that the mass was about the size of a soda can, three to four inches in diameter. At that time, Officer Smith thought that the bag could contain “a weapon, ... drugs, or anything.”

Officer Smith then asked appellant for his driver's license and registration and told appellant that he was stopped because of the tint on his windows. Officer Smith advised appellant that, after receiving a ticket for a repair order, appellant would be free to leave. Officer Smith then told appellant to roll down his windows for safety purposes.

Officer Smith returned to his police car, informed the dispatcher of his location, and called for backup assistance. He noticed that appellant was looking through his rear view mirror and side view mirrors and pushing or raising up from his seat, with his head going toward the ceiling. According to Officer Smith, those movements seemed “extremely suspicious.” With the windows down, Officer Smith could see into appellant's car, but he could not see appellant's hands.

Shortly thereafter, Officer Ivey arrived on the scene to provide backup assistance. Officer Smith and Officer Ivey approached appellant's vehicle. Officer Smith was on the driver's side, and Officer Ivey was on the passenger's side. Officer Smith asked appellant to step out of the vehicle to sign the citation. Officer Smith testified as to why he thought it was important to have appellant exit the car to sign the repair order:

Due to the initial traffic stop, in exiting the vehicle, while he was under lights and sirens, his nervous behavior, by looking at the bag when he opened the door; the furtive movements in the seat, pushing up from his seat; and continuously looking back through his rearview mirror, coupled with those movements, were very suspicious and there could possibly be a weapon in the vehicle.

As appellant opened the door to get out of his car and sign the repair order, Officer Smith noticed that the black bag was no longer in the door well of the driver's side door. Appellant followed Officer Smith to Officer Smith's police vehicle, and Officer Smith told appellant that he would be free to go once he signed a repair order for the tinted windows. Appellant signed the order. Officer Smith testified that appellant was not in fact free to leave; that he had only told appellant he would be free so that appellant would get out of the vehicle without incident, but that he intended to check the vehicle because he suspected it contained weapons or drugs. Officer Smith explained that he was in the middle of an investigative stop at that point:

I'm investigating his furtive movements, him exiting the vehicle quickly against my lights and sirens, him nervously looking at a black bag in the door well that had mass to it, the black bag has now disappeared from the door well when he opens the door the second time, as well as him raising up in his seat, pushing with his head going towards the ceiling and nervously, continuously, over a five-minute time, looking back through his rearview mirror and side view mirror.

Before appellant could walk back to his car, Officer Smith asked appellant if there was anything in the vehicle that he needed to know about. Appellant said no. Officer Smith said that he would check, and according to Officer Smith, appellant consented. Appellant stood with Officer Ivey while Officer Smith checked the car.

Officer Smith checked the “wing span” area of the Cadillac, including the door wells, the space beneath the seats, the dash, and the center console. He could not find the black bag that had been in the door well. Officer Smith returned to appellant and asked him where the black bag was that had been in the door well. Appellant answered that the bag was trash, and that it was underneath the seat. Officer Smith returned to appellant's car and searched the passenger compartment again, but could find no bag. Again, Officer Smith asked appellant where the bag was. According to Officer Smith, appellant replied, “what bag, I don't know what you're talking about.”

Officer Smith testified that, at that point, he thought that “whatever was in that bag, whether it could be a weapon or knife, or drugs, or anything, ... it was now on [appellant].” Officer Smith thus asked appellant to place both hands on the hood of the police car so that Officer Smith could perform a pat-down search for weapons. Using an open hand, Officer Smith began patting appellant down. As Officer Smith's hand came up the inside of appellant's leg, towards the crotch area, appellant pulled his hand from the hood of the car. Officer Smith asked appellant to put his hand back on the car, and began the pat-down again. As Officer Smith's hand approached appellant's crotch area, Officer Smith felt “a very hard object” in between appellant's legs. When Officer Smith pressed upwards on the hard object, appellant pushed off of the car and began to run. Officer Smith grabbed appellant, and they fell to the ground. Officer Ivey assisted in restraining appellant, who was resisting. Officer Smith told appellant that he was under arrest, and the two officers handcuffed him behind his back.

Once appellant was handcuffed, Officer Smith conducted another search of appellant, who was sitting on the curb between the Cadillac and the police vehicle. As a result of the search, Officer Smith found “[f]our hundred ... glassine baggies, a razor blade, and 40 grams of crack cocaine, as well as the black bag that was in the door well of the Cadillac.” Officer Smith described the search as follows:

[Officer Smith]: ... After [appellant] was placed in the handcuffs, we turned him over on his—for him to sit on his butt, and I undid the front of his pants, opened it up. And down on the—where I felt the hard object, I saw that there was a very large bulge there. I pulled the inside—on his left leg, I pulled up his underwear there and I could see the black bag, and I pulled it out.

[Prosecutor]: ... You said that you unbuttoned his pants?

[Officer Smith]: Yes, sir.

[Prosecutor]: Was his pants or his underwear removed?

[Officer Smith]: No, sir. No, sir.

[Prosecutor]: Were they pulled down in any way?

[Officer Smith]: They weren't pulled down, but they were opened. He had—I believe he had a button fly, so I completely undid them, yes, sir. But I didn't pull them off of his body, no.

[Prosecutor]: Were any of his private parts exposed?

[Officer Smith]: No sir.

[Prosecutor]: When you reached in, you said that you reached in through the underwear?

[Officer Smith]: Yes, sir.

[Prosecutor]: Officer, can you describe where the item was found in relation to the Defendant's body and how you went into his pants area?

[Officer Smith]: The item was found underneath his scrotum. I went in, down his left pants leg. So I undid his buttons as far down as I could, opened his pants leg, reached in overhand, over the top of the underwear, from the—I don't know how to explain it. From the bottom piece of his underwear, I went in through the bottom and pulled...