Wallace v. State, 2395

• Decision Date: 27 February 2002
• Docket Number: No. 2395,2395
• Citation: 142 Md. App. 673,791 A.2d 968
• Parties: Earmon Alvin WALLACE, Sr., v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

791 A.2d 968

142 Md. App. 673

Earmon Alvin WALLACE, Sr., v. STATE of Maryland.

No. 2395, Sept. Term, 2000.

Court of Special Appeals of Maryland.

February 27, 2002.

Bradford C. Peabody, Asst. Public Defender (Steven E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Shannon E. Avery, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Frank Weathersbee, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Submitted before DAVIS, KENNEY, DEBORAH S. EYLER, JJ.

KENNEY, Judge.

Appellant, Earmon Alvin Wallace, Sr., was convicted at a bench trial on an agreed statement of facts in the Circuit Court for Anne Arundel County of possession with intent to distribute cocaine.¹ Appellant asks a single question on appeal:

Did the trial court err in denying the motion to suppress the evidence seized from appellant?

We answer in the affirmative and reverse appellant's conviction.

Factual and Procedural Background

At the suppression hearing, the State called three Annapolis City Police Officers: Jessica Hertik, Elizabeth Nelson, and Jonathan Supko. Officer Hertik testified that at approximately 3:00 a.m. on July 9, 2000, she 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 Hertick saw the vehicle run a red light. Officer Hertick then activated her emergency equipment and the Buick pulled over.

Officer Hertik stopped behind the vehicle and exited her car, approaching the driver's side of the Buick. Sitting inside the vehicle was the male driver, a male front seat passenger, and three back seat passengers, appellant and two women. Officer Hertik recognized appellant and two of the other passengers from a previous encounter, although she did not say how. She informed the driver that she had stopped the vehicle for speeding and not stopping at a traffic light. Officer Hertik requested the driver's license and car registration, and he complied.

When Officer Hertik walked back to her car, she met Officer Nelson, who was on duty with Bosco, her drug detection dog. Officer Hertik explained what had occurred and then proceeded to run a license check and write two tickets. In the meantime, other units had arrived on the scene, and these additional officers² watched the Buick while Bosco scanned the vehicle.³ Bosco made two positive alerts to the presence of drugs at the rear seam of the driver's side front door. Officer Nelson testified that, because of air currents in the vehicle, there is little correlation between where a canine alerts and where drugs are found in the vehicle.

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 placed Bosco in the back of her car, Officer Hertik approached the vehicle 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 at the scene watched the occupants of the car while the searches were being conducted. Officer Supko testified that his actions were not a mere "frisk" or "pat down" but were intended to discover anything suspicious. Officer Supko searched the three males, beginning with the driver. The front seat passenger was searched next.

Officer Supko then searched appellant, who was sitting behind the front passenger seat. During the search "for anything apparent[,][w]eapons and what not[,]" Officer Supko felt a hard object near appellant's groin, which he said he knew was not a gun, knife, or other weapon. Officer Supko handcuffed appellant with his hands behind his back, told him he was "not under arrest at the time[,]" and walked him to a grassy area away from the road. Officer Supko stated that he had handcuffed appellant "just for my safety and his safety." As they walked, appellant moved his hips in an apparent attempt to shake the object loose. When the officer searched appellant's groin area again, the object was gone. Officer Supko saw, however, something protruding from appellant's left pants leg, which turned out to be a clear plastic baggie containing several pieces of suspected cocaine. Appellant was placed under arrest.

The two females were searched after appellant. Officer Hertick searched one of them herself. Only after the occupants were searched did Officer Hertick search the vehicle. She found $1,155 in cash in someone's shorts in the front passenger seat, and a knife in a purse in the back seat. No drugs were found in the car.

Prior to trial, appellant moved to suppress the evidence found on his person. He argued that a canine alert to the presence of drugs in a car, without more, did not give the police probable cause to perform a warrantless search of a passenger. The suppression court disagreed and denied his motion. It is from that ruling that appellant appeals.

Standard of Review

When reviewing the denial of a motion to suppress, the record at the suppression hearing is the exclusive source of facts for our review. Lee v. State, 311 Md. 642, 648, 537 A.2d 235 (1988); Aiken v. State, 101 Md.App. 557, 563, 647 A.2d 1229 (1994), cert. denied, 337 Md. 89, 651 A.2d 854 (1995). We extend great deference to the fact finding of the suppression judge and accept the facts as found, unless clearly erroneous. 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). We review the evidence in the light most favorable to the prevailing party; in this case, the State. Riddick, 319 Md. at 183, 571 A.2d 1239. Nevertheless, we make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Jones v. State, 111 Md.App. 456, 466, 681 A.2d 1190, cert. denied, 344 Md. 117, 685 A.2d 451 (1996) (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

DISCUSSION

Appellant argues that the police lacked probable cause to search him based on case law that holds that probable cause to search a passenger of an automobile does not exist without some linkage to the commission of a crime. The State argues that the trial court properly denied appellant's motion to suppress, asserting that "the dog's behavior signaled the presence of drugs in the car generally. As such, the search of the occupants of the car was fully justified for Fourth Amendment purposes." This is an issue of first impression in Maryland.

A. The Court's Ruling

The motion court made the following ruling:

For the following reasons, the Court believes the search of the Defendant was lawful based on probable cause.

The Court finds from the facts that the police officer had reasonable grounds and had probable cause to stop the vehicle because she observed the vehicle committing a traffic offense. Pryor v. State, 122 Md.App. 671 ,cert. denied, 352 Md. 312 (1998). Incidental to the stop it is the police officer's obligation to conduct a routine record check as to the validity of the driver's license and vehicle registration. Munafo v. State, 105 Md.App. 662 (1995). See, also, United State[s] v. Shabazz, 993 F.2d 431 (5th Cir.1993). However, Maryland law demands that a motorist who is subjected to a traffic stop for a minor traffic violation "cannot be detained at the scene of the stop longer than it takes—or reasonably should take—to issue a citation for the traffic violation that the motorist committed." Pryor, at 674-675 . In this case, there is no issue that the Defendant was detained any longer than it would reasonably take to issue a citation. The testimony is clear that Officer Nelson arrived seconds after Officer Hertik stopped the vehicle. In fact, both officers met at the rear of the vehicle in which the Defendant was a passenger, spent ten seconds discussing the matter, and then an additional 30 seconds for the officer to get the dog and walk it around the vehicle. Lastly, Hertik testified she had not even completed the first ticket when she was advised by Nelson that the dog had alerted on the vehicle.

The only novel issue to be discussed then, is whether probable cause existed for a search of the individuals in the vehicle. We know that when a canine alerts to a vehicle indicating the likelihood of contraband, sufficient probable cause exists to conduct a warrantless search of the vehicle. Gadson v. State, 341 Md. 1 (1995), cert. denied, 116 S.Ct. 1704 (1996). Accord United States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir., 1990); In Re Montrail M., 87 Md.App. [420,] 437 [589 A.2d 1318 (1991)]. What these cases do not address is the right of the police officer to search the passengers of the vehicle with nothing more than the canine alerting to the vehicle.

The Supreme Court, in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) indicated that, concerning a canine alert, "a positive result would have resulted in his justifiable arrest on probable cause." Page 1329. This was in reference to luggage which had been detained for a canine scan. In addition, the Court of Special Appeals in Timmons v. State, 114 Md.[App.] 410 (1997) at 416 , seemed to agree that once the dog alerted, "there was probable cause to do anything."

Defendants cite Livingston v. State of Maryland, 317 Md. 408 (1989) as authority indicating there was no probable cause to search the passengers in the vehicle. In Livingston the court concluded that marijuana seeds located on the front floor of an automobile does not empower an officer with sufficient cause to...