Waller v. State, 072417 MDSCA, 761

Docket Nº:761
Opinion Judge:Kehoe, J.
Party Name:BURLEY WALLER v. STATE OF MARYLAND
Judge Panel:Graeff, Kehoe, Rodowsky, Lawrence F., (Senior Judge, Specially Assigned) JJ.
Case Date:July 24, 2017
Court:Court of Special Appeals of Maryland

BURLEY WALLER

v.

STATE OF MARYLAND

No. 761

Court of Special Appeals of Maryland

July 24, 2017

Circuit Court for Baltimore City Case No. 116049019

Graeff, Kehoe, Rodowsky, Lawrence F., (Senior Judge, Specially Assigned) JJ.

OPINION [*]

Kehoe, J.

After a court trial on an agreed statement of facts, Burley Waller was convicted by the Circuit Court for Baltimore City of possession of a controlled dangerous substance, specifically cocaine. To this Court, Mr. Waller initially raised two issues, which we have reworded: 1. Did the court err in denying his motion to suppress?

2. Did the trial court improperly coerce him into accepting a plea of not guilty on an agreed statement of facts?

Through his counsel, Mr. Waller withdrew the second contention after oral argument. We conclude that the circuit court did not err when it denied his motion to suppress and will affirm his conviction.

Background

Mr. Waller filed a motion to suppress the cocaine found on his person and statements he made to the detective during their encounter. The only witness at the hearing was Baltimore City Police Detective Michael O'Sullivan. The following uncontested evidence was presented at the suppression hearing:

Detective O'Sullivan was in an unmarked vehicle in the parking lot of the T.G.I. Fridays near the Mondawmin Mall in Baltimore around 10:30 p.m. on February 2, 2016. He was patrolling that area because in his experience, a mall parking lot is a common location for drug distribution activity. He observed Mr. Waller get into an SUV parked a few spaces from his own. After a "very brief time"-- less than a minute in the detective's estimation--Mr. Waller exited the SUV and returned to his own car, placing an object in his pocket as he did so. The SUV then drove away rapidly. Detective O'Sullivan then pulled his vehicle behind Mr. Waller's, activated his emergency lights, and asked Mr. Waller step out of his car. Upon questioning, Mr. Waller denied being in the SUV, and made a statement to the effect that he had nothing illegal and that the detective should go ahead and do a search because he wouldn't find anything.1 Detective O'Sullivan did conduct a search, during which he found a plastic bag in the pocket of Mr. Waller's hoodie which contained a white powder which proved to be cocaine. Mr. Waller then made an additional statement, protesting that he was going to be arrested for "some powder."2 At that point, Detective O'Sullivan placed Mr. Waller under arrest. Mr. Waller filed a motion to suppress the cocaine and his statements to the police officer.

The suppression court characterized the initial stop by Detective O'Sullivan as an investigatory stop based on the detective's reasonable articulable suspicion that Mr. Waller had just participated in a drug transaction. The court concluded that Detective O'Sullivan's search of Mr. Waller's person was consensual, based on Mr. Waller's statement that the detective should go ahead and search. The court also concluded that Mr. Waller's invitation to the police officer to search him and his question as to whether he was going to be arrested for "some powder" were voluntary statements made in a noncustodial environment prior to the time of arrest, and thus before Miranda warnings would have been required. The court characterized the statements as having been made "probably very unwisely, but voluntarily[.]" Therefore, the court denied the motion to suppress.

The Standard of Review

In Sizer v. State, 230 Md.App. 640 (2016), cert granted, (Md. 2017), we stated the standard of review for a motion to suppress: "'When an appellate court reviews a trial court's grant or denial of a motion to suppress evidence under the Fourth Amendment, it will consider only the facts and evidence contained in the record of the suppression hearing.'" Id. at 643-44 (quoting Longshore v. State, 399 Md. 486...

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