Washington v. State
| Decision Date | 14 February 2023 |
| Docket Number | 1971-2021 |
| Parties | BRYANT WASHINGTON v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore County Case No C-03-CR-21-000038
Zic Ripken, Meredith, Timothy E. (Senior Judge, Specially Assigned), JJ.
Ripken, J. Appellant, Bryant Washington ("Washington"), was indicted in the Circuit Court for Baltimore County and charged with possession with intent to distribute cocaine, possession of a regulated firearm, and related counts. After the denial of the motion to suppress evidence seized following a traffic stop, Washington entered a conditional guilty plea to the aforementioned two counts. The court imposed a sentence of 20 years, suspended all but ten, for possession with intent to distribute and a concurrent five years for illegal possession of a regulated firearm, with credit for time served, to be followed by three years supervised probation.[1]
Washington presents a single issue for our review:[2] Whether the circuit court erred in denying Washington's motion to suppress evidence seized from his person and his vehicle during a traffic stop. For the reasons to follow, we hold that the court did not err.
On November 18, 2020, at around 3:00 a.m., Baltimore County Police Officer McNulty was on patrol in the White Marsh precinct when the officer performed a routine MVA check of a black Infiniti sedan to verify the vehicle's current registration.[3] Officer McNulty, a five-year patrol veteran with training in conducting various types of traffic stops, was notified that the registration was for a Honda, and not an Infiniti. Testifying that, in his experience, such a registration violation could be an indicator of a stolen vehicle, Officer McNulty radioed for police assistance and then activated emergency equipment to stop the Infiniti. Sergeant Pabon, a police officer with 22 years' experience and Officer McNulty's supervisor the night in question, responded to the scene to provide assistance. No issue is raised in this appeal as to the propriety of the initial stop.
Officer McNulty got out of his patrol car and approached the driver's side door where he encountered Washington, the driver and sole occupant of the vehicle. Upon Officer McNulty's request for license and registration, Washington provided a learner's permit and a title for the Infiniti through the open car door window, explaining that he had just purchased the vehicle two to three weeks earlier.
Officer McNulty testified that, during this initial contact, he smelled an odor of marijuana emanating from the vehicle. As this concerns Washington's primary argument, we set forth pertinent testimony here:
Officer McNulty went back to his patrol car to continue his investigation. Sergeant Pabon, who was previously stationed outside the passenger door of the Infiniti while Officer McNulty was speaking with Washington, returned to Officer McNulty's vehicle. Sergeant Pabon informed Officer McNulty that, although he was not sure, and although Sergeant Pabon did not detect any odor from the passenger side of the vehicle, the sergeant believed he saw the butt of a revolver in the driver's side door map pocket. Sergeant Pabon later clarified that the sergeant thought he saw the top part of a revolver, with the hammer forward, in the map pocket.
As to whether Officer McNulty told Sergeant Pabon that the officer had smelled marijuana, Sergeant Pabon testified on cross-examination that he remembered Officer McNulty stating, "I smell weed, do you?" to which Sergeant Pabon replied that he did not. Sergeant Pabon maintained that Officer McNulty "detected [marijuana] on first contact." After Sergeant Pabon's body worn camera footage was replayed, Sergeant Pabon agreed Officer McNulty asked him, "[d]o you have an odor," and that he interpreted to mean Officer McNulty smelled the odor and wanted him to "confirm his observations[.]" Sergeant Pabon continued,
After learning, in addition to the invalid registration, that there was no insurance on the vehicle, and that Washington did not have a valid driver's license, apart from the learner's permit, Officer McNulty and Sergeant Pabon returned to the Infiniti and ordered Washington out of the vehicle.[4] Sergeant Pabon further testified that he told Officer McNulty to "get him out of the car and away from whatever I'm seeing, because I wanted him away from that" apparently referencing the unknown item in the driver's side door map pocket. Officer McNulty then informed Washington that the vehicle would have to be towed.
When Washington stepped out of the vehicle, the driver's side door was left open. Officer McNulty then directed Washington to walk to the back of the Infiniti. Washington was not handcuffed at that time, but the officer agreed on cross-examination that, considering Sergeant Pabon's belief that he saw a gun in the driver's side door, Washington was not free to leave. Meanwhile, as Officer McNulty and Washington discussed the vehicle, including whether it could be removed or had to be towed, Sergeant Pabon proceeded to look at the item in the driver's side door and determined that it was, in fact, a digital scale, not a handgun. Sergeant Pabon also looked back and noticed that Washington appeared to be "blading his body" away from the officers in a manner that suggested he was concealing something on his person.
Shortly thereafter, Officer McNulty went to the driver's side of the Infiniti, looked in the map pocket, and saw a "greenish vegetable residue" on the digital scale. Officer McNulty would later indicate on cross-examination that he moved the scale while it was in the map pocket. However, he did not recall if he "opened" it, or where on the item the residue was observed.[5] Asked what his intention was at that point, Officer McNulty testified he was going to search the Infiniti due to "the initial odor of marijuana coming from the vehicle and the digital scales found in the driver's door with residue."
Officer McNulty then asked Washington, who by then was seated on the curb, about the digital scale. Washington replied, Asked whether there was any inside the vehicle, Washington replied that there was a bag in the center console.[6]
Sergeant Pabon and Officer McNulty then began searching the interior of the Infiniti. Sergeant Pabon, who was now on the driver's side, stated, "that is strong out here," referring to the odor of marijuana. Officer McNulty then reiterated that he smelled the odor when he first walked up to the vehicle. Sergeant Pabon examined the scale and observed "some powder and like some vegetable matter, like weed." He then found an unspent 9 mm bullet behind the driver's seat, and a spent .380 casing on the passenger's side of the vehicle. Officer McNulty testified that an "unspent" bullet was "[a] live round that has not been fired," and that the "spent" casing had previously been fired.
Sergeant Pabon approached Washington, who was seated on the curb behind the vehicle, and informed him and the other officers at the scene of the spent casing and unspent bullet that he discovered in the Infiniti. Sergeant Pabon testified he was concerned that a gun could be concealed on Washington's person, because he had not yet found a gun to go with the spent casing and the bullet. As a result, Sergeant Pabon secured him "immediately" for purposes of officer safety, testifying, "[i]f he is armed, I don't want him having free hands to grab a gun or to do any harm to anyone there at the scene, including himself."
After Washington declined to permit consent to search his person, Sergeant Pabon informed Washington that he was being detained, but was not under arrest. Another officer then placed Washington in handcuffs. On direct examination, Officer McNulty explained the situation as follows:
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