Whitehead v. State

• Decision Date: 01 September 1996
• Docket Number: No. 309,309
• Citation: 698 A.2d 1115,116 Md.App. 497
• Parties: Cedrick WHITEHEAD v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 497

116 Md.App. 497

698 A.2d 1115

Cedrick WHITEHEAD v. STATE of Maryland.

No. 309, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Aug. 27, 1997.

Nancy Forster, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Devy Patterson Russell, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Joseph I. Cassidy, State's Attorney for Hartford County, Bel Air, on the brief), for Appellee.

Argued before MURPHY, C.J., and DAVIS and SONNER, JJ.

SONNER, Judge.

On Sunday, September 12, 1994, appellant Cedrick Whitehead was driving south on Interstate 95 when Trooper Bernard Donovan, who was working a K-9 shift that evening, stopped him for driving 72 miles per hour in a 55 mile per hour zone. In response to Trooper Donovan's requests, Whitehead gave his name and date of birth and produced his car registration, but stated he did not have his driver's license with him. Apparently, because he did not have his driver's license in possession, Trooper Donovan ordered Whitehead out of the car, but told the passenger Damon Schenck to remain in the front seat. Trooper Donovan asked Whitehead where he was coming from, and Whitehead replied New Jersey, where he had driven the previous Saturday, and was returning to Baltimore. Trooper Donovan went back to Schenck and asked him the same question. Schenck replied that they had gone to New Jersey the previous Sunday. He also asked them separately whom they had visited and received different responses: Whitehead said he had visited with friends, and Schenck said his grandmother. Trooper Donovan contacted his barrack by radio to run a check for outstanding warrants and to see if the automobile had been reported stolen, as well as to determine whether Whitehead had a valid driver's permit.

Trooper Donovan testified at a suppression hearing that he became suspicious of Whitehead because of the conflicting responses. While awaiting a report on his request for information, he ordered appellant into the police cruiser, where he handed him a consent to search form which, according to his testimony, he uses "[as] basically a tool ... to judge the person's reaction to, you know, whether I am going to search for contraband or not." According to Trooper Donovan, Whitehead became nervous, began to stutter, and refused to sign the form. During this time, a report came over the police radio that appellant's driving privileges were in order, he was not wanted on any outstanding warrants, and the car he was driving was not stolen. Trooper Donovan, nevertheless, detained both Whitehead and Schenck while he conducted a K-9 scan of the car. The dog alerted to the driver's door, and Trooper Donovan found crack cocaine in a backpack behind the driver's seat. According to the trooper's testimony, the entire process lasted approximately five minutes.

Trooper Donovan arrested Whitehead, charging him with possession with intent to distribute cocaine, possession of cocaine, and importation of cocaine into Maryland. On December 12, 1995, the State convicted Whitehead on all three charges at a bench trial in the Circuit Court for Harford County (Whitfill, J.).

On appeal, Whitehead raises two issues, which we have restated slightly:

1. Did the lower court err in denying Whitehead's motion to suppress the seized cocaine?

2. Did the lower court err in failing to dismiss the charges for lack of a speedy trial?

Because we answer the first issue in the affirmative, which will result in reversal, we do not reach the second.

This case involves the current widespread police tactic of using violations of the traffic laws as a means of singling out particular vehicles to search for contraband narcotics. In Whren v. U.S., --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the Supreme Court held that, as long as the police could have stopped the driver for a traffic violation, it is inconsequential that the police actually stopped the driver to investigate another offense. By all indications, pretextual traffic stops have increased markedly all over the country since the Whren decision. ¹ Using the traffic laws as pretexts for stopping to search the occupants and the interior of the vehicles has created intense criticism and some allegations of racism in the enforcement of the laws in Maryland, as well as in other states. Appellant and his passenger are both African-Americans; however, on the basis of the record before this Court, we can take no position as to the merits of the allegations of racism in police procedures raised in this or in other similar cases concerning the enforcement of the controlled dangerous substance laws on Interstate 95, but we do note that the allegations exist. ²

Since it appears that the use of the traffic laws as pretexts to make stops has become a standard law enforcement strategy with respect to narcotic laws, we think it appropriate to reinforce what we have said in two decisions about what is permissible and not permissible for automobile searches when the drivers have been stopped for traffic violations. Of course, such stops must comply with the Fourth Amendment of the Constitution of the United States, but it is important to note that cases interpreting the Fourth Amendment have held that a search incident to a stop for violation of the traffic laws has some limitations that do not govern a search incident to an arrest for a violation of the criminal laws of this State.

During oral argument, the Assistant Attorney General for the State of Maryland conceded that Trooper Donovan was a part of a particular detail whose purpose in patrolling Interstate 95 was the enforcement of the controlled dangerous substance laws. His testimony at trial bears that out. His having been accompanied by a K-9 trained to detect narcotics reinforces the Attorney General's concession. We, consequently, can and do properly infer that his selection of particular vehicles violating the speed limits, while ignoring others, is influenced by his suspicion that the occupants may, in addition to speeding, also be in violation of the criminal laws that he has been detailed to enforce. The testimony at the hearing left little doubt that Trooper Donovan's selection of speeders to process was a pretext for observing the stopped vehicle and the passengers for signs of violation of Maryland's controlled dangerous substance laws. The concession and circumstances lead to the inescapable conclusion that Trooper Donovan stopped Whitehead to carry forth the mission of his detail, namely, to look for violations of the State's drug laws.

In Snow v. State, 84 Md.App. 243, 578 A.2d 816 (1990), this Court disapproved law enforcement officers detaining motorists for a period of time beyond that which would be necessary to issue a traffic citation or decide to permit the motorists to continue on their way. The Court, speaking through Judge Rosalyn B. Bell, stated:

The intrusion permitted "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). Here, the purpose of the stop was to warn or issue a ticket to Snow for speeding. That purpose was fully fulfilled, but the detention was continued.

The Supreme Court has also said the "brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion." United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983). Although it is true that the duration of the stop is a factor in calculating whether an intrusion is within constitutional limitations, see Royer, 460 U.S. at 500, 103 S.Ct. at 1325, the State must first demonstrate a reasonable, articulable suspicion that a crime is being or is about to be committed. The State, as we have stated above, did not adequately demonstrate a reasonable, articulable suspicion....

Id. at 264-65, 578 A.2d 816.

Again, in Munafo v. State, 105 Md.App. 662, 660 A.2d 1068 (1995), we condemned a detention by the police under circumstances similar to those we are called upon to review here. Munafo, after being stopped for traffic violations, was asked by the arresting sheriff whether he had any drugs or weapons and for permission to search his car. Munafo replied that he had no drugs or weapons and refused to consent to a search. The deputy returned to the patrol car, radioed for backup, and waited for the results of the license check. He was informed that the rental agreement and license checked out. The deputy did not issue a warning or citation, but waited for the arrival of the backup. When the backup arrived, the officers searched the car and found marijuana and cocaine. Munafo was arrested, tried, and convicted. This Court held that the motion to suppress should have been granted, reasoning that

in Snow, 84 Md.App. at 248, 578 A.2d 816, we concluded that the purpose of the traffic stop is to issue a citation or warning. Once that purpose has been satisfied, the continued detention of a vehicle and its occupant(s) constitutes a second stop, and must be independently justified by reasonable suspicion.

Munafo, 105 Md.App. at 670, 660 A.2d 1068.

In Munafo, the activity that we condemned was the sheriff's awaiting the backup instead of issuing the citation. We found the detention for that purpose was illegal. Snow and Munafo, however, differ somewhat from the case we have here. Trooper Donovan, in stopping Whitehead, did not have, as his primary purpose, the detaining of a motorist to issue a warning or a citation, as the law enforcement officers may have had in Snow and Munafo. Instead, as the record shows, he candidly admitted he was observing the occupants to see if his hunch was correct that they may have been carrying illegal narcotics in the car. He did not set...