Whiting v. State

• Citation: 725 A.2d 623,125 Md. App. 404
• Decision Date: 02 March 1999
• Docket Number: No. 707,707
• Parties: Desmond A. WHITING v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

725 A.2d 623

125 Md. App. 404

Desmond A. WHITING v. STATE of Maryland.

No. 707, Sept. Term, 1998.

Court of Special Appeals of Maryland.

March 2, 1999.

Mark Colvin, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Rachel Marblestone Kamins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Patricia Jessamy, State's Atty., for Baltimore City, on the brief), Baltimore, for Appellee.

Submitted before HOLLANDER, SONNER, and THEODORE G. BLOOM (Retired, Specially Assigned), JJ.

HOLLANDER, Judge.

Following a non-jury trial pursuant to an agreed statement of facts, Desmond A. Whiting, appellant, was convicted on May 13, 1998, by the Circuit Court for Baltimore City of possession of heroin with intent to distribute, possession of cocaine, and unlawful transportation of a handgun. Thereafter, appellant was sentenced to concurrent terms of imprisonment of seven years, four years, and three years, respectively. Prior to trial, the court denied appellant's motion to suppress heroin, vials, glassine bags, and cash seized from the trunk of a car that appellant had been driving. On appeal, Whiting challenges only that ruling. He asks: "Did the trial court err in denying the motion to suppress the evidence seized from the trunk of the car?"¹ As we perceive no error, we shall affirm.

I. STANDARD OF REVIEW

In considering the lower court's 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); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749 (1987); 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 first-level fact-finding of the trial 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). Moreover, we must give due regard to the suppression hearing judge's "opportunity to assess the credibility of the witnesses." McMillian v. State, 325 Md. 272, 282, 600 A.2d 430 (1992). See also Jones v. State, 111 Md.App. 456, 466, 681 A.2d 1190 (1996). In addition, we review the evidence in the light most favorable to the State as the prevailing party. Riddick, 319 Md. at 183,571 A.2d 1239.

Nevertheless, as to the ultimate conclusion of whether the search was lawful, this Court must undertake its own independent, constitutional appraisal by reviewing the law and applying it to the facts that are not clearly erroneous. Riddick, 319 Md. at 183, 571 A.2d 1239; see Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Thus, as we said in Jones, 111 Md.App. at 466, 681 A.2d 1190, we "make [our] own de novo determination of whether probable cause existed in light of the not clearly erroneous first-level findings of fact and assessments of credibility."

II. THE SUPPRESSION HEARING

The court conducted a suppression hearing on March 25, 1998. Two witnesses testified.

Police officer Phillip Sexton, a twenty-eight-year veteran of the Baltimore City Police Department, testified that, at 2:35 a.m. on June 16, 1993, he was in his police cruiser traveling northbound in the 1300 block of North Fulton Street in Baltimore City. This area was known as "one of the higher drug areas in the city." While driving, the officer noticed a vehicle in front of him with fifteen day "transporter tags." Officer Sexton explained that transporter tags are issued by the Department of Motor Vehicles for persons to travel to and from an inspection station or a repair or storage facility. The officer then observed the car as it turned left onto Lorman Street without signaling. Because Officer Sexton was aware of no inspection station or facility open at that hour, and because the driver had failed to use a turn signal, Officer Sexton decided to stop the vehicle. Accordingly, Officer Sexton turned onto Lorman Street and activated his emergency lights. When the vehicle pulled to the side of the road, Officer Sexton pulled his police cruiser behind the vehicle and stopped. After informing the dispatcher of the vehicle's temporary tag numbers, the officer was advised that the car was not reported as stolen. At that point, Officer Sexton approached the automobile.

Appellant was sitting in the driver's side seat and his girlfriend, Michelle Dison,² was sitting in the passenger seat. Officer Sexton asked appellant for his license and registration. Appellant, who appeared excited, told the officer that he did not have either his license, the car registration, or any identification. Whiting explained to the officer that he had borrowed the car from his sister to "get some help" for his pregnant girlfriend. According to the officer, appellant directed the officer's attention to Ms. Dison, who was holding her hands in front of her stomach "moaning and groaning, rocking back and forth." Officer Sexton was suspicious of the proffered explanation, because Ms. Dison's stomach appeared flat and she held her hands several inches from her stomach, as if to give the impression of pregnancy. As appellant spoke, he reached three times for a black leather bag located on the front seat of the car between appellant and Ms. Dison. In describing the bag, the officer said it was between eight and nine inches long, and looked "like a bag people use to carrying [sic] shaving gear."

At this point, Officer Sexton became concerned for his safety and called for a back-up unit. About a minute later, Officer Richard Robinson responded. When the back-up unit arrived, Officer Sexton asked appellant to step out of the vehicle. Appellant then placed his hands on the hood of the car. When appellant did so, Office Sexton saw "a hand-made smoking device" that was "altered to smoke crack cocaine," sticking out of appellant's back pants pocket. Officer Sexton then placed appellant under arrest and did a pat down of him. When the officer then asked Ms. Dison to exit the car, she stopped moaning. Officer Sexton noticed a small television set and a pair of electric hair clippers in the back seat of the car. When he directed Officer Robinson to check the black bag located on the front seat, the officer removed a Jennings .25 caliber semi automatic handgun. At that point, Ms. Dison was placed under arrest.

Because the officers did not know the identity of the car's owner, appellant had no registration, and the vehicle was illegally parked, Officer Sexton decided to impound the car and have it towed to the City's impoundment lot. As Officer Sexton was "responsible for the vehicle and everything inside the vehicle," he wanted to "inventory any valuables in the car because the car was going to be impounded" by him. Accordingly, Officer Sexton opened the trunk and found a brown paper box which contained rolls of money in the amount of $1,935.00 in cash. He also found 158 clear plastic capsules "full of a white substance ...," which he thought was cocaine. The substance was later identified as heroin. The trunk also contained "a whole bagful of glassine bags." Although Officer Sexton did not prepare an inventory sheet for the items recovered from the automobile, he itemized them in his police report.

In his testimony, appellant claimed that he gave Officer Sexton a "card" from the glove compartment that showed the vehicle was owned by his sister, Latangela Higgins. Further, he asserted that the item in his back pocket "wasn't showing."

After hearing arguments from both parties, the suppression court ruled that the officer properly stopped and arrested appellant. The court then denied appellant's motion to suppress the items found in the trunk of the car. As to the search of the trunk, the court reasoned:

Now I am concerned about what happens afterwards. I'm concerned that there wasn't an inventory. I think an inventory should have been made. I accept that leaving a car at 2:30 at night that doesn't belong to anybody in West Baltimore, even locked, would expose the police and the City of Baltimore to a possible claim. At the same time, I don't see any inventory being made here. So I have to believe, and I do believe that in the absence of there being an inventory, that the officer, either [Officer Sexton] or Officer Robinson [the back-up officer], went into the rear trunk to search it to see if there were drugs. And they found drugs.

I find, however, ... that a car is readily mobile, and if there is probable cause to believe that the car itself contains contraband, the Fourth Amendment would seek, permit the police to search the vehicle.

While I'm concerned on that issue, I do find under these facts, having found a weapon, and having found a non-conventional [smoking] device, and being in a circumstance where at least one of the parties was trying to, perhaps, mislead the police by claiming that she was pregnant and maybe both were doing that, and that they then stopped claiming pregnancy or an emergency.

And further, a car that is picked up under these circumstances, in the location and at the time it was all circumstances that The [sic] Court considers as well as the police officer's expertise in finding that there was sufficient probable cause for the officers to believe that the rear of the car contained contraband and permit the search.

DISCUSSION

Appellant argues on appeal that the trial court erred in failing to suppress the items recovered from the trunk of the car. Acknowledging that he was properly stopped and arrested, appellant argues only that the search of the trunk was illegal. He grounds this assertion on his claim that the police lacked probable cause to believe that the trunk contained contraband.³ In particular, he asserts that although the pipe was lawfully seized from his person, and the handgun was lawfully recovered from the front seat of his car, these items did not create...