Wilkes v. State

• Decision Date: 25 June 2001
• Docket Number: No. 115,115
• Citation: 364 Md. 538,774 A.2d 420
• Court: Maryland Court of Appeals
• Parties: Timothy Johnson WILKES, v. STATE of Maryland.

774 A.2d 420

364 Md. 538

Timothy Johnson WILKES, v. STATE of Maryland.

No. 115, Sept. Term, 2000.

Court of Appeals of Maryland.

June 25, 2001.

Michael R. Malloy, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Devy Patterson Russell, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ. CATHELL, Judge.

This case concerns whether police officers' use of a K-9 inspection for controlled dangerous substances (CDS) during a routine traffic stop improperly extended the traffic stop beyond what is considered reasonable under the Fourth Amendment of the United States Constitution. Petitioner, Timothy Johnson Wilkes,¹ was charged by criminal information filed on October 30, 1996, with possession of cocaine with intent to distribute, bringing 28 grams or more of cocaine into the State, and related charges. On January 27, 1997, a pretrial hearing was held before the Circuit Court for Queen Anne's County concerning petitioner's motion to suppress the drug evidence. The motion was denied. Petitioner waived his right to a jury trial and the case was postponed. On April 1, 1997, petitioner entered a plea of "not guilty" and the case proceeded on an agreed statement of facts with the State pursuing only the second count. Petitioner was convicted of bringing 28 grams or more of cocaine into the State in violation of Maryland Code (1957, 1996 Repl.Vol.), Article 27, section 286A.

On May 21, 1997, petitioner was sentenced, as a repeat offender under Maryland Code (1957, 1996 Repl.Vol.), Article 27, section 293, to a forty-year prison sentence, dating from September 18, 1996. On May 23, 1997, an appeal was filed with the Court of Special Appeals. In an unreported opinion filed on October 20, 2000, the Court of Special Appeals affirmed the conviction.² Petitioner presented two questions for which we granted certiorari:

1. Did the Court of Special Appeals err by ruling that the police had not improperly extended the traffic stop of Mr. Wilkes in order to permit a K-9 dog inspection of his car?

2. Was there probable cause for the search of Mr. Wilkes?

We hold that the police did not improperly extend the traffic stop in order to permit a K-9 dog inspection of his car and that

there was probable cause for the search of petitioner. Accordingly, we affirm the judgment of the Court of Special Appeals.

I. Facts

The case sub judice involves a relatively routine traffic stop. Petitioner was stopped for driving 63 miles per hour in a 55 mile per hour zone on U.S. Route 301 in Queen Anne's County. During the traffic stop a search was conducted and 57.5 grams of cocaine were seized from petitioner's pants cuff. Three Maryland State Troopers testified as follows about the traffic stop at the suppression hearing.

Trooper First Class Antonio Graham (Trooper Graham) of the Maryland State Police testified that during the early morning hours of September 18, 1996, he was operating a stationary radar gun at the intersection of Route 301 and Route 302 in Queen Anne's County. At approximately 1:52 a.m., he observed two vehicles, a tractor-trailer followed by a Ford Escort with North Carolina license plates, traveling southbound in the fast lane on Route 301. The radar gun registered that the truck was traveling at a rate of speed of 64 miles per hour and the Escort at 63 miles per hour in a 55 mile per hour zone. Trooper Graham then turned on the headlights of his patrol car and began to follow the two vehicles. At this time, the Escort moved into the slow lane and pulled along the side of the truck in what Trooper Graham believed to be "an attempt to avoid [him]." He pulled up behind the Escort, activated his emergency equipment, and the Escort pulled over to a stop on the slow shoulder of southbound Route 301, approximately a half mile south of Route 302. The tractortrailer apparently continued to speed south on Route 301.

Trooper Graham radioed the State Police Barracks in Centreville to advise them that he had just made a traffic stop. He then exited his police cruiser, approached the driver's side window of the Escort, and began conversing with its sole occupant, petitioner. Trooper Graham informed petitioner that he had been stopped for exceeding the posted speed limit, to which petitioner responded that he may have been traveling a little fast because he was tired. Trooper Graham then requested to see petitioner's driver's license and vehicle registration card, which petitioner provided to the officer. Petitioner had a North Carolina driver's license and was named as the owner of the vehicle on the registration card. At this point, Trooper Graham began to ask petitioner a number of questions:

After he provided the driver's license and registration I continued-well, I struck up a conversation with [petitioner], ascertaining where he was coming from, where he was going. He advised me that he was coming from New York, and he was en route back to home in Rocky Mount, North Carolina. General conversation I had, what was going on in New York, what was he up in New York for. He was coming from a family reunion in New York. I asked him how long he had been in New York. [Petitioner] advised me he was in New York for approximately two days.

...

While talking to [petitioner], it's a small vehicle, it's a hatchback vehicle, while talking to him I observed some air fresheners in the vehicle. And that's about it. I believe it was a coat, like a leather coat or something on the back seat.

Trooper Graham also testified that he did not see any luggage in the Escort. Returning to his patrol car, he radioed the Centreville Barracks to request that they conduct a check on petitioner's driver's license and registration, as well as for any possible outstanding warrants. According to Trooper Graham, this was routine procedure. He also indicated that it sometimes takes longer to complete such status checks on out-of-state licenses.³

Trooper Graham then returned to the Escort and asked petitioner whether the address on the driver's license was current and petitioner replied that it was accurate.⁴ The record indicates that at this point the Centreville Barracks had not yet provided the requested information concerning petitioner and his vehicle. Trooper Graham returned to his patrol car and began to issue petitioner a warning citation for driving 63 miles per hour in a 55 mile per hour zone. As he began writing the warning, he decided to match the Vehicle Identification Number (VIN) on the registration card number to the VIN actually located on the Escort. He again approached the Escort and asked petitioner to open the vehicle door so that he could compare the VIN displayed on the registration card with the VIN plate on the car door.⁵ When the car door opened, Trooper Graham detected an unusual odor, that he was unable to recognize, coming from the vehicle. He testified that although he could not identify the odor, it was not the type he would commonly associate with air fresheners. He then compared the two VIN's and found that they did indeed match.

At this point, Troopers First Class Charles Prince (Trooper Prince) and Robert M. Penn, Jr. (Trooper Penn) of the Maryland State Police, arrived on the scene simultaneously, but in separate police cruisers. Both of the backup troopers exited their vehicles and started to approach the Escort. Trooper Graham walked from the Escort, met the two troopers halfway between the Escort and his police cruiser, and informed them of the events concerning this traffic stop as follows:

I told them that I had stopped him for speeding and told them that he advised me he was coming from New York going to North Carolina, but I didn't locate any luggage or type of clothing that would support he was in New York for two days.

I also told them that I could detect an odor coming from his vehicle and that he had a large number of little trees and type of air fresheners in his vehicle and the odor coming from the vehicle was not that of the trees or the other little baggies of air fresheners⁶ that he had in the vehicle.

Trooper Graham testified on cross-examination that from the time when he first radioed in the traffic stop up to the time when the two backup troopers arrived on the scene, approximately five minutes had elapsed.

Based on Trooper Graham's suspicions, Trooper Prince, a licensed trained handler of K-9's with the Maryland State Police, decided to scan the Escort for illegal drugs with his assigned narcotics dog, "Sage." At this point, Trooper Graham returned to his vehicle to finish filling out the traffic stop documents. Trooper Penn approached the Escort, advised petitioner that Trooper Prince and Sage were going to conduct a scan of the Escort, and he informed petitioner that he needed to exit his vehicle. Trooper Penn testified that petitioner exited the vehicle and he, as a safety precaution, conducted a "pat down" of petitioner's outer garments in the area around his waist and did not find any weapons or contraband. Petitioner and Trooper Penn remained in an area in front of the Escort while Trooper Prince and Sage performed a scan of the vehicle. Two scans of the perimeter of the Escort were performed. On both scans, Sage alerted to the presence of drugs at the driver's side door of the Escort. Trooper Prince testified that:

K-9, as always, I started at the left rear bumper, counterclockwise scanned the vehicle. K-9 Sage came up on the driver's door and showed a noticeable change. When I say noticeable change, his mouth closed up, he intensively searched the driver's door area, tail started wagging. His ears stood up a little bit and he aggressively searched that area of the driver's door, and gave a very solid alert, sitting down, almost immediately, once we targeted a certain area of the

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