Preview:

REPORTED

IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1949 September Term, 1999

KENDRICK ORLANDO CHARITY

v.

STATE OF MARYLAND

Moylan, Wenner, Byrnes, JJ.

OPINION BY MOYLAN, J.

Filed: June 8, 2000

If there is a lesson to be learned from this case, it is that when the police are permitted a very broad but persistently controversial investigative prerogative,1 they would be well

advised, even when not literally required to do so, to exercise that prerogative with restraint and moderation, lest they lose it. 135 In Whren v. United States, 571 U.S. 806, 116 S. Ct. 1769, L. Ed. 2d 89 (1996), the Supreme Court extended law

enforcement officers a sweeping prerogative, permitting them to exploit the investigative traffic opportunities even presented when to them by

observing

infractions

their

primary,

subjective intention is to look for narcotics violations. The so-called "Whren stop" is a powerful law enforcement weapon. In utilizing it, however, officers should be careful

not to attempt to "push out the envelope" too far,2 for if the perception should ever arise that "Whren stops" are being

regularly and immoderately abused, courts may be sorely tempted to withdraw the weapon from the law enforcement arsenal. the most ardent champions of vigorous law Even

enforcement,

therefore, would urge the police not to risk "killing the goose that lays the golden egg."
1

See Whitehead v. State, 116 Md. App. 497, 500, 698 A.2d 1115 (1997). See also David A. Harris, Whren v. United States: Pretextual Traffic Stops and "Driving While Black," The Champion, March 1997, at 41.
2

Instead of appreciating that with the "Whren stop" the law enforcement prerogative may already be stretched to its outermost limit, police officers fall into the habit of accepting the "Whren stop" as an unremarkable norm and then try to stretch yet further what may already be right at the breaking point.

-3The secondary lesson is that if this case is not squarely controlled by a linear application of the holding of the Court of Appeals in Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999), it is nonetheless a variation on a theme by Ferris. The appellant, Kendrick Orlando Charity, was convicted in the Circuit Court for Wicomico County of the possession of

cocaine with the intent to distribute.

His sole contention on

appeal is that the trial court erred in denying his motion to suppress. The Traffic Stop and Its Sequelae At about 7:10 P.M. on the evening of January 21, 1999, Maryland State Police Sergeant Mike Lewis observed three

vehicles traveling closely together, southbound, on Route 13 in Wicomico County near Salisbury. Sergeant Lewis, though assigned

primarily to drug interdiction, believed that the second and third vehicles in were following them for too closely foggy and to and the respective weather a

vehicles

front He

of

for

the

rainy

conditions.

called

assistance

then

initiated

traffic stop of the second and third vehicles.

Sergeant Lewis

approached the second car, a blue Nissan Maxima driven by the appellant, while another trooper approached the third vehicle. The Nissan Maxima had North Carolina tags. The driver of the

-4third car was given a written warning and released within

several minutes.

The appellant was not.

According to Sergeant Lewis's testimony at the suppression hearing, he approached the second vehicle, advised the appellant as to why he had been stopped, and asked to see a driver's license and registration card. After noticing that Sean White,

the only passenger in the car, was not wearing a seat belt, Sergeant Lewis requested his identification as well. appellant and White complied. Both the

As he stood at the window,

Sergeant Lewis noticed a large bundle of air fresheners hanging from the rear view mirror. air fresheners. Sergeant Lewis also indicated at the suppression hearing that "there was little doubt" on in his mind the that there was His A subsequent count revealed 72 such

"something

criminal

going

inside

vehicle."

suspicion was based on the large number of air fresheners and on the fact that the appellant had a New had York a North Carolina Based driver's on those

license

and

White

license.

observations, Sergeant Lewis asked the appellant to step out and to move to the rear of the vehicle, notwithstanding that a light rain was falling. He then began questioning the appellant as to

where he was coming from and where he was going.

-5Leaving the appellant standing in the rain, Sergeant Lewis then approached the passenger side of the vehicle and began

asking White the same questions. White that were different from

After receiving answers from the answers given by the

appellant, Sergeant Lewis returned to the rear of the vehicle where the appellant was standing. "rain heavier" in and because he Because it then began to to have Lewis the appellant a

wanted

"seated

[his]

cruiser,"

Sergeant

requested

"consensual patdown" of the appellant. consented.

The appellant ostensibly

In the course of the pat-down, Sergeant Lewis felt a bulge in the appellant's front pants pocket. In response to the

sergeant's question regarding the contents of the pocket, the appellant reached into the pocket and pulled out a packet of gum and some money. In the process of the appellant's doing so,

Sergeant Lewis saw "a one gram size packet" of what he "readily recognized to be marijuana" between the appellant's ring finger and his middle finger. Sergeant Lewis then "plucked" the packet

from the appellant's fingers, held it in front of his face, and stated, "This authorizes me to conduct a full-blown search of your vehicle now." White was also ordered out of the vehicle and was directed to stand next to the appellant while Lewis and another state

-6trooper, Corporal Bromwell, performed a Carroll Doctrine search of the vehicle. A large quantity of cocaine, 194 grams, was Both the and 2)

found in the bottom of a box located inside the trunk. appellant and White were with 1) then the placed under of

arrest cocaine,

subsequently

charged

importation

possession of cocaine with intent to distribute, 3) possession of cocaine, 4) conspiracy to import cocaine, and 5) conspiracy to possess cocaine with the intent to distribute.

The Suppression Hearing The appellant filed a motion to suppress the cocaine. hearing was held on August 10, 1999. With respect to A the

traffic stop, the judge stated: I certainly have no question evidence as to propriety of the was a dark, rainy, foggy night following much too closely conditions that existed there. under the stop. It with cars for the

The officer stopped the two cars that were in violation of the law, in his opinion, for following too closely. After he stops the car, Trooper Lewis approaches the defendant's vehicle. The judge went on to make other rulings with respect to 1) the propriety of a further Terry-stop, 2) the voluntariness of a consent to a pat-down, and 3) probable cause for a Carroll

-7Doctrine search of the car. At the conclusion of the hearing,

he denied the appellant's motion to suppress. The Trial The appellant agreed to proceed on a plea of Not Guilty on an Agreed Statement of Facts on the charge of the possession of cocaine with intent to distribute. offense.3 He was found guilty of that

The State placed the remaining four charges against The appellant then noted this appeal.

him on the stet docket.

The Limited Focus of Our Review Because the only contention raised by the appellant is that the trial judge erroneously denied his motion to suppress the cocaine found in the trunk of the car, the only subject matter properly before us consists of the motion to suppress, the

transcript of the hearing on the motion, and the trial judge's ruling on the motion. Except for the fact that the appellant

was convicted, without which we would have no appeal, it is for our purposes as if the trial on the merits never took place.

3

The appellant's passenger and codefendant, Sean White, was tried by a Wicomico County jury and found guilty on five related counts. He received a sentence of twenty-five years. The diametrically different fates of this appellant and his codefendant turned on the fact that the codefendant did not enjoy Fourth Amendment standing. The suppression hearing was concerned only with the cocaine found in the Carroll Doctrine search of the trunk of the appellant's automobile. The codefendant conceded that he had no standing in the automobile. Indeed, his trial strategy seemed to be to distance himself as much as possible from any arguable interest in the appellant's automobile. His defense, at trial and on appeal, was focused almost exclusively on challenging the legal sufficiency of the evidence to connect him with the cocaine found in the trunk of the automobile.

-8The leading summary of what is properly before a reviewing court on an issue concerning pretrial suppression was made by Judge Karwacki in In re Tariq A-R-Y, 347 Md. 484, 488, 701 A.2d 691 (1997): In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing and do not consider the evidence admitted at trial. Gamble v. State, 318 Md. 120, 125, 567 A.2d 95, 98 (1989); Herod v. State, 311 Md. 288, 290, 534 A.2d 362, 363 (1987); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749, 755 (1987). Even within that limited universe of the suppression

hearing, we are yet further restricted in that we may consider only that version of the evidence most favorable to the

prevailing party.

Judge Karwacki explained:

We are further limited to considering only that evidence and the inferences therefrom that are most favorable to the prevailing party on the motion, in this instance the State. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990); see also Simpler v. State, 318 Md. 311, 312, 568 A.2d 22, 22 (1990). Id. At the suppression hearing in this case, for instance, the himself of testified, Lewis, diametrically 1) that he contrary was not to the

appellant testimony

Sergeant

closely

following any other automobile

but was many car lengths behind

the nearest vehicle and 2) that he was never asked to consent to a frisk of his person and never did consent. For present

-9purposes, however, we treat that testimony as if it had never been given. Our ruling will be based exclusively on the State's

most favorable version of the events. The one obvious qualification to or modification of a

reviewing court's acceptance of the version of the evidence most favorable to the prevailing party, of course, is with respect to findings of first-level fact actually made by the hearing judge. Except in rare cases of clear error, we give great deference to such findings of fact when actually made. The actual findings

of fact made by the hearing judge, unless clearly erroneous, "trump" the version most favorable to the prevailing party to the extent to which they might be in conflict. Karwacki explained: In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to determining the credibility of witnesses and to weighing and determining first-level facts. Riddick, 319 Md. at 183, 571 A.2d at 1240. When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that those findings were clearly erroneous. 347 Md. at 488-89. In this case there was no divergence between Again, Judge

the State's best version of the facts and the facts as found by the hearing judge.

-10As to what then to make of those first-level fact findings, however, that is ultimately the de novo responsibility of the reviewing court. In this regard, Judge Karwacki observed:

As to the ultimate conclusion of whether a search was valid, we must make our own independent constitutional appraisal by applying the law to the facts of the case. 347 Md. at 489. See also Ferris v. State, 355 Md. at 368-69

("[W]e view the legal conclusions de novo.") In Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996), the Supreme Court contrasted the great deference a reviewing court should extend to a hearing judge's assessments of credibility and "determination[s] of historic

facts," 517 U.S. at 696, with the obligation of a reviewing court to make its own independent or de novo judgment with

respect to ultimate, conclusory, or "mixed question[s] of law and fact." Id. Chief Justice Rehnquist, 517 U.S. at 697, wrote

for an eight-to-one majority: We think independent appellate review of these ultimate determinations of reasonable suspicion and probable cause is consistent with the position we have taken in past cases. We have never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly deferred to the trial court's determination. A policy of sweeping deference would permit, "[i]n the absence of any significant difference in the facts," "the Fourth Amendment's incidence [to] tur[n] on whether

-11different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause." Such varied results would be inconsistent with the idea of a unitary system of law. (Citations concluded: We . . . hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. In parsing how an appellate court reviews a hearing judge's findings on a mixed question of law and fact, we ourselves omitted). The Supreme Court, 517 U.S. at 699,

observed in Walker v. State, 12 Md. App. 684, 695, 280 A.2d 260 (1971): What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact-the existence or non-existence of voluntariness. At least two such ultimate, conclusory, or mixed questions of law and fact are before us for our independent assessment in this case. One of them concerns the voluntariness of the

-12appellant's ostensible consent to the pat-down of his person and the reasonableness of Sergeant Lewis's perception as to that consent. The other is whether the proper scope of a "Whren

stop" was exceeded so as to have necessitated an independent Fourth Amendment justification for the roadside proceedings that followed. With respect to our assessment of the voluntariness of the appellant's ostensible consent to the pat-down, Perkins v.

State, 83 Md. App. 341, 346, 574 A.2d 356 (1990), clearly set out the appropriate standard of review: As we are called upon to review the constitutionality of an allegedly consensual search, our standard of review is clear. We extend great deference to the fact finding of the suppression hearing judge with respect to determining the credibilities of contradicting witnesses and to weighing and determining first-level facts. With respect to the ultimate, conclusionary fact of whether the act of consent was truly voluntary, however, we are called upon to make our own independent, reflective constitutional judgment. (Emphasis supplied). See also Gamble v. State, 318 Md. 120,

128, 567 A.2d 95 (1989); Matthews v. State, 89 Md. App. 488, 497, 598 A.2d 813 (1991). With respect to the second question, Munafo v. State, 105 Md. App. 662, 672, 660 A.2d 1068 (1995), was emphatic that the determination of whether there was one detention or two is not

-13a finding of fact with respect to which the appellate court will give deference or to the hearing fact its judge with own but is, to instead, which de a the novo

conclusory reviewing

constitutional must make

respect

court

independent,

determination: Whether appellant was effectively stopped twice for constitutional purposes is not a question of fact, but one of constitutional analysis. Accordingly, the trial court's conclusion in that regard is not entitled to deference. See also Whitehead v. State, 116 Md. App. 497, 505-06, 698 A.2d 1115 (1997). The "Whren Stop" The initial stop of the appellant's automobile for a traffic infraction was completely legitimate. Sergeant Lewis testified

that while traveling at approximately 65 miles per hour, the appellant's automobile, in rainy and foggy conditions at night, was following the car in front of it by no more than one to oneand-a-half car lengths. The hearing judge found as a fact that

the appellant was "following too closely" and that the stop for the traffic infraction was fully justified. historic fact. To be sure, Sergeant Lewis was not a highway patrolman with any apparent interest in enforcing the traffic regulations per We accept that as

-14se. He was a 15-year veteran of the Maryland State Police He had made

assigned to the special task of drug interdiction.

between 400 and 600 arrests on the Eastern Shore of Maryland in cases "involving into or controlled through dangerous the State of substances Maryland." being He

transported

recounted at length his extensive training in drug interdiction at special schools and courses in Florida, Canada, Illinois, Nevada, Detroit, New Jersey, West Virginia, Virginia, and North Carolina. There is every reason to believe that when he saw the

appellant's car traveling as one of what appeared to be three cars "in convoy" southbound on a major drug corridor from New York to Norfolk and points south, he suspected the appellant to be a drug courier. The fortuitous traffic infraction simply

gave him the opportunity to pursue his primary investigative mission. All of that is beside the point, however, because Whren v. United States permits a narcotics officer to seize the

opportunity presented by a traffic infraction to make a stop that would not otherwise be permitted. need not apologize for this. The narcotics officer

The "Whren stop" is part of the

arsenal. There are, however, scope limitations on what may be done pursuant to a permissible "Whren stop" or pursuant to any traffic stop.

-15A person engaged in criminal activity compromises to some extent his constitutional expectations of privacy whenever he is careless enough to commit a traffic infraction while

simultaneously committing a crime.4 of Whren.

That is the essential effect

In the statement we just made, however, the critical Whren

qualifying words are the adverbial phrase "to some extent."

is primarily a justification for the initial police intrusion. There are, however, two key Fourth Amendment considerations: 1)

the justification for the initial intrusion into a protected privacy interest and 2) the scope of what may be done even following a legitimate initial intrusion. Coolidge v. New

Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). Our concern in this case is not with the "Whren stop" It is with the scope limitations that necessarily a traffic stop generally and to a "Whren stop"

ab initio. attach to

specifically. In Whitehead v. State, 116 Md. App. at 506, Judge Sonner pointed out that although the Supreme Court has placed its

imprimatur on a "Whren stop" generally, it has not yet fleshed out the permissible contours of such a tactic:

4

It is a truism that when engaged in crime, one should not attract attention to oneself.

-16Whren . . . did not provide guidance as to just how far the police may go in detaining and interrogating someone who has been stopped on the pretext of the enforcement of the traffic laws. Scope Limitations of a Traffic Stop: The Ferris v. State Sequence Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999), squarely establishes one such scope limitation. Once the purpose of a

traffic stop has been fully and finally served, the traffic stop may not supply the Fourth Amendment justification for any

further intrusion that follows. Ferris did not involve a "Whren stop." From the outset, it Maryland State

was a genuine traffic stop and nothing else.

Trooper Andrew Smith was posted on Interstate 70 in Washington County to look for speeding infractions; he was operating a

laser speed gun.

The posted speed limit was 65 miles per hour

at the spot where he clocked Ferris's vehicle traveling at a speed of 92 miles per hour. Trooper Smith activated his emergency lights and stopped Ferris's automobile without incident. On demand, Ferris Ferris

produced his driver's license and registration card.

remained behind the wheel of his own vehicle as Trooper Smith returned to his patrol car and checked for outstanding warrants. Trooper Smith wrote out a speeding citation. He returned to

-17Ferris's vehicle and presented Ferris with the citation. Ferris

signed the citation and Trooper Smith returned Ferris's driver's license and registration card to him, along with a copy of the citation. At that point, the purpose of the traffic stop had

been fully and finally served. While that traffic-oriented stop was in progress, however, Trooper Smith and another trooper had made observations that raised their suspicions about other criminal activity on the part of Ferris and his passenger. mind alighting and from his car, Ferris was asked if he would to the back of of the both

stepping The

vehicle,

answering

questions.

questioning

suspects ultimately led to the search of the automobile in which they had been riding and to the recovery of a quantity of

marijuana. In determining the extent to which a law enforcement officer who has properly stopped a motor vehicle based on probable cause may detain and question the driver after the officer has

concluded the purpose for the initial stop, the Court of Appeals in Ferris explained, 355 Md. at 369: The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention. The Supreme Court has made clear that a traffic stop involving a motorist is a detention which implicates the Fourth Amendment. It is equally clear, however, that ordinarily such a stop does not

-18initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation. Nonetheless, the Supreme Court has also made it clear that the detention of the person "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." (Citations omitted; emphasis supplied). Writing for the Court, Judge Raker further explained that: [t]he officer's purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention. Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot. 355 Md. at 372 (emphasis supplied). See also Snow v. State, 84

Md. App. 243, 248-68, 578 A.2d 816 (1990). In Ferris, there was a clearly demarcated sequence. At the

moment when Trooper Smith returned Ferris's driver's license and registration card to him and handed Ferris a copy of the It

speeding citation, the initial traffic stop came to an end.

could no longer serve as the Fourth Amendment justification for anything that followed. The Court of Appeals did then go on to

-19hold that because of the coercive atmosphere attendant on the traffic stop and with no clear dissipation of that atmosphere, the confrontation between the troopers and the passengers that followed the stop were not voluntary acts on the part of the passengers. detention of There the was, rather, a second Fourth an Amendment independent

passengers

requiring

justification.

The Court of Appeals concluded that there was no

independent justification for that second detention. It is on the difference in the sequencing between this case and Ferris that the State here relies. this case is "not controlled" by The State argues that because Ferris was

Ferris

concerned with a second detention after the termination of the initial traffic-oriented first detention, whereas this case is not. In its brief, the State points out that [t]he initial distinguishing factor between Ferris and the instant case is that the initial traffic stop here had not concluded before the drugs were found. Unlike in Ferris, Charity had not been issued a warning or citation at any time prior to the discovery of the marijuana. Lewis testified that he issued Charity a warning, not [at the] roadside but during processing at the station later that night. And this was not a situation, as in Pryor v. State, involving a "detention that extended beyond the period of time that it would reasonably have taken for a uniformed officer to go through the procedure involved in issuing a citation to a motorist." Lewis testified that the average time it took to issue a warrant or citation was five minutes, and he found the

-20marijuana approximately two to three minutes after he stopped Charity's car ... Thus, this case is not controlled by Ferris because there was no second stop requiring reasonable suspicion. At the surface level, we agree with the State. there was a clear sequence: In Ferris,

1) an initial detention as a result

of a traffic infraction, 2) a precisely pinpointed termination of the initial detention, and 3) the beginning of a second and independent detention. such a neat sequence. In the case now before us, there was not According to the State's argument, the

first detention was not formally terminated until hours later and then only at the station house miles away. In that sense,

to be sure, this case is not controlled by the literal holding of Ferris. That is not, however, the end of the analysis.

Although the first traffic-oriented detention was not formally terminated until long after all of the critical investigative events in this case had occurred, this does not mean that Ferris has no bearing on this case. Albeit not a case vulnerable to a

literal or linear application of the Ferris holding, this case is clearly a variation on a theme by Ferris.

Other Scope Limitations on a Traffic Stop: An Unreasonable Prolongation Just as a traffic stop, be it a "Whren stop" or be it subjectively genuine, loses its energizing power to legitimate

-21a contemporaneous but extrinsic Ferris d'etre or v. investigation State, if lapse so once too it is the is of

formally

terminated, raison

may

legitimating unreasonably

evaporate to

its into

pursuit a state

attenuated

allowed

suspended animation.

We are not suggesting for a moment that

when the police effectuate a traffic stop, they are operating under a "time gun" or may not pursue two purposes essentially simultaneously, with each pursuit necessarily slowing down the other to some modest extent. We are simply saying that the

purpose of the justifying traffic stop may not be conveniently or cynically forgotten and not taken up again until after an intervening narcotics investigation has been completed or has run a substantial course. The legitimating power of a traffic

stop to justify a coincidental investigation has a finite "shelf life," even when the traffic stop, as in this case, is not formally terminated. The moment of termination of the initial justification in a Ferris sequence is easy to pinpoint. When, as here, however,

the initial justification simply dissipates or evaporates away through efficacy neglect, becomes are, pinpointing more by the moment that it or loses its

problematic. their nature,

Informal more

functional than formal

terminations

elusive

ones, but they are just as terminal.

In Whitehead v. State, 116

-22Md. App. at 506, we did not hesitate to hold that an unduly protracted detention was unconstitutional notwithstanding our

difficulty in pinpointing the precise moment at which it lapsed into unconstitutionality: Exactly when he began the prohibited detention is not completely ascertainable. At the very latest, however, it began when he learned that he had no reason to detain Whitehead further because he learned there was no reason to do so from the radio report from his barrack. On the record presented, we find no justification for his abandoning the requirement of proceeding with the issuing of the traffic citation and beginning the outer search of the car with the K-9. (Emphasis supplied). The State would like to have us set some arbitrary, minimal time period that would have to expire before the traffic-

oriented justification could be held to have lapsed.

Even if in

a given case there were no semblance of processing or pursuing the traffic violation, the State would still like the benefit of a "time-out" for so long as it would normally and reasonably take to process a routine traffic stop. The State here argues, for instance, that because Sergeant Lewis did not return the appellant's driver's license and

registration card or actually "complete" the traffic stop by issuing a citation or warning, Sergeant Lewis remained free to conduct any inquiry he chose without any further justification

-23so long as he did so within the time it normally would take for a traffic stop to be completed. If we agreed with that

contention, we would be giving police officers free rein during the first five minutes, for instance, of any valid traffic stop. Such a letter, result of flies in not the to face mention of the spirit, if not the A

Ferris,

the

Fourth

Amendment.

clever officer could always ward off the foreclosing effect of Ferris by deliberately delaying his final termination of the traffic stop. Such a tactic would render Ferris a dead letter

by vitiating any need for an independent justification for a second stop stop. With respect to the tactical inefficacy of such a calculated delay in issuing a traffic warning, Judge Davis's observation in Munafo v. State, 105 Md. App. at 672, is pertinent: The distinguishing fact in the present case is that Deputy Houck did not actually issue a citation or warning after receiving word that Munafo's license and rental agreement were valid. Rather, he waited for Sergeant Elliott to arrive on the scene before approaching appellant a second time. Even then it is unclear whether Deputy Houck intended to issue a citation when he approached the vehicle a second time. We find it more than slightly illogical to allow officers to circumvent Snow [or simply by delaying the termination of the first

-24Ferris][5] merely by waiting to issue a citation until after conducting a search of a detained vehicle. (Emphasis supplied). In determining whether a police officer has exceeded the temporal scope of a lawful traffic stop, the focus will not be on the length of time an average traffic stop should ordinarily take nor will it be exclusively on a determination, pursuant to Ferris, of whether a traffic stop was literally "completed" by the return of documents or the issuance of a citation. very lengthy detention may be completely reasonable Even a under

certain circumstances.

Conversely, even a very brief detention There is no set should must be the the

may be unreasonable under other circumstances. formula for measuring of in a the abstract stop. what We

reasonable

duration

traffic

assess

reasonableness of each detention on a case-by-case basis and not by the running of the clock.

5

Snow v. State, 84 Md. App. 243, 578 A.2d 816 (1990), was a case in which this Court actually anticipated the decision of the Court of Appeals in Ferris v. State. In Munafo, 105 Md. App. at 670, we summarized the import of Snow: In Snow, we concluded that the purpose of a 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. In Snow, as in Ferris, there was a discernible sequence, with a formal termination of the first detention followed by the initiation of the second detention. In Munafo, as in this case, the line between the two was blurred.

-25In both Snow v. State, supra and Munafo v. State, supra, we held that an initially valid traffic stop could not serve as the justifying predicate for the narcotics-related investigation

that followed in its immediate wake, notwithstanding the fact that in both cases "the total length of the stop was brief and did not exceed the normal duration for a traffic stop." 105 Md. App. at 671. What might be a reasonable duration for most traffic stops might not be reasonable duration for a particular traffic stop on a particular occasion. Reasonableness may depend on whether Munafo,

the purpose of the traffic stop is actually being pursued with some modicum of diligence. We repeat that in processing a

traffic infraction the police are not to be monitored with a stop-watch. Neither, however, does Whren confer on them, for

example, five minutes of "free time" to do whatever they wish in the service of some other investigative purpose. The Prolongation of the Traffic Stop In this Case Under the extreme circumstances of this case, which are what prompted our observations at the very outset of this opinion, it is clear to us, on our independent assessment of the ultimate Fourth Amendment merits, that the police purpose for of taking traffic

appropriate

action

against

the

appellant

his

-26infraction of following too closely effectively lapsed into a coma at the instant Sergeant Lewis approached the Nissan Maxima and the appellant rolled down the window. As soon if as not Sergeant before, Lewis he smelled and saw as the well air as

fresheners,

was,

figuratively

literally, "on the scent" of a narcotics violation.

His total

focus had shifted from the traffic infraction, if it had ever been there, to drug interdiction. Q: Now, when you engaged Mr. Charity in some conversation there at roadside, your initial purpose was to tell him that he was driving too close or following -That's correct. Yes, sir. * * * Q: Now, when you got driver's window, tell didn't just give him there or at least there? to Mr. Charity's me the reason you the summons right a warning right

A:

A:

Well, as I knelt down, sir, and asked for his license and registration, he gave me his license, the registration was retrieved, I believe from the glove box, and as I stood next to the car I was overcome with the odor of air fresheners emanating from the vehicle's interior, and when I knelt down, I could clearly see a large bunch of air fresheners hanging from the rear view mirror which ended up being 72 separate pine tree air fresheners hanging from the rear view mirror. Most I have ever seen in my career.

-27Q: So there were a lot of air fresheners in there? Yes, sir. Still, is that a violation of the law? No, sir, but it is a common indicator of drug trafficking. That in isolation means nothing, but I was considering that in aggregate. You were considering that? That's correct. Did you tell him at that time that he was following the vehicle too closely? Yes, and he too closely. my report. apologized for following I have that documented in

A: Q: A:

Q: A: Q:

A:

Q:

He apologized closely? Yes, sir.

for

following

too

A: Q: A:

Did you issue him the warning then? No, I did not.

(Emphasis supplied). The next action Sergeant Lewis took after confronting the appellant as he sat behind the steering wheel was to order him out of the car and The to the rear of to the vehicle out for that further under

questioning.

State

hastens

point

Pennsylvania v. Mimms, 434 U.S. 106, 108-12, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) and Maryland v. Wilson, 518 U.S. 408, 411-

-2812, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997), the police enjoy the automatic prerogative, following a lawful traffic stop, of ordering the driver out of the car. the entitlement to order the The State is correct that out of the car is an

driver

automatic incident of a traffic stop.

In this case, however,

Sergeant Lewis's ordering of the appellant out of the car was not, even in part, an incident of the traffic stop. judgment, exclusively for the independent It was, in our purpose of

investigating a likely narcotics violation. Initially, it is clear that Sergeant Lewis's ordering of the appellant out of the car so that he might be subjected to

further questioning at the rear of the car had no conceivable relationship to the purpose of the traffic stop. The traffic

infraction was that of "following too closely," a violation as relatively minimal as traffic infractions can be. For that

infraction, the appellant was only issued a warning, a typical sanction for following too closely. still standing outside the Once Sergeant Lewis, while window, informed the

driver's

appellant that he had been stopped for following too closely and the appellant had both acknowledged and apologized for the

infraction, there was nothing further to be done.

There was no

reason the warning, or even a citation, could not have followed

-29forthwith. There was, moreover, no traffic-related reason for

any further questioning. As a practical matter, the entire subject of the traffic infraction never came up again until the warning was ultimately issued hours later at the station house. If we focused only on

the traffic infraction, it is inconceivable that one could be stopped on the roadside at 7:10 P.M. for following too closely and held for hours before being issued a warning later that night and miles away. It is hard even to fathom a purpose for

giving the warning at that late time and remote place except to establish a neat terminal point for the processing of the

traffic infraction, for purposes of Ferris v. State, so that the traffic stop might better serve as the "cover" for the detention involved in conducting the narcotics investigation.6 Contrasting the handling of the appellant's traffic

violation with the handling of the same violation by the driver of the other car that was stopped is not, of course,

controlling; it is nonetheless instructive as to what the police were actually doing in the case of the appellant. Sergeant

Lewis and Corporal Bromwell were traveling together in the same

6

Because the appellant was at that time already under arrest for and facing probable substantial jail time for a series of narcotics-related felonies, warning him not to "follow too closely" in the future seems bizarre. A more appropriate warning might have been to avoid the Route 13 "corridor."

-30unmarked police cruiser. The appellant's car and the car behind

it were traveling at precisely the same speed on precisely the same road under precisely the same weather conditions and were each following the car in were front at essentially and Corporal the same

distance.

Both

cars

stopped

Bromwell

approached the other car just as Sergeant Lewis approached the appellant's car. The driver of the other car was issued a warning and sent on his way within no more than a minute or two. was not. The appellant

The driver of the other car was never asked to alight

from it and to step to its rear, notwithstanding Pennsylvania v. Mimms and Maryland v. Wilson. The appellant was. With regard to the respective traffic infractions per se, there was nothing to distinguish appellant. the case of the other driver from that of the

In assessing the selective ordering of the appellant

out of the car, moreover, it is not without significance that it was raining and, indeed, beginning to rain heavily. That is a

harsh and inclement venue for the issuing of a traffic warning. Just as it is clear that a traffic-related purpose was no longer being served even marginally, it is equally clear that, measured from the moment Sergeant Lewis ordered the appellant out of the car, a narcotics-related purpose had not simply been opportunistically added to the traffic-related purpose but had,

-31indeed, preempted the field as the exclusive purpose for every investigative action that followed. Before Sergeant Lewis

ordered the appellant out of the car, he had smelled and seen the air fresheners. He had noted that the car had a North

Carolina license tag and that it was traveling southbound on Route 13, a well known "drug corridor" between New York City and the upper South. He had noted that the appellant had a North

Carolina driver's license and that his passenger had a Virginia identification card and a New York driver's license. noted that the appellant avoided all eye contact with him: As I talked to the two men, there was little doubt in my mind based on the overwhelming [odor] of air freshener coming from the vehicle. I had a vehicle stopped on U.S. Route 13 with a driver from Charlotte, North Carolina. I had a passenger in a vehicle with a Virginia identification card. I had total eye contact that was lost between myself and the driver. He avoided all eye contact with me, and when I talked to the two gentlemen and listened to their responses, there was little doubt in my mind that [there] was something criminal going on inside the vehicle. (Emphasis supplied). When asked on direct examination what his purpose was in ordering the appellant out of the car, Sergeant Lewis's answer indicated an exclusively narcotics-related purpose: Q: What was your purpose in asking him to step out of the vehicle? He had

-32A: I wanted to talk to him at the rear of the vehicle. I noticed the overwhelming odor of air freshener emanating from the vehicle's interior, and again, there were 72 air fresheners hanging from the rear view mirror which was excessive in my opinion. In fact, it was a very large bundle hanging up there together. I later counted 72 air fresheners.

The purpose for talking to the appellant at the rear of the vehicle, notwithstanding the rain, was clear. Sergeant Lewis

wanted to talk to him out of the presence of the passenger, just as he subsequently wanted to talk to the passenger out of the presence of the appellant. The questioning of both would

concern where they had been, how long they had been there, and where they were going. The object of such separate

interrogations is to look for inconsistencies in the respective stories. It is equally obvious that the questions of "whence they cometh and whither they goeth" had no remote bearing on the traffic infraction of following too closely. observation about attempting for to justify this Judge Sonner's investigative a routine

technique--probing

inconsistent

stories--as

incident of a normal traffic stop goes to the raw central nerve of what we are called upon to assess in this case: He did not set about to issue a citation or warning but, instead, from the beginning, actively sought to determine whether, in his

-33mind, there were sufficient circumstances and facts that would then allow him to proceed to search for narcotics, the primary law enforcement task for which he was using the traffic laws. We observe from the record that part of his activity was to engage the two occupants of the automobile in conversation about the details of their journey to determine whether they were consistent. 116 Md. App. at 503 (emphasis supplied). Whitehead's further

observation, 116 Md. App. at 504, reflects our feeling here that such questioning has nothing to do with serving the purpose of the traffic stop: In asking the questions, Trooper Donovan was not making inquiry to further the enforcement of the 55 mile speed limit. He was looking for justification to intrude upon the privacy of the person whom he had detained. (Emphasis supplied). On cross-examination by defense counsel, Sergeant Lewis was questioned as to his reason for ordering the appellant out of the car. He reiterated his belief that "something [criminal]

could certainly be going on [inside the car]." Q: A: All right. Now, what happens? Well, the driver contact with me. avoided all eye

Q.

All right. Is there a requirement that somebody look at you when they talk to you? No, sir. It's [not a] requirement.

A:

-34Q: All right. that? So what significance is

A.

Well, based on my experience, there is significance to that. All right. Someone who is involved in criminal deception, it's very difficult to look a police officer in the eyes when you are standing next to the vehicle in a uniform. That coupled with guilt will produce a fear-induced adrenaline rush, and they find it very difficult to look a uniformed police officer in the eye. Are you going to tell me that every traffic stop you take every driver that looks you in the eyes he is innocent of any criminal activity? No, sir. that. I'm not going to tell you

Q: A:

Q:

A:

Q:

Then what is your happened next?

next

point?

What

A: Q:

Based on my experience, sir-- On your experience, he didn't look at you-- --and other indicators that I already mentioned, I believe something could certainly be going on.

A:

(Emphasis supplied). After detailing his narcotics-related suspicions, Sergeant Lewis forthrightly acknowledged that his intention in ordering the appellant out of the car was "to confirm [those] suspicions"

-35and to develop, if possible, the probable cause necessary to "justify a possible search of the vehicle." It was my intent at confirm my suspicions. Q: that point to

In order to justify a search of this car? Justify a possible vehicle, yes, sir. search of the

A:

The resemblance of Munafo v. State, 105 Md. App. 662, 660 A.2d 1068 (1995), to the case before us is eerie, right down to the fact of a Nissan Maxima being stopped in Wicomico County. In Munafo, as here, the stop was for a routine traffic

infraction, in that case exceeding the posted speed limit by nineteen miles per hour. only took from the In that case, the deputy sheriff not as here, a license and rental

driver,

agreement (in this case a registration card) but further checked them out. In that case, as here, the deputy "did not

immediately issue a ticket or warning for the . . . offense." 105 Md. App. at 667. very outset of the In that case, as here, the deputy, at the traffic stop, Id. officer to the scene, who "formulated a hunch that

appellant had drugs in the car." The deputy summoned a

second

arrived within two to three minutes. "conferred appellant's for one to one-and-a-half the deputy

The two officers then minutes sheriff at the rear to of the

car."

While

talked

-36appellant at the driver's window, the other officer, from the other side of the car, shined his flashlight into the car and spotted a suspicious "dark-colored his arm, clear plastic "baggie" As officer the containing a

suspicious lifted up

substance." second

defendant

there

the

spotted

suspected

marijuana in plain view inside an open bag.

The defendant was

ultimately convicted of the possession with intent to distribute narcotic drugs. In that case, as in this, the defendant argued that the traffic-related detention had effectively come to an end and that a second narcotics-related detention, without an adequate justification, had actually begun: Although he concedes that the traffic stop effected by Deputy Houck was legal, appellant maintains that there were actually two stops that evening: (1) the initial traffic stop; and (2) a second stop which occurred immediately thereafter. Appellant argues that Deputy Houck was required to issue a ticket or a warning promptly after receiving the results of the license and registration check. In appellant's view, the continued detention of his vehicle after that point was not justified by a reasonable suspicion and was, therefore, illegal. 105 Md. App. at 669-70 (emphasis supplied). The deputy "could not remember whether he wrote the

[traffic] warning before [the second officer] arrived or after appellant was arrested." 105 Md. App. at 667. Nor could he

-37"recall whether he returned the documents to appellant" before the other officer, with flashlight, made his visual scan of the interior of the car. 105 Md. App. at 668. In any event,

"[a]pproximately ten minutes had passed from the initial stop of appellant's car to the moment of his arrest." Id.

The State in Munafo argued strenuously that a ten-minute stop was routinely State: Deputy Houck testified that the stop at issue here lasted approximately ten minutes and that an average traffic stop lasts ten to fifteen minutes. Based on this testimony, the trial judge attempted to distinguish the present case from Snow, on the ground that "a long wait" was not involved. 105 Md. App. at 672. This Court rejected the State's argument and reversed the ruling of the trial judge. We held that an officer in a case reasonable last that and that long. the average traffic stop would the

The

trial

judge

agreed

with

such as this is "required to end the stop promptly and send appellant on his way." We held that even a brief delay may be

"entirely unjustified" if it does not serve "the purpose of the original stop." As Judge Davis explained, 105 Md. App. at 673:

In the present case, the original traffic stop was justified solely by appellant's speeding and reckless driving. Once Deputy Houck learned that appellant's license and registration were in order, he

-38was required to end the stop promptly and send appellant on his way. Instead, he waited two to three minutes for Sergeant Elliott to arrive, and spent an additional minute or two discussing the situation with Sergeant Elliott before the two officers approached the car together. Deputy Houck testified that he did not remember returning appellant's license, that he did not remember giving appellant a ticket or warning, and that he did not tell appellant that he was free to leave. Instead, Deputy Houck engaged appellant in conversation while Sergeant Elliott scanned the car with a flashlight. Although the delay was brief, it was entirely unjustified by the purpose of the original stop. (Emphasis supplied). Pryor v. State, 122 Md. App. 671, 716 A.2d 338 (1998), involved a classic "Whren stop." narcotics informant violations, that Pryor received was A detective, investigating word from cocaine a confidential a secret

storing

"in

compartment within the dash of [his] automobile." at 675.

122 Md. App.

The detective waited until Pryor left his apartment by When, at one

car and then followed in an unmarked vehicle.

point, he observed Pryor driving at a speed of 45 miles per hour in a 25 miles per hour zone, he seized the opportunity to stop Pryor's car. car and Pryor and his passengers were ordered out of the to await the arrival of a K-9 "drug dog"

forced

approximately twenty minutes later.

Chief Judge Murphy, 122 Md.

-39App. at 674-75, stated the constitutional limitations on a

"Whren stop" squarely: This appeal . . . requires that we examine an important rule of engagement applicable to the forcible stop of a motorist who commits a minor traffic violation while under police surveillance: the point in time at which continued detention violates the motorist's Fourth Amendment protection against unreasonable searches and seizures. We hold that, unless continued detention can be justified by what occurs during the brief period of time it takes to determine whether the motorist has a valid license and whether the vehicle has been reported stolen, a motorist who is subjected to a "Whren stop" for a minor traffic violation cannot be detained at the scene of the stop longer than it takes--or reasonably should take--to issue a citation for the traffic violation that the motorist committed. (Footnote omitted; emphasis supplied). In Pryor, we held that in addition to a permissible traffic stop, there was articulable suspicion for a Terry-stop as well. We further held, however, that neither of those initial stops-the "Whren stop" or the Terry-stop--could justify holding Pryor for a period of of twenty to twenty-five canine. minutes Chief pending Judge the

arrival reasoned:

the

drug-sniffing

Murphy

The Fourth Amendment permits the forcible stop of a motorist who is observed by a law enforcement officer to be violating a "rule of the road." The Fourth Amendment also permits the forcible stop of a vehicle when there is reasonable articulable

-40suspicion to believe that its occupants are involved in criminal activity. In neither of these situations, however, may the occupants of the vehicle be detained for an extended period of time. In the absence of a justification for continued detention that manifests itself during the period of time reasonable necessary for the officer to (1) investigate the driver's sobriety and license status, (2) establish that the vehicle has not been reported stolen, and (3) issue a traffic citation, the Fourth Amendment prohibits a detention in excess of that period of time. In this case, whether the period of appellant's detention is characterized as a "first" (traffic) stop followed by a "second" (drug investigation) stop or as a single stop that was justifiable for two different reasons, appellant was detained much longer than was reasonable. 122 Md. App. at 682 (emphasis supplied). For present purposes, Pryor concluded that a "Whren stop" cannot "justif[y] a detention that extend[s] beyond the period of time that it would reasonably have taken a uniformed officer to go through the procedure involved in issuing a citation to a motorist." Id.

Whitehead v. State, 116 Md. App. 497, 698 A.2d 1115 (1997), also involved a "Whren stop." Whitehead was stopped for driving

at a speed of 72 miles per hour in a 55 miles per hour zone, southbound, on Interstate 95. The officer who stopped him was

assigned to patrol Interstate 95 for "the enforcement of the controlled dangerous substance laws." After stopping Whitehead

-41and learning that his driving and registration documents were in order, the officer further detained Whitehead pending the

arrival of a K-9 dog.

We held that even though the traffic stop

had not been formally terminated, there was nonetheless a scope violation of what is permitted under a "Whren stop": After receiving information that Whitehead's papers were in order, that he was not wanted on any outstanding warrants, and that the car was not stolen, Trooper Donovan was under a duty expeditiously to complete the process of either issuing a warning or a traffic citation for whatever traffic offenses that he had observed. 116 Md. App. at 503 (emphasis supplied). Judge Sonner's conclusion for this Court in Whitehead is dispositive of our conclusion in the case now before us: The detention in Whren that the Supreme Court approved was brief, and the arrest for violation of the narcotics laws instantaneously followed the stop. We think it would be a mistake to read Whren as allowing law enforcement officers to detain on the pretext of issuing a traffic citation or warning, and then deliberately to engage in activities not related to the enforcement of the traffic code in order to determine whether there are sufficient indicia of some illegal activity. Stopping a car for speeding does not confer the right to abandon or never begin to take action related to the traffic laws and, instead, to attempt to secure a waiver of Fourth Amendment rights from a citizen whose only offense to that point is to have been selected from among many who have been detected violating a traffic regulation. An interpretation of Whren that is consistent

-42with Snow and Munafo requires the police to issue the citation or warning efficiently and expeditiously with a minimum of intrusion, only that which is required to carry forth the legitimate, although pretextual, purpose for the stop. We are condemning not the stop itself, but the detention after the pretextual stop that was for the purpose of determining whether the trooper could acquire sufficient probable cause or a waiver that would permit him to search the car for illegal narcotics. (Emphasis supplied). We hold that once 1) Sergeant Lewis advised the appellant that he had been stopped for following too closely, 2) the

appellant acknowledged his infraction and apologized for it, and 3) Sergeant Lewis had examined the appellant's driver's license and registration card, any further detention of the appellant to engage in a narcotics-related investigation was beyond the scope of what is permitted as part of a "Whren stop."

Articulable Suspicion For a Narcotics-Related Terry-stop The State's argument that the physical evidence was properly not suppressed is in the alternative. On the one hand, the

State maintains that everything done up to and including the recovery of the cocaine from the trunk of the automobile was done under the covering aegis of the traffic-related "Whren

stop."

The State argues that Ferris does not apply because the

-43traffic-related stop had not come to an end until the traffic warning was ultimately issued to the appellant by Sergeant Lewis hours later at the station house. We have rejected that

argument. The State argues in the alternative that for a even the if an

independent were

Fourth

Amendment

justification for

detention

required,

articulable

suspicion

narcotics-related

Terry-stop had accrued prior to the search of the trunk or even prior to the pat-down of the appellant. Indeed, the hearing

judge, after finding that there had been a proper traffic stop for following too closely, went on to make the following

findings and ruling with respect to articulable suspicion of a possible narcotics violation: After he stops the car, Trooper Lewis approaches the defendant's vehicle. Immediately, he smells the odor of air fresheners. He observes a very large quantity of air fresheners in the vehicle, something that in his past experience has been used to conceal the odor of controlled dangerous substances. He talks to the defendant. He talks to the [passenger]. He gets different stories as to origin and destination. There is a toll receipt that conflicts with the stories that both the passenger and driver gave him as to when the vehicle left the state, the other side of the Bridge Tunnel and when it went on its trip either to New Jersey or New York depending on which of the parties stories you believe.

-44He observes the behavior of two parties which, coupled with the other, absent anything else, the behavior could signify just nervousness at being stopped, however, that coupled with the air fresheners, the different stories, etc., the Court is of the opinion there was a reasonable articulable suspicion to conduct a further inquiry to see if there had been a violation of the laws. (Emphasis supplied). That ruling based on that collection of facts has now been rendered immaterial by our holding as to when the permissible detention pursuant to the traffic-related stop had come to an end. The story as to "whence and whither" told to Sergeant

Lewis by the appellant came after the appellant had been ordered out of the car and into the rain. by Sean White came after that. The inconsistent story told The fact of inconsistency

between the two stories and the further inconsistencies between each story and the earlier observed receipt from the Chesapeake Bay Bridge-Tunnel were all post-Whren phenomena. Most of the

notice taken by Sergeant Lewis of the appellant's nervousness occurred when the appellant was standing outside the car.

Sergeant Lewis's notice of the failure of Sean White to make eye contact with him was also post-Whren. As we "log in" each new blip to appear on the radar screen, it clearly becomes pointless even to consider the hypothetical question of whether the combination of circumstances recited by

-45the trial judge would add up to articulable suspicion.7 the critical moment an independent Fourth As of

Amendment

justification was needed to legitimate either the appellant's second detention or his unreasonably protracted first detention, most of those blips had not yet appeared. We hold that as of the critical moment he stood at the driver's window of the Nissan Maxima, Sergeant Lewis may have had a strong hunch but he did not yet have Terry-level A not

articulable suspicion that drug-related activity was afoot. Terry-stop justified. The Search for the Holy Grail: What Is the Issue That Ultimately Matters? to investigate for drugs, therefore, was

So an unconstitutional detention of the appellant occurred. So what? Why do we care? What significance, if any, does that

unconstitutional detention have for the only issue before us in

7

If such a question were before us, however, we might find instructive the observation of Munafo v. State, 105 Md. App. at 674, with respect to a very similar set of circumstances in Snow v. State: In Snow, the trooper who detained Snow articulated four reasons underlying his suspicion that Snow was carrying drugs: (1) Snow seemed nervous and avoided making eye contact; (2) Snow was travelling from Philadelphia to Washington, D.C., a route commonly used to transport drugs; (3) three air fresheners hung from the rear-view mirror of Snow's vehicle; and (4) Snow did not consent to a search. Under the totality of the circumstances, we concluded, the trooper did not have a reasonable suspicion that Snow was engaged in criminal activity other than speeding, and could not detain Snow after a ticket had been issued. (Citation omitted; emphasis supplied).

-46this case. about the It is so easy at times for all hands to get excited rightness or wrongness of police behavior that

everyone loses sight of the ultimate issue. There is a single contention raised by the appellant on this appeal. As he himself phrases it, "THE SEARCH OF THE

APPELLANT'S VEHICLE WAS VIOLATIVE OF THE FOURTH AND FOURTEENTH AMENDMENTS." and orally Everything argued by the appellant, both in brief before this Court, points exclusively toward the

ultimate conclusion at the end of his brief that "the search of the vehicle and the evidence recovered therefrom should have been excluded by the trial court." The single thing sought to

be suppressed, the exclusive object of the suppression hearing, was the cocaine found in the trunk of the appellant's

automobile. The marijuana found on the appellant's person was not the object of the suppression motion nor the subject of the

suppression hearing. nor nervous

Neither were compromising admissions made exhibited during a period of

behavior

unconstitutional detention.

Those things, of course, could have

been the objects of a suppression hearing and could, therefore, have become appellate issues, but they were not in this case. The only investigative action with which we are ultimately and

-47directly concerned is the Carroll Doctrine search of the trunk of the appellant's automobile. If somehow probable cause had existed for the search of the appellant's detention, significance car, that on untainted by the antecedent detention In unconstitutional would of have no

unconstitutional this appeal.

terms

familiar

constitutional algebra, the probable cause would have proceeded from an independent source. Everything else in this case takes

on significance only to the limited extent that it bears on the ultimate issue of the Carroll Doctrine search of the appellant's automobile. As we turn our focus onto the probable cause for the

automobile search, it is immediately clear that the critical constituent element thereof was the small amount of marijuana found on the person of the appellant as a result of an

ostensibly consensual pat-down. consider whether the marijuana

It is unnecessary for us to found on the person of the

driver, coupled with other suspicious circumstances, added up to probable cause to believe that other drugs would be found in the car. The appellant makes no argument in that regard. Everyone

in this case operated on the assumption that if the marijuana were in the equation, probable cause would result. The converse

-48is all we need consider. If the marijuana, because tainted,

were not part of the equation, probable cause would not result. The Voluntariness of The Consent to the Pat-Down As our focus now turns to the pat-down that produced the marijuana, we may confine our inquiry to a single legitimating rationale. The State has never sought to argue that the patIndeed, Sergeant Lewis

down was supportable as a Terry-frisk.

never testified that he had any reason to fear a weapon or that he undertook to frisk the appellant for his own protection. only rationale ever put forward by the State was that The the

appellant had voluntarily consented to the pat-down.

The ruling

of the suppression hearing judge was that a consensual pat-down occurred: He asks the driver to get out of the car. I believe the patdown was consensual, and I believe from the conflicting testimony, I believe the testimony of the officer that the def

Download Charity v. State.pdf

Maryland Law