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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 720 September Term, 2004 _______________________________

ELOHIM CROSS

V.

STATE OF MARYLAND

_______________________________ Salmon, Barbera, Sharer, JJ. _______________________________ Opinion by Salmon, J. Filed: October 27, 2005

Elohim Cross was charged in Prince George's County with having committed the following crimes: (1) possession with intent to distribute cocaine, (2) possession of cocaine, (3) possession with intent to distribute of a heroin, (4) possession in of heroin, to a (5) drug

possession

firearm

during

and

relation

trafficking crime, (6) carrying a handgun on or about his person, (7) possession of drug paraphernalia, and (8) second-degree

assault. Prior to standing trial on the above charges, Cross filed a motion to suppress evidence that was seized from his car. He

contended that the warrantless search of his vehicle violated his Fourth Amendment rights. suppress. On August 18 and 19, 2003, Cross stood trial before a jury in the Circuit Court for Prince George's County. Because the jury A motions judge denied Cross's motion to

could not reach a verdict, the court declared a mistrial. A second trial was held on October 16 and 17, 2003. The jury

convicted Cross of second-degree assault but was unable to reach a verdict as to any of the remaining charges. The trial judge

declared a mistrial as to all counts, except for the one for which Cross was convicted.

Cross was sentenced for the second-degree assault1 conviction to a term of incarceration of three years, with all suspended except for eighteen months. This appeal followed.

QUESTION PRESENTED Did the motions court err in denying appellant's motion to suppress the evidence seized from his vehicle?

I. In Faulkner v. State, 156 Md. App. 615, 640, cert. denied, 382 Md. 685 (2004), we said: In [reviewing] the circuit court's denial of a motion to suppress, we are limited to the record of the suppression hearing. We consider the evidence in the light most favorable to the prevailing party, in this case, the State. We accept the suppression court's first-level factual findings unless clearly erroneous, and give due regard to the court's opportunity to assess the credibility of the witnesses. We make our own

1 The second-degree assault conviction was based upon testimony that, subsequent to his arrest, Officer Russell Chick put Cross in the front seat of a police cruiser, whereupon Cross bit the officer's arm and spit in his face.

The question arises as to whether it is necessary to decide the legality of the search of appellant's vehicle in light of the fact that appellant was convicted of only second-degree assault. During trial, the gun, drugs, and drug paraphernalia (recovered from appellant's vehicle) were introduced into evidence. If the motion to suppress was granted, those evidentiary items would, of course, have been excluded. Appellant contends that we must decide the correctness, vel non , of the ruling by the suppression court, because the introduction of that evidence, potentially at least, prejudiced the jury in their consideration of the second-degree-assault charge. The State does not argue to the contrary. See Dorsey v. State , 276 Md. 638, 659-61 (1976) (Before error can be deemed harmless, we must be convinced beyond a reasonable doubt that the error did not influence the verdict.). We agree that the issue must be decided for the reasons advanced by appellant. See Bussie v. State , 115 Md. App. 325, 344-55 (1997) (holding that trial court erred in refusing to sever assault charges from drug charges and explaining that jury was more likely to find defendant guilty of assault if it found that defendant possessed drugs); Banks v. State , 84 Md. App. 582, 591 (1990) (acknowledging that guns and drugs are commonly associated with violence).

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constitutional appraisal as to whether an action taken was proper, by reviewing the law and applying it to the facts of the case. When the material facts are undisputed, "we are not limited to the ground of decision relied upon by the circuit court. We may base our independent constitutional review on any ground plainly appearing from the record." (Citations omitted.) (Emphasis added.) See also Wengert v. State,

364 Md. 76, 84 (2001); McMillian v. State, 325 Md. 272, 281-82 (1992). II. EVIDENCE INTRODUCED AT THE SUPPRESSING HEARING The motions judge considered the testimony of four police officers. Appellant presented no evidence. A. Testimony of Officer Anthony Knox

On September 21, 2002, Officer Anthony Knox of the Edmonston Police Department was a patron at a 7-Eleven store in Bladensburg, Maryland, which was out of his jurisdiction. While standing in

line, a stranger entered the 7-Eleven and asked the officer if he could speak with him. Officer Knox told the man to wait until he The man left the store but returned

had paid for his purchases.

shortly thereafter and told Officer Knox that it was necessary for him to speak with him immediately because there was an emergency. Officer Knox exited the 7-Eleven along with the stranger, who was "shaking real bad," "sweating extremely," and appeared to be "extremely nervous." The man advised Officer Knox that he had

"just seen a high-speed car chase" and that one of the occupants of a vehicle in that chase "had displayed a handgun out the window." 3

The informant said the car involved in the chase was in the 7-Eleven parking lot and pointed it out to Officer Knox. Knox inquired as to where the driver of the vehicle was. officer's words, the informant then stopped talking and just completely looked away from me. He started looking out to his left and turned his back on me. I asked him several more times. He looked over the shoulder and saw a gentleman talking on the phone and pointed to a gentleman talking on the [pay] telephone, that he had . . . the handgun. The person whom the informant pointed out was appellant. Officer Knox then asked the informant to "go inside the 7Eleven or sit in his car for his own safety" so that he could notify the Bladensburg Police Department by radio that "they had an armed subject in the area." Officer Knox called the Bladensburg Police Department and talked with Officers Russell Chick, Shawn Morder, and Corporal Charles Cowling. He told the Bladensburg officers that "a citizen Officer In the

had . . . approached me saying that there was a vehicle in the parking lot where there was a handgun either in the car or on the person. The citizen couldn't advise me if he had it on him or if

it was in the car." Officer Knox did not ask the informant to provide

identification, nor did he later learn his identity. did not ask the informant if he knew appellant

Moreover, he personally.

Additionally, no inquiries were made as to how many individuals

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were riding in the two cars that were involved in the high-speed chase. Officer Knox did not participate in the search of appellant's vehicle, and he did not approach appellant personally. Instead, he observed the actions of the Bladensburg police officers whom he had summonsed to the 7-Eleven parking lot.2 B. Testimony of Officer Russell Chick

Officer Chick testified that he received a call from Officer Knox "advising that he was flagged down by a citizen, or advised by a citizen that there was an armed person at the payphone attached to the front of the building of 4199 Kenilworth Avenue, the 7-Eleven." Officer Chick responded to the 7-Eleven and "called for additional cars to block off . . . all entrances of the 7-Eleven." Next, he and two other Bladensburg officers "sat and watched" appellant on the payphone. The observation went on for "[s]everal

minutes, maybe as much as five minutes," until it appeared to Officer Chick that appellant "was stalling, waiting for the police to leave the area." Officer Chick then got out of his marked police cruiser and waited, out of sight, behind an electrical transformer. officers drove off to other locations. The other

"Within seconds of all the

officers leaving the area in their marked police cars, [appellant] walked from the payphone towards" a gray Chevrolet Corsica, which was the car that had been pointed out to Officer Knox by the

Officer Knox's testimony did not reveal when he last saw the informant. Moreover, the record is silent as to when the informant left the scene.

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"citizen."

Officer Chick waited until appellant was "preparing to

get into the car," and then ordered him to "put his hands on top of his head and walk away from" the vehicle. Appellant obeyed the

order. Appellant was then "placed in handcuffs for officer safety" because of the nature of the information received from the

informant. Officer Chick performed what he described as "a Terry stop pat-down" while appellant was handcuffed, in order to ascertain if he had a weapon on his person. Chick then explained to the No weapons were found. other officers, in Officer

appellant's

presence, that appellant "was being detained while we investigated the report of a firearm." The two other Bladensburg officers

searched the passenger compartment of appellant's vehicle, while Officer Chick obtained background information from appellant and spoke to him "about what was being done." Officer Morder next told

Officer Chick "that he had seen a firearm in the glove box of" appellant's car, but that the glove box "was locked and he was unable to open it completely."3 A key was obtained from appellant, A handgun, together with a bag

and the glove box was unlocked.

containing a large quantity of narcotics, was recovered from the glove box. On cross-examination, Officer Chick admitted that he had never spoken to the "citizen" who told Officer Knox about the presence of a handgun either before or after the search.

Officer Morder told Officer Chick that he "could only see through a crack in the top of the glove box that there was a gun in there."

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C.

Testimony of Officer Shawn Morder

Officer Morder testified that upon arrival at the 7-Eleven he spoke to Officer Knox, who said that a citizen came up to him and advised that he witnessed a car chase, I guess coming out of Washington, D. C., northbound Kenilworth Avenue, and the citizen advised Officer Knox that the individual who had the gun was parked in the 7-Eleven parking lot. Officer Knox pointed the car out to us and also pointed out the individual who was supposed to be driving the car. After Officer Morder and the other officers observed appellant on the payphone for "a couple of minutes," Officer Morder realized that appellant was watching the officers. For that reason, he told the other officers, via radio, to leave the area. He too left the

area but was able to still observe appellant while the latter was on the payphone. After a "couple of minutes," Officer Morder saw

appellant hang up the phone and walk, at a very fast pace, toward his car. Once appellant "got to the car," Officer Morder told the

other officers to "move in on the individual before he could get into the car." Appellant was then "detained, placed in handcuffs," and the interior of his vehicle was searched. In Officer Morder's

words, the glove box "was partially opened," which allowed him to pull the glove compartment "open a little bit," so he could see "that there was a handgun laying inside the glove box." Corporal Cowling was advised by Officer Morder of what he had seen. Corporal Cowling obtained a key from appellant and opened Inside the glove box, the officer recovered a

the glove box.

handgun and a bag containing drugs. 7

On cross-examination, Officer Morder admitted that he had no information that appellant had pointed the handgun at anyone or at any particular thing. Officer Morder only knew that appellant had He had no information Officer

pointed the handgun out of a car window.

prior to the search as to whether the handgun was loaded.

Morder also admitted that he personally had never talked to the informant who drew Office Knox's attention to appellant. D. Testimony of Corporal Charles R. Cowling

Corporal Cowling testified that Officer Knox told him that "he received information from a citizen concerning a person who was in possession of a handgun." He testified that, "[b]ased upon the

information received from Officer Knox, [he] determined that the information was valid, it was current, and the defendant was on the payphone." He confirmed the testimony of the other officers that

appellant was frisked but that no weapons were found on his person. Because no weapons were found in appellant's possession, Corporal Cowling believed "that the handgun was inside the vehicle." then searched the vehicle, assisted by Officer Morder. He

According

to Corporal Cowling, Officer Morder "attempted to open the glove box" by making use of an opening, about an inch or an inch-and-ahalf wide, in the glove compartment door. reported that he saw a gun. Officer Morder then

When the glove compartment was opened,

Corporal Cowling also saw a handgun, underneath of which was a bag. Inside the bag he found drugs and money. positive for cocaine. The drugs field tested

Appellant was then placed under arrest.

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On cross-examination, Corporal Cowling said that he determined that the information received by Officer Knox "was valid," based upon the information Officer Knox provided, i.e., what the

informant told Officer Knox and how, according to Officer Knox, the informant "was reacting."

II. At the conclusion of the State's evidence, appellant's counsel moved to suppress the gun and drugs found in appellant's glove box, along with drugs and drug paraphernalia found in the trunk of appellant's car after appellant's arrest. In his argument, defense counsel assumed that the State was relying on the Carroll Doctrine to justify the warrantless search of the vehicle. That doctrine "recognizes an exception to the

warrant requirement that allows the police, when they have probable cause to believe a vehicle contains contraband or evidence of a crime, to search the vehicle for the contraband or evidence of a crime and seize it, without a warrant." Berry v. State, 155 Md.

App. 144, 176 (2004) (citing, inter alia, Carroll v. U.S., 267 U.S. 132, 149 (1925), and Maryland v. Dyson, 527 U.S. 465, 466-67 (1999)). Counsel for the appellant maintained that the police had searched the car based upon a "paucity of information." Counsel

pointed out that the informant did not say that the gun had been fired, did not say whether it was loaded, and did not describe the

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gun in any detail.

Defense counsel argued:

"We don't know if it

was a toy gun, whether it was a real gun, or what have you at that point prior to any . . . search and seizure in this case." Counsel In

also stressed that the identity of the informant was not known.

counsel's words, "You are dealing with a situation where someone makes an accusation, someone who is not even named, someone who is not even known anymore, someone who leaves the scene,[4] is nervous, and makes an accusation and is not supported." Defense counsel also argued that the record was devoid of any evidence concerning the informant's "motive, record, basis of knowledge[5] or anything." He concluded the Carroll Doctrine phase

of his argument by asserting that, looking at the totality of the circumstances, the police, at the time of their automobile search, did not have probable cause to believe that contraband was in the vehicle. Defense counsel also argued that there were no "exigent circumstances" for the search. Without citing any case or statute, counsel appeared to assume that, apart from the Carroll Doctrine, a search of an automobile was permitted if exigent circumstances existed. Defense counsel argued, "If it is an exigent

circumstances case, you don't have the discharge of the gun. There is no explanation for why he [the informant] was nervous."

4 There was no evidence that the informant "left the scene" at any time prior to the time when the police left.

The informant's basis of knowledge was established by Officer Knox's testimony that the informant related what he saw during the high-speed chase.

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The prosecutor argued that an "exigency" existed because of what the informant told Officer Knox. According to the prosecutor, the police could not let appellant drive away "with a handgun, possibly a loaded gun, used in a possible felony in his car."6 The motions judge disposed of the motion as follows: In looking at the totality of the circumstances, I certainly agree with the State. The citizen did what we would hope any citizen would do if they observed someone brandishing a gun outside the window of a car. He identified the car. He identified the defendant. He appeared to be nervous, and certainly he indicated that it was an emergency. He came back in and asked the officer to talk to him immediately. The officer observed the demeanor of the defendant, and I think the indicia, the totality of the circumstances, indicate that they did have the right to make the arrest.[7] Since they made the arrest, it was exigent circumstances

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