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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA v. JOHN ALBERT MARTIN, JR. : : Criminal No. DKC 2002-329 : MEMORANDUM OPINION John Albert Martin, Jr. is charged in a two count indictment with (1) conspiracy to distribute and possess with intent to distribute 5 or more kilograms of cocaine and (2) possession of cocaine and cocaine base. He has moved to suppress physical

evidence seized during and after his arrest on July 4, 2002, as well as statements allegedly made on the day of his arrest and a few days later. A hearing was held December 30, 2002. I. Findings of Fact

On July 4, 2002, at about 2:30 a.m., Mr. Martin was driving his 1996 Ford Thunderbird southbound on New Hampshire Ave., in Takoma Park, Maryland, when he was noticed by a Takoma Park police officer who was in his cruiser stopped at an intersection. Officer Douglas Malarkey saw him change from one lane to another, without signaling, and in an apparently erratic manner. decided to follow Mr. Martin and turned to do so. The officer Another Takoma

Park officer, Officer Stanley McLean, was in a separate cruiser behind Officer Malarkey and also turned to follow Mr. Martin. When Officer Malarkey saw more erratic driving, he decided that Mr. Martin might be under the influence of alcohol or drugs. Officer

Malarkey activated his emergency lights and stopped Mr. Martin as he turned onto Erskine St. or Ave.1 Officer Malarkey went up to the driver's window to speak with Mr. Martin, who rolled down the window. Officer Malarkey smelled

a moderate odor of alcohol and saw an open bottle of malt liquor. He asked Mr. Martin to get out of the car. Officer Malarkey also As Mr. Martin

smelled a strong odor of cleanser or detergent.

opened the door to get out, Officer Malarkey saw a small metal scale in the side pocket of the driver's door and what he

recognized as marijuana on the floor. He asked Officer McLean, who had just completed training in field sobriety tests, to conduct the tests on Mr. Martin. Officer McLean saw Mr. Martin walk unsteadily toward him, asked Mr. Martin if he had any weapons or drugs that could harm the officer, and, when told "no", asked if he could "check." Martin consented. Mr.

Officer McLean found no weapons, but found two

small clear zip lock baggies in one of Mr. Martin's front pants pockets. Later field tested, they turned out to be cocaine or A folded up blue paper was in the other pocket, and During the search, Mr. Martin began to

cocaine base.

it contained some pills. twist and turn away.

Officer Malarkey came to assist and Mr.

Martin was detained and briefly placed in handcuffs.

Officer Malarkey insisted that it was Erskine "Street" and not "Avenue." Officer McLean testified that it was Erskine "Avenue." 2

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Meanwhile, Officer Malarkey was looking into Mr. Martin's car. In the back seat, immediately behind the driver, he found a black, 33 gallon trash bag, which appeared to be the source of the strong odor. Inside the bag were many wrappers of cellophane and tape, There were also a pack of

from which a white residue fell.2

rolling papers in the center console and an empty box of baking soda either inside the bag or on the seat next to it. were also located and seized. The discovery of the wrappers, with the field tests on the substance in the baggies, prompted Officer Malarkey to request that a narcotics sniffing canine come to the scene and that the DEA be contacted. The canine officer arrived and his narcotics sniffing Two pagers

dog alerted on two areas of the car. Officer Malarkey also called Henry's Tow Service and conducted an inventory search of the car. The car was taken to the Public

Works Facility, where it was stored until a search warrant was obtained. Officer Malarkey took the trash bag and its contents to the police station where, on a table outside, he field tested some of the residue. He put everything back in the bag before turning it Eventually a

over to Montgomery County Detective Randy Kuscan.

search warrant was obtained for the car, focused on the documents

The Government contends that each of the approximately 25 wrappers formerly held a kilogram of cocaine. 3

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that were seen inside.

Mr. Martin was taken to the Takoma Park

Police Station and placed in a holding cell. Det. Kuscan (assigned to the DEA Task Force) went to the station after being contacted about 7 a.m. He was briefed by

Officer Malarkey, taken to the scene of the arrest, and shown the car where it had been towed.3 The two officers then brought Mr.

Martin into an interview room, at about 12:30 p.m. After making soft introductions, drink, Det. and Kuscan providing asked Mr. Martin a

cigarette and

Mr.

Martin

some

biographical questions.

Then, without administering the Miranda

warnings, he told Mr. Martin that the DEA was involved because of the trash bag found in the car, that the case would be prosecuted in federal court, and that he "needed" Mr. Martin's cooperation to pursue an investigation. Mr. Martin replied that he was not in a

position to cooperate because he didn't know what was in the bag that he had found discarded at a 7-11 in Langley Park. Det. Kuscan then told Mr. Martin that he thought he was lying and terminated the interview. Mr. Martin said he was sticking to

his story. Det. Kuscan asked Officer Malarkey to return Mr. Martin to the holding cell. On the way there, Officer Malarkey pled with He said that Mr. Martin

Mr. Martin to help himself by cooperating.

Det. Kuscan confirmed the presence of marijuana on the floorboard of the front passenger area and Mr. Martin was charged in Montgomery County with possession of marijuana. The marijuana was not seized. 4

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was likely a small fish.

He urged him to speak with Det. Kuscan.

Mr. Martin then agreed to make a statement. Officer Malarkey went back to Det. Kuscan to tell him that Mr. Martin was willing to make a statement. the holding cell. Kuscan said: 11?" The two officers went to

Without administering Miranda warnings, Det.

"I take it you didn't find the trash bag at the 7-

Mr. Martin said that he could give information about other Det. Kuscan said that he was

people, but not about "those" people.

not interested in other people, only in those involved in the circumstances leading to Mr. Martin's arrest. Mr. Martin said that "those people would kill me." After a brief pause, Mr. Martin

asked about his release, when he would be getting out on the street. Det. Kuscan said he would not be released that day Mr. Martin said he could only

regardless of information provided.

cooperate if he was on the street, not if he remained locked up and that he was only a small guy. At some point, Det. Kuscan said to

Mr. Martin that Mr. Martin was his only potential source of information. The interview then terminated.

Det. Kuscan acknowledged that he was trying to learn where the trash bag came from and whether Mr. Martin was willing to

cooperate.

He wanted to gain his trust.

He did not administer the

Miranda warnings because he never got to a formal question and answer session concerning the crime.

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Mr. Martin was charged in Montgomery County and appeared before a commissioner on July 4,4 and before a judge for bail review on July 8, 2002. He signed a form asserting his right to

counsel during any interrogation. On July 9, 2002, Det. Kuscan went to the Montgomery County Detention Center and picked Mr. Martin up to bring him to the United States Courthouse in Greenbelt for an initial appearance on federal charges. When Mr. Martin saw the detective, he expressed

surprise because he thought he was going to be released and asked where they were going. Det. Kuscan told him that they were going

to the federal court house for the initial appearance and that a detention hearing would be held later to determine whether Mr. Martin would be released or detained.

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MD. CODE ANN., CTS. & JUD. PROC.

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