Preview:

HEADNOTE:

Henderson v. State, No. 20, September Term, 2009

CRIMINAL PROCEDURE; WARRANTLESS SEARCH OF PASSENGER IN AUTOMOBILE SUBSEQUENT TO A "WHREN" STOP FOR NO REASON OTHER THAN THE DRIVER FAILED TO "STOP FULLY" AT TWO STOP SIGNS; WHETHER "REASONABLE ARTICUABLE SUSPICION" JUSTIFIED DETAINING DRIVER AND PASSENGER UNTIL A K-9 SCAN COULD BE PERFORMED ON THE VEHICLE: In the case at bar, the State argued that Harford County Deputy Sheriffs had "reasonable articulable suspicion" to detain Petitioner until the K-9 unit arrived because, during the traffic stop, the officers on the scene learned that (1) Petitioner's name was in the Sheriff's Office "alert system," (2) he was in an automobile occupied by two other persons whose names were also in the "alert system," (3) a "failure to appear" (FTA) warrant had been issued for one of the other occupants of the automobile, and (4) $741.00 in currency was found during the search of the person for whom the FTA warrant had issued. The State, however, provided no explanation whatsoever for how a person's name gets into the "alert system." At the time that Petitioner's fellow passenger was arrested on the FTA warrant, the law enforcement officers knew that (1) no drugs had been seized during a search of the arrested person, (2) there were no "open" warrants for the driver or for Petitioner, (3) the driver had a valid driver's license, and (4) the automobile, which was owned by Petitioner's mother, had not been reported stolen. From its independent constitutional appraisal of the totality of the circumstances, the Court of Appeals held that the law enforcement officers did not have reasonable articulable suspicion to detain Petitioner pending the arrival of the K-9 unit.

IN THE COURT OF APPEALS OF MARYLAND No. 20 September Term, 2009

HAYWARD T. HENDERSON v. STATE OF MARYLAND

Bell, C.J. Harrell Battaglia Greene Murphy Adkins Barbera, JJ.

Opinion by Murphy, J. Harrell, Battaglia and Barbera, JJ., dissent.

Filed:

October 7, 2010

In the Circuit Court for Harford County, a jury convicted Hayward T. Henderson, Petitioner, of possession of a controlled dangerous substance with intent to distribute, and possession of a firearm in connection with a drug trafficking crime. The State's evidence, which was seized during a warrantless search of Petitioner's person and his mother's automobile, was sufficient to establish that he committed those offenses on May 2, 2005. Petitioner argues that the State's evidence should have been suppressed on the ground that those searches violated his Fourth Amendment right to protection against unreasonable government intrusion. After Petitioner's convictions were affirmed by the Court of Special Appeals in Henderson v. State, 183 Md. App. 86, 960 A.2d 627 (2008), he filed a petition for writ of certiorari, in which he presented this Court with two questions: 1. Does a passenger in a car pulled over by the police for a minor traffic violation have to attempt to leave the scene and be stopped by the police before Maryland will consider that passenger has been "detained," particularly when the US Supreme Court in Brendlin v. California [551 U.S. 249, 127 S. Ct. 2400 (2007)] has already held that such a passenger is "seized" for Fourth Amendment purposes? 2. Can a law enforcement officer justifiably detain all passengers in a car pulled over for a traffic violation until a K-9 unit arrives on the basis that one of the passengers has an outstanding warrant and possesses $741 in cash? We granted the petition. 407 Md. 529, 967 A.2d 182 (2009). For the reasons that follow, we answer "no" to each question, and therefore reverse the judgment of the Court of Special Appeals.

Background

The opinion of the Court of Special Appeals includes the following factual background: The [Petitioner] was one of two passengers in a vehicle that Harford County Sheriff's deputies engaged in a traffic stop on May 2, 2005, at 9:28 p.m. Deputy Paul Ruszala twice observed the vehicle fail to stop fully at stop signs, in violation of Md. Code (1977, 2006 Repl. Vol.), section 21-707 of the Transportation Article ("TR"). After the stop was called in, Deputy Scott Blankenship, who was patrolling nearby, responded to the scene for backup, arriving about two minutes later. Deputy Ruszala performed a routine driver's license and registration check and recognized both the driver, Andre Austin, and the [Petitioner] because of their prior involvement in CDS activities. [Deputy Ruszala arrested Austin on a CDS charge roughly three weeks before this traffic stop occurred. Petitioner was with Austin at the time but had nothing on him.] Deputy Ruszala requested a K-9 unit, which was dispatched at about 9:32 p.m. Deputy Blankenship, who had been conducting a computer check for outstanding warrants, determined that there was an outstanding arrest warrant for the other passenger, Maurice Kevin Lewis, for failure to appear at a probation hearing on CDS-related charges. Before effecting an arrest, Deputy Blankenship called for additional backup, because departmental safety guidelines require at least an equal number of police officers to suspects when an arrest is made. There was a "four to five minute" delay while the deputies awaited confirmation from the dispatcher that the warrant for Lewis was "still good and valid and active." The motion judge found that the arrest warrant confirmation was radioed to deputies on the scene at 9:39 p.m. [Per regulations pertaining to officer safety, a] third officer, Sergeant Carl Brooks, arrived at 9:40 p.m. Immediately afterward, Deputy Blankenship removed Lewis from the vehicle and placed him under arrest. [An alternate entry on the CAD report shows Lewis's arrest as taking place at 9:43 p.m.] A search of his person incident to arrest recovered $741 "in one of
2

his pockets." At 9:52 p.m., [approximately 24 minutes after the vehicle was initially stopped for the traffic violation, and 9-12 minutes after the arrest of Lewis,] Corporal John Seilback arrived with his K-9, Sabre. (The K-9 unit had been on patrol in Havre de Grace, a 20-minute drive away.) Deputies ordered Austin and [Petitioner] out of the vehicle to perform the K-9 scan. They frisked the two men for weapons, but found none. When Sabre gave a positive alert, Deputies Ruszala and Blankenship handcuffed Austin and [Petitioner]. Deputy Ruszala searched Austin, recovered crack cocaine from inside a skull cap he was wearing, and arrested him. Deputies then searched the vehicle. They did not find CDS, but did find two weapons: a Glock model 23 handgun under the front passenger seat where Lewis had been sitting, and a "silver colored pocket knife" on "the rear floorboard, between [Petitioner's] feet." They also found, inter alia, a gray mask, two black baseball caps with the word "Police" on the front in white lettering, a video camera, cell phones, and $901 in currency. Deputy Ruszala advised [Petitioner] he was under arrest. Deputy Blankenship then searched him and found a clear plastic bag that held a loose rock of crack cocaine and five smaller baggies of crack cocaine. Id. at 89-91, 960 A.2d at 629-630 (footnotes omitted). Petitioner filed a motion to suppress evidence seized, arguing that (1) the police officers had no legal basis to detain him for a traffic violation committed by Mr. Austin, and (2) the police impermissibly extended the length of the stop to allow the K-9 unit enough time to arrive. At the suppression hearing, the State called Deputy Paul Ruszala, the officer responsible for the initial stop, who had filed a "STATEMENT OF PROBABLE CAUSE" pursuant to Md. Rule 4-211(b)(2) that included the following information:
3

At approximately 2128 hours [he] observed a 2002 Kia, 4door, silver in color bearing MD tag 182AZW traveling west on Brookside Drive. The vehicle failed to come to a full and complete stop at the stop sign that is posted on Brookside Drive which intersects Fountain Rock Way and Topview Drive. [He] got behind the vehicle and further observed the vehicle fail to come to a full and complete stop at the stop sign on Topview Drive and Horseshoe Lane. [He] activated his emergency lights and initiated a traffic stop at Horseshoe Lane and Topview Drive. [He] identified the driver by his New Jersey driver's license as Andre Tyree Austin. [He] knows Mr. Austin as a CDS user who was previously arrested for a CDS related offense approximately three weeks ago. Also, seated inside of the vehicle in the rear passenger seat behind the front passenger was [Petitioner] who [he] knows as a CDS user/seller with cautions as an armed person who has been known to have associations with the criminal street gang the "Crips." There was also a yet unidentified male who was sitting in the front passenger seat of the vehicle. [He] went back to his patrol vehicle to complete a license and registration check of the driver, complete the appropriate citations and await for backup Deputies to arrive. Dep. Blankenship #692 arrived on the scene as backup approximately 2 minutes later. Dep. Blankenship approached the front passenger to ask for identification. The front passenger consented by handing over his Maryland ID card that identified him as Kevin Maurice Lewis. Dep. Blankenship #692 ran a wanted check on Mr. Lewis. The warrant check revealed that Mr. Lewis had a confirmed outstanding arrest warrant for failure to appear in court on a Violation of Probation on CDS related charges. Due to there being three known CDS user/sellers in the vehicle [he] waited for additional backup. Additional backup arrived and Mr. Lewis was ordered to exist the front passenger seat and he was placed under arrest of the outstanding warrant. An initial search of Mr. Lewis's person at the scene revealed no illegal contraband, but he did have $741.00 U S Currency on his person.
4

DFC Seilback K-9 unit #7 arrived on scene and was used to scan the vehicle for illegal drugs prior to doing a search of where Mr. Lewis was seated inside of the vehicle. Mr. Austin and [Petitioner] were ordered to exit the vehicle so a search and K-9 scan could be safely performed. Dep. Blankenship could see on the rear floorboard between [Petitioner's] feet a silver colored pocket knife as [Petitioner] exited the vehicle. Mr. Austin was acting very nervous, figiting [sic] and asking why he had to get out of the car and he stated that he didn't want to be searched. Dep. Ruszala began issuing Mr. Austin a citation for the second failure to stop at a stop sign violation. [Mr. Austin] signed his citation and was issued his warning and given back his ID and registration as the K-9 was scanning the vehicle. The K-9 alerted that there may be illegal drugs inside of the vehicle. Deputy Ruszala's "STATEMENT OF PROBABLE CAUSE" omits the fact that, although Mr. Lewis was arrested at 21:40 p.m., the K-9 scan did not occur until 21:52 p.m. Fortunately for Petitioner, his trial counsel issued a subpoena for the Harford County "CAD" record of the "dispatches" that are of consequence to the issue of what occurred between the moment of the initial stop and the moment when the K-9 scan occurred. The following "time line" was established by the CAD record: 21:28 Initial stop 21:29 Dep. Ruszala requests information about Mr. Austin 21:32 K-9 unit "dispatched" to location of stop 21:39 Deputies are notified that the warrant issued for Mr. Lewis is "confirmed" 21:40 Mr. Lewis is arrested 21:46 K-9 unit reports that it is "under 5 minutes" from the location of the stop 21:52 K-9 unit arrives During the suppression hearing, Deputy Ruszala testified as follows on direct examination: Q: Once you had the operator, Mr. Austin's, license and
5

registration, what did you do? A: I started walking back to my patrol vehicle. Q: Why did you do that? A: So I could issue the appropriate citations, run a license check, wanted check, registration check...And also ran though our CAD alert system. The rear passenger was also ran. [] We have, in the Sheriff's Office through dispatch, an alert system. And we just give them a name even if we don't have their full information, they'll be able to tell if there [are] any warrants outstanding or any cautions on that person.... [] Q: Did you do anything else while you were back there? You indicated that you saw what you told us was a violation. A: Yes. I started issuing - - I started filling out a traffic citation and a written warning. *** Q: How long did that take? A: I couldn't say exactly how long, but five to ten minutes; depends. Q: [] Were [Austin and Petitioner] in custody at this time or just standing on the side?... A: I think they were cuffed. They were detained. The following transpired during Deputy Ruszala's cross-examination: Q: And you mentioned that the [Petitioner], was he involved with you in a previous arrest[?] A: Yes. He was with Austin, Mr. Austin. Q: Did you find any drugs on him at that particular time? A: At that time, no, but I did have prior knowledge that he had been arrested for drugs before. Q: What prior knowledge did you have before? A: Told by other deputies in our alert system that he has cautions for CDS. Q: Is anybody's name put in that caution system when an arrest takes place when somebody has CDS? A: I'm not sure I quite understand. Q: When you arrested Mr. Austin previously, was Mr. Lewis' name placed within with that alert too? A: It wasn't placed with Mr. Austin. He was in the alert
6

system for a previous arrest that he had. Q: Okay. If somebody is stopped and has CDS or is stopped with somebody else that has CDS, is he put in that alert system too? A: I'm sorry. I'm not quite understanding your question. The Court: Is it an arrest or a conviction that gets put in the system? Q: Yes. If there is an arrest of somebody, could you - A: I'm not in charge of the system. I don't put entries in there. I don't know how. Honestly, I don't know how they're - - I don't know if it's by arrest or conviction. I don't know exactly how they're put in there. Q: Who would know the answer to that question? A: A dispatcher, possibly. One of the other - - I'm not really sure who would know that. A dispatcher may know, but I couldn't tell you for sure. I don't know who makes entries in the alert system. *** Q: Why were you awaiting for [back-up]? A: Because I had two known CDS people in the vehicle and another passenger I did not know, and I didn't feel safe walking back up to the vehicle. Q: But it was only a traffic violation, correct; misdemeanor? A: True, initially, yes. Q: Right, at the time. *** Q: [Y]ou indicated you didn't recall when you got the first information back about the warrant, whether or not you had finished the traffic citations at that point in time? A: That's correct, I don't remember if I actually was finished writing them yet or not...[] We had several different things going on at one time. . . . [] Q: I understand, but you indicated approximately five to ten minutes to draft the citations. A: Right. . . . []
7

Q: So in other words, you stopped working on the citations and did some other work instead? A: It was all part of the stop, and we - - Deputy Blankenship's running his name and trying to tell me what the status of the warrant is over dispatch. So I'm writing, completing the citations at the same time while trying to find out what's going on with him as well. * * * Q: Why was the K-9... requested at all? A: Well, we had three known at the time. Once we found out what Mr. - - who Mr. Lewis was, you know, three known, you know, CDS users with cautions on all three, prior arrests for. So that's why we called them to perform a scan. Q: But there is no indication at that point in time of any drugs being involved in a minor traffic case only. A: I'm sorry. Repeat your question. Q: At the time the K-9 was requested, it's a minor traffic case, correct? A: Yes. Q: And you did not observe, smell any drugs on your own, and Blankenship didn't tell you there was any that he observed or smelled? A: No. I didn't see or smell any drugs. No. Q: So why did you call for the K-9? [Objection.] The Court: I think he answered that, but I'll give you one more try. [] A: I advised and said there was three people with known CDS cautions in not a particularly great area in Edgewood...[o]ne of which had an open arrest warrant for drug violations. Q: No violation of probation [on Lewis]? A: For drug charges, yes. *** Q: But you weren't finished the paperwork until the dog did the search? A: Like I said, I don't know exactly when we called for them, but I know he arrived within several minutes and he was
8

performing the search as I was issuing Mr. Austin his citation warning. *** Q: What justification do you have of any indication that there's any drugs in the car[?]...Because of their prior history of the people only? A: Yes. Q: But nothing to give you any indicia, right now, at that time, that there [were] drugs in the car. A: Like I said, if I smelled drugs or saw drugs, I wouldn't have needed the K-9. Q: And they couldn't leave until the dog sniffed the car. A: I never told them they couldn't. Q: Well, you pulled them out of the car; did you not? A: I had to pull them out of the car so the K-9 could safely perform the sniff, yes. Q: So, they couldn't leave until after the K-9 made the scan? A: I didn't tell them they couldn't leave. They never asked. Q: Didn't Mr. Austin object to getting out of the car? A: Yes, he objected, but I have a right to order him out of the car to sign the citation and issue his warning.... Q: And [Petitioner] has to be out of the car in order for the other guy to sign the ticket? A: Not for him to sign the ticket, no. Q: Why was [Petitioner] getting out of the car then? A: So that a scan could be performed of the vehicle. *** [After Petitioner and Austin are removed from the vehicle] Q: Were you going to go back and search where he was sitting []? A: Yes. Q: So you had not completed the traffic tickets yet; you decided now to work on the rest of - A: For my safety, you know, once I learned that he's, you know - - get him secured first, and then issue the citations once he's secured.
9

Q: You had the K-9 unit there; you had Sergeant Brooks there; you had Blankenship there; but you're the one to make the arrest? A: Yes. Q: So you stopped work on issuing the traffic citations? [] You didn't complete the citations, issue the citations, until after this took place. A: I don't remember if I already finished them or if I did not. Q: Okay. You don't recall whether or not before you arrested Lewis, the citations were issued or not? A: I can't say for sure if I already did or did not. Q: When you asked Mr. Austin to leave his vehicle...[o]r ordered him to exit his vehicle, did he have the citations in his hand at that time or not? A: I had the citations with me. I was ordering him out to bring him back so I could issue him the citations.... [M]y intentions were to have the K-9 scan the vehicle and to issue him the citation once he was back by the front of my car, yes; back by my car. (Emphasis supplied). The following transpired during Deputy Ruszala's redirect examination: Q: Was th[e citation] signed outside the vehicle while the [K-9] scan was occurring? A: That's correct.

Deputy Scott Blankenship was also called by the State at the suppression hearing, and testified as follows on direct examination: Q: [T]ell His Honor what happened when you came on the scene with Deputy Ruszala. What did you find? A: There were three occupants in the vehicle. We were in a high crime, high drug, open-air drug market, supported by violent gang activity. The following transpired during Deputy Blankenship's recross-examination:
10

Q: When I asked was the passenger free to go, obviously, Lewis wasn't, but [Petitioner] was free to go at that point in time? A: At that point in time we were conducting an investigation. [Petitioner] was being detained. Q: For what investigation? A: We were going to scan the vehicle. Q: What investigation was [Petitioner] involved in? A: When the K-9 arrived, we were going to scan the vehicle for any illegal drugs. Q: But why couldn't [Petitioner] go anyway? You hadn't gotten him out of the car anyway? A: He was taken out of the car and placed in handcuffs. He was detained. (Emphasis supplied). While arguing that Petitioner's motion for suppression should be granted, his trial counsel stated: Your Honor, I believe the cases that I would cite to the Court for consideration are Pryor v. State, 122 Md. App. [671, 716 A.2d 338 (1998)]. It's a ... case that deals with the duration of a valid stop. Wilkins v. State -- I should say Wilkes v. State, W-I-L-K-E-S v. State, 364 Md. [554, 774 A.2d 420 (2001)], an `01 case, and it deals with K-9 sniffs, and, of course, the case of State v. Wallace, 372 Md. 137[, 812 A.2d 291 (2002)], it's an `02 case. It deals with dog sniffing and whether or not there's probable cause to search the passengers of a vehicle. Basically I would point out to the Court that this was a non-serious traffic case, a stop in which a ticket, one ticket, and one warning was given for failure to stop at a stop sign, that basically it took 24 minutes to issue that ticket, that the K-9 unit, Deputy Seilback, was up in Havre de Grace at that time indicating it took him 20 to 25 minutes to get to Edgewood, which I believe the CAD indicates that he arrived in about 24 minutes. Even Deputy Ruszala testified that he was basically waiting for the K-9 to arrive to do a dog sniff
11

and do a search, which indicates that he was predisposed to do a search and took a routine traffic stop and stretched it in order to do a search, that the arrest of Lewis was by Blankenkship, Deputy Blankenship. He's the one that called in and recognized the defendant, and that arrest should not have caused any delays of issuing the tickets, the traffic tickets. *** This is, in my opinion, a pretext to do a search by the dog and eventually by the police. There's no probable cause to search my client even after they search the vehicle because the gun found was under Lewis' seat, that there was no drugs found in the car, and therefore, they weren't arrested at the time they were searched, and therefore the search was illegal and should be suppressed. The Circuit Court ultimately denied the motion to suppress in a Memorandum Opinion that included the following findings and conclusions: The fact that there was a valid traffic stop has not been contested in this case. The argument is that the stop was unduly prolonged and that there was no basis for arresting Henderson under the factual circumstances that existed. Approximately 6

Download Henderson v. State.pdf

Maryland Law