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HEADNOTE: Antoine D. Howard v. State of Maryland, No. 25, September Term, 1996. WARRANTLESS ARREST FOR MISDEMEANOR ASSAULT WAS NOT ILLEGAL; THE ARREST SATISFIED THE CRITERIA SET FORTH IN ARTICLE 27, SECTIONS 594 B(e) AND 594 B(f)(viii).

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 25 SEPTEMBER TERM, 1996 ___________________________________

ANTOINE D. HOWARD v. STATE OF MARYLAND ___________________________________ Moylan, Cathell, Hollander, JJ. ___________________________________ Opinion by Hollander, J. ___________________________________ Filed: November 6, 1996

Appellant,

Antoine

Howard,

was

charged

with

assault

and

possession of cocaine.

On November 2, 1995, his motion to suppress

was denied and he proceeded to trial, pleading not guilty to an agreed statement of facts before the Circuit Court for Baltimore City (Friedman, J.). Appellant was convicted of possession of He noted a

cocaine and sentenced to four months incarceration.

timely appeal and presents one question for our review, which we have rephrased slightly: Did the suppression hearing judge err in We conclude that she did

denying appellant's motion to suppress? not err.

FACTUAL BACKGROUND1 On August 19, 1995, at approximately 7:50 p.m., Officer Reginald McNeil and Sergeant James Sharp of the Baltimore City Police Department responded to 1411 Mosander Way for a call of an assault. At the scene, Officer McNeil met with the victim, Keith

Stancill, who informed the officer that he had been approached by appellant and his companion in the 1400 block of Mosander Way and that they had argued over money. A fight ensued and appellant and The victim

his companion struck the victim with their fists. suffered no apparent injuries.

Following the assault, appellant

and his companion fled in a light-colored Dodge bearing Maryland

As appellant's sole challenge is to the denial of his motion to suppress, our summary only reflects evidence presented at the motion hearing.

1

license plate number CNP606.2

The victim declined to file a report

and Officer McNeil left the scene. Shortly thereafter, at approximately 8:45 p.m., Officer McNeil returned to 1411 Mosander Way in response to a second call of an assault. The victim informed Officer McNeil that appellant and his According to the officer, Stancill was

companion had returned.

scared that he was "going to get hurt" and wanted to "make a report." A witness, Ms. Bullock, who resided at 1411 Mosander Way,

where the victim was staying, told Officer McNeil that she called 911 because the men banged on her door and attempted to gain admittance to her house, looking for the victim. reported that the men were carrying guns. Officer McNeil described Stancill as frightened. The officer Ms. Bullock also

testified that the victim confirmed "that the guys were banging on the door looking for him." Officer McNeil also stated that, when

appellant and his companion appeared at Ms. Bullock's residence, Stancill "was yelling in the background [to Ms. Bullock] not to let them know that he was there, not to open up the door." When the

men did not gain entry to Ms. Bullock's residence, they left. While Officer McNeil was taking a report, a man identified as Riv arrived on the scene in an automobile. Riv stated that

appellant and his companion were still in the area driving the Officer McNeil later clarified that he could not recall if the victim gave him a partial or an entire license plate number or if he obtained the entire number after the vehicle had been stopped. -22

Dodge

previously

identified

by

the

victim.

Officer

McNeil

broadcasted a description of the vehicle and the information regarding the weapons. Within minutes, Sergeant Sharp spotted the vehicle only two blocks from the Mosander Way address. He stopped the vehicle and He executed a "felony

removed appellant and his companion from it.

car stop", referring to a "high-risk car stop", because he thought the men were armed. Although the men were patted down for weapons The victim

and the vehicle was checked, no weapons were recovered.

was brought to the scene and identified both men as the individuals who had assaulted him. Officer McNeil then arrested both men. In

a search incident to appellant's arrest, four black-topped vials containing a white rock-like substance were recovered from

appellant's person.3 At the hearing, Officer McNeil explained that appellant was not charged with aggravated assault because no weapons were

recovered. weapon."

He said, "I mean, for aggravated assault you need a

At the conclusion of the suppression hearing, appellant's counsel argued, in part, as follows: The arrest must be lawful or the search incident thereto is no good. * * *

At trial, evidence was presented that subsequent laboratory analysis of the four vials revealed that they contained cocaine. -3-

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Art. 27, Section 594(B). It spells out to us. . .what they can and cannot do in terms of arresting. This case simply does not fall within anything in there. * This is not a felony. * *

The charge is common law assault.

* * * It did not happen in their presence. The officers, both of them on the witness stand, on cross-examination and direct, I did not see the assault happen, nor did I even ever see the victim, the so-called victim and the so-called defendants, together. Therefore, it is simply not within their presence. I don't know how he can really even argue that. The only possible link that he even comes even close to, but not close enough, is, is this the common law crime of assault when committed with the intent to do great bodily harm. Again, you heard the case. The first assault, if it even occurred, was a "fight," whatever that means, with no injury, no injury visible to the officers, no injury reported by the victim, no weapons, no nothing. A fight may not even be an assault, but assuming for the sake of argument that it is, it certainly is not an assault committed with an intent to do great bodily harm. The second so-called possible assault would be when allegedly they came back to the house with supposedly weapons and banged on the door, without more. That's it. They never got in the house, they never go through the door, they never shot at the door, they never shot at the person, they never threatened to shoot at anybody. Assuming, again, for the sake of argument, that that all did occur, that's not an assault with the intent to do great bodily harm either, as evidenced, really, by the fact of what the officers ended up charging him with. They investigated it thoroughly, they charged, if anything, if my experience tells me, more than what they can prove. They err on the side of caution by lodging every charge they can. What they charged was very simply assault, without more. They admitted, no, this was not an aggravated assault. That would be if there's a weapon involved, -4-

which they discovered apparently was not because the car went right from the scene, right around the corner, was caught, was searched, and they were searched and there were no weapons, and that's why we don't have a handgun violation, so he can't hang it on that either because there are no guns. So the bottom line, really, is that the only possible thing it could fall under, it doesn't fall under, it's not a felony. It's not. It's not a misdemeanor committed in their presence. So it has to be an assault when committed with the intent to do great bodily harm, and that [sic] not the evidence. * * *

So the arrest here was the arrest for common law assault, when there was finally an ID. That's the arrest. That's not an arrest that they legally could do the way they did it. Again, not to prohibit prosecution for the assault. They just can't use the evidence they got, and that's the bottom line. The judge disagreed. She said:

The Court finds that this was a search incidental to a valid arrest. The test is not whether the Defendant was charged with the crime of assault when committed with intent to do great bodily harm. The question is whether the police officer, when the police officer made the arrest without a warrant, had probable cause to believe that the crime of assault, when committed with intent to do great bodily harm, has been committed. I find that the police officers did have probable cause at that time to believe that.

STANDARD OF REVIEW In reviewing the denial of a motion to suppress, we consider only the record of the suppression hearing and not of the trial itself. Trusty v. State, 308 Md. 658, 670 (1987) (citing Jackson -5-

v. State, 52 Md. App. 327, 332 n.5, cert. denied, 294 Md. 652 (1982)); Aiken v. State, 101 Md. App. 557, 563 (1994), cert. denied, 337 Md. 89 (1995). We also extend great deference to the

first-level fact finding of the suppression hearing judge and accept the facts as found, unless clearly erroneous. Riddick v.

State, 319 Md. 180, 183 (1990); Perkins v. State, 83 Md. App. 341, 346-47 (1990). See also Ornelas v. United States, 517 U.S. ____, Moreover, we must give due regard to the

116 S. Ct. 1657 (1996).

suppression hearing judge's "opportunity to assess the credibility of the witnesses." McMillian v. State, 325 Md. 272, 282 (1992).

See also Jones v. State, 111 Md. App. 456, 466 (1996) ("[A]n appellate court shall extend great deference to the suppression hearing judge's findings of first-level facts and assessments of credibility, unless those determinations are clearly erroneous as a matter of law"). light most In addition, we review the evidence in the to the State as the prevailing party.

favorable

Riddick, 319 Md. at 183; Cherry v. State, 86 Md. App. 234, 237 (1991). Nevertheless, as to the ultimate, conclusory fact of whether the arrest and subsequent search were valid, this Court must undertake its own independent constitutional appraisal by reviewing the law and applying it to the facts of this case. Md. at 183; Perkins, 83 Md. App. at 346. whether the arresting officer had a Riddick, 319

We do not consider basis for

substantial

-6-

concluding that probable cause existed.

Rather, this Court "must

make its own de novo determination of whether probable cause existed in light of the not clearly erroneous first-level findings of fact and assessments of credibility." 466. See also Ornelas, 116 S. Ct. 1657. Jones, 111 Md. App. at

DISCUSSION Appellant contends that his warrantless arrest for a

misdemeanor assault offense was illegal because the assault did not occur in the officer's presence. He claims that even if the police

had probable cause to believe that appellant had assaulted the victim, they did not have probable cause to believe that the assault was committed with the intent to do great bodily harm. Appellant argues that such intent was lacking, as there was only a fistfight between the men, the victim sustained no apparent

injuries, appellant and his companion did not assault the victim when they had returned to the residence on the second occasion, and no weapons were ever recovered, even though the vehicle was located within minutes after the police broadcasted the description of the vehicle. Therefore, he argues that the search was not incidental

to a valid arrest and, accordingly, the judge erred in denying his motion to suppress. The Fourth Amendment to the Constitution of the United States, made applicable to the States through the Fourteenth Amendment,

-7-

Mapp v. Ohio, 367 U.S. 643, 655 (1961), guarantees, inter alia, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." "The Fourth and Amendment seizures; does it not proscribe all state-initiated those which are

searches

merely

proscribes

unreasonable."

Florida v. Jimeno, 500 U.S. 248, 250 (1991).

"[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." (footnotes Katz v. United States, 389 U.S. 347, 357 (1967) omitted). A warrantless search incident to an

individual's lawful arrest is one of these exceptions.

United

States v. Robinson, 414 U.S. 218, 235 (1973); Ricks v. State, 322 Md. 183, 188-89 (1991). In Chimel v. California, 395 U.S. 752

(1969), the Supreme Court explained: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. Id. at 762-63. Appellant, as we have noted, argues that the arrest was illegal and thus the search incident to it was unlawful. -8"The

legality of the arrest and, therefore, of the reasonableness of the search and seizure incident to the arrest, turns on the law of the State in which the arrest was made, absent a controlling federal statute." Stanley v. State, 230 Md. 188, 191 (1962) (citing United

States v. Di Re, 332 U.S. 581, 589 (1948); Johnson v. United States, 333 U.S. 10, 15-16 (1948); United States v. Rabinowitz, 339 U.S. 56, 60 (1950)). In Maryland, warrantless arrests are

controlled by Md. Code (1957, 1992 Repl. Vol., 1995 Cum. Supp.), Art. 27,

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