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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0085 September Term, 2001 _____________________________________

STATE OF MARYLAND

v.

SAMUEL DONOVAN FUNKHOUSER

_____________________________________

Adkins Moylan, Charles E., Jr. (retired, specially assigned) Alpert, Paul E. (retired, specially assigned), JJ. _____________________________________ Opinion by Moylan, J. _____________________________________ Filed: September 27, 2001

This appeal, taken by the State from an adverse pre-trial suppression ruling, was noted on March 23, 2001. appeal was filed in this Court on May 21. The record on

Briefs were filed and

the case was submitted on brief for consideration by us on September 7. Under the time constraints of Courts and Judicial

Proceedings Article, Sect. 12-302(c)(3)(iii), the decision of this Court was required to be filed no later than September 18. Accordingly, our decision, affirming the suppression ruling and assessing costs to the State, was filed on September 12. opinion, explaining that decision, now follows. * * * This

In the criminal appellate process, adversaries do not always meet on a level playing field. The question of who possesses

the advantage, however, is not a matter of status as State or as defendant. It is rather the ad hoc circumstance of which party,

on a given occasion, enjoys the luxury of being the appellee and which suffers the burden of being the appellant. There is a

strong presumption--a discernible "tilt" of the playing field-in favor of the status quo. The appellee, Samuel Donovan Funkhouser, was charged by the Anne Arundel County Police Department with the possession of cocaine with the intent to distribute it. He moved, pre-trial,

to have the physical evidence suppressed on Fourth Amendment grounds. Following a hearing in the Circuit Court for Anne

2 Arundel County, Judge Eugene M. Lerner granted the suppression motion. Pursuant to Courts and Judicial Proceedings Article, We be

Sect. 12-302(c)(3), the State has filed the present appeal. affirm Judge Lerner's ruling that the evidence will

suppressed. The Seizure and Subsequent Search: An Overview On August 1, 2000, a white Jeep Wrangler, of which

Funkhouser was the driver and sole occupant, was stopped by Detective Tom McBride, Jr. for an ostensible traffic violation. The traffic stop was ultimately followed by a warrantless search of the Jeep Wrangler for possible narcotics. After that search

failed to produce either narcotics or other evidence, the police took from Funkhouser's person a pouch or "fanny pack" he had strapped around his waist and searched it. substance believed to be cocaine. As a It contained a result of that

discovery, Funkhouser was arrested. At the suppression hearing, Detective McBride and Detective Michael Barclay testified for the State. for the defense. Funkhouser testified

At the conclusion of the hearing, Judge

Lerner, without articulating any detailed findings of fact, made his ruling in essentially conclusory terms: I am going to grant his motion to suppress. I don't believe that [Detective Barclay] has a right to

3 search that--to come and pull the--unbuckle that thing around his waist and just go in there and search that pouch, that pouch that he had on. I am going to grant the motion. The twenty to twenty-five minute period of escalating

investigative activity between the initial traffic stop and the ultimate search of the fanny pack analytically breaks out into three distinct stages: 1) the traffic stop; 2) the warrantless

automobile search, including two proffered justifications and the question of its possible scope; and 3) what was, in effect, the search of Funkhouser's person. If Portia's quality of mercy was twice blessed, the State's case on this appeal is thrice cursed. each of the three analytic stages. It is fatally flawed at

Any one of the flaws would Because an such a

be sufficient to support Judge Lerner's ruling. analysis of this roadside confrontation

presents

potentially instructive teaching vehicle, however, it behooves us to examine the flaw at each of the three stages. The Initial Whren Stop Detectives McBride and Barclay were both narcotics officers, not traffic officers. On August 1, they had received a "tip"

that a suspect driving a white Jeep Wrangler was in possession of a large quantity of cocaine at a gymnasium in a mall on Ritchie Highway. Their investigative purpose was to check out

4 that "tip." With commendable candor, they freely acknowledged that they were taking advantage of the broad investigative prerogative available to them by virtue of Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). In Charity v. State, 132 Md. App. 598, 601, 753 A.2d 556 (2000), this Court described that broad prerogative: In Whren ... the Supreme Court extended law enforcement officers a sweeping prerogative, permitting them to exploit the investigative opportunities presented to them by observing traffic infractions even when their primary, subjective intention is to look for narcotics violations. The Fourth Amendment, Whren taught, is unconcerned with the actual subjective motivation or purpose of an officer who makes a traffic stop. The officer may be, as were Detectives McBride

and Barclay here, concerned only with catching a narcotics dealer. To that end, they may wait opportunistically for a

traffic violation to occur and then pounce on that opportunity. What must never be forgotten, however, is that Whren establishes as an indispensable requirement that there be an actual,

objectively measurable traffic violation.

Absent an actual

traffic infraction, the Whren scenario is never triggered. What is unusual about this case is that the critical Whren issue is the objective occurrence of the triggering traffic

5 infraction. Normally we are concerned with the scope or

duration of an initially valid Whren stop. The Shifting Lenses of Appellate Review Both Detective McBride and Detective Barclay testified that they saw Funkhouser in the Jeep Wrangler exit the mall at a red light and make a right-hand turn onto Ritchie Highway without first coming to a complete stop. On that basis, they overtook Funkhouser, by diametric

and then stopped the Jeep Wrangler.

contrast, testified that what the detectives said was untrue. He testified that, because of heavy traffic coming down Ritchie Highway, he was stopped "for a good two minutes" before he was able to turn onto Ritchie Highway. If that were, indeed, the

case, the traffic stop was objectively bad and everything that followed from it was the tainted "fruit of the poisonous tree." As we prepare to make our own independent constitutional appraisal of the second-level or conclusory issue of whether the traffic stop was objectively reasonable, we are faced with the familiar problem, but in an unusual posture, of which version of first-level facts from which to proceed. The detectives'

version yields a good stop; Funkhouser's version yields a bad stop. The choice is that simple. findings of first-level

Had Judge Lerner made detailed

facts, of course, it would be those findings we would accept,

6 unless clearly erroneous. It was of this deference that we

spoke in Charity v. State, 132 Md. App. at 606: 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. Again, Judge Karwacki [in In re Tariq A-R-Y, 347 Md. 484, 488-89, 701 A.2d 691 (1997)] 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. When we, as in this case, however, do not have express findings of fact by the hearing judge to which to defer, we are bound to take as true that version of the facts most favorable to the prevailing party. Again in the case of In re Tariq A-R-

Y, 347 Md. at 488, 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.

7 180, 183, 571 A.2d 1239, 1240 (1990); see also Simpler v. State, 318 Md. 311, 312, 569 A.2d 22, 22 (1990). See also Wilkes v. State, 364 Md. 554, 569, 774 A.2d 420 (2001) ("We review the facts found by the trial court in the light most favorable to the prevailing party."). What is at least slightly unusual about this particular appellate review of a suppression ruling is the identification of the prevailing party. Of the suppression rulings that are

appealed, nine times out of ten (if not 19 times out of 20) it is the State that is the prevailing party, with all the rights, honors and privileges thereto appertaining. In Whren

situations, we typically accept as controlling the testimony of the stopping officer that he, indeed, observed the traffic violation that justified the stop. counsel, we typically reject To the chagrin of defense the testimony of the

utterly

defendant as if it had never been given.

A classic statement of

which version of facts will be accepted was given in Charity v. State, 132 Md. App. at 606: At the suppression hearing in this case, for instance, the appellant himself testified, diametrically contrary to the testimony of Sergeant Lewis, 1) that he was not 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 purposes, 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.

8 (Emphasis supplied). This is a valuable (nay, an indispensable) tool of appellate review, but it is a two-edged sword and those who are content frequently to live die by by that that sword sword. must also be prepared as more

occasionally

to

The

State,

frequently than not the prevailing party, is routinely the beneficiary of that interpretative tilt but, as Macbeth once noted, occasionally "even-handed justice commends the ingredient of our poisoned chalice to our own lips." are reversed. Sometimes the roles

When the roles are reversed, the results are

frequently reversed. In this case, of course, it is Funkhouser who is the prevailing party. It is, therefore, his version of the alleged

traffic infraction that we will accept as our factual predicate for deciding the ultimate Fourth Amendment proprieties. To the

extent that it is contradicted by Funkhouser, the testimony of Detectives McBride and Barclay will be utterly disregarded as if it had never been given. Under that version of the facts most favorable to

Funkhouser, the initial traffic stop was bad because there was no basis for it. Not only had Funkhouser come to a complete It

stop, he remained stopped for approximately two minutes.

logically follows from that version of the facts that all of the

9 sequelae of that unlawful stop were constitutionally tainted. The State does not even argue this issue of why we should accept a different version of the facts more favorable to it as the non-prevailing party, but glosses over the oft-expressed

interpretive rule as if it did not exist. correct in suppressing the evidence.

Judge Lerner was

In keeping with the theme we sounded at the very outset of the opinion, the lesson of this decision is that our resolution of the issue would have been a diametrically opposite one had the roles of appellant and appellee been reversed. The

respective appellate postures of the parties, therefore, will frequently be controlling on such issues. The Warrantless Automobile Search Even if, however, we were to assume, purely arguendo, that the traffic stop had been objectively reasonable, the

warrantless search of the Jeep Wrangler that ensued shortly thereafter problems. State would still be fraught with crippling doctrinal

As a justification for the warrantless search, the but then drifts back and forth between two

proffers

absolutely distinct theories.

10 A. A Consensual Search of the Vehicle On the one hand, the State argues that Funkhouser The request

voluntarily consented to the search of his vehicle.

for consent and the alleged giving of consent was unquestionably timely in terms of occurring while the processing of the

ostensible traffic violation was still operational.

In the very

act of first approaching Funkhouser and requesting his driver's license and registration card, Detective McBride initiated the discussion with respect to consent to search the car. As

Funkhouser was producing his license and registration, McBride told him that he was stopped for a traffic infraction involving the light at the parking lot. McBride then asked Funkhouser "if he had any type of

weapons, drugs, bombs, anything like that in the vehicle." Funkhouser replied "No." mind if McBride took a McBride then asked if Funkhouser would look inside Funkhouser's vehicle.

Funkhouser questioned why McBride wanted to look in his vehicle. McBride told Funkhouser: search your vehicle. replied: "No. "It's completely up to you whether I Funkhouser

Do you mind if I take a look?"

Go ahead."

The State's consent theory poses no

problem in terms of its timeliness. In another respect, however, the State's consent theory runs afoul of the same problem that ensnarled the State's attempt to

11 establish the initial traffic infraction. The problem is that

the version of the facts most favorable to the prevailing party is the one we must accept. Funkhouser, the prevailing party,

testified that, when asked by Detective McBride if he minded whether the officer searched his vehicle, he replied, "Yes, I do mind." Accepting as we must that version of first-level fact,

we necessarily conclude that Funkhouser did not consent to the search of his vehicle. get off the ground. Again, however, the State blithely recites Detective That theory of justification does not

McBride's testimony as if it were unquestioned historic fact and ignores the "trumping" reality that we look at the evidence through a very different lens on those occasions when the State happens not to be the prevailing party. The State seems to be

in denial about being cast in the unaccustomed role of appellate underdog. B. A Carroll Doctrine Search of the Vehicle Detective McBride testified that he immediately informed the other officers that Funkhouser had given his consent to the search of the vehicle. Neither detective explained why, if they

thought they had valid consent for a search, they did not proceed immediately with the search at that point. Indeed,

immediately after Detective McBride announced to his fellow

12 officers that he had obtained consent to search the car, he ordered Funkhouser out of the vehicle. That was for the express That been

purpose of facilitating the search of the car's interior. step was taken before the drug-sniffing dog had even

removed from the police cruiser.

Under Pennsylvania v. Mimms,

434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), on the other hand, the police a would have needed to no have further ordered

justification

beyond

valid

traffic

stop

Funkhouser out of the car.

The consensual search that seemed

imminent was inexplicably put "on hold." Instead, Detective McBride testified that he returned to the police cruiser to make a radio check on Funkhouser's driving record and also to check for any outstanding warrants. After

doing that, he brought out from his cruiser a trained and certified cocaine-sniffing canine and had the dog sniff the outside of the vehicle. The dog, after scanning the full

circumference of the vehicle, made a positive alert at both the front driver's side door and the front passenger's side door. The search of the Jeep Wrangler did not begin until the canine "alert" was a fait accompli. The officers were clearly trying to develop probable cause for a Carroll Doctrine search of the vehicle and that is the theory of justification that the State argues primarily.

13 Consent, of course, has nothing to do with the Carroll Doctrine, and the intermittent references to consent do more to obscure than to clarify the State's position. Analysis is best in

cleanly differentiated, watertight compartments. C. Did Probable Cause Accrue Before The Whren Traffic Stop Ceased To Be Operational? The canine "alert," as will be discussed more fully, was potentially very strong evidence in the State's favor. A key

question with respect to it, however, could be that of whether it was timely. As we probe for that precise borderline when the

energizing force of the Whren-based traffic stop ran out and the ensuing narcotics investigation had to generate its own

exclusive justification, we note that the canine "alert" on the vehicle came a number of minutes, possibly a critical number, after the timely request for consent to search the car. The

State's consent theory, even if otherwise flawed, was at least timely. The timeliness of the canine "alert," however, cannot It

"piggyback" on the timeliness of the request for consent. demands a separate and distinct analysis.

Unlike both of the parties, who seem to be concentrating on the lapses of time between the initial stop and 1) the

completion of the car search or 2) the search of Funkhouser's fanny pack, we think the critical passage of time was that

14 between the initial stop and the first "alert" by the cocainesniffing dog. That "alert" was the moment when the criminal Until that the traffic

phase of the case took on a viable life of its own. point, the reasonably diligent processing of

violation had to be relied on to justify the detention. In view of Detective McBride's acknowledgment that it

normally would take him "about three or four minutes" to write a traffic ticket, the question of whether the reasonable

processing of the traffic infraction stretched far enough to embrace and to legitimate the dog sniff of the Jeep Wrangler is problematic. McBride's testimony was that the canine "alert"

came approximately five or six minutes after the initiation of the traffic stop. By way of emphasizing the earlier lesson, let it be noted in this regard that if the State had been the prevailing party, a viewing of the evidence in the light most favorable to it would have rendered these extra few minutes now being discussed negligible and the State would almost certainly have prevailed on any challenge to the timeliness of the "alert." See Wilkes

v. State, 364 Md. 554, 570-84, 774 A.2d 420 (2001) (In Wilkes, the State was the prevailing party). When viewing the same

additional minutes in the light most favorable to Funkhouser, by contrast, the result will by no means necessarily be the same.

15 This shifting in a reviewing court's perspective is akin to looking through opposite ends of a telescope. One way of

looking at things magnifies; the other miniaturizes.

It makes

a critical difference, therefore, which side on a given occasion enjoys the advantage of having us view the critical

confrontation through its end of the telescope. Detective McBride, for instance, testified that he got back in his police car to radio in his request for a records check. If that were true, it would clearly have justified some

additional delay in processing the traffic stop.

Funkhouser, on

the other hand, testified that Detective McBride did not get back into the car or talk on the radio. The issue here,

therefore, would be not how long it took to do a reasonable records check but whether, in fact, a records check was ever actually made. This is the quintessential type of factual

ambiguity that would be resolved in the State's favor were it the prevailing party but in this case will be resolved in Funkhouser's favor because he is the prevailing party. It would, of course, have been fatal to the State's case if the Whren-based justification for the detention had evaporated before the canine "alert" supervened. As Chief Judge Murphy

explained for this Court in Pryor v. State, 122 Md. App. 671, 674-75, 716 A.2d 338 (1998):

16 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

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