Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1126 September Term, 2008

MICHAEL ANTHONY STOKELING v. STATE OF MARYLAND

Eyler, Deborah S., Graeff, Alpert, Paul E. (Retired, Specially Assigned), JJ.

Opinion by Eyler, Deborah S., J.

Filed: December 30, 2009

In the Circuit Court for Harford County, Michael Anthony Stokeling, the appellant, was charged with possession of marijuana. Before trial, he moved to suppress the marijuana from evidence as having been obtained in violation of his Fourth Amendment rights. The suppression motion was denied. The parties proceeded with a not guilty plea on an agreed statement of facts. The appellant was convicted of possession of marijuana. He was sentenced to two years in prison, with all but one year and one day suspended, to be followed by three years' probation. He also was fined $1,000, with all but $350 suspended. In this appeal, the appellant asks whether the circuit court erred in denying his motion to suppress. W e answer in the negative, and therefore shall affirm the judgment.

FACTS AND PROCEEDINGS
The following facts were adduced at the suppression hearing. On August 26, 2007, at about 11:20 p.m., Officer Michael Webster, of the Aberdeen Police Department, was on patrol in a marked cruiser near Route 22 and Middleton Lane, when he saw the driver of a blue four-door Chrysler make a turn without using a turn signal. He called the Chrysler's license plate in to the dispatcher and learned that the Chrysler's owner, Danielle Durazzo, had had her driver's license suspended. At that point, Officer Webster pulled the Chrysler over for a traffic stop near a 7-Eleven store at 739 West Bel Air Avenue.

The Chrysler had three occupants. Officer Webster approached the car and asked them to identify themselves. Durazzo (the owner) was driving. The appellant was the front seat passenger. A female passenger was sitting in the backseat.1 Officer Webster noticed that Durazzo and the appellant were "very nervous," and that the appellant was "shaking" and experiencing "rapid breathing." The officer called for a K-9 unit. Within a minute or two, Officer Todd Fanning and his certified K-9 partner, Gunny, arrived on the scene.2 At Officer Fanning's command, Gunny scanned the vehicle. (The appellant and the other occupants were still inside.) Gunny alerted at the rear driver's side door, and then at the front passenger's side door. Officer Fanning did not have Gunny scan the occupants of the Chrysler individually because that would not have been safe to do. As he explained, "We're not allowed to do that. Being that the dog is an aggressive alert dog, the way he would alert if he were to find something on the subject, he would scratch or bite at that location, and that wouldn't be good." After the scan of the Chrysler, but before the occupants were removed from the vehicle, Gunny was returned to Officer Fanning's patrol car. Officer Fanning removed the appellant from the Chrysler and "patted him down for weapons . . . ." As he did so, he noticed that the appellant "was shaking quite a lot[.]" The

1

That passenger's identity is not reflected in the record.

Gunny was certified to detect marijuana, powder cocaine, crack cocaine, heroin, methamphetamine, and ecstasy. 2

2

officer asked him "why he was so nervous, why he was shaking." In response, the appellant said "it was cold out." Actually, the outside temperature was between 75 and 80 degrees. When performing a weapons frisk, Officer Fanning typically pats down "on the outside . . . down both legs . . . the shirt, arms, around the neck area, the waistband, and the crotch area." During this pat-down, Officer Fanning "noticed that there was something large" that felt to him "like a bag of something in [the appellant's] crotch area." Officer Fanning had some difficulty patting the appellant down in that area because the appellant "wouldn't spread his legs completely apart." Officer Fanning did not attempt to remove the bag at that time because, as he put it, "I wasn't positive and I'm not going to stick my hands down somebody's pants in front of the 7-Eleven unless I strongly believe it's a weapon or a gun, but I knew it not to be a gun or a knife." No weapons were found in the pat-down. After telling Officer Webster about feeling the bag in the appellant's crotch area, Officer Fanning "sat [the appellant] down on the curb till Officer Webster was done with the rest of his traffic stop." The female occupants were removed from the Chrysler and patted down. No weapons were recovered from them. They also were seated on the curb. When the pat-downs were finished, Officer Webster and Officer Fanning each performed a complete search of the Chrysler. Officer Webster found nothing. Officer Fanning "observed marijuana residue in the middle console of the vehicle and the driver's side where you put

Download Stokeling v. State.pdf

Maryland Law