Annan v. State

HEININ ANNAN v. STATE OF MARYLAND

No. 611

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

July 20, 2017

Circuit Court for Montgomery County

Circuit Court Case No. 127701C

UNREPORTED

Beachley, Shaw Geter, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Shaw Geter, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

A jury in the Circuit Court for Montgomery County convicted Heinin Annan, appellant, of attempted possession of heroin with intent to distribute. Appellant was sentenced to a term of ten years' imprisonment, with all but three years suspended. In this appeal, appellant presents the following questions for our review:

1. Did the circuit court err in denying appellant's motion to suppress?

2. Did the State fail to present sufficient evidence to prove that appellant attempted to possess heroin with the intent to distribute?

For reasons to follow, we answer both questions in the negative and affirm the judgment of the circuit court.

SUPPRESSION HEARING

The following facts were adduced at a suppression hearing held on February 5, 2016.

On May 20, 2015, Maryland State Police Sergeant John Hall was involved in an investigation into drug activity at 818 Quince Orchard Boulevard, an apartment building in Montgomery County. Prior to this date, the United States Customs and Border Protection ("CBP") had intercepted an international package that contained a "quantity of heroin"¹ and was addressed to 818 Quince Orchard Boulevard. CBP forwarded thepackage to the Metropolitan area drug task force, which then organized a "controlled delivery," wherein an officer would pose as an employee of the delivery company and then deliver the package to 818 Quince Orchard Boulevard.

At approximately 10:00 a.m. on the day in question, several police officers, including Sergeant Hall, and several members of the Montgomery County Special Operations Division ("SWAT") collated outside of the apartment building to conduct the controlled delivery. The officers intended to deliver the package and then immediately obtain and execute a warrant to search the premises. At approximately 10:08 a.m., a police officer posing as an employee of a delivery company delivered the package to the target address.

At that time, Sergeant Hall was in an unmarked vehicle, which was positioned "to the rear of the apartment building." A short time after the package was delivered, Sergeant Hall "observed a silver Chrysler 300 with unknown out of state tags driving very slowly, approaching the target building." Sergeant Hall also observed that the vehicle's driver, later identified as appellant, "was on a cellphone and appeared to be scanning the parking lot and the surrounding areas of that apartment as the vehicle drove very slowly towards that building." Appellant's vehicle then passed by Sergeant Hall's location and proceeded toward the front of the apartment building. By this time, the SWAT team, which included approximately fifteen officers dressed in helmets and heavy body armor, had been deployed to make a tactical entry at the front of the apartment building.

Sergeant Hall moved his vehicle into position behind appellant's vehicle, which arrived at the front of the apartment building "simultaneously with [the] SWAT team." Around the same time, a member of the SWAT team, Steven Browne, observed "a light colored Chrysler 300" pull up next to the SWAT team, which was moving toward the entryway to the apartment building. Officer Browne then observed that the driver, whom he could not identify, had "a phone up to his ear" and wore "an expression of a little bit of shock and like a scared look on his face." The driver then "drove out of the apartment complex rapidly." Officer Browne later testified that he found the driver's reaction unusual because "most of the time when we're approaching we are very distinctive, so people have a curious look on their face as opposed to a look on their face of, oh no, I'm in trouble." Officer Browne also testified that approximately five to ten minutes had elapsed between when the package was delivered and when he and the SWAT team approached the front of the building.

After making these observations, Officer Browne "called on the radio to surveillance units in the area, letting them know that this vehicle had just come in there and was leaving the area rapidly." Around the same time, Sergeant Hall observed that appellant's vehicle had "accelerated rapidly from in front of the building and went back out the exact same way that it came in." Sergeant Hall attempted to catch up to appellant's vehicle but could not, so he "radioed that that vehicle was leaving the area at a high rate of speed."

Maryland State Police Sergeant Christian Armiger, who was in an unmarked vehicle positioned at the rear of the apartment building, received a report of a "silver Chrysler...driving in a suspicious manner," at which time he "was directed to follow the Chrysler." Upon doing so, Sergeant Armiger noticed that the vehicle "appeared to be traveling above the speed limit." The officer continued following the vehicle, which eventually pulled to a stop at a stoplight. Sergeant Armiger pulled his vehicle adjacent to the Chrysler and observed the driver, appellant, "on his cellphone," which he put down upon looking in the officer's direction. Sergeant Armiger then pulled in front of appellant's vehicle, activated his vehicle's emergency lights, and initiated a stop of appellant's vehicle. By this time, Sergeant Hall had arrived on the scene; however, he did not participate in the traffic stop but instead provided "support backup for the officer that made the traffic stop."

After getting out of his vehicle, Sergeant Armiger, who was in "plain clothes," identified himself as police, approached appellant's vehicle, and asked appellant to "step out." Sergeant Armiger did not place appellant in restraints or have his weapon drawn. Sergeant Armiger observed that appellant "appeared to have a heightened level of nervousness," that his "carotid pulse was pounding in his neck," that his "voice cracked when he spoke," and that "his breathing was like shallow and rapid." Sergeant Armiger also looked inside of appellant's vehicle and observed appellant's cellphone, on which the officer could see "that the phone's GPS was on, and...818 Quince Orchard Boulevard was listed on [the] GPS." Sergeant Armiger then asked for appellant's identification, and appellant responded that he did not have any identification. The officer then explained toappellant that he was stopped because the police "were conducting an investigation in the area." Appellant asked the officer if he was under arrest, and Sergeant Armiger responded, "No."

Around this time, Montgomery County Police Detective Joseph New arrived on the scene and observed appellant "standing in the trunk area of the vehicle he was driving." Detective New also observed that none of the officers had their weapons drawn and appellant was not in handcuffs. Detective New approached appellant and asked for his name and whether he was the owner of the vehicle he was driving. Appellant responded that his name was "Annan," that the vehicle was "a rental car from Alamo," and that "he did not rent the car" and was not listed as an additional driver on the rental contract. Detective New then asked appellant why he was in the area of 818 Quince Orchard Boulevard, and appellant responded that he was "just driving around" and that he went to the apartment building to "see a friend name Cofey." After Detective New asked appellant several more questions "about his license status and the rental vehicle," appellant "requested to speak with an attorney." At this point, Detective New ceased questioning appellant and placed him in handcuffs.

Appellant was thereafter transported to the Maryland State Police Barrack in Rockville. Appellant ultimately agreed to speak with Detective New at the police station. Prior to that interview, Detective New informed appellant of his Miranda rights, which appellant waived by signing an "advice of rights" form. At no time during the interview did appellant ask to speak with an attorney. Eventually, appellant informed Detective Newthat he "didn't want to answer any more questions," so the officer stopped the interview. Appellant then provided written consent to a search of two cellphones that were recovered from appellant subsequent to his arrest.

Appellant thereafter filed a motion to suppress any evidence derived from the search of his cellphones and any statements he made to police at the police station. The circuit court ultimately held a suppression hearing, at which the above facts were adduced. At the hearing, appellant argued that the aforementioned evidence should be suppressed because the police lacked reasonable suspicion to effectuate the initial stop of his vehicle and because the police lacked probable cause to place him under arrest. Appellant also argued that the waiver of his Miranda rights was invalid because he had previously invoked his right to counsel. The circuit court disagreed with appellant's arguments and denied his motion to suppress:

[T]he first argument was that there was no reasonable articulable suspicion that there was anything criminal afoot. But we can't take the actions in a vacuum. Yes, it may be that seeing the SWAT team out there and all their regalia at 10 o'clock in the morning would cause someone to leave the scene....The fact of the matter is he did take off at a higher rate of speed than entering. He was on the phone, out-of-state tags.

None of that by itself means anything except for we know that, or the police knew at that time there would have been but for the interception a delivery [of] a huge amount of heroin, and so the police

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