Austin v. State

1

SHAQUILLE AUSTIN v. STATE OF MARYLAND

No. 29-2023

Court of Special Appeals of Maryland

January 23, 2024

UNREPORTED ^[*]

Circuit Court for Montgomery County Case No. C-15-CR-22-000245

Berger, Arthur, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

OPINION

Berger, J.

Following a jury trial, Shaquille Austin ("Austin"), appellant, was convicted of possession of a firearm by a person convicted of a crime of violence, transport of a handgun in a vehicle, illegal possession of ammunition, possession of cocaine, and making a false statement to a law enforcement officer. Austin was sentenced to an aggregate sentence of twenty years and six months of imprisonment, with all but five years suspended. On appeal, Austin raises the following two issues for our consideration:

I. Whether the circuit court erred in denying Austin's motion to suppress evidence recovered during a search of Austin's vehicle following a traffic stop.

II. Whether the circuit court abused its discretion in declining to admit a portion of a recording of a jailhouse telephone call that Austin asserts should have been admissible under the doctrine of verbal completeness.

For the reasons explained herein, we shall affirm.

FACTS AND PROCEEDINGS

On July 22, 2021, Montgomery County Police Officer Timothy Serlo initiated a traffic stop of the gray Chevrolet Spark Austin was driving on Wightman Road near Montgomery Village in Montgomery County, Maryland. Austin was stopped for having tinted windows and a suspended driver's license. When Officer Serlo approached the vehicle, he smelled the odor of fresh marijuana emanating from the car. After speaking with Austin, Officer Serlo requested backup and informed Austin that he was being detained. After Officer Ruth Zotti arrived on the scene, the two officers searched the vehicle. Austin did not consent to the search. During the search, the officers first found marijuana and a digital scale. When they continued to search, they discovered two ammunition magazines, a firearm, and a small bag of crack cocaine.

Motion to Suppress

Prior to trial, Austin moved to suppress the evidence obtained from the search, arguing that the stop was unreasonably prolonged and that the officers lacked probable cause to search the vehicle. A hearing on Austin's motion to suppress was held on December 8, 2022, during which the circuit court heard testimony from Officer Serlo and reviewed video footage recorded by Officer Serlo's bodycam.

Officer Serlo testified that when he saw the Chevrolet Spark driven by Austin on the evening of July 22, 2021, he noticed that the vehicle's windows were "extremely tinted." Officer Serlo testified that "in Maryland the tint can't be any darker than 35 percent," meaning that at least thirty-five percent of light transmittance must be able to pass through the window and that anything less than that amount is illegal. Prior to initiating the traffic stop Officer Serlo used a tint meter to measure the percentage of tint, which reflected a fourteen percent light transmittance for the front driver's side window and a sixteen percent light transmittance for the back side rear window, both of which fell below the thirty-five percent minimum. Officer Serlo also ran the vehicle's registration through the police computer system and received a notification that the registered owner, Mr. Shaquille Austin, had a suspended license. Officer Serlo confirmed that the photograph of the registered owner from the system was, in fact, the driver of the vehicle.

After Officer Serlo initiated the traffic stop, he approached the vehicle. Austin was the sole occupant. Officer Serlo testified that he "detected a strong odor of fresh marijuana emanating from the vehicle" when he approached. Austin was "extremely agitated and kind of yelling" when Officer Serlo approached. Austin "deflect[ed] the reason for the stop" and "sa[id] [Officer Serlo] pulled him over for the music being loud." Officer Serlo informed Austin that his license was suspended, but Austin continued to argue about the basis for the traffic stop. Officer Serlo ordered Austin to turn the vehicle off. Austin agreed to turn the vehicle off and strongly expressed his objection to a search, saying "you don't have consent to search this car at all. You don't have consent because this is not my car. You don't have consent to search it. So I'm going to get out the car though, and I'm going to turn it off." At this point, Officer Serlo requested backup.

Austin continued to argue with Officer Serlo. While waiting for backup, Officer Serlo asked Austin if he had any weapons on him. Austin responded that he did not. Officer Serlo asked if he could pat Austin down, and Austin consented. No weapons were recovered from the pat down. Austin said "you don't got to lock me up though. I'm not getting detained. You don't have to lock me up." Officer Serlo informed Austin that he was being detained. When Austin asked why, Officer Serlo informed Austin that "the car smells like weed." Austin continued to object to the search, but Officer Serlo explained that there was probable cause in the following exchange that was recorded by his bodycam:

Officer [Serlo]: . . . We have probable cause.

Mr. Shaquille Austin: So why you unlock my car?

Officer Serlo: Now listen.

Mr. Shaquille Austin: Why did you unlock my car and open it?

Officer Serlo: Because I already smelled the odor of marijuana. The reason I stopped you, is because the windows are tinted and I couldn't see through them.

Mr. Shaquille Austin: But they're legal.

Officer Serlo: No, they're not.

Mr. Shaquille Austin: Yes they are. They're 20 percent.

The vehicle was subsequently searched, and, as we explained supra, officers recovered marijuana, a digital scale, two magazines, a firearm, and a small bag of crack cocaine from Austin's vehicle.

The circuit court denied Austin's motion to suppress, explaining its reasoning as follows:

The officer's testimony is that he observed from a -when he was stationary, he observed an excessive tint. And that is challenged because the -- I find Mr. Motley (phonetic sp.) to be a fairly credible witness.^[1] As far as he knows, three years ago, when he did this tint, he would do 35 percent. And it's challenged whether it was 35 percent in July of 2021, when this stop took place. It's challenged. The officer might be right, might be wrong about the excessive tint. Apparently there's some additional evidence that has not been produced in discovery. That's not really before me.

Whether the officer was right or wrong on that, he clearly had reason to think that. The officer testified, that he could see the defendant's face as he drove by because the window was partly down and that he checked and came back suspended, which is consistent with State's Exhibit Number 2. Now, if there's some evidence of malfeasance on there, that hasn't been shown to me.

So the officer clearly had reasonable, articulable suspicion to stop the defendant, at that point, based on -- what the officer knew at that point was he thought he saw excessive tint, which he may or may not have, but he thought it was excessive. But he clearly had a computer printout saying -- an alert saying that this gentleman was suspended, which gives him the right to stop someone for driving while suspended. And he probably, as you mentioned, would get a warning for the tint issues, but you usually don't even get a ticket for that; you get a warning for that.

But he clearly had grounds to stop the gentleman for driving while suspended, which is a misdemeanor carrying up to one year in jail. So he had grounds to stop him and issue a citation.

At that point, when he approached the vehicle, the first thing the defendant says to him on the tape is "It's not my car." Well, the officer already has the registration showing it is his car, and the first thing he did, at least in the reasonable inference -- so the first thing he did was lie to him and say, "It's not my car." Well, we've got it registered to you. There may be an explanation for that statement, but the first thing he did -- as far as what the officer knew in that moment -- first thing he did was lie to me.

Then the officer testified he smelled fresh marijuana, which I'm sure they get tons of training on that. And then the defendant says, "Well, my windows are 20 percent". And the defendant was clearly quite agitated. Whether he was nervous, whether he was aggressive, I guess, is a matter of judgment. He could certainly have been both. I suspect he was very nervous in the moment and very agitated. Whether he was aggressive or not, I don't know. You could certainly take it that way, but maybe it wasn't meant that way.

I also find that the smell of marijuana, I believe, is very clear. It gives the officer the right to search the car at that point, whether he should -- I didn't find it to be excessively prolonged. He searched the car. If he had held him there for another 30, 40 minutes waiting for dogs, that sort of thing, that's when you get into the excessive prolonging of the search. But I don't find any excessive action by the officer in holding the person there for any unfair reason; he was going to search the car. Once he smelled marijuana, that gave him probable cause to search the car.

Once he searches the car, the next thing he finds is a magazine in the car. At that point, he's got probable cause, certainly, to prolong the search and keep going and search every crevice. Because we know there's a magazine there; we know there's marijuana there. At that point, the officer has probable cause to continue the search.

For that reason, I'm not going to -- I'm going to deny the motion based, not on what they found -- whether they find something or not is not -- you

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