Bogan v. State

DARSHE BOGAN v. STATE OF MARYLAND

No. 624

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

May 13, 2021

Circuit Court for Prince George's County

Case No. CT180199A

UNREPORTED

Kehoe, Beachley, Shaw Geter, JJ.

Opinion by Kehoe, 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. See Md. Rule 1-104.

After a jury trial in the Circuit Court for Prince George's County, Darshe Bogan was convicted of possession of a regulated firearm after having been convicted of a disqualifying offense, possession of a regulated firearm while under the age of 21, transporting a handgun in an automobile, and possession of ammunition by a prohibited person. Mr. Bogan raises two issues on appeal, which we have reworded slightly:

(1) Did the suppression court err in concluding that there was a lawful basis for the traffic stop that led to his arrest?

(2) Did his convictions for possession of a regulated firearm while under the age of 21 and possession of a regulated firearm after having been convicted of a disqualifying offense merge for sentencing purposes?¹

We conclude that the circuit court did not err in denying Mr. Bogan's motion to suppress. However, we agree with him that there is a merger problem with the sentences for possession of a regulated firearm conviction and the transporting a firearm in a motor vehicle conviction. Because the transcript of the sentencing proceeding is not clear as to which sentences were imposed for which counts, we will remand the case to the trial court for clarification of its sentence and a decision as to which conviction should be vacated.

Background

The case arises out of a traffic stop. The driver of the vehicle was Darnell Bogan and the front-seat passenger was his brother, Darshe Bogan. Because both men have the same surname, we will refer to Darnell Bogan as "Darnell" to avoid confusion. We mean no disrespect.

In 2017, while on patrol in an unmarked car, Sergeant Justice Halsey, and Officer Kenneth Meushaw of the Prince George's County Police Department noticed an automobile stopped at a red light. A dealership license plate frame partially obscured the word "Virginia" on the car's rear license plate. Meushaw, who was driving the police vehicle, stopped at the light in the lane to the car's left. Halsey looked at the car in the adjacent lane and saw that it had two occupants, neither of whom was wearing a seatbelt. He made eye contact with the driver and saw him toss what appeared to be a "blunt" out of the window.²

Once the traffic light turned green, the officers pulled the car over. Halsey approached the car and asked the driver for his license and registration. While talking with the driver, Halsey smelled burnt marijuana. Because of the odor, Halsey ordered the driver and the passenger to exist the vehicle.

Meushaw stood with the driver and the passenger while Halsey searched the car. Under the front-passenger-seat, he found a loaded handgun. Halsey then told Meushaw to put the brothers in handcuffs. As Meushaw cuffed Mr. Bogan, he said, "We just found the gun." The officers arrested both men, and the State later charged them with crimes associated with having the handgun in the car.

Mr. Bogan filed a pre-trial motion to suppress evidence of the handgun, the ammunition, and his statement about the handgun. Halsey, Meushaw, and both of the Bogans testified.

Much of the hearing was concerned with whether the dealership frame around Bogans' car's license plate obstructed Halsey's view of the plate. During the hearing, Halsey conceded that he could read the numbers and letters on the license plate, that he could see the license plate's registration stickers, and that he could tell it was a Virginia plate. But he noted that the dealership frame covered the very top of the three "Is" of the word Virginia. Halsey also stated, however, that he pulled the Bogan vehicle over, not for the issue with the license plate alone, but also because he noticed that neither man was wearing his seatbelt, and he saw Darnell litter when he threw his blunt out the car's window. For their part, the Bogans testified that they were wearing their seatbelts and that neither threw anything out of their car before they were stopped.

The circuit court denied the motion to suppress. The court found that the police officers were credible and that the Bogans were not. He concluded that the officers had reasonable, articulable suspicion to stop the car for three reasons. First, Darnell had littered when hethrew his blunt to the ground. Second, neither Mr. Bogan nor Darnell was wearing his seatbelt. And third, the frame around the car's license plate covered a "very small portion of the lettering of the word Virginia." As a result of these findings, the court denied Mr. Bogan's motion to suppress the evidence.

The State indicted Mr. Bogan on five counts: Count 1 was possession of a regulated firearm after being convicted of a disqualifying crime; Count 2 was possession of a regulated firearm by a person under the age of 21; Count 3 was wear/carry/transport of a handgun in an automobile; Count 4 was wear/carry/transport of a handgun on his person; and Count 5 was possession of ammunition as a prohibited person.³ Prior to the trial at issue in this appeal, the State nol prossed count 4 (wear/carry/transport of a handgun on his person), and the jury returned verdicts of guilty as to counts 1, 2, 3, and 5.⁴ At sentencing the circuit court stated,

So as to Count VII, its three years, suspend all but 18 months. All right. Take that back, to Count I—I mean count VI, three years suspended all but 18 months, and all the remaining counts will be three years suspended, and they're going to run current [sic] with Count VI, as well as the supervision.

But there were only five counts in the indictment, and both the docket entries and commitment record showed that the sentence of three years with all but eighteen monthssuspended was imposed under Count 1. The docket entries and commitment record also show Counts 4 and 5 merging with Count 1.

Analysis

The standard of review in cases such as the present one is well-established:

When we review a circuit court's grant or denial of a motion to suppress evidence alleged to have been seized in contravention of the Fourth Amendment, we view the evidence adduced at the suppression hearing, and the inferences fairly deduced therefrom, in the light most favorable to the party that prevailed on the motion. We defer to the circuit court's fact-finding at the suppression hearing, unless the circuit court's findings were clearly erroneous. Nevertheless, we review the ultimate question of constitutionality de novo and must 'make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.

Grant v. State, 449 Md. 1, 31 (2016) (cleaned up).

A. Preservation

In his brief, Mr. Bogan concedes that he failed to object to the introduction of evidence as to the handgun, the ammunition, and his statement about the handgun at trial, but that we should still consider this appeal by invoking our discretion under Rule 8-131(a).⁵However, as the State points out in its brief, the suppression court's ruling denying the motion to suppress is preserved for appellate review. See Md. Rule 4-252(h)(2)(C) ("A pretrial ruling denying the motion to suppress is reviewable on a motion for a new trial or an appeal of a conviction.").

B. The validity of the stop

Before addressing Mr. Bogan's contentions, we point out that he is not challenging the decisions of the police to require them to exit their vehicle or to search it. His focus is solely on the initial stop.

In essence, Mr. Bogan argues that evidence of the handgun, the ammunition, and his statement should have been suppressed because the police had no right to pull the vehicle over in the first place. According to him, the frame around the license plate complied with Md. Code Transp. § 13-411(c).⁶ From this premise, he reasons that the police had no basisto pull alongside the vehicle while it was stopped at the traffic light. If the police had not been next to the Bogan vehicle, Halsey would not have noticed that the Bogans were not wearing their seatbelts. Finally, Mr. Bogan asserts that "the littering violation [was] so minor an infraction that it should not be a factor in search-and seizure-law."

We see things differently: Even if the license frame did not violate the law, the police violated no right of Mr. Bogan by pulling up next to his vehicle at the traffic light. Nor did Halsey violate the Fourth Amendment by looking at the car next to him. Not wearing seatbelts is a violation of Maryland law. Transp. § 22-412.3(b) and (c). So is littering. Transp. § 21-1111(d) and (e).

The Fourth Amendment prohibits "unreasonable searches and seizures." Under the Fourth Amendment, even an officer's "[t]emporary detention" of a person during a vehicle stop "constitutes the 'seizure' of 'persons.'" Whren v. United States, 517 U.S. 806, 809-810 (1996). And this seizure extends to any passengers in the vehicle. Brendlin v. California, 551 U.S. 249, 253 (2007).

To justify a seizure like this, officers must have "a particularized and objective basis for suspecting the particular person stopped of breaking the law." Heien v. North Carolina, 574 U.S. 54, 60 (2014) (cleaned up). Because this is an objective test, ordinarily an officer's "[s]ubjective intentions play no role in" a Fourth Amendment seizure analysis. Whren, 517 U.S. at 813. Finally, "a police officer's observation of an actual violation of the Maryland Vehicle Law is sufficient basis for a traffic stop." Johnson v. State, 242 Md. App. 588, 616 (2019).

When the police pulled up next to the Bogan vehicle Halsey noticed that neither Mr. Bogan nor Darnell was wearing his seatbelt. As it was a "clear violation...