Bost v. State

958 A.2d 356

406 Md. 341

Robert L. BOST v. STATE of Maryland.

No. 98, September Term, 2007.

Court of Appeals of Maryland.

October 15, 2008.

Julia C. Schiller, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for Appellant.

Beverly Peyton Griffith, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., on brief), for Appellee.

Argued before BELL, C.J., RAKER,^* HARRELL, BATTAGLIA, GREENE, MURPHY and DALE R. CATHELL (Retired, specially assigned), JJ.

RAKER, J.

The question presented in this case is whether the Circuit Court for Prince George's County erred in denying the motion to suppress evidence seized by District of Columbia police officers after they entered Prince George's County, Maryland. Appellant challenges the validity of the officers' actions as violating the Maryland Uniform Act on Fresh Pursuit. Maryland Uniform Act on Fresh Pursuit, Md. Code (2001, 2006 Cum.Supp.), § 2-304 to-309 of the Criminal Procedure Article ("the Act").¹ We shall hold that the Act was not violated because the officers reasonably suspected that Bost had committed a felony when they crossed into Maryland and they had probable cause to arrest Bost at the time of his arrest.²

I.

Appellant, Robert Bost, was indicted by the Grand Jury for Prince George's County on charges of possession with intent to distribute cocaine, possession of cocaine, wearing a dangerous weapon concealed on or about the person, and use of a machine gun for an aggressive purpose, which the State later amended to carrying a handgun on or about his person. Bost filed a motion to suppress the evidence seized by the police incident to his arrest, arguing that the out-of-state District of Columbia Metropolitan police, in arresting appellant in Maryland, acted in violation of the Maryland Uniform Act on Fresh Pursuit.

The Circuit Court held an evidentiary hearing on the motion to suppress the evidence. Various officers from the District of Columbia Metropolitan Police Department testified that, on November 29, 2005, sixteen Metropolitan police officers in four unmarked cars were patrolling the 800 block of Southern Avenue, SE, in Washington, D.C., as part of a Focus Mission Unit targeting street level narcotics and firearm recovery in high crime areas. The block divides the District of Columbia and Maryland. At approximately 6:00 p.m., three officers, wearing jackets with "Police" written across them, left their vehicle and walked towards about a dozen people who were drinking alcohol on the sidewalk in a no-loitering area. Officer Phillip testified that he "conducted a `contact'," at which time, one of the people, later identified as Robert Bost, immediately left, walking away "in a briskful manner" while clutching his right waistband with his right elbow. Officer Phillip said that Bost started picked up his pace, and "immediately took flight on foot crossing the street onto the Prince George's County side." Officer Phillip testified that he had reasonable, articulable suspicion that Bost was concealing something and that based upon his experience, he believed that Bost was "trying to conceal a weapon" and because Bost was "holding . . . his waistband, continuously looking back."

Bost ran into a wooded area, falling several times, each time clutching at his right side. The officers followed in pursuit, eventually crossing into Prince George's County, Maryland. Once in Maryland, the officers caught up to Bost and physically restrained him on the ground. As one officer attempted to grab Bost's elbows to turn him onto his side, the officer felt a metal object and indicated to the other officers "gun, gun." The officer unzipped Bost's jacket and discovered a black nine millimeter semiautomatic pistol with 21 rounds of ammunition. The gun was tied around Bost's neck to his body. Bost was arrested, and a further search incident to arrest revealed two large, white, rock-like substances and $140 from the pocket of Bost's pants. The Metropolitan Police immediately contacted Prince George's County officials, who responded and took custody of Bost.

The trial court denied Bost's motion to suppress the evidence. The trial court reasoned as follows:

"This is one of those difficult cases where you have to balance a person's right to run I suppose versus the police department and law enforcement in general's right to inquire based on the circumstances of this case.

"The facts are fairly clear, the defendant is in a drug trafficking area known to the police department in the District of Columbia. A group of people that number between 12 and 15 I believe. When the police arrive the defendant took flight clutching at his waistband. Certainly the police department and the police officers involved in this instance based on their training, experience, had cause to believe that crime was afoot here.

"In chasing the defendant, after ordering him to stop several times, he continued to clutch at his side as if he had a weapon or something else illegal. Of course, they couldn't tell at the time. The question is do they have a right to inquire? I think they do.

"I will deny the motion to suppress for those reasons. I think they had a right to inquire. I appreciate the argument of counsel, it is certainly to his credit. I will deny the motion to suppress."

Following the court's ruling, the case proceeded to trial before the court on a not guilty plea, agreed statement of facts, to the possession with intent to distribute cocaine and carrying a handgun on or about his person.³ The trial court found Bost guilty and sentenced him to three years incarceration, with all but one year suspended.

Bost noted a timely appeal to the Court of Special Appeals. This Court, on its own initiative, issued a writ of certiorari before the intermediate court decided the appeal to consider the ruling of the Circuit Court on appellant's motion to suppress. Bost v. State, 402 Md. 352, 936 A.2d 850 (2007).

II.

Appellant presents a single argument to this Court. He argues that the Circuit Court erred in denying appellant's motion to suppress, because the Metropolitan police officers violated the Uniform Act on Fresh Pursuit. In particular, appellant maintains that the Metropolitan officers lacked the authority to cross the state line into Maryland under § 2-305 of the Act, which grants the authority for an out-of-state officer "who enters this State in fresh pursuit and continues within this State in fresh pursuit of a person to arrest the person on the ground that the person is believed to have committed a felony in the other state." Appellant contends that the Metropolitan Police Officers did not have reasonable grounds to believe that Bost had committed a felony in the District of Columbia at the time the officers crossed into Maryland. He maintains that the fact that appellant was observed clutching his waistband did not give rise to a reasonable belief that a felony had been committed.

The State presents three arguments to support the search and seizure. First, the State contends that the Metropolitan police officers were authorized under the Act to enter into Maryland in fresh pursuit because they in fact had reasonable suspicion to believe that appellant had committed a felony. The State argues that the Act requires only reasonable suspicion at the time officers cross the border into Maryland, and not probable cause. Under this analysis, the State argues that the totality of the circumstances involved — including factors such as the high crime area in which Bost was located, Bost's unprovoked flight from police, and the police officer's experience and training in recognizing behavior such as Bost's clutching at his waistband as consistent with possession of a concealed weapon — meets the standard of reasonable suspicion. Second, the State argues that the arrest was lawful because one of the District of Columbia police officers had been deputized by the United States Marshal Service and therefore, while on duty, he is authorized to go anywhere to investigate cases and to arrest outside of the District of Columbia. Finally, the State argues that even if the statute was violated, the evidence should not be suppressed because the Act does not contain an exclusionary rule.

III.

In reviewing the ruling on a motion to suppress evidence, we consider only the evidence contained in the record of the suppression hearing. Rush v. State, 403 Md. 68, 82-83, 939 A.2d 689, 697 (2008). We extend great deference to the hearing judge's findings of fact and those findings will not be disturbed unless clearly erroneous. Id. at 83, 939 A.2d at 697. We review the evidence and the inferences that may be reasonably drawn in the light most favorable to the prevailing party. We make our own independent appraisal as to whether a constitutional right has been violated by reviewing the law and applying it to the facts of the case. Id.

IV.

A.

Appellant does not contend that the police officers lacked probable cause to arrest him. Nor does he contend that his arrest violated the Fourth Amendment to the United States Constitution or Article 26 of the Maryland Declaration of Rights. His argument on appeal rests solely on an interpretation of the Uniform Act found at § 2-305 of the Criminal Law Article. Appellant claims that the Metropolitan police officers lacked the authority under the statute to cross the border into Maryland at the time they did so, and that the statute would be ineffective unless read broadly to include an exclusionary rule.⁴ In order to determine whether the Act was violated, we look to the canons of statutory interpretation.

The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature. Tribbitt v. State, 403 Md. 638, 645, 943 A.2d 1260, 1264 (2008). In construing a statute, we look first to the plain language of the statute, and if that language is clear and unambiguous, we look no further than the text of the statute. Ishola v....