Cole v. State

MARKIE JEROME COLE v. STATE OF MARYLAND

No. 2417

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

July 12, 2021

Circuit Court for Baltimore City

Case No. 119184006

UNREPORTED

Kehoe, Gould, Salmon, James P. (Senior Judge, Specially Assigned), 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. Md. Rule 1-104.

Appellant, Markie Jerome Cole, was charged in the Circuit Court for Baltimore City with possession of a regulated firearm by a person previously convicted of a disqualifying crime. Defense counsel filed pretrial motions, in which she requested that the court (i) compel disclosure of the identity of the confidential informant whose tip had led to appellant's arrest and (ii) suppress the firearm seized by the police as the fruit of an unlawful search. Following a hearing, the court denied both motions. Thereafter, appellant entered a conditional guilty plea, reserving the right to appeal the court's denial of the motions. The court sentenced appellant to five years' incarceration without the possibility of parole. Appellant timely appealed the denial of the two motions and presents the following two questions for our review:

1. Did the court err in not requiring disclosure of the confidential informant's identity?

2. Was it error to deny the motion to suppress the evidence seized, after [the] police made a warrantless arrest and search of [a]ppellant, without probable cause?

For reasons that we will explain, we will remand this case to the circuit court for further proceedings without affirmance or reversal.

BACKGROUND

At about 10:53 on the evening of June 10, 2019, a paid confidential informant told Detective Joshua Cornelius that a male armed with a handgun was located in the 2200 block of Barclay Street. The informant provided the suspect's race and described him as wearing a black hat, a white shirt, gray pants, and carrying a satchel on his shoulder.According to Detective Cornelius, the informant also provided a description of the suspect's height and build. At the motions hearing, however, the detective could not recall the physical description that the informant had provided. He was also unable to remember whether the informant had told him how he or she had acquired this information.

Detective Cornelius testified that, pursuant to Baltimore City Police Department protocols, the informant had been subjected to a comprehensive background check, which neither revealed any felony convictions, nor indicated that he or she had been convicted of a violent crime. Detective Cornelius told the court that he also had conducted his own "personal vetting" of the informant, which led him to conclude that he or she was reliable.

Detective Cornelius told the court that the informant and he had collaborated for approximately a year-and-a-half. During that period, Detective Cornelius averred, the informant had provided information on over 40 occasions, which led to the seizure of over 25 firearms, "numerous grams of various narcotics," and a significant quantity of cash. On none of those occasions did the detective find the informant's tips to have been unreliable. Detective Cornelius further testified that, of the four or five confidential informants with whom he had collaborated, this informant had been "the best" and had provided the most reliable information.

The detective did, however, acknowledge that approximately five percent of the informant's tips had not been actionable, either because they had been "stale," because the police had "gotten there too late," or because it had not been "the right time" to act on theinformation. The informant was paid for each firearm recovered by the police as a result of one of his or her tips.

Upon receiving the tip, Detective Cornelius assembled what he called an "arrest team." On the evening of June 10th, members of that team, including Detective John Horne, Sergeant Maggio, and Detective Romeo, responded to the 2200 block of Barclay Street in an unmarked police vehicle.¹ According to Detective Cornelius, in the prior two years, there had been an increase in illegal narcotic activity, illegal possession of firearms, and gun violence in the Barclay Street neighborhood.

Sergeant Maggio, Detective Horne, and Detective Romeo arrived at the scene about twenty minutes after Detective Cornelius had received the tip. They observed one man standing on the sidewalk talking to another man who was sitting on the steps of a house. The man on the sidewalk, who turned out to be appellant, matched the description supplied by the informant and was wearing clothes matching those that the informant had described (a black hat, white shirt, gray pants, and a satchel on his shoulder). Detective Cornelius, in turn, testified that "there was no one else on the block that matched the [suspect's] description." The officers briefly observed the two men, and saw nothing that led them to believe that the either of the men was armed or otherwise engaging in illegal activities.Moreover, the officers did not see appellant "touching himself suspiciously" nor did they observe either a "bulge or any outline of a handgun[.]"

As they exited their vehicle, Sergeant Maggio and Detective Horne activated their body cameras. While approaching appellant, Detective Horne testified, that it appeared that he had been "looking at the [officers'] vehicle, wondering what they were going to do." Based on his observations, Detective Horne suspected that appellant was preparing to take flight. In anticipation thereof, Detective Horne ran toward appellant, intending to "detain him . . . and conduct a weapons pat down." He then "grabbed [appellant's] hand so he couldn't retrieve a firearm[.]" A "hard take-down" ensued. Thereafter, the detective testified, appellant appeared to reach for his waistband.

Moments after Detective Horne initiated the "hard-take down" of appellant, Detective Romeo aided him in "restrain[ing]" appellant, while Detective Cornelius "put [his] right arm around [appellant's] neck and collarbone area."² After he was subdued by the officers, appellant was placed in handcuffs. Detective Maggio's body camera recorded the events at issue. The footage, which the defense played for the court, captured the following exchange:

MR. COLE: Hold on. Hold, yo. Hold --

UNIDENTIFIED SPEAKER: Get your hand up. Get your hand --

MR. COLE: Oh -- hold on. What's going on? What's going on?

UNIDENTIFIED SPEAKER: Get your hand up.

MR. COLE: What ... is this, man?

UNIDENTIFIED SPEAKER: Three more units, boss. This --

MR. COLE: Hold up, man, hold up. Who is this?

UNIDENTIFIED SPEAKER: He's reaching for it.

MR. COLE: Hold on, man.

UNIDENTIFIED SPEAKER: He's reaching for it. I saw the gun.

MR. COLE: Hold on. Hold on. Hold on.

UNIDENTIFIED SPEAKER: I got it.

MR. COLE: What the ...?

UNIDENTIFIED SPEAKER: Don't move.

UNIDENTIFIED SPEAKER: Stand up.

UNIDENTIFIED SPEAKER: Watch your back.

UNIDENTIFIED SPEAKER: I got it.

The search of appellant's person revealed a .40-caliber Glock 22 secreted in his left pants pocket, as well as a clear plastic gel containing a white rock substance, a buprenorphine wrapper, and what appeared to be marijuana.

As we have related, appellant's trial counsel filed two pretrial motions. In the first, counsel asked the court to compel the State to disclose the identity of the confidential informant whose tip had led to appellant's arrest. The second motion was to suppress the firearm seized by the police as the fruit of an unlawful search. Following a hearing, thecourt denied both motions. First, the trial court denied the motion to compel disclosure of the informant, ruling that the confidential informant was "much closer to being a mere tipster rather than someone who actively participated or actually witnessed the . . . transaction," and was unlikely to have "some form of relevant information . . . that would perhaps help in the defense" of appellant.

Second, the court denied the motion to suppress the evidence seized from appellant's person, ruling that: the "description" of the "individual" and his "geographical location" were not "vague"; the carrying of a "satchel" made the description "distinctive"; "[o]ne can infer from the level of detail" imparted that the "confidential informant had personal knowledge of that incident such that one could confidently predict that there would in fact be a handgun on this individual"; and there was "probable cause" to "stop, seize and search" appellant.

ANALYSIS

A. The informant's identity

Appellant argues that the trial court erred when it denied his motion to compel the disclosure of the informant's identity. He points out that, at the suppression hearing, the parties agreed that the informant's tip was the sole basis for the police to search appellant. He argues that the court applied the wrong legal standard in deciding whether disclosure was required, and that disclosure of the informant is required because the police relied solely on the informant's tip in seizing appellant. For its part, the State agrees that the trial court used the wrong legal standard in reaching its decision. The State further asserts thatthe appropriate remedy is not to reverse the judgment but rather to remand the case for an additional hearing.

An appellate court is not bound by a party's concession of error on a legal issue. Coley v. State, 215 Md. App. 570, 572 n.2 (2013). Nor are we bound by a concession or stipulation on "a question of law requiring the application of facts." Greenstreet v. State, 392 Md. 652, 667 (2006). Although it is not at all clear to us that the trial court applied the wrong legal standard when it denied appellant's motion for disclosure of the identity of the confidential informant, we think that it is appropriate for us to remand the case for a fuller explanation of the...