Harrod v. State

993 A.2d 1113

192 Md. App. 85

Darryl K. HARROD v. STATE of Maryland.

No. 1177 September Term, 2008.

Court of Special Appeals of Maryland.

April 30, 2010.

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Eric A. Harrington (Williams & Connolly LLP, on the brief), Washington, DC, for Appellant.

Gary E. O'Connor (Douglas F. Gansler, Atty. Gen., on brief), Baltimore, MD, for Appellee.

Panel: DEBORAH S. EYLER, MATRICCIANI, and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

DEBORAH S. EYLER, Judge.

On the evening of January 27, 2007, two Montgomery County police officers, working off-duty as private security for the Majestic Movie Theater in Silver Spring, but dressed in their standard police uniforms, were approached by a male patron who told them that a man in the concession line who appeared to be intoxicated had threatened him with a knife. He pointed out a man, later identified as Darryl K. Harrod, the appellant, as the person who had threatened him. The officers responded by escorting the appellant from the line and placing him against a nearby pillar, where they frisked him for weapons. When one of the officers reached into the appellant's pocket to retrieve what he believed was a folding knife, he discovered a large plastic baggie containing crack-cocaine. The item the officer thought was a knife in fact was a cigarette lighter.

The appellant was first tried in the Circuit Court for Montgomery County on August 28 and 29, 2007, on charges of second-degree assault and possession with intent to distribute a controlled dangerous substance. He was acquitted of the assault charge, but the jury was unable to reach a verdict on the possession with intent to distribute charge, resulting in a mistrial as to that count. In a retrial on March 4 and 5, 2008, the appellant was convicted of the possession with intent to distribute charge.

The appellant presents the following questions on appeal, which we have reordered as:

I. Did the trial court err in failing to grant his suppression motion because the search violated the Fourth Amendment?

II. Did the trial court err in admitting the prior testimony of Officer Pete Duggan and the chemist Susan Cohen from the first trial?

III. Did the trial court err in admitting the chemist report on the narcotics recovered from his person?

For the reasons stated below, we shall affirm the judgment. For ease of discussion, we shall summarize the pertinent facts and proceedings issue by issue.

DISCUSSION

I. The Suppression Hearing

Prior to trial, the appellant moved to suppress the narcotics discovered in his possession as the product of an illegal search and seizure. The suppression hearing took place on August 27, 2007, the day before the start of the first trial. The two Montgomery County police officers who performed the search, Sergeant Detective Paul Liquorie and Patrol Officer Omar Tortolero, testified on behalf of the State. Joan Burriss, a friend of the appellant who had accompanied him to the theater on the evening in question, appeared on behalf of the defense.

The officers testified that they were standing in the general patron area of the theater, when they were approached by a "Mr. Felice Arias,"¹ who claimed he had bumped into someone in the concession line, and that the person had "pulled out a knife" and "tried to pick ... a fight." According to the officers, Arias told them the person smelled of alcohol and that he had threatened to "put Arias to sleep." The officers did not witness anything that corroborated Arias's story, but Sergeant Liquorie found it "very unusual for someone just to come up out of the blue and tell you that someone ... got into a fight with them." Arias did not specify when the incident had occurred, but Sergeant Liquorie's impression was that it "had just happened." Sergeant Liquorie requested that Arias identify the person who had threatened him, and Arias pointed to the appellant. Arias then left the scene. He did not describe the knife, and none of his statements were recorded by the officers.²

The officers approached the appellant and asked him to walk to a large pillar approximately ten steps from the concession line. Sergeant Liquorie directed the appellant to the pillar by placing his hand on the appellant's arm. Both officers noticed that the appellant's eyes were bloodshot, and that his breath and body smelled of alcohol. The appellant was ordered by Sergeant Liquorie to place his hands on the pillar and stand in a frisk position.³ Sergeant Liquorie then patted down the appellant while Officer Tortolero stood in a back-up role, watching the appellant's hands to ensure he did not reach for a weapon.

When Sergeant Liquorie reached the appellant's left front pants pocket, he "felt an object at the bottom of the pocket that he believed could possibly be a folded knife." When he put his hand in the pocket to retrieve the object he thought was a knife, he discovered on top of the suspected knife "a large baggie holding several other smaller red baggies which he immediately identified as crack cocaine." The sergeant also discovered that the suspected knife was actually a "Bic like style cigarette lighter." He explained that he mistook the lighter as a folding-style pocket knife because the appellant was wearing heavy sweat pants that made it "hard to manipulate anything through the exterior."

After the lighter and baggie of narcotics were seized, the officers handcuffed the appellant and escorted him outside the movie theater. There, Officer Pete Duggan, an on-duty Montgomery County Police Officer, took the appellant and the items of evidence into custody. As noted, Joan Burriss testified for the defense. She stated that, before the encounter with the police officers, she was standing next to the appellant in the concession line and that a "fair-skinned" African-American male who was also standing in line was blocking them from moving forward. Both Burriss and the appellant said "excuse me" to prompt the individual to move. The individual "just stood there." Eventually, the man told them to "go ahead" and walked out of the line. At that point, she and the appellant were approached by the officers.

The officers did not speak with Burriss before or after escorting the appellant to the pillar. According to Burriss, the officers took a lighter, a pack of cigarettes, and a cell phone from the appellant's pockets. She claimed she had not seen the appellant drink any alcohol that evening, nor could she smell alcohol on his breath or person.

At the conclusion of the hearing, the motion court denied the appellant's motion. The court found that the officers had conducted a Terry⁴ stop and frisk for a weapon and "nothing more." Although the court was "disturbed" by the level of force used by the officers to remove the appellant from the line and place him against the pillar, it found that the officers had stayed within "the scope and purpose of a Terry stop" in their conduct, and that the narcotics were discovered by mere inadvertence when Sergeant Liquorie retrieved what he thought was a weapon from the appellant's pants pocket. The circumstances recounted by the court as justifying the Terry stop and frisk included the large crowd in the lobby area where the incident occurred (Sergeant Liquorie testified that the theater could "have easily a couple hundred people in the lobby area getting concessions and waiting"); the "highly unusual" report and identification of the appellant by Arias; the fact that the appellant smelled of alcohol, which corroborated Arias's report that the aggressor was intoxicated; and that the Bicstyle lighter could have been a folded knife that, when opened, would "become a weapon" that could be used "to threaten somebody."

Standard of Review

When reviewing a decision on a motion to suppress evidence, we must view the evidence presented at the suppression hearing in a light most favorable to the party prevailing on the motion. Crosby v. State, 408 Md. 490, 504, 970 A.2d 894 (2009). We defer to the motion court's factual findings, rejecting them only if clearly erroneous. Id. at 504-05, 970 A.2d 894. We make an independent legal determination, however, as to whether the challenged search violated the Fourth Amendment. Id. at 505, 970 A.2d 894. Our review is limited to the record produced at the suppression hearing. Id.

The Propriety of the Search Under the Fourth Amendment

The appellant advances three alternative arguments as to why the search violated his Fourth Amendment rights and the narcotics evidence therefore should have been suppressed. First, the actions of the officers in escorting him to the pillar and frisking him amounted to an arrest unsupported by probable cause. Second, even if the encounter was not an arrest but merely was a Terry stop, neither the Terry stop nor the frisk was supported by a reasonable articulable suspicion that criminal activity was afoot or that the appellant was armed. Finally, even if the Terry frisk was supported by a reasonable articulable suspicion of weapons possession, it exceeded the scope allowed by the Fourth Amendment.

The State responds that the appellant failed to preserve the argument that he was unlawfully arrested; that, even if preserved, the officers' actions did not constitute an arrest, but rather a permissible Terry stop and frisk for weapons supported by the tip from a "citizen-informant"; and that the search was within the scope of a Terry frisk because "the officer felt a hard object that he reasonably thought might be a knife," and discovered the narcotics while acting "properly to remove it."

The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches...