Hatton v. State

TEON DEMARCUS HATTON v. STATE OF MARYLAND

No. 2324

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

October 4, 2019

Circuit Court for Prince George's County

Case No. CT-17-0473A

UNREPORTED

Leahy, Shaw Geter, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

Opinion by Leahy, 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.

On March 11, 2017, at about 1:30 a.m., appellant Teon De'Markus Hatton was driving in his Honda Accord with a female passenger, Amahnie Fikes, when Officer Timothy Shomper signaled Hatton to pull over. Officer Shomper was driving in his patrol car and noticed that the tag light on the Honda Accord was not working. Hatton continued to drive for about a tenth of a mile under Officer Shomper's spotlight. During this time, Officer Shomper saw Hatton lean forward, reach behind his back, and hand Fikes "an unknown object." Fikes then leaned forward as if placing something on the passenger-side floorboard. When the car finally stopped, Officer Shomper saw Hatton jump into the rear passenger seat and Fikes climb into the driver's seat. Shortly thereafter, when Officer Shomper and his partner approached the car, Hatton was sitting in the back seat, his feet resting on the center console, eating a bag of chips. The officers removed Hatton and Fikes from the car; they handcuffed Hatton and patted him down for weapons. Finding none, Officer Shomper checked the passenger compartment of the vehicle. Inside a purse on the floor of the car, Officer Shomper found a loaded silver revolver.

Prior to his trial in the Circuit Court for Prince George's County, Hatton moved to suppress the firearm and ammunition. The suppression court denied his motion and the case proceeded to trial. The jury found Hatton guilty of possession of a firearm, illegal possession of ammunition and driving without a license. He noted his timely appeal to this Court and presents four questions for our review:

(1) "Did the trial court err in denying [Hatton]'s motion to suppress?"

(2) "Did the trial court err in permitting inadmissible lay testimony?"

(3) "Did the trial court err in allowing the prosecutor to make improper and prejudicial comments at closing argument?"

(4) "Is the guilty verdict for driving unlicensed a nullity?"

At the hearing on the motion to supress, Officer Shomper articulated his reasonable suspicion to conduct a protective search for weapons, but he failed to articulate why it was necessary to open the purse in the passenger compartment or why a less-intrusive search would not have sufficed. The facts the State adduced at the suppression hearing also did not support a finding of probable cause to search the car. Therefore, we hold that the circuit court erred in denying Hatton's motion to suppress because the State failed to demonstrate why Officer Shomper's search of the purse was constitutionally permissible. We reverse Hatton's firearm and ammunition convictions but affirm his conviction for driving without a license. The remaining issues Hatton raises concerning lay trial testimony and closing argument are not sufficiently likely to arise on remand, so we do not resolve them here.

BACKGROUND

On April 4, 2017, Hatton was indicted by a grand jury on seven counts: (1) possession of a firearm after a conviction for conspiracy to commit a felony; (2) possession of a firearm after having been convicted of the disqualifying crime of misdemeanor assault; (3) possession of a firearm after having been convicted of the disqualifying crime conspiracy to distribute marijuana; (4) the illegal possession of ammunition; (5) wearing, carrying, and transporting a handgun; (6) wearing, carrying, and transporting a handgun in a vehicle on a public road; and (7) driving while unlicensed.

Motions

On September 14, 2017, Hatton moved to suppress the evidence uncovered during the road-side search. He argued that "the suspected handgun and ammo were seized pursuant to an unlawful search, seizure, and/or arrest[,]" in violation of his State and Federal constitutional rights.

Suppression Hearing

Prior to trial, on October 3, the court considered Hatton's motion to suppress. Officers Shomper and Loveless testified for the State. Hatton called no witnesses and did not testify. Officer Shomper's testimony described his observations on the night of Hatton's arrest, March 11, 2017:

I observed a silver Honda Accord. The tag light was completely out. I activated my emergency lights and sirens to effect a traffic stop. The vehicle proceeded approximately a 10th of a mile before coming to a stop. During that 10th of a mile, it was dark outside so I shined my spotlight into the vehicle to illuminate the vehicle to see what was going on inside. I observed a male in the driver's seat, a female in the passenger seat.

As the vehicle was proceeding that 10th of a mile, I observed the driver, which was the defendant.

* * *

. . . I observed the defendant in the driver's seat lean forward in his seat, reach behind his back with his right hand and take a dark in color object and pass it over to the female passenger.

* * *

I couldn't make out [the object]. All I could make out is that it was a dark in color object.

* * *

We were still traveling at this point. I then observed the female accept the unidentified object. I observed her lean forward in the seat as if she was putting something on the passenger side floorboards. Then the car came to a stop in a dark parking lot.

Immediately as soon as the car stopped, I observed the defendant get out—like put the seatbelt above his head and jump into the back seat of the vehicle.

* * *

The female passenger, [the] front seat passenger[,] jumped across he center console into the driver's seat.

* * *

At that point I immediately got out of my cruiser and approached the vehicle on the passenger side. At that point, I observed the defendant lying in the back seat. His feet were still up on the center console and he was eating a bag of chips.

Officer Shomper then described what he did next and why:

At that point, because of the furtive movements I knew through my training and experience, furtive movements people are often trying to conceal weapons. Out of fear of safety, I removed the defendant from the back seat of the car and patted him down for weapons. Again through my training and experience, I observed the defendant making several movements as if he was going to flee the scene, so I placed him in handcuffs.

* * *

To explain the movements further, our common practice is to put their hands above their head and lace their fingers. I could feel him trying to pry his hands apart and looking around for avenues of escape. So I placed him in handcuffs. Then Officer Loveless removed the now driver, which was a female, from the vehicle and escorted her back to our police cars.

I immediately went to the area that I believed there was a weapon, which was the passenger side floorboard, and saw a purse on the floorboard. And in the purse I found the silver and black handgun revolver.

(Emphasis added). Officer Shomper clarified that they did not handcuff the female passenger "until after the gun was found." Having found the gun, officers arrested both Hatton and the passenger, and transported them to the station for questioning.

On cross-examination, Officer Shomper described the female's furtive movements more fully:

I said that I could see her lean forward as if she was putting the object on the floorboard.

* * *

As I said, I could see the female lean forward in the passenger seat and her head disappeared from the headrest. I could not see her body at alland I couldn't tell where [s]he was putting it, but I believe it was in the inside passenger compartment, but I couldn't see.

* * *

Usually people don't do that with the police behind them with lights and sirens on.

. . . [M]ost of the time, criminal movements like this, they're trying to hide a weapon. It could have been drugs, but most of the time it's a weapon.

He clarified that "[t]he furtive movements alone" gave him the impression that Hatton had a gun. And he elaborated that, "through training and experience [he] know[s] if someone is known to carry weapons, they're known to carry more than one weapon."

On redirect, the State asked Officer Shomper to identify five photographs to confirm that they depicted "the way the car was found when [he] located the handgun[.]" The fifth photo showed, on the floor of the passenger's side of the car, a brown purse made of soft leather or similar material that was zipped shut. Two other photos showed a close-up of the purse, unzipped, revealing part of a silver revolver beneath a stick of deodorant. And two more photos show the revolver more clearly, out of the purse.

Officer Loveless testified next. He described the stop from his perspective, including that he took the female passenger out of the car while Officer Shomper handcuffed and patted down Hatton. He eventually handcuffed the female passenger after Officer Shomper found the gun in the front passenger seat. Officer Loveless explained that the traffic stop was not routine "[b]ecause the driver jumped into the back seat and the front passenger jumped into the driver's seat."

Following its presentation of evidence, the State argued that "just to clarify, the officer was performing a Terry¹ frisk of the automobile. . . . [T]he furtive movements were what led to the reasonable articulable suspicion that there was a gun in the car," and thus the "gun should not be suppressed." Counsel for Hatton retorted that "[t]here is no such thing as the Terry search of an automobile," and that "[f]urtive movements . . . are not sufficient for a frisk." He argued further that the officers lacked probable cause because "the Fourth Amendment requires [] that the officers have a specific crime in mind" before searching...