Johnson v. State

232 Md.App. 241

157 A.3d 338

Casey O. JOHNSON

v.STATE of Maryland

No. 2465, Sept. Term, 2015

Court of Special Appeals of Maryland.

March 29, 2017

Sam Cowin (Eric S. Parnes, James H. Boykin, Hughes, Hubbard & Reed, LLP, Paul B. DeWolfe, Public Defender, on the brief) Washington, D.C., for Appellant

Sarah P. Pritzlaff (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellee

Woodward, Arthur, Leahy, JJ.

Leahy, J."If you don't have time to do it right, when will you have time to do it over?" John Wooden, UCLA Head Coach (1948–1975)

On a snowy evening in January, 2015, a Montgomery County Police Officer became suspicious that criminal activity may be afoot after he stopped Casey O. Johnson ("Appellant" or "Johnson") for a broken tail light in Germantown, Maryland. After more officers and a K–9 unit arrived at the scene, Johnson and her two passengers were asked to exit the vehicle. The police searched Johnson's two jacket pockets and found nothing, but when they searched Anthony Haqq, the front passenger, they found a baggie of 13 grams of marijuana in his waistband and smelled PCP on his breath. As they arrested the front passenger, the police proceeded to search Johnson's entire vehicle, including the trunk, while the K–9 stood idly by. A digital scale and 104.72 grams of marijuana were found inside a paper bag inside a backpack that was inside the trunk. Then the officers arrested Johnson, and during the search incident, found $544.00 on her person.

A grand jury charged Johnson with possession of marijuana with intent to distribute and conspiracy possession of marijuana with intent to distribute. Prior to trial in the Circuit Court for Montgomery County, Johnson moved to suppress all evidence seized by the police, who she claimed, violated the protection afforded her under the Fourth Amendment to the United States Constitution against unreasonable searches and seizures. The circuit court denied Johnson's motion, and the case proceeded to trial. The jury found Johnson guilty of possession of marijuana with intent to distribute, and the court sentenced Johnson to five years suspended in favor of supervised probation.

On appeal, Johnson presents two issues for our review:

1. "Did the police have reasonable articulable suspicion to continue detaining Ms. Johnson after a reasonable amount of time to process a traffic stop had passed?"

2. "Did the police have probable cause to search Ms. Johnson's trunk based on drug evidence found on the person of her front-seat passenger?"

Johnson's questions confine our review to the facts and argument presented before the suppression court. SeeLongshore v. State , 399 Md. 486, 498–99, 924 A.2d 1129 (2007) ; Ferris v. State 355 Md. 356, 368, 735 A.2d 491 (1999). Because the officers lacked probable cause to believe that drugs were in the trunk based solely on the drugs found in the waistband and on the breath of the front passenger, we hold that the suppression court erred by concluding the officers were permitted to conduct a warrantless search of the trunk pursuant to the Carroll Doctrine. See Carroll v. United States , 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ; see also California v. Acevedo , 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1999) ; United States v. Ross , 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ; Wilson v. State , 174 Md.App. 434, 921 A.2d 881 (2007). Given our disposition of this issue, we need not address Johnson's first question.

BACKGROUND

Suppression Hearing

The circuit court held a hearing on Johnson's motion to suppress on April 16, 2015. Because the State tried Johnson and her front-seat passenger, Haqq, together, the suppression court heard arguments from both defendants on their pending motions. Johnson claimed the officers lacked reasonable articulable suspicion to prolong the stop past the purpose of writing a citation for the traffic law violation and that the officers lacked probable cause to search the trunk of Johnson's vehicle. Officers Robert Sheehan and Michael Mancuso testified for the State, and Haqq testified for the defense. The following facts were established at the suppression hearing from these witnesses, and from Officer Sheehan's dashboard camera video of the traffic stop, which was played during his testimony.

The Stop

The defective tail light on Johnson's car was apparent on the video of the stop that occurred at 7:25 p.m. on January 9, 2015 near the intersection of Middlebrook Road and Germantown Road in Germantown. Johnson had two passengers with her: Anthony Haqq¹ in the front seat and Kevin Helms² in the back seat.

At the time of the stop, Officer Sheehan was assigned to the Germantown District Community Action Team, a unit placed "in areas of high crime for crime suppression." He had served as a police officer for twelve years, including approximately one year on the Special Investigations Criminal Street Gang Unit, and approximately one year on the Special Investigations Narcotics Enforcement Team. Officer Sheehan also took several classes concentrating on drug interdiction, and completed 417 hours of training on drug interdiction. He testified that the stop occurred in a high-crime area.

Officer Sheehan explained that he initiated the traffic stop to issue the driver a safety equipment repair order. When he activated his emergency equipment, Johnson drove "very slowly," turned into a Safeway parking lot, and stopped in the second parking aisle.³ It had been snowing and was dark out, so Officer Sheehan shined a spotlight on the rear window of Johnson's vehicle.

Furtive Movements and Nervousness

Officer Sheehan perceived, through the rear window of the vehicle, Johnson and the front-seat passenger, Haqq, making "furtive movements." Specifically, he observed:

It looked like [Johnson] may have been manipulating something in the center console area. She was bent over it. I could see her hand, her left hand on the steering wheel as she bent over the center console area, reaching in that area and reaching over towards Haqq's seat. ... I could see her, portion from her elbow up moving, and I could see her shoulder. I couldn't see her arm. I'm sorry. Her hand.

* * *

[Haqq] was moving around in his seat. He appeared to be either reaching under his seat on to the floorboard in front of his seat, and occasionally would lift his rear end up off the seat and then bring it back down, as if he was either trying to reach underneath where he was sitting, or the seat or the floorboard.

Haqq contested Officer Sheehan's observations and testified that neither he nor Johnson were moving around in their seats.

Officer Sheehan related that, after observing the furtive movements, the first thought that came to his mind was that the vehicle's occupants were trying to conceal drugs or weapons. So at 7:25:50 p.m. he "jump[ed] out of [his] car real quick to [go] up to the vehicle to see what was going on." Shining his flashlight into the vehicle as he approached, he observed Haqq "leaned over his own legs" and that "his hands were in between his legs." According to Officer Sheehan, when he got to the driver's window and introduced himself, Haqq "immediately jumped back in his seat ... and pulled his shirt down over his crotch area." Johnson's "voice was shaking[,]" and Officer Sheehan observed "the carotid pulse in her neck [was] beating rapidly[.]"

Officer Sheehan attested that in his twelve years of experience conducting traffic stops, he developed a sense for "traffic stop nervous," which he described as "a normal baseline for a person that I just stopped for a regular violation." Johnson, however, was "extremely nervous" according to Officer Sheehan, who described Johnson's "trembling" hands "fumbl[e] through her wallet for her license ...." From these observations, Johnson appeared to Officer Sheehan more nervous than "traffic stop nervous."

Johnson asked Haqq for help locating the vehicle's registration in the glove box, but "he didn't move" and instead sat "like a statue" staring out the window. Haqq's brief testimony during the hearing that he "just sat in [his] seat and stared out the window" was consistent with Officer Sheehan's version of the events.

Upon returning to his patrol car at 7:26:27 p.m., Officer Sheehan called in to request that his Germantown District Community Action Team members assist him with the stop. Immediately thereafter, he began processing the traffic stop on "eTix," and conducting the routine license, registration, and warrant checks in four systems.⁴ While conducting these checks he observed Haqq resume making furtive movements. Specifically, Officer Sheehan testified that "[a]s I am working on the computer, I can see now that Mr. Haqq is no longer statue-esque [sic] and not moving" but rather, "I could see ... the top of [Haqq's] body moving back and forth ... lifting up off his seat and leaning back a little bit" and "his arms moving in front on him." At the point on the video corresponding to Officer Sheehan's testimony, a voice is heard on the video informing Officer Sheehan that "NICIC clear. 2009 Mitsubishi 4–door. License status, valid. Points zero. NCIC person clear."⁵

Just after Officer Sheehan received the information on the background checks, Officer Dos Santos arrived at the stop at 7:29:30 p.m. Officer Sheehan brought Officer Dos Santos up to date, explained that he had already requested a K–9 unit, and recommended that they wait for another member of the team to arrive for "officer safety reasons" before approaching the vehicle again because there were three occupants in the car. At 7:32 p.m. Officer Mancuso arrived, and after Officer Sheehan summarized his observations, the three officers approached Johnson's car.

The Frisk and Search Incident

Officer Sheehan asked Johnson to step out of the car so that he could show her the broken brake light and ask her a few questions. The video displayed the following exchange beginning at 7:32:44 p.m.:

Officer Sheehan: Who are these people in the car with

...