Jones v. State Of Md..

194 Md.App. 110

3 A.3d 465

Emmanuel L. JONES

v.STATE of Maryland.

No. 918, Sept. Term, 2008.

Court of Special Appeals of Maryland.

Sept. 1, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Lyndon P. Dreven of Washington D.C. (Nancy S. Forster, Public Defender, Howrey, LLP, on the brief), for the appellant.

Douglas D. Guidorizzi (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: HOLLANDER, WOODWARD and ZARNOCH, JJ.

WOODWARD, J.

On November 23, 2007, appellant, Emmanuel L. Jones, was arrested in front of 612 Baker Street in Salisbury, Maryland. A search incident to appellant's arrest produced suspected narcotics, a sample of which tested positive for cocaine. Appellant was subsequently charged with, among other things, possession with intent to distribute cocaine and trespass on posted property. Appellant filed a motion to suppress on the ground that his arrest lacked probable cause and thus the evidence seized during the search incident to arrest was the result of an illegal search. On April 11, 2008, the Circuit Court for Wicomico County denied appellant's motion. On June 23, 2008, appellant entered a not guilty plea on an agreed statement of facts, and the State entered a nolle prosequi to all counts with the exception of the possession of cocaine. The trial court found appellant guilty of the charge and sentenced him to three years' incarceration. On appeal, appellant presents one question for review, which we have rephrased:

Did the trial court err in denying appellant's motion to suppress on the basis that there was probable cause to arrest appellant for trespassing on posted property?

For the reasons set forth herein, we shall affirm the judgment of the circuit court.

BACKGROUND

The trial court held a hearing on appellant's motion to suppress on April 11, 2008. Officer David Underwood of the Salisbury Police Department was the only witness to testify for the State. Officer Underwood stated that he and Officer Thomas McMenamy were traveling in a patrol car on Anne Street approaching Baker Street when Officer Underwood observed appellant in the rear yard of 612 Baker Street walking toward Anne Street. Officer Underwood testified that upon seeing the patrol vehicle, appellant “immediately turned around and began walking back towards Baker Street.” According to Officer Underwood, appellant “was walking at a much quicker pace than he was when he was walking towards Anne Street.” Upon turning the patrol car onto Baker Street, Officer Underwood saw appellant “walking from the rear yard into the side yard and then eventually into the front yard of 612 Baker Street....” Officer Underwood stated that he was familiar with the owners of 612 Baker Street, Glen and Lynn Bratten, and that there were “no trespassing” signs posted on all sides of the property.

Officer Underwood then stopped appellant “in reference to the trespassing violation .... [t]o see if he had a right to be on the property.” Upon questioning, Officer Underwood observed that appellant appeared nervous and avoided making eye contact. When Officer Underwood asked whether appellant had anything illegal on his person, appellant emptied the contents of his pockets, with the exception of his front right watch pocket. Officer Underwood testified that, when he asked appellant about that particular pocket, appellant turned away. According to Officer Underwood, “[a]t that time [appellant] was detained.”

Officer Underwood then asked appellant where he lived. Appellant “didn't provide that address.” Officer Underwood “attempted to make contact with the tenants of 612 Baker Street” by knocking on the door, but no one answered. When asked by the prosecutor whether he knew where appellant resided, Officer Underwood stated: “To my knowledge, 618 Baker Street.” ¹

Officer Underwood next described the physical layout of the homes on Baker Street. He stated that 612 was part of a building containing three rowhouses, 612 was the far right rowhouse as one faced the front, with 614 and 616 to the left, respectively. A driveway separated 616 from 618, the latter being part of a duplex with 620. There was also a driveway between 610 and 612. Officer Underwood testified that he first observed appellant directly behind 612, and then saw appellant come from the back of 612 along the driveway separating 612 and 610 and enter the front yard of 612 where he made contact with appellant.

According to Officer Underwood, appellant was ultimately placed under arrest “[i]n reference to the trespassing.” Officer Underwood searched appellant's front right watch pocket and found a series of baggies containing what Officer Underwood “recognized through [his] training, knowledge and experience as suspected crack cocaine.” Finally, Officer Underwood testified that the area of Anne Street and Baker Street was “considered an open-air drug market and had a high crime rate.”

Appellant called two witnesses. Appellant's mother, Vanessa Robinson, testified that appellant was staying at her home at 618 Baker Street. Robinson stated that an individual named Jane Ann ² lived at 612 Baker Street and had given appellant permission to enter the front yard of 612 Baker Street to access 618 Baker Street. The other witness to testify for appellant was Michael Booker, who lived at 620 Baker Street. Booker testified that around noon on November 23, 2007, he was with appellant in the yard shared by 618 and 620 Baker Street. Booker went inside of his house and when he came back out, he observed the officers place appellant in a patrol car. Booker noted that the police did not make any attempt to speak with him before arresting appellant.

The trial court concluded that the police had probable cause to arrest appellant and denied appellant's motion to suppress. The court stated, in relevant part:

[T]he question really is whether or not based on Officer Underwood's observations that someone-that an objectively reasonable police officer in that situation considering the totality of the circumstances would have found there was reasonable grounds to believe that [appellant] was trespassing at that time.

... [T]here is nothing to suggest that the no trespassing signs which were posted on all sides of the building and from the officer's testimony would have been visible, said no trespassing except for neighbors. It said no trespassing.

And I believe based on Officer Underwood's testimony that, an objectively reasonable officer acting under those circumstances considering the nature of the area, the observations of [appellant] where he was located, his behavior and when asked where he lived, actually there is nothing-I don't recall there

being any testimony that he asked [appellant] what permission he had to be there. He asked him where he lived and he said at one point, I think no answer. Then he said at another time that it was 618, but I think based on the officer's testimony, I'm going to find that there was probable cause for the arrest, and the arguments made can perhaps more effectively be made at trial.

On June 23, 2008, appellant made an oral motion to reconsider the denial of his motion to suppress, which was denied. Appellant then entered a not guilty plea to an agreed statement of facts on the sole charge of possession of cocaine, the remaining counts having been nolle prossed by the State. As previously stated, the trial court found appellant guilty and sentenced him to three years' incarceration with the Division of Correction. A timely notice of appeal followed.

DISCUSSION

The Parties' Contentions

Appellant argues that the trial court erroneously concluded that Officer Underwood had probable cause to arrest him for trespass on posted property. Relying on In re Jason Allen D., 127 Md.App. 456, 733 A.2d 351 (1999), Johnson v. State, 356 Md. 498, 740 A.2d 615 (1999), and Torres v. State, 147 Md.App. 83, 807 A.2d 780 (2002), appellant claims that, “[i]n order to find probable cause for trespassing, the court must find that the officers knew that appellant was prohibited from entering the property of 612 Baker Street.” Appellant focuses on the three factors cited by the trial court to support its finding of probable cause, namely, “1) appellant's physical location; 2) the nature of the area; and 3) appellant's behavior when asked for his address.”

Regarding appellant's presence at 612 Baker Street, appellant asserts that, even with the posted “No Trespassing” signs, “[b]eing present on a neighbor's property does not create probable cause for trespassing, without confirmation that the presence is forbidden.” According to appellant, the mere presence in a high crime area also cannot justify a finding of probable cause, because “[p]robable cause cannot be found in this case, where the crime is distinct from the one that defines the area.” Finally, appellant contends that probable cause cannot be based on appellant's “behavior when asked where he lived,” because (1) appellant was not asked where he lived until after he was arrested, and thus “the question of whether probable cause had been established [was] moot;” and (2) under Maryland law, appellant's nervousness upon being stopped by Officer Underwood cannot be the basis for a finding of probable cause.

Appellant next argues that, even when all pertinent facts are considered, including those not relied upon by the trial court, “the officers failed to develop probable cause to believe that appellant was trespassing on the property of 612 Baker Street.” Again, appellant claims that “the officers would need to confirm that [appellant] was not permitted on the property in order to establish probable cause.” Among the reasons that appellant claims the officers failed to do so was that “there is no evidence that the officers ever asked appellant if he had permission to be on the property.”

Finally, appellant focuses on what the officers did know based upon their “cursory investigation,” namely ...