Ketterman-Pusey v. State

1

TIMOTHY KETTERMAN-PUSEY v. STATE OF MARYLAND

No. 210-2023

Court of Special Appeals of Maryland

August 21, 2024

UNREPORTED ^[*]

Circuit Court for Wicomico County Case No. C-22-CR-21-000501

Graeff, Nazarian, Eyler, James R., (Senior Judge, Specially Assigned), JJ.

OPINION

NAZARIAN, J.

Timothy Ketterman-Pusey was driving his car when a drunk driver being pursued by police crashed first into the police vehicle, then into him. Had the crash never happened, Mr. Ketterman would have continued on his way; in the aftermath of the wreck, police found a semi-automatic handgun lying on the side of the road near his car. A search of his vehicle yielded bullets matching the gun's caliber and drug paraphernalia. Mr. Ketterman was charged with and convicted of illegal possession of a loaded firearm and sentenced to fifteen years in prison.

On appeal, Mr. Ketterman argues that the evidence found in his vehicle should have been suppressed. He argues as well that the circuit court erroneously denied his motion for dismissal on the grounds that Md. Code (2003, 2022 Repl. Vol.), §§ 5-133, 5-133.1 of the Public Safety Article ("PS"), and Md. Code (2002, 2021 Repl. Vol.), § 4-203 of the Criminal Law Article ("CL") were unconstitutional, both facially and as applied to him. We affirm.

I. BACKGROUND

On October 21, 2021, the Wicomico County Sheriff's Office and the Salisbury Police Department pursued a dark Honda sedan on Queen Avenue in Salisbury. The chase ended abruptly when the Honda, which was being driven by a drunk driver, struck another vehicle, an Acura sedan that police later confirmed was Mr. Ketterman's, then spun off the road and hit a tree, killing the driver. The crash left Mr. Ketterman's vehicle disabled on the side of the road.

Officers involved in the chase arrived on the scene. State police officers arrived at the scene as well to investigate the police-related death as part of the newly established Maryland State Police Independent Investigation Division ("IID") (Md. Code (2021, 2021 Repl. Vol.), § 6-602 of the State Government Article). There is no dispute that Mr. Ketterman was an innocent party to the crash.

While at the scene, Wicomico County Sheriff Michael Lewis saw Mr. Ketterman standing off to the side of the road calling for a tow truck. Mr. Ketterman then sat behind his vehicle's fender on the grass and placed his feet in the gutter. He got up from where he was sitting and walked back toward his vehicle in a manner that, Sheriff Lewis believed, was designed to avoid him. Sheriff Lewis grew wary of Mr. Ketterman's behavior and walked over to where he had been sitting on the side of the road to investigate the surrounding area. He found a semi-automatic handgun with a silencer lying where Mr. Ketterman had just been sitting. Although leaves and debris from the crash were scattered along the road, Sheriff Lewis noted that there was no debris on the gun itself. Sheriff Lewis did not remove the gun immediately but brought it to the attention of his superior officer, who then seized it. When asked about the weapon, Mr. Ketterman stated that he did not know anything about the gun and that police could not put ownership of the gun "on him." He refused to make eye contact with Sheriff Lewis during their conversation.

Although Mr. Ketterman was never seen having physical possession of the gun, the Maryland State Police, in collaboration with the IID, seized the vehicle as part of the collision investigation. The Wicomico County Sheriff's officer applied for the vehicle to be transferred to their department seven days later and Corporal Andrew Riggin applied for a search warrant. The warrant was based on Sheriff Lewis's account of Mr. Ketterman's evasive behavior, the gun retrieved from the gutter (which, they said, appeared to have been deposited recently), and Mr. Ketterman's criminal record, including a third-degree burglary charge from 2010. The warrant was granted and police searched the vehicle. They found drug paraphernalia and bullets located in the driver side's door panel.

Mr. Ketterman was charged with illegal possession of a loaded firearm on his person and in his vehicle, CL § 4-203(a)(1)(v) and PS § 5-133, possession of a controlled dangerous substance and possession with intent to use drug paraphernalia (CL §§ 5-601(a)(1), § 5-618(c)), and one count of illegal possession of ammunition (PS § 5-133.1). Mr. Ketterman was prohibited from carrying a gun under PS § 5-133(b)(1) because he had been convicted previously of a crime of violence. PS § 5-101(c)(4). Further, Mr. Ketterman was disallowed from carrying a firearm within his vehicle because he did not meet any of the exceptions in CL § 4-203(b), most notably that the "wearing, carrying, or transporting of a handgun by a person to whom a permit has been issued," is not prohibited. CS § 4-203(b)(2) (cleaned up).

Mr. Ketterman moved to suppress the evidence seized from the scene and his vehicle, arguing that police lacked probable cause to seize and search the vehicle. He argued that the officers should have gotten a warrant prior to seizing the vehicle. In response, the State argued that the seizure was lawful. The circuit court held that the issuing judge had a "substantial basis to support the issuance of the warrant" in light of the location of the handgun outside Mr. Ketterman's vehicle where, apart from law enforcement, he had been sitting alone and the lack of debris on the gun.

Mr. Ketterman then moved to dismiss on the grounds that the firearm-related charges violated his rights under the Second Amendment to the Constitution of the United States. He proffered two primary arguments. First, he argued that CL § 4-203, which criminalizes transportation of firearms in a vehicle, including without a permit, is unconstitutional under New York State Rifle &Pistol Ass'n. v. Bruen, 597 U.S. 1 (2022), because the permitting scheme in Maryland requires a "good and substantial reason" and thus is unenforceable as a "may issue" regulation. Id. at 13-15. Second, he argued that PS §§ 5-101, 5-133, and 5133.1 were facially unconstitutional and unconstitutional as applied to him because the class of individuals restricted under the statute is too broad and there is no historical tradition of disarming individuals found guilty of non-violent burglary. The circuit court disagreed, holding that the Bruen historical tradition analysis was not needed because laws regulating felons in possession of firearms are presumptively valid under District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010). The court found that the mere fact that one portion of a regulatory scheme would be invalid doesn't invalidate its other provisions. Mr. Ketterman was convicted of all charges except for the drug possession charge, and on March 31, 2023 he was sentenced to fifteen years in prison. He filed a timely appeal.

II. DISCUSSION

Mr. Ketterman raises three issues on appeal.^[1] First, he maintains that the search of his vehicle at the police station after the police-related car crash violated his rights under the Fourth Amendment. Second, he argues that CL § 4-203 and PS §§ 5-133, 5-133.1 are facially unconstitutional because they restrict his Second Amendment right to bear arms. Third, he argues that these provisions are also unconstitutional as applied to him, a convicted felon. This case requires us to consider a post-Bruen facial and as-applied challenge to PS § 5-133, as we did in Fooks v. State, 255 Md.App. 75 (2022), cert. granted, 482 Md. 141 (2022), in this instance for a defendant whose prior conviction was third-degree burglary.

We review motions to suppress against the factual record developed at the suppression hearing. Washington v. State, 482 Md. 395, 420 (2022). In reviewing the admissibility of evidence obtained during a search, we accept the circuit court's factual findings unless they are "clearly erroneous," id., and view them in the light most favorable to the prevailing party, in this case, the State. Brewer v. State, 220 Md.App. 89, 99 (2014). And because deference is given to the circuit court judge's factual findings, we uphold them when there is any competent evidence to support them. Givens v. State, 459 Md. 694, 705 (2018). We perform an independent analysis of the ultimate question of the constitutionality of the search. In re D.D., 479 Md. 206, 222 (2022).

A. The Officers' Search Of Mr. Ketterman's Vehicle Was Supported by Probable Cause.

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. (Emphasis added). Although warrantless searches may be permitted when one of the "few specifically established and well-delineated exceptions applies," Katz v. United States, 389 U.S. 347 (1967), a search normally must be supported by a valid warrant to be reasonable. Maryland v. Dyson 527 U.S. 465, 466 (1999). When a warrant has been issued, the inquiry becomes "whether the issuing judge had a substantial basis to conclude that the warrant was supported by probable cause." Greenstreet v. State, 392 Md. 652, 667 (2006). Probable cause exists when there is a "fair probability that contraband or evidence of a crime [will] be found in" a particular place. Bowling v. State, 227 Md.App. 460, 468 (2016) (cleaned up). Although probable cause is based on the circumstances surrounding a search from the "standpoint of an objectively reasonable police officer," State v. Johnson, 458 Md. 519, 533 (2018), a reviewing court may only look to the "four corners" of the warrant application, including the warrant and the supporting application. Williams v. State, 231 Md.App. 156, 175 (2016). ...