Lewis v. State

1

KEITH LEWIS v. STATE OF MARYLAND

No. 2153-2022

Court of Special Appeals of Maryland

May 20, 2024

UNREPORTED IN THE APPELLATE COURT OF MARYLAND ^[*]

Circuit Court for Baltimore City Case No. 122060012

Shaw Tang, Woodward, Patrick L. (Senior Judge, Specially Assigned) JJ.

OPINION

Shaw J.

A jury in the Circuit Court for Baltimore City found Appellant Keith Lewis guilty of illegal possession of a firearm after being convicted of a disqualifying crime and related offenses, wearing/carrying/transporting a loaded handgun, illegal possession of ammunition, and fleeing and eluding. Appellant was sentenced to eleven years' incarceration. He noted this timely appeal, raising three questions for our review.

1. Did the motions court err by denying Appellant's motion to suppress?

2. Did the trial court err by allowing the State to elicit improper lay testimony?

3. Did the trial court err by denying Appellant's request to redact a portion of Detective Galloway's body-worn camera video?

For reasons set forth below, we answer yes to the first question. We, therefore, decline to answer questions two and three. The judgments of the circuit court are reversed.

BACKGROUND

On February 3, 2023, at around 5:45 P.M., Detective Robert Mauri of the Baltimore City Police Department was on patrol, when he spotted a Honda Accord with a driver, later identified as Appellant, not wearing a seatbelt. He followed the vehicle and noticed "the high stopped third brake light was also not working." Detective Mauri activated his lights and siren and pulled the vehicle over in the 1600 block of Barley Avenue. Detective Antione Galloway was also present for the initial stop. Both detectives exited their vehicles and approached the car. Detective Mauri was on the driver's side and Detective Galloway was on the passenger's side. Detective Mauri testified that as he was questioning Appellant, he recognized the odor of marijuana emanating from the passenger compartment. He asked Appellant about the odor and Appellant handed the detective "a small sample of marijuana from his person[] ...." Detective Mauri then called for backup.

When backup arrived, Detective Mauri asked Appellant to step out of the car. He asked Appellant if he could conduct a search of him and Appellant replied "No." Detective Mauri then put his hand inside of Appellant's front right jacket pocket and as he reached around Appellant's back, Appellant fled. Detective Mauri stated that he "never felt any object to assume it would be a firearm."

Detectives Mauri, Galloway and another responding detective, McDermott, pursued Appellant. During the chase, Detective Galloway "observed a handgun in the [d]efendant's hand" and watched Appellant as he "discarded [sic] and [] threw it underneath the silver Acura TL." Detective Galloway yelled out "gun -- gun under the car - gun" as the officers chased Appellant. A few seconds later, Appellant stopped running and he was placed under arrest. A nine-millimeter Taurus handgun was retrieved by Detective McDermott from beneath the silver Acura TL.

Appellant was subsequently charged with illegal possession of a firearm after being convicted of a disqualifying crime, wearing/carrying/transporting a loaded handgun, illegal possession of ammunition, and fleeing and eluding. Appellant filed a motion to suppress the gun recovered by the detectives and, on November 2, 2023, the circuit court held a hearing to address Appellant's motion. Appellant argued that he was subjected to an illegal search by police and the unlawful conduct of the police triggered his decision to flee and throw the gun. Appellant contended that, but for the illegal search, the gun would not have been discarded and thus, everything recovered after the search was fruit of the poisonous tree. Because the handgun was abandoned under a car that did not belong to Appellant, the State argued that Appellant lacked standing, and that Appellant had no reasonable expectation of privacy.

Detective Mauri testified at the motions hearing. When asked by the State, several times, what he either intended to do or actually did when examining Appellant's clothes, he responded that his actions constituted a search. He stated:

[Officer Mauri]: I asked him for a consent search of his person, which I believe he denied the consensure [sic] to his person.

[. . .] [State]: Did you search the Defendant?

[Officer Mauri]: At the time when I saw, I did search his person and took my right hand to his waistband. He decided to flee from the search of his person.

[State]: Was you [sic] hand, when you say you took your right hand to his waistband, was your hand in the waistband?

[Officer Mauri]: No, it was not. I just - I began to search and his person and as I started to go to is lower abdomen area, where firearms are typically carried in or amongst their person, he ran from me before I observed any type of weapon on his person.

(Emphasis added). Detective Mauri stated that "[e]ven though he declined that standard for his consent, I still had probable cause to search his person [f]or anymore CDS in or amongst his person."

During Detective Galloway's direct examination, his body-worn camera video was admitted into evidence. In the video, Detective Mauri can be heard asking Appellant whether he can conduct a search of him, to which Appellant replied "No." Detective Mauri can then be seen placing his hand inside Appellant's front jacket pocket before walking around to the back of Appellant as Detective Galloway grabs Appellant's sleeve. It is at that point that Appellant runs and discards the gun.

Following the arguments of counsel, the court ruled that Appellant had no standing to challenge the suppression of the gun, finding the police action was lawful and that Appellant had abandoned the gun. The court, in pertinent part, stated:

This court has no issue with the initial stop. [...] He made an inquiry regarding the smell of marijuana. At that time the defendant gave a packet . . . believe[d] to be marijuana. [_] At that point he was asked out of the car by the police officer, which is reasonable, for officer's safety. [_] He had every reason to have that person come out of that car, it may have been a citationable offense, but I still believe that it is a crime to drive under the influence of marijuana. ...

At that time what I could see on the vehicle [sic, likely "video"] was a pat down, which I believe was for officer's safety.

...

At that point it appeared to be a pat down . . . for officer's safety. At that point the Defendant fled, and at that point, all of this raised from a, to give chase . . . Galloway indicated that he saw him throw a handgun under the vehicle. [...] For all those reasons, I do not believe that he was illegally searched.

STANDARD OF REVIEW

"When reviewing a hearing judge's ruling on a motion to suppress evidence under the Fourth Amendment, we consider only the facts generated by the record of the suppression hearing." Thorton v. State, 465 Md. 122, 139 (2019) (quoting Sizer v. State, 456 Md. 350, 362 (2017)). We review the evidence and the inferences drawn therefrom in the light most favorable to the prevailing party, in this case the State. Id. Suppression hearing rulings present questions of law and fact. Swift v. State, 393 Md. 139, 154 (2006). The "'[hearing] court is in the best position to resolve questions of fact and to evaluate the credibility of witnesses."' Thorton, 465 Md. at 139 (quoting Swift, 393 Md. at 154). "Accordingly, we defer to the hearing court's findings of fact unless they are clearly erroneous." Thorton, 465 Md. at 139 (citing Bailey v. State, 412 Md. 349, 362 (2010)). A court's findings are clearly erroneous when "there is no competent and material evidence in the record to support it." Hoang v. Hewitt Ave. Assocs., LLC, 177 Md.App. 562, 576 (2007). On questions of law, "we review the hearing judge's legal conclusions de novo, making our own independent constitutional evaluation as to whether the officer's encounter with the defendant was lawful." Sizer, 456 Md. at 362.

DISCUSSION

I. The court erred in denying the motion to suppress.

Standing is the "threshold question of the entitlement to litigate the merits of a search and seizure" under the Fourth Amendment. White v. State, 248 Md.App. 67, 88 (2020) (quoting Bates v. State, 64 Md.App. 279, 282 (1985)). It "'depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.'" White, 248 Md.App. at 88-89 (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)).

Ordinarily the question of standing does not answer the question of whether or not an appellant's Fourth Amendment rights were violated. Id. State v. Savage, 170 Md.App. 149 174 (2006). However, there are, occasionally, facts presented where the "merits play a necessary preliminary role in the very determination of applicability." See Narain v. State, 79 Md.App. 385, 387 (1989). This can arise when abandonment of property is at issue. See Duncan and Smith v. State, 281 Md. 247, 263 (1977) (quoting Beale v. State, 230 Md. 182, 186 (1962)). In such instances, to determine whether the abandonment of the property was voluntary and thus, not protected under the Fourth Amendment, we must first consider whether the search in question was lawful. We, then, examine whether the abandonment was voluntary. There is no reasonable expectation of privacy in a seized item if the abandonment was voluntary. If, however, there was no voluntary abandonment, then the appellant maintains their reasonable expectation of privacy and as a result, has standing. See Duncan and Smith, 281 Md. at 263 (1977) (quoting Beale, 230 Md....