Miles v. State

ARNOLD MILES v. STATE OF MARYLAND

No. 1456

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

September 15, 2015

UNREPORTED

Kehoe, Arthur, Salmon, James P. (Retired, Specially Assigned), JJ.

Opinion by Salmon, 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.

Arnold Miles (hereafter "Miles") was indicted in the Circuit Court for Wicomico County, Maryland, and charged with possession of heroin with intent to distribute and possession of heroin. After his motion to suppress evidence was heard and denied, Miles entered a not guilty plea based on an agreed statement of facts and, as to both counts, was found guilty. Those counts were merged, and Miles was sentenced as a subsequent offender to twenty years, the first ten without possibility of parole. In this appeal, one question is presented:

Did the circuit court err in denying Miles's motion to suppress?

We shall answer that question in the negative. Although there are other grounds for that answer, principles of law set forth in State v. Ofori, 170 Md. App. 211 (2006) govern this case inasmuch as: 1) although a State Trooper held appellant and his vehicle for about 15 minutes after the purpose of the traffic stop had been fulfilled, the additional period of detention was nevertheless lawful given the fact that, at the time the purpose of the traffic stop had been fulfilled, the officers had a right to detain appellant while they waited for a drug-sniffing dog to arrive and scan appellant's vehicle for drugs because the police, during that additional period of detention, had a reasonable articulable suspicion that appellant possessed illegal drugs.

I.

Evidence Presented at the Suppression Hearing

Corporal Richard Hagel has been a Maryland State Police officer since 2001 and during that period had worked on over one thousand drug related cases. As a result of thatexperience, he was familiar with the method and manner of street level packaging of heroin, cocaine, and marijuana in the Salisbury, Maryland area.

On March 7, 2014, Corporal Hagel and another police officer met with a confidential informant, who had provided reliable information to the police in the past. The informant provided the officers with appellant's name, address, a description of him (black male, 45-50 years old) and the name of his employer. The informant also told the officers that appellant drove a green Ford Expedition with chrome rims and that Miles keeps heroin inside a New York Yankees baseball cap that he (Miles) wore.

Twelve days later, on the afternoon of March 19, 2014, Corporal Hagel was on patrol with Officer Oliver¹ when they passed T's Market, located on Route 13 in Salisbury, Maryland. The area around T's Market was characterized by Corporal Hagel as a "well-known, high-drug, high-crime area," and Corporal Hagel knew that narcotics arrests had been made in and around T's Market in the past. At that point, the officers noticed a 1999 green Ford Expedition parked in between two empty islands that previously contained gas pumps. The vehicle was parked 20 to 25 feet away from the store and was occupied by two persons, but it did not appear that the individuals were preparing to exit the vehicle to go into the store.

On the day in question, Corporal Hagel was driving an unmarked 2004 dark green Ford Expedition. He testified that for two years he had been using that unmarked vehicle exclusively while on patrol. He further testified, without objection, that his vehicle was "well-known" "in the hood," and that he did not know of any other vehicle like it in the area.

As the police officer maintained surveillance of the green 1999 Ford Expedition, Corporal Hagel saw Ashley Pruski, a known heroin addict who had been arrested for possession of heroin in 2014, approach the 1999 Ford Expedition vehicle. At around the same time, the 1999 green Ford Expedition began to pull out of the lot. Corporal Hagel testified, again without objection, that he assumed that "he had been made," i.e., the occupants of the 1999 Ford Expedition had seen his unmarked vehicle and recognized that it was a police car.

As the 1999 Ford Expedition pulled out of T's Market, Ashley Pruski started chasing it while holding her hand up and shaking that hand, which held a cell phone. It appeared to Hagel that Pruski was trying to get the attention of the people in the 1999 Ford Expedition while she jogged after it. The vehicle did not stop, however.

At that point in his testimony, Hagel said that a drug user, such as Pruski, would typically arrange a meeting to purchase narcotics using a cell phone or text message to askif a potential seller had heroin. Then, the drug buyer and seller normally would make arrangements to meet at some predetermined location in order to conduct a drug transaction.²

Corporal Hagel followed the 1999 Ford Expedition after it drove onto Route 50 westbound. Noticing that the vehicle was traveling about 10 miles per hour over the posted speed limit, Hagel conducted a traffic stop at approximately1:12 p.m. He approached the 1999 Ford Expedition and recognized Miles, the driver, as the person about whom the confidential informant had provided information. Corporal Hagel asked Miles, who was wearing a New York Yankees baseball cap, for his license. Miles produced a learner's permit. The front seat passenger also did not have a driver's license. This presented a problem for Miles because, as Corporal Hagel explained, in order for appellant to legally drive on a learner's permit, he needed to have a licensed driver with him.³ Although Corporal Hagel could have arrested appellant at that time for the learner's permit violation, he elected not to do so.⁴

Corporal Hagel observed that appellant's hands were shaking when he handed over his learner's permit and that Miles also failed to make eye contact with him. Also, Milesstuttered during their conversation. Based on the number of traffic stops he had made over his career, Corporal Hagel opined that appellant's nervousness during this stop was "more excessive" than normal.

At about 1:15 p.m., Corporal Hagel called for a narcotics dog and handler to report to the scene. At approximately 1:16 p.m., Corporal Hagel finished writing a warning ticket for the speeding violations; at 1:30 p.m., the K-9 handler, Officer John Dallam, an eight-year veteran of the Delmar Police Department, arrived with his dog.

When Officer Dallam first arrived, he spoke to Corporal Hagel and was advised of Hagel's observations, as well as the information from the informant that appellant was known to carry heroin on his person. Officer Dallam then approached the vehicle and noticed that appellant's knuckles were turning white because he was gripping the steering wheel very tightly. Dallam asked appellant to step out of the vehicle because he was going to have his dog perform a K-9 scan. As appellant exited the vehicle, Officer Dallam noticed that appellant was sweating, although the weather was "cool." At that point, Officer Dallam also noticed that appellant was breathing at a "rapid pace[.]"

Once appellant was outside of the vehicle, standing within arm's reach of Officer Dallam, the K-9 officer asked appellant if there were any drugs in the car. Appellant did not respond. Dallam then asked appellant if he had any weapons on his person. Again, appellant made no response. Appellant's silence heightened Officer Dallam's concern aboutthe situation.⁵ Based on these non-responses, appellant's body language, as well as concern for his safety and the safety of his dog, Officer Dallam told appellant he was going to pat him down for weapons. What happened next, as related by Officer Dallam at the hearing, was as follows:

As I patted him down for weapons, I move from his pant legs, I move up to the waist. I touch the back, and as I was touching his neck and head area, he smacked my hand away and pushed back in an aggressive way towards me, which, in turn, I took an aggressive action and [I] grabbed both of his arms and pinned him against the vehicle.

Appellant, according to Officer Dallam, next "pushed off the vehicle, hit my hand away," and then "was making a move like he was going to try to confront me[.]" At that point, Officer Dallam and Corporal Hagel placed appellant in handcuffs and Office Dallam removed appellant's New York Yankees baseball cap. Inside the inner band of the cap, Corporal Hagel observed a large ziplock baggie with 47 small baggies inside, each of which contained a brownish powder-like substance that Corporal Hagel believed to be heroin. Corporal Hagel then searched appellant's person and found one more small baggie of suspected heroin in appellant's front pants pocket.

Next, Officer Dallam had his dog, Aron, sniff the vehicle. Aron gave a positive alert at the driver's side door. The car was then searched but no additional drugs were found. Corporal Hagel, however, did find 43 $20 bills rolled up and secured by a rubber bandinside a sunglass holder. Corporal Hagel testified that "a lot of narcotic dealers sell their quantities in 10's and 20's."

Both Corporal Hagel and Officer Dallam testified that even when no drugs are found during a search of a vehicle following a positive K-9 alert for drugs, police procedure dictates that the driver then be searched. More specifically, both officers testified that, had the sequence of events been different, and the dog had given a positive alert before appellant had been searched, the police would normally have searched appellant's vehicle, and if no illegal drugs were found, appellant would have been searched.

On cross-examination, Corporal Hagel admitted that he let appellant stay in his vehicle before the K-9 officer arrived. He also said that he was not aware of any facts that would have led him personally to believe that appel...