Pearson v. State

730 A.2d 700

126 Md. App. 530

Reginald X. PEARSON v. STATE of Maryland.

No. 1503, Sept. Term, 1998.

Court of Special Appeals of Maryland.

June 1, 1999.

Thomas A. Pavlinic (Jonathan P. Kagan and Brassel & Baldwin, P.A., on the brief), Annapolis, for appellant.

Rachel Marblestone Kamins, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellee.

Argued before WENNER, EYLER and SONNER, JJ.

EYLER, Judge.

Appellant, Reginald X. Pearson, was convicted in the Circuit Court for Anne Arundel County (Joseph P. Manck, J.) of possession of marijuana with intent to distribute and possession of marijuana. After merging the two offenses, the circuit court sentenced appellant to three years imprisonment, all suspended, and three years supervised probation. Prior to trial, appellant filed a motion to suppress evidence obtained during a search of his apartment on the ground that the warrant was defective. Appellant appeals to this Court and asks (1) whether the evidence was sufficient to sustain his convictions, (2) whether the search warrant was defective, and (3) whether the court erred in failing to grant appellant an appropriate hearing. Finding no error, we affirm the judgment of the circuit court.

Facts

A. The Search Warrant

The warrant used in the search of appellant's apartment¹ (the "second warrant") was admitted during the suppression hearing along with an application and supporting affidavit. That warrant recited that on Saturday, February 28, 1998, the affiants, Detectives Daniel R. Rodriguez and Gregory E. Spriggs of the Anne Arundel County Police Department, were contacted by Detective Mark Price of the Maryland State Police Narcotics Task Force regarding a suspected drug parcel discovered by Detective Price during parcel interdiction at the Federal Express Warehouse in Beltsville, Maryland. Detective Price stated that he observed a parcel marked "Priority Saturday" and addressed to "H and H inc, 718 Lindengrove Place # 101, Odenton, MD 21113." The parcel had been mailed from Las Vegas, Nevada, and the postage had been paid in cash by the sender. Detective Price had enlisted the services of the Prince George's County Police Department and a trained drug dog to check the package. The dog began biting and scratching at the package, signaling to Detective Price that the package contained a controlled dangerous substance. Detective Price then obtained a search and seizure warrant (the "first warrant") from a Prince George's County judge, conducted a field test of the contents of the package, and determined that the package contained approximately 60 pounds of marijuana.

In the affidavit, Detectives Rodriguez and Spriggs further stated that they met with Detective Price, took the package into custody, noticed that it was addressed to "H and H inc" at 718 Lindengrove Place # 101, Odenton, MD 21113, and set up a controlled delivery of the package to that address. The detectives stated that the package remained in the custody of the Anne Arundel County Police until it was delivered and taken inside appellant's apartment.

B. The Suppression Hearing and Trial

Detective Rodriguez testified at the suppression hearing that he and Detective Spriggs prepared a warrant application and an affidavit, and took the pre-typed application and affidavit to the residence of Judge Ronald A. Silkworth at approximately 3:30 p.m. on Saturday, February 28, 1998. The affidavit recited facts as they were expected to develop but that, in part, had not yet occurred. Specifically, when the detectives arrived at the judge's residence at 3:30 p.m. the delivery of the package to appellant's Odenton address had not yet taken place, although the detectives stated in the affidavit that it had been delivered. The detectives waited outside of the judge's residence until they received radio confirmation from another member of the Anne Arundel County Drug Interdiction Unit that the package had been accepted into appellant's apartment. Detectives Rodriguez and Spriggs then presented the application and affidavit to Judge Silkworth, and once the warrant was signed, they radioed that fact to the detectives outside of appellant's apartment, who immediately executed the warrant.

Detective Andrew Barnett of the Anne Arundel County Police Department testified at the suppression hearing that he delivered the box of marijuana to appellant's apartment. The box had a hole in one side, according to Detective Rodriguez, that was created by the drug dog. Detective Barnett wore a Federal Express uniform and drove what appeared to be a Federal Express van. The detective knocked, and appellant's roommate answered the door. Detective Barnett said he was from Federal Express and had a package for "H & H," and presented a sheet for signature. Appellant's roommate signed appellant's name on the sheet as appellant entered the room. Detective Barnett engaged in small talk with both men. At some point, Detective Barnett commented on the fact that the delivery was late. Once the delivery was complete, the detective drove away in the van and radioed to other officers on the scene a description of the apartment and the number of people inside. Appellant testified that, after the package was delivered, he realized that it was delivered to him by mistake and went outside to try to catch the driver. He also stated that he tried to stop the driver of the van by following the van and making gestures toward it as it was leaving and that he attempted to call Federal Express on the phone. Detective Barnett testified that he did not see anyone come out of the apartment after he left it. According to an investigative report by Detective Todd Young, who was engaged in surveillance of appellant's apartment during the delivery, appellant came out of the apartment after Detective Barnett left and apparently tried to catch Detective Barnett as he drove away. At trial, Detective Young testified that he did not see appellant make gestures toward the van. In any event, appellant returned to his apartment without getting Detective Barnett's attention. Appellant's motion to suppress was denied.

The trial testimony was essentially the same as above. Several members of the Anne Arundel County Police Department, including Detectives Young and Barnett, searched the apartment. The package of marijuana was discovered unopened near the front door. In addition to the package, the officers seized five boxes of plastic baggies, two boxes of plastic wrap, $190 cash, and a large digital scale that was recovered from beneath appellant's bed. Additionally, Detective Rodriguez testified at trial that marijuana is typically packaged for street use in plastic baggies, and Detective Young testified that, based on his training and experience, the type of scale that was discovered under appellant's bed was a type used to package large amounts of marijuana and that 60 pounds of marijuana indicated an intent to distribute. After a bench trial, the circuit court found appellant guilty.

Discussion

1.

Appellant first contends that the evidence was insufficient to sustain his convictions.

In analyzing the sufficiency of the evidence admitted at a bench trial to sustain a defendant's convictions, "we `review the case on both the law and the evidence,' but will not `set aside the judgement... on the evidence unless clearly erroneous,' giving due regard to the trial court's opportunity to judge the credibility of the witnesses." Wilson v. State, 319 Md. 530, 535, 573 A.2d 831 (1990) (quoting Rule 8-131(c)). We must view the evidence in the light most favorable to the State and determine "whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged." Wilson, 319 Md. at 535-36, 573 A.2d 831. See also Taylor v. State, 346 Md. 452, 457, 697 A.2d 462 (1997); Stouffer v. State, 118 Md.App. 590, 605, 703 A.2d 861 (1997), rev'd in part on other grounds, 352 Md. 97, 721 A.2d 207 (1998).

Appellant argues that there was no evidence that he exercised dominion or control over the marijuana, as required in drug offenses based on possession, and that the circumstantial evidence is equally consistent with a hypothesis of innocence.

The circuit court found as follows:

I am not going to rehash all of the testimony in the case, because I already did that. What I am going to do is to— and what I did in there, in the room, was to make a list of things that I looked at in figuring out how I was going to come to a verdict in this case.

On the State's side we have an inordinate amount of marijuana that is hit upon by a dog, it is actually bit into. The box is repaired as best it can. It comes to the Defendant's apartment, some four or five hours—maybe three and one-half to four hours after the time when it should have been delivered. Actually it is longer than that.

It is delivered to the Defendant's apartment, not to [appellant's roommate's] apartment, but to the Defendant's apartment. There is testimony that the only person on the lease is the Defendant.

The box is delivered by an undercover police officer, [appellant's roommate] chats with the undercover police officer as does the Defendant who leans in—I am not exactly sure what that means when the police officer said "leans in", but leans in and exchanges some pleasantries with the Federal Express undercover agent at that point.

Why nothing is said at that point as to "Wait a minute, what is this H & H Corporation? This isn't my box. Why is it here?" I don't know, but nothing is said. The box then is inside right by the door. Both [appellant's roommate] and Mr. Pearson are presumably there, that is what the testimony was.

When the search warrant goes down the police find large baggies, an inordinate amount of large baggies which the Court can only surmise are

...