Powell v. State

776 A.2d 700

139 Md. App. 582

Marvin POWELL v. STATE of Maryland.

No. .

Court of Special Appeals of Maryland.

July 10, 2001.

Julia Doyle Bernhardt, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Jason F. Trumpbour, Staff Attorney (J. Joseph Curran, Jr., Attorney General, Ann N. Bosse, Assistant Attorney Generak and Patricia Jessamy, State's Attorney for Baltimore City, on the brief), Baltimore, for appellee.

Argued before DAVIS, HOLLANDER and WILLIAM W. WENNER (Retired, Specially Assigned), JJ. HOLLANDER, Judge.

In this appeal, we focus on the status of a brown paper bag that was searched by police after it was placed at the curb of a public street in Baltimore City by Marvin Powell, appellant. Appellant vigorously maintains that he did not abandon the bag, and therefore he contends that the police unlawfully searched it. Accordingly, he challenges the order of the Circuit Court for Baltimore City, denying his motion to suppress the cocaine recovered from the bag.

This case arises from a covert drug surveillance operation conducted by the Baltimore City Police Department on the evening of January 1, 2000. During the surveillance, the police saw appellant carefully place a brown paper bag near the curb of a public street. From the circumstances of appellant's conduct, the police suspected that the bag contained narcotics. Members of a police team briefly stopped appellant while the bag was searched, and recovered 34 brown glass "jugs" of suspected crack cocaine, later determined to consist of 116.65 grams of cocaine.

The court found that the bag was not abandoned. Moreover, the court concluded that the seizure of appellant constituted an arrest. Nevertheless, the court denied appellant's suppression motion, because it found that the arrest was supported by probable cause. Thereafter, a jury convicted Powell of possession with intent to distribute cocaine, for which he was sentenced to twelve years of imprisonment.

On appeal, Powell poses one question for our consideration:

Whether the lower court erred in denying the motion to suppress.

In our view, this case illustrates the sometimes critical distinction between the concept of abandonment as that term is used in property law, and the overarching principle of reasonable expectation of privacy that is central to Fourth Amendment analysis. As we see it, even if appellant did not intend to abandon the paper bag, thereby retaining a property interest in it, he had no reasonable expectation of privacy in the bag. Therefore, for purposes of Fourth Amendment analysis, the bag was abandoned. Accordingly, although we do not agree with the trial court's reasoning in denying the motion to suppress, we shall affirm, because we are satisfied that the court reached the correct result.¹ See Offutt v. Montgomery County Bd. of Educ., 285 Md. 557, 564 n. 4, 404 A.2d 281 (1979) (noting that "an appellate court may affirm a trial court's decision on any ground adequately shown by the record").

FACTUAL SUMMARY—MOTION TO SUPPRESS

On September 12, 2000, the trial court held a hearing on appellant's motion to suppress the narcotics recovered from the brown paper bag. At the hearing, appellant asserted, inter alia, that the search and seizure of the bag was illegal, because appellant retained dominion and control over the paper bag, and thus did not abandon it. Moreover, Powell claimed that when the police stopped him moments after he put the bag on the ground, the stop constituted an arrest, for which the police lacked probable cause. The State countered that appellant abandoned the bag in the gutter of a public street and thus lacked standing to challenge the search. Alternatively, the State claimed that the stop was a lawful investigatory stop, but, even if it was an arrest, the police had probable cause.

Baltimore City Police Officer Parker Elliott was the only witness to testify. He was accepted by the court as an expert in "identification, packaging[,] and distribution patterns of controlled dangerous substances." The following testimony is relevant:

[PROSECUTOR]: [Officer Elliott] have you had any specialized training in controlled dangerous substance enforcement?

[OFFICER ELLIOTT]: I have.

[PROSECUTOR]: Can you describe this training, including the type and hours to the Court?

[OFFICER ELLIOTT]: Basically it was identification of the narcotics and its packaging and identification of street level distribution and their patterns.

* * *

THE COURT: And what did you learn in that 40 hours [of training]?

[OFFICER ELLIOTT]: Ma'am, basically identifying the narcotics and its packaging and its distribution patterns.

THE COURT: What do you mean, "distribution patterns"?

[OFFICER ELLIOTT]: Identifying what is done in a hand to hand transaction, what the transaction usually consists of, how the narcotics are carried, how they stash them, where to find them....

(Emphasis added).

Officer Elliott testified that, at approximately 8:00 p.m. on January 1, 2000, he was conducting covert surveillance in the 1200 block of Bond Street from a rooftop location. Over the next forty-five minutes, Officer Elliott witnessed numerous drug transactions but made no arrests. At approximately 8:45 p.m., Officer Elliott observed appellant walking with a brown paper bag, about the size of a "softball," which was "cupped in his hand down to his side."

According to Officer Elliott, "[h]ands is [sic] important," and he "watch[es] hands." Further, the officer stated that "[i]t's known that narcotics are usually transported in brown paper bags." Based on his expertise, the officer said his attention was "drawn" to the paper bag in appellant's hand; the officer suspected that the bag contained narcotics.

The officer saw Powell look up and down the street several times. According to the officer, Powell then "very gently sat the bag down in the gutter right on the curb side and then stood up, looked right and left again and backed up...." The officer recounted that appellant "took a couple of steps back, looked back and forth as he was stepping back and just stepped back about two sets of steps, row house steps and then just stood there." At the time, Officer Elliott was located approximately 30 yards from where appellant stopped. Although it was dark out, the area was illuminated by street lights, and Officer Elliott's view of appellant was not obstructed.

Further, the officer testified that when he saw appellant put the bag in the street, he did not believe appellant was merely discarding garbage. Nor did the officer believe that appellant "was abandoning" the bag, despite the fact that Powell "set" it "down" in the street. To the contrary, because appellant placed the bag on the ground "gingerly and gently as not to break something in it," the officer believed that such conduct showed that appellant was "still worried about the contents of that bag...."

Officer Elliott added that, based on his experience, he would have "bet a paycheck" that the bag contained narcotics packaged in glass; he "believed there were jugs or vials in [the bag because of] the way it was set down because nobody's going to drop that amount of narcotics on the ground because it's going to break them." The officer explained:

Anybody that discards something throws it. I throw it. I think everybody throws it somewhere. [The paper bag] was very gingerly put down as to not break anything in it and I know from my training and expertise that it was probably glass in that bag, glass vials or jugs or what have you. That's how cocaine is packaged and he just set it down. And that was, instantly I saw that I was very sure, you know, other than that chemical analysis, that there was probably narcotics in that bag.

The State inquired of Officer Elliott as to why an individual would put a bag with drugs in the gutter of a public street. Officer Elliott replied: "Most people, through my training, don't want to get caught with that amount of narcotics on you because that's instant felony."

Based on the observations recounted above, and believing that the bag contained narcotics, Officer Elliott notified the arrest team by radio and instructed the officers to seize the bag and detain appellant "pending further investigation." The evidence indicated that a total of five officers participated in the events at the scene. The record does not reveal whether the officers drew their weapons when they stopped appellant.

Officer Elliott acknowledged that he instructed the team to detain appellant before he knew the contents of the bag. The court asked the officer why one of the officers did not look in the bag first, to "see if it was narcotics and then place the Defendant under arrest?" The officer expressed his concern that appellant "could have been gone" if they had proceeded in the way the court suggested. Nevertheless, Officer Elliott maintained that appellant was not arrested when he was initially stopped, even though he was not free to leave. Officer Elliott insisted that until the narcotics were found, appellant was merely detained. The officer noted that Powell was not handcuffed, and it only took about 15 seconds to look in the bag, which was about five yards away from appellant.

After a member of the arrest team notified Officer Elliott that the bag contained vials of suspected narcotics, Officer Elliott instructed the team to arrest appellant. The court asked: "What was your probable cause for stopping him?"² The officer responded:

My training and expertise of distribution patterns and the packaging of narcotics.... Due to the high level of distribution in that area that I watch on almost a nightly occasion, I've made numerous arrests in that area. I know the area well, I work it every day and I've seen narcotics transported in bags like that, large amounts of narcotics transported in bags like that numerous times. And from the actions of the Defendant I had no doubt

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