Redd v. State

MALEK CALVIN REDD v. STATE OF MARYLAND

No. 1984

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

November 27, 2018

Circuit Court for Baltimore County

Case No. 3K-17-0958

UNREPORTED

Wright, Nazarian, Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.

Opinion by Nazarian, 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.

While conducting surveillance at the site of a prior narcotics investigation, undercover detectives saw Malek Calvin Redd engage with someone from his vehicle. Mr. Redd, who was unknown to detectives, backed into a driveway, interacted briefly with an unknown individual standing outside, and then pulled away about a minute later. The detectives followed Mr. Redd when he left the scene of the suspected exchange and noted a dark tint to his windows. Police dispatch ran Mr. Redd's temporary West Virginia plates and found no match in their database.

At the detectives' request, a marked police vehicle pulled Mr. Redd over onto the shoulder of the road. As Mr. Redd pulled over, the detectives cut rapidly in front of him, stopped, and exited their unmarked police vehicle with guns drawn. Mr. Redd was ordered out of the car at gunpoint, and a detective saw a baggie of suspected crack cocaine in plain view on the driver's seat. Detectives searched Mr. Redd's vehicle and found more narcotics in the center console.

Mr. Redd was charged in the Circuit Court for Baltimore County with five narcotics offenses, and he moved to suppress the evidence found in his vehicle. He argued that the detectives' initial stop was not an investigative Terry¹ stop as they claimed, but a full-blown arrest requiring probable cause, and that because the officers lacked probable cause to arrest him, any narcotics found in the vehicle were fruit of an unlawful arrest. The circuit court denied the motion and Mr. Redd entered a conditional guilty plea to one count ofpossession with intent to distribute heroin. He appeals the denial of his Motion to Suppress and we reverse.

I. BACKGROUND

On the morning of February 3, 2017, Detective Joshua Waskui and two other narcotics detectives were conducting undercover surveillance in the vicinity of 7825 Old Harford Road in Parkville, a location known to Detective Waskui as the site of a narcotics investigation six months earlier.² Detective Waskui watched as a silver Honda, driven by Mr. Redd, backed into the driveway of the house and an individual approached the driver's side window and reached inside. When the Honda departed moments later, Detective Waskui and the other detectives followed in an unmarked police vehicle. Detective Waskui noted that the Honda's windows were tinted, illegally he suspected,³ and that the vehicle had temporary West Virginia tags. He asked police dispatch to run the tags through their database, and dispatch advised him that the tags were "not on file and did not come back." At this point, the detectives asked for assistance from a marked police vehicle to conduct a traffic stop on the Honda for "unlawful narcotics activity."

At the suppression hearing, Lieutenant Chemilli testified that she came up behind the Honda in a marked patrol car and signaled for it to pull over. Mr. Redd compliedimmediately and pulled his vehicle onto the shoulder. The Lieutenant testified that "the narcotics detectives . . . pulled in front of the vehicle and they very quickly ran up to the vehicle." She stayed in the patrol car, but she could see detectives speaking with Mr. Redd and Mr. Redd exiting his car. Detective Waskui testified that at the time of the initial stop, there were four officers on the scene, and that after Lieutenant Chemilli stopped Mr. Redd, he and another officer approached the driver's side of the vehicle and asked Mr. Redd to get out of the car.⁴ Detective Waskui said when Mr. Redd exited his vehicle, he saw a small baggie of what he believed to be crack cocaine in plain view on the driver's seat.

Mr. Redd testified that as he complied with Lieutenant Chemilli's signal to pull over, the unmarked police vehicle "slashed" in front of his car and the undercover detectives immediately jumped out, guns drawn, and ran up to his vehicle. He testified that three detectives ordered him out of the car at gunpoint, so he put his hands up and exited the vehicle as ordered. The officers then ordered him, still at gunpoint, to go to the back of the car; he disputed Detective Waskui's claim that there were drugs on the driver's seat. Police searched and handcuffed Mr. Redd and went on to search the rest of the vehicle without Mr. Redd's consent. The police searched the center console and found a baggie containing 44 bags of crack cocaine, a baggie containing 23 capsules of heroin, and a Suboxone strip.

Mr. Redd was charged with five narcotics offenses, and he moved to suppress all of the evidence found in his vehicle. He offered several arguments. First, he argued that the police lacked reasonable suspicion to effectuate a lawful traffic stop. Second, he argued that in ordering him out of his vehicle at gunpoint, the police's actions were elevated from a Terry stop to a full-blown arrest, for which the police lacked the required probable cause. Third, he argued that there were no narcotics in plain view and that Detective Waskui could only have found drugs by searching the center console of the vehicle.⁵ Finally, Mr. Redd argued that even if Detective Waskui saw drugs in plain view, they and the drugs found in the center console were fruits of his unlawful arrest and must be suppressed.

The suppression hearing included extensive testimony from Mr. Redd, Lieutenant Chemilli, and Detective Waskui, who was qualified as an expert in the packaging and distribution of narcotics. The day after the hearing, the circuit court issued a written order denying Mr. Redd's motion. The court found that seeing the suspected hand-to-hand drug transaction gave the officers reasonable suspicion to pull Mr. Redd over:

The Court finds that the police officers involved in the investigation of [Mr. Redd] had, at a minimum, reasonable suspicion to stop [Mr. Redd's] vehicle based on information they had regarding potential drug activity related to the property at 7825 Old Harford Road and the detectives' observations of what appeared to them, based on their knowledge, training, and experience, to be a hand-to-hand drug transaction between [Mr. Redd] and another individual.

The Court also found that the police had probable cause to stop Mr. Redd "because theinformation received from a police dispatcher indicated that [Mr. Redd's] West Virginia tags were not properly registered." In response to Mr. Redd's argument that the police's show of force elevated the traffic stop to an arrest, the court reasoned that because the police had legal justification to conduct a traffic stop, and because the officers "had a right to order [Mr. Redd] out of his vehicle . . . the circumstances of how he exited the vehicle are not material." The court accepted Detective Waskui's testimony that he observed a baggie of drugs in plain view and that the drugs' incriminating character was immediately apparent. From that observation, the Court found, the police were justified in continuing their search of Mr. Redd's vehicle and the evidence they found was admissible.

After receiving the court's ruling, Mr. Redd entered a conditional guilty plea, Maryland Rule 2-242(d), to one count of possession with intent to distribute heroin. The State entered a nolle prosequi on the other four counts. Mr. Redd appeals.

I. DISCUSSION

We base our review of a circuit court's decision on a motion to suppress evidence on the record before the court at the suppression hearing. Rowe v. State, 363 Md. 424, 431 (2001). We review the circuit court's factual findings for clear error and its legal conclusions de novo, viewing the evidence in the light most favorable to the prevailing party, in this case, the State. Smith v. State, 182 Md. App. 444, 455 (2008).

The Fourth Amendment, which applies to the States via the Fourteenth Amendment, see Mapp v. Ohio, 367 U.S. 643, 654 (1961), protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonablesearches and seizures." U.S. CONST. amend. IV. To be reasonable, a search or seizure in the ambit of the Fourth Amendment must be tailored in scope appropriately to the circumstances and be supported by the requisite level of suspicion. Subject to exceptions not relevant here, when police obtain evidence in violation of the Fourth Amendment, i.e., via an unreasonable search or seizure, that evidence must be suppressed. Mapp, 367 U.S. at 657; Chu v. Anne Arundel Cty., 311 Md. 673, 679 (1988). Any additional evidence found as a result of the initial Fourth Amendment violation must likewise be suppressed as fruit of the poisonous tree. See Wong Sun v. U.S., 371 U.S. 471 (1963).

A traffic stop is a seizure within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 810 (1996). Under most circumstances, at least at their outset, traffic stops fall under the umbrella of investigative stops, which allow the police to "stop and detain a person briefly for investigative purposes if the officer has reasonable suspicion, supported by articulable facts, that criminal activity 'may be afoot.'" Longshore v. State, 399 Md. 486, 494 (2007) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)); Brendlin v. California, 551 U.S. 249, 251) (2007) ("When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment"). These investigative stops represent a lesser intrusion on the subject's Fourth Amendment protections, and hence require a lower level of suspicion than other Fourth Amendment searches. See...