Roach v. State

ETOYI J. ROACH v. STATE OF MARYLAND

No. 1899

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

September 4, 2019

Circuit Court for Worcester County

Case Nos. 23-K-16-0511

UNREPORTED

Wright, Graeff, Sharer, J., Frederick (Senior Judge, Specially Assigned), JJ.

Opinion by Sharer, 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.

The single issue presented by Etoyi J. Roach in this appeal is whether the Circuit Court for Worcester County erred in denying his motion to suppress physical evidence seized at the time of his arrest in Ocean City in August 2016. Following denial of his motion, he entered a plea of not guilty on an agreed statement of facts, resulting in guilty verdicts of possession of heroin and possession of cocaine with intent to distribute.¹ His timely appeal followed.

Because Roach raises only a challenge to the admissibility of the physical evidence seized, our factual reference is limited to the evidence adduced at the suppression hearing. We review a circuit court's denial of a motion to suppress on "'only the evidence contained in the record of the suppression hearing.'" Gupta v. State, 452 Md. 103, 129 (2017) (quoting Rust v. State, 403 Md. 68, 82-83 (2008)). The suppression court's factual findings, including "'its conclusions regarding the credibility of testimony[,] are accepted unless clearly erroneous.'" Id. (quoting Rush, 403 Md. at 83). The evidence and all inferences reasonably drawn therefrom are viewed "in the light most favorable to the prevailing party." Id. (internal quotations and citation omitted). However, we review the suppression court's legal conclusions de novo by undertaking our own "independent constitutional appraisal of the record by reviewing the law and applying it to the facts ..." found by the suppression court. Id. (internal quotations and citation omitted).The suppression hearing

On August 7, 2016, at about 12:24 a.m., PFC Neshawn Jubilee of the Ocean City Police Department was on duty in a marked patrol car in downtown Ocean City. He received a radio broadcast alerting to a vehicle described as a Chevy Impala, bearing Delaware registration, which had committed a moving traffic violation. Jubilee saw the described vehicle, initiated a traffic stop, approached the vehicle, and observed Roach to be the driver. He obtained Roach's driver's license and registration and, at the same time, obtained identification from the two passengers.²

Jubilee began standard license checks and continued to perform the checks after PFC Daniel McBride arrived and contacted the two passengers in the vehicle. It was McBride who had observed the moving violation and initiated the radio alert. During the duration of the stop, other officers arrived: PSA Hawkins³ and PFC Corey Gemerek of the Ocean City Police Department and Corporal Christopher Larmore of the Worcester County Sheriff's Department. McBride had requested the K-9 officer and dog, and, upon their arrival, Roach and his passengers were removed from the vehicle. Larmore, the K-9 officer, conducted a scan of the vehicle with his dog, Simon. Based on the scan, McBridesearched the vehicle and found a significant quantity of heroin in the pocket in the rear of the front passenger seat. During a search of Roach incident to the arrest, cocaine was found on his person.

Roach parses his contention of the court's error into three aspects: (1) that the officers lacked a basis to believe that Roach had committed a moving traffic offense and, therefore, lacked a constitutionally permissible justification for the traffic stop; (2) the stop was unreasonable in length; and (3) that the scan by the K9 dog was inconclusive as to contraband in the vehicle, thus there was no basis for the search of the vehicle or his person.

1. The stop

The events of the early morning began when McBride, on bicycle patrol near 1^st Street and St. Louis Avenue, observed a black Chevy Impala that, as it "went to make a left-hand turn, [] pulled out in front of a taxicab, which caused the taxicab to hit his brakes in the roadway, given that the vehicle had pulled out right in front of him." The driver of the taxicab had to "slam on his brakes to avoid a collision with the vehicle." McBride gave a radio alert and, learning that a stop had been affected, went to that location, taking about four minutes to arrive. He stated that it was his initial intent to issue a warning to the operator.

Roach concedes that "the police have the right to stop and detain the operator of a vehicle when they witness a violation of the traffic law." But, he argues that in this instance the police lacked a reasonable suspicion that the car was being driven contrary to the laws governing the operation of vehicles, citing Lewis v. State, 398 Md. 349 (2007). Roach clings to a very thin thread, suggesting that McBride, in stating his intent to charge Roachwith an unsafe lane change, was referring to the wrong section of the Transportation Article (Tr.). Roach asserts that Tr. § 21-309(b) "controls lateral movement - to the right or left - while the vehicle is in transit, and - as [he] submitted in the lower court - not while the vehicle is turning perpendicularly. That conduct is governed by § 21-402." (Emphasis in appellant's brief). That mistaken reference, he suggests, did not provide reasonable cause to stop the vehicle under that provision of the statute. We are not impressed with his venture into the minutiae of the traffic laws, as Roach was in fact charged under both statutes.

McBride observed the operation of a vehicle in a manner that nearly caused a collision with another vehicle, determined that there had been a moving violation, and acted accordingly. As the suppression court observed, "[t]he behavior, the actions, of the Defendant in driving the vehicle in front of the cab certainly is grounds for a traffic offense." The court's conclusion was sound. We know of no authority that requires an officer, at the time an apparent moving violation is observed, to form an intellectual calculation of the precise statute section or sub-section that will support the ultimate charging document.

Indeed, this Court has applied the rationale of several United States Supreme Court cases in determining the reasonableness of the traffic stops with respect to police intentions in relation to the Fourth Amendment. In Herring v. State, 198 Md. App. 60, 73 (2011), we applied the Court's rationale in Whren v. United States, 517 U.S. 806, 813 (1996), explaining that "the constitutional reasonableness of traffic stops did not depend on the actual motivations of the officers involved and that '[s]ubjective intentions play no role inordinary, probable-cause Fourth Amendment analysis.'" Accord Brown v. State, 171 Md. App. 489, 523-24 (2006) (explaining that "[i]t is of no consequence that [the officer] did not charge [the defendant] with any of those offenses; neither is it relevant to the Fourth Amendment analysis that [the officer] may have harbored a different subjective intention" (citing Whren, 517 U.S. at 814-15)). See also Cox v. State, 161 Md. App. 654, 672 (2005) (applying the rationale of Devenpeck v. Alford, 543 U.S. 146, 153 (2004), where, in underscoring the vitality of its holding in Whren, the Supreme Court "added that an officer's 'subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.'").

2. The length of the detention

Roach suggests that the traffic stop was unreasonably extended by redundant paperwork and discussion to allow for the arrival of the K-9 dog and its handler. He asserts that "[t]he Fourth Amendment loadstar [sic] is reasonableness and, in assessing the reasonableness of a traffic stop, a court must assess whether 'it was reasonably related in scope to the circumstances which justified the interference in the first place.'" (Quoting Lewis, 398 Md. at 361).

In State v. Ofori, 170 Md. App. 211, 235 (2006), we recognized that a K-9 scan "is accepted as a perfectly legitimate utilization of a free investigative bonus as long as the traffic stop is still genuinely in progress." The Court of Appeals announced that a traffic stop "'must be temporary and last no longer than is necessary to effectuate the purpose of the stop.'" Ferris v. State, 355 Md. 356, 369 (1999) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). And, "[o]nce the purpose of that stop has been fulfilled, the continueddetention of the car and the occupants amounts to a second detention." 355 Md. at 372. There is no essential disagreement between the State and Roach as to the applicable standards on the facts before us.

Roach argues that the delay was caused by Jubilee's unreasonable delay in his review of the passengers' documents before a review of Roach's license status. He then asserts that McBride caused undue delay by talking with Larmore before the K-9 scan began and suggests further that McBride purposely delayed writing the traffic violation warning until Larmore arrived with Simon. In total, the time elapsed between McBride's...