Roberts v. State

DESMOND RASHAD ROBERTS, SR. v. STATE OF MARYLAND

No. 2775

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

February 2, 2016

UNREPORTED

Krauser, C.J., Berger, Reed, JJ.

Opinion by Berger, 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.

Appellant, Desmond Rashad Roberts, Sr. ("Roberts"), entered a conditional guilty plea, pursuant to Md. Rule 4-242(d), to possession of cocaine and possession with intent to distribute cocaine. After merging the possession count with the possession with intent to distribute count for sentencing purposes, the court sentenced Roberts to a term of fourteen years' imprisonment, with all but nine years suspended, followed by three years of probation. Prior to pleading guilty, Roberts filed a motion to suppress evidence which the trial court denied.

On appeal, Roberts poses a single question:

Whether the trial court erred by failing to grant Roberts's motion to suppress.

Perceiving no error, we affirm.

FACTUAL BACKGROUND

Roberts operated two adjacent businesses out of a single suite in a strip mall in Salisbury. Those businesses were "King's Touch Barbershop" and "King's Candy and More."

On August 28, 2014, Officer Jonathan L. Oliver of the Salisbury City Police Department applied for a search and seizure warrant for those businesses. In the affidavit section, under the heading "Facts in Support of Issuance of Search and Seizure Warrant," the application stated:

During the month of July 2014, members of the Wicomico County Narcotics Task Force received information about a subject identified as Desmond Rashad Roberts (D.O.B. ****) who is selling ounces of cocaine from the business of King's Barbershop. The source who provided this information stated that Roberts was cutting kilograms of cocaine andpackaging them within the barbershop and selling them from within.

During the month of August 2014, members of the Wicomico County Task Force received information from a subject who advised that Desmond Rashad Roberts, known by the source, as well as investigators, to go by the name of "Duck" was selling large amounts of cocaine from within King's Barbershop, located at 1122 Parsons Road, Suite "E," within the "Wali Plaza," Salisbury, Wicomico County, Maryland. The source stated that within the month of August, the source knew of Roberts to be in possession of a kilogram amount of cocaine.

On August 27, 2014, Stpr. Moore conducted several hours of surveillance of the vicinity of 1122 Parsons Road, Suite "E," Salisbury, Wicomico County, Maryland. During that period of time, Stpr. Moore observed numerous subjects in the area of King's Barbershop. Stpr. Moore also observed a large amount of foot traffic which entered the barbershop and left within one or two minutes of entering the suite.

On August 28, 2014, at approximately 2100 hours, Sgt. Welch and Stpr. Moore of the Maryland State Police were on foot in the vicinity of 1122 Parsons Road, Suite "E," Salisbury, Wicomico County, Maryland, when they observed several subjects standing outside the business of King's Candy and More. Once the subjects observed Sgt. Welch and Stpr. Moore, the investigators heard subjects say, "That's the police" and numerous subjects fled different directions to include inside the business.

Sgt. Welch and Stpr. Moore immediately detected the strong odor of burnt marijuana in the immediate area. This odor appeared to be emanating 1122 Parsons Road, Suite "E," Salisbury, Wicomico County, Maryland. As officers reached the entry of the business and entered the business, the odor of burnt marijuana grew continually stronger. For safety reasons, Sgt. Welch and Stpr. Moore detained two subjects inside King's Candy and More and one subject at the entrance of the suite. The subject detained at the entrance of the suite was in fact identified as Desmond Rashad Roberts, the subject in which several tips were received about. While inside King'sCandy and More, Sgt. Welch observed in plain view a clear plastic baggie of what he was able to identify through his training, knowledge and experience as suspected marijuana.

Based upon the information contained herein, it is the belief of your Affiant that probable cause does exist to believe that certain property, namely: Controlled Dangerous Substances, Controlled Dangerous Substance Paraphernalia, Records and Monies from Controlled Dangerous Substance transactions, Electronic Recording Equipment, Electronically Recorded Tapes, Computers, documents, paperwork and additional evidence related to Controlled Dangerous Substance offenses and the identification of individuals participating in and/or committing Controlled Dangerous Substance offenses . . . . [o]n the following premises:

• 1122 Parsons Road, Suite "E," Salisbury, Wicomico County, Maryland. This property houses businesses known "King's Candy and More" and "King's Touch Barbershop." This property is further described as a brick building located within the "Wali Plaza." 1122 Parsons Road, Suite "E," is located inside the 4th door in the building when coming from the intersection of Pemberton Drive and Parsons Road. The number "1122" and the letter "E" are located directly above the door entrance to King's Candy and More in black horizontal letters. 1122 Parsons Road, Suite "E," is clearly marked with "King's Candy and More and King's Barbershop" on the front window of the Suite.

This belief is based upon:

• The confidential source's information about subjects selling C.D.S. from the building.

• The odor of burnt marijuana emanating from the building of 1122 Parsons Road Suite "E."

• The observation of suspected marijuana in plain view within 1122 Parsons Road, Suite "E."

• The investigation of your Affiant Oliver.

• The training, knowledge and experience of Sgt. Welch and Stpr. Moore.

• The training, knowledge and experience of your Affiant Oliver.

(Emphasis added).

On August 28, 2014, police officers executed a search warrant on both businesses and recovered, among other things, "a large bag containing a large amount of suspected marijuana as well as a large amount of suspected cocaine in multiple baggies." Roberts was charged with possession with intent to distribute and related charges for both substances. Prior to trial, he moved to suppress the controlled dangerous substances that had been recovered.

The court held a hearing on the motion to suppress evidence. Roberts was the only witness to testify during the hearing. He explained that his two businesses share one exterior door. Inside the door is a vestibule area with two doors -- the door to the right leads to the barber shop and the door to the left leads to the candy store. Roberts explained that patrons would come and go from the candy store to buy candy, cigarettes, sodas, potato chips, "and every other kind of thing I sell." The candy store had a long counter and, according to Roberts, in order for the police to have seen the bag of marijuana in plain view, as they contended, the officers would have had to have been behind the counter.

Roberts testified that he did not smell marijuana when the police officers arrived. Rather, Roberts testified that the officers walked up to him and "said 'we smell weed' and pushed me out of the way and proceeded to go into the store." The suppression courtdenied the motion to suppress. Roberts thereafter entered a guilty plea to possession of cocaine and possession with intent distribute cocaine.

DISCUSSION

Roberts's first contention is that the warrant so lacked probable cause that it was deficient on its face, rendering the "good faith" exception inapplicable. Roberts argues that the warrant lacked probable cause because: (a) the police officer who prepared the affidavit (Officer Oliver) did not personally witness the events described in the affidavit but was instead told the information by other police officers; (b) there was no indication that the officers who conducted the investigation and supplied information to officer Oliver for the warrant application had been trained to identify marijuana or the odor of marijuana; and (c) there was no information about the reliability of the informant(s).

Second, Roberts contends that that the affidavit supporting the warrant application contained material misrepresentations of fact.¹ Roberts argues that, while the affidavit stated that there was a "large amount of foot traffic which entered the barbershop and left within one or two minutes," the affidavit did not mention that a "candy store, which sellssodas, cigarettes and snack foods, was also located in the same suite." Moreover, Roberts contends that the marijuana found in the store by the police was not in plain view as stated in the affidavit, but rather was located behind the counter and under the cash register. Finally, Roberts contends that the affidavit contained no information that the police did not recover any evidence of burnt marijuana in the store after having smelled it.

The Fourth Amendment, made applicable to the States through the Fourteenth Amendment, guarantees the right of the people against only unreasonable searches and seizures. See Williamson v. State, 398 Md. 489, 501-02 (2007) (citing United States v. Sharpe, 470 U.S. 675, 682 (1985)). The requirement that police obtain a warrant, and support the application for that warrant with probable cause, is a means of ensuring that reasonableness. "When the State seeks to introduce evidence obtained pursuant to a warrant, 'there is a presumption that the warrant is valid[,]' and 'the burden of proof is allocated to the defendant to rebut that presumption by proving otherwise.'" Volkomer v. State, 168 Md. App. 470, 486 (2006) (quoting Fitzgerald v. State, 153 Md. App. 601, 625 (2003)).

When reviewing a court's decision to issue a warrant, we apply a deferential standard. In ...