Sellman v. State

DONZEL MARCUS SELLMAN v. STATE OF MARYLAND

No. 0913

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

August 14, 2015

UNREPORTED

Graeff, Hotten, Arthur, JJ.

Opinion by Graeff, J.

Dissenting Opinion by Arthur, 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.

Donzel Marcus Sellman, appellant, was convicted, pursuant to an agreed statement of facts, in the Circuit Court for Anne Arundel County of possession with intent to distribute cocaine and possession of a firearm during a drug trafficking crime. The court sentenced appellant to ten years on the conviction for possession with intent to distribute, and it imposed a concurrent sentence of five years, without the possibility of parole, on the conviction for possession of a firearm.

On appeal, appellant presents one question for our review, which we have rephrased slightly, as follows:

Did the circuit court err in denying appellant's motion to suppress evidence obtained as a result of a frisk of his person?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

At the April 2, 2014, suppression hearing, Corporal William Daughters testified that, on November 12, 2013, he was on patrol in Anne Arundel County with a recruit from the training academy, Officer Dan Kramer. At approximately 1:49 a.m., the two officers were checking out a high crime apartment complex in the area of Southbridge Drive in Glen Burnie, where there had been a shooting, thefts from parked cars, and drug crimes regularly occur. As they approached the intersection of Southbridge and Winborne Drive, they observed a vehicle traveling at a high rate of speed make an abrupt stop at the intersection.

As the officers drove past several apartment buildings, they observed an individual, later identified as appellant, moving from a dark area on the side of the buildings wherethere was no entryway. When appellant saw the police cruiser, "[h]is head turned towards [the] car and then he came to an abrupt stop, and then quickly, he started to turn to his right, but then stopped and then watched [the] car as it went by." After the cruiser had passed, appellant "took up a normal pace again and walked out toward the roadway," toward the parking area. He appeared to be walking toward several parked cars on the shoulder of the road. Corporal Daughters stated that there is usually very little pedestrian traffic in that apartment complex at that time of night.

A few moments later, Corporal Daughters saw appellant get into the car they had seen at the intersection earlier. Corporal Daughters decided to follow the car because he thought that it was odd that appellant was walking around the apartment complex at that time, and that, "instead of everyone getting into a car in one location, [they picked] somebody up around the corner."

The officers turned their cruiser around and followed the vehicle. They saw that the vehicle had a broken rear tail light and that the light above its license plate was hanging by a wire. They initiated a traffic stop.

Corporal Daughters approached the driver's side window of the vehicle, and Officer Kramer approached the passenger side window. Using his flashlight, Corporal Daughters was able to see that there were four people in the car. He requested that the driver, Samantha Gillespie, provide him with her license and the vehicle registration. She advised that she had her license, but she did not know where the registration was located because the vehicle belonged to a friend. When asked why she came to the apartment complex, Ms. Gillespie stated that she was picking up the passenger seated in the right rear seat ofthe vehicle, Ms. Queen, who lived in the apartment complex. Corporal Daughters asked Ms. Queen if she had identification indicating that she lived in the apartment complex, but Ms. Queen stated that she did not. Corporal Daughters was familiar with Ms. Queen from a previous encounter, and he believed she lived at a different address. During this encounter, appellant "was sitting completely rigid in his seat, he had his hands on his knees and was looking straight ahead and never turned his head once."¹

The officers returned to their cruiser and ran Ms. Gillespie's information, conducting a "warrant check, a stolen check on the car" and investigating "MVA information on the vehicle and Ms. Gillespie." Nothing was discovered, and Corporal Daughters returned to the vehicle and issued a warning to Ms. Gillespie. At that time, he asked her if there were any "guns, bombs, weapons, [or] dead bodies in the vehicle." When Ms. Gillespie answered in the negative, Corporal Daughters requested permission to search the vehicle. Corporal Daughters testified that Ms. Gillespie responded: "I don't care."

Before attempting to search the vehicle, Corporal Daughters decided to identify everyone in the car, given the criminal history of the apartment complex and the "somewhat conflicting story about who lived in the apartment complex." After obtaining identification from Ms. Queen and the person seated in the passenger seat of the vehicle, Corporal Daughters requested appellant's identification. Appellant responded that he did not have an identification card, but he stated that his name was Marcus Neal Saunders and his dateof birth was July 12, 1982. When asked if he lived in the apartment complex, appellant indicated, contrary to Ms. Gillespie's statement, that he did not live there. Corporal Daughters stated that, during this conversation, appellant remained rigid in his seat, but he did turn toward Corporal Daughters to relate the name and date of birth.

Corporal Daughters returned to the cruiser and ran warrant, criminal history, and MVA information searches on the names of the three passengers. The passengers did not have any warrants, but there was no record of Marcus Neal Saunders in the police database, which Corporal Daughters found to be "unusual." At this time, he contacted a nearby officer, Corporal Miller, and requested that he check the parking lot to see if any cars had been broken into.

Corporal Miller arrived at the scene several minutes later. The three officers then returned to the car. Corporal Daughters asked appellant if he had given his real name, and appellant responded that he had. Corporal Daughters told appellant that nothing had come back, and appellant indicated that he had never had a driver's license or been arrested, and he never had obtained an identification card. Corporal Daughters insisted, however, that "[s]omething should come back."

Corporal Daughters prepared to search the car pursuant to Ms. Gillespie's consent. Because he had been told "conflicting stories about who had been picked up where [and] whether anybody at all lived in the" apartment complex, and because it "was odd that they were driving through the parking lot, picking people up on foot at that hour of the morning," Corporal Daughters "wanted to make sure none of the passengers were carrying any weapons." Corporal Daughters frisked appellant, and he discovered a gun in appellant'swaistband. A subsequent search of appellant revealed substantial quantities of PCP, cocaine, oxycodone, and heroin.²

Officer Kramer, who was no longer a police officer by the time of the hearing, also testified. He confirmed the testimony given by Corporal Daughters.

Ms. Gillespie also testified. She stated that there was no damage to the lights on the back of the vehicle she was driving, and she denied giving consent for Corporal Daughters to search it.

During argument, the prosecutor described the frisk, the only action at issue on appeal, as follows:

So now we have, two o'clock in the morning, in a dark area of an apartment complex, in Glen Burnie, which they've already indicated is a high crime area. They have three police officers, they had four people there. So in order to search the vehicle, -- they can't search the vehicle with the individuals inside, they have to ask all the individuals to come out.

So in order to do that Officer Daughters clearly indicated that the standing operating procedure was as they come out, they would search them to make sure that they don't have any weapons on them, to make sure that when they're standing off they can't pull out a weapon - again, they're still outnumbered - and do something while one - because you have now, one officer searching and two against four standing outside.

But in any event, Your Honor, I think at this point in time the fact of what they observed prior to him in the parking lot, then in the car while they were questioning him, and then getting absolutely no response on Marcus Neal Saunders, they - and in a high crime area - they have articulated reasonable suspicion. They have given articula[ble] suspicion in order to do a Terry³ pat down for officer safety, which they would have normally hadto have done under standard operating procedure in order to search the vehicle anyway, in order to get people out.

***

But, more importantly in order to search, not only understanding operating procedure in order - to have whenever somebody comes out to search the vehicle, but also for officer safety, which the officers clearly indicate in the police report, for the officers' safety they did do the pat down of the Defendant. And I believe with that, Your Honor, the State has fulfilled its obligations, in order to stop the vehicle, to extend the search, and also to do a pat down of the defendant.

The prosecutor further argued that the officers were outnumbered "four-to-three" and "for officer safety late at night, and in order to search a vehicle they have to make sure that they are safe and that they've patted the individuals down to make sure there's no weapons they could use on them."

Defense counsel argued as...