Steck v. State

239 Md.App. 440

197 A.3d 531

Ryan Lawrence STECK

v.STATE of Maryland

No. 705, Sept. Term, 2017

Court of Special Appeals of Maryland.

November 28, 2018

Argued by: Nancy S. Forster, Baltimore, MD, for Appellant.

Argued by: Jeremy M. McCoy (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Woodward, C.J., Shaw Geter, Lynne A. Battaglia, Senior Judge, Specially Assigned, JJ.

Battaglia, J.Ryan Lawrence Steck, appellant, was convicted by a jury sitting in the Circuit Court for Worcester County of possession with intent to distribute heroin, possession of heroin, possession with intent to distribute cocaine, and possession of cocaine, after which the court sentenced him to a term of imprisonment for fourteen years.

Prior to trial, Steck had filed a Motion to Dismiss the charges against him, alleging that the State had destroyed exculpatory evidence. After having had his motion denied, the judge proceeded to hear evidence regarding Steck's Motion to Suppress, which was also subsequently denied. About two months later, but prior to trial, after receiving additional material from the State, Steck successfully filed a Motion to Reopen his Motion to Suppress, which was, again, ultimately denied. Before us, Steck presents the following questions for our review:

1. Did the lower court err in denying Mr. Steck's Motion to Suppress?

2. Did the lower court err in denying Mr. Steck's Motion to Dismiss?

Finding no error or abuse of discretion, we affirm, for the reasons set forth below.

FACTUAL BACKGROUND

In the early morning of August 7, 2016, while working bicycle patrol in the area of First Street and St. Louis Avenue in Ocean City, Officer Dan McBride, of the Ocean City Police Department, observed a "2008 black Chevy Impala" with a "Delaware registration" stop at a stop sign and then make a left-hand turn, crossing over one lane of the roadway. At the suppression hearing, Officer McBride testified that when the "vehicle went to make a left-hand turn, it pulled out in front of a taxicab, which caused the taxicab [driver] to ... slam on his brakes to avoid a collision with the vehicle." Believing that the driver had committed a traffic violation, Officer McBride, according to his testimony, "broadcast a description of the vehicle and the occupants" over a radio network used by the Ocean City Police Department. The vehicle was subsequently stopped by Officer Neshawn Jubilee of the Ocean City Police Department. Officer McBride testified further that after broadcasting this information, he immediately began riding his bicycle to the area of the traffic stop, arriving within three or four minutes after witnessing the "unsafe lane change."

Upon arriving on the scene of the traffic stop, Officer McBride confirmed that the vehicle stopped was the Chevy Impala he witnessed nearly get into an accident with the taxicab and identified Etoyi Roach¹ as the driver, Steck in the backseat, and another passenger in the front seat. After speaking with the vehicle's occupants, Officer McBride testified that he walked to Officer Jubilee's patrol car, sat inside it, and "began issuing Mr. Roach a written warning [for the unsafe lane change] and then requested a K-9 unit to respond to the scene."

At the suppression hearing, Officer McBride informed the court that he chose to request a canine unit "based on the behavior of the occupants, which [was] noted in [his] report, as well as the information that Officer Jubilee had relayed[,]" including that "it took a little longer to pull over than usual ... [the Impala] almost ran a red light when it pulled over and kind of coasted to a stop. And [Officer Jubilee] said that as he approached the vehicle, the driver – the occupants were making some furtive movements around the vehicle."

Similarly, Officer Jubilee testified that, the Impala "did not stop until the ocean block of 8th street, which is three city blocks further than where I initiated the traffic stop." As he pulled up to the vehicle, he noticed that, "the occupants were looking around. Their hands were moving about the car. I did not know exactly what they were doing, but they were looking around at each other and their hands were also moving." The occupants of the vehicle provided Officer Jubilee their licenses upon request, and at that point, Officer McBride arrived on the scene and took control of the traffic stop. Officer McBride further testified that after he made his request for the canine unit, it took a "couple minutes" for a team to arrive, and he was still in the process of writing Roach's warning when it arrived.

At the suppression hearing, Deputy Christopher Larmore, of the Worcester County Sheriff's Office Patrol Division, testified, also, that he was in the area of Third Street and Atlantic Avenue when he received a request for canine support. He further testified that it took him and his canine partner, Simon, a "couple of minutes" to travel from the location wherein they received the request to the scene of the traffic stop. Upon the K-9 team's arrival, Deputy Larmore requested that Officer McBride and the other officers remove the occupants from the vehicle for safety reasons. Shortly thereafter, Deputy Larmore and Simon conducted a scan of the vehicle, at which time Roach, Steck, and the other passenger were all seated on a nearby curb. Deputy Larmore further related:

So I get up to scan the vehicle with my K-9 partner. I give him his command to scan the vehicle.... And at that point in time, I notice a change of his breathing and posture and his general behavior. And it's consistent with when he's in the odor of narcotics....

When he got in the area of the rear passenger door, Your Honor, he began to go back and forth between sniffing the vehicle and sniffing the gusts of wind that were blowing from the general direction of the occupants. So, basically, at this point in time, he is showing the signs of behavior of being in odor, but he's actually going back and forth, trying to pull me in different directions.

Deputy Larmore explained through his testimony that since Simon was

kind of, fighting two different odors here, he won't actually go into what's called a final alert, which is his sit. That's his trained response. All of the other responses that he's giving me are involuntary responses. Those are the responses that he gives when he's in the odor of the five odors I just mentioned.²

When asked by Officer McBride whether Simon provided an alert at the scene, Deputy Larmore testified that he informed the lead officer that he "believed that the odor was mostly coming from the occupants and that's why [Simon] kept trying to pull me to them." Deputy Larmore further testified that Simon's behavior was "consistent with odor coming from the vehicle" and "odor coming from the individuals sitting on the curb."

Deputy Larmore also testified on direct examination that he believed the odor to have originated from the occupants, but explained that, perhaps, Simon was also indicating to the car because "of the odor having been recently in the vehicle from the occupants who obviously had gotten out just before." At the end of his direct examination, Deputy Larmore concluded that, at the time of the scan, he considered there to be "two sources" of the odor – the vehicle and the occupants.

Detective Corey Gemerek, of the Criminal Investigation Division, Ocean City Police Department, testified that after the scan was complete, he approached Steck and "asked if he had any drugs and/or illegal weapons on his person." According to Detective Gemerek, Steck replied "that he had a blunt inside his pocket."³ Detective Gemerek then asked Steck to remove it from his pocket; Steck, in turn, "retrieved a clear plastic bag containing marijuana and handed it to" Detective Gemerek.⁴ Detective Gemerek then handed Officer McBride the marijuana.

After the seizure of the marijuana, the officers searched the vehicle and, discovered one thousand bags of what turned out to be heroin.

DISCUSSION

Motions to Suppress

Steck filed two motions to suppress the seizure of the heroin, both of which were denied. All of the testimony discussed herein relates solely to that which was developed at the suppression hearings.

" When reviewing the denial of a motion to suppress evidence," appellate courts "ordinarily consider only the information contained in the record of the suppression hearing, and not the trial." Lewis v. State , 398 Md. 349, 358, 920 A.2d 1080 (2007) (citations omitted). In these cases, we are limited to viewing "the evidence and all reasonable inferences drawn therefrom in the light most favorable to the prevailing party on the motion[,]" which here, is the State. Id. (citations omitted). While "we will not disturb the [circuit] court's factual findings unless clearly erroneous[,]" we "review legal questions de novo [.]" Grant v. State , 449 Md. 1, 14–15, 141 A.3d 138 (2016) (quoting State v. Wallace , 372 Md. 137, 144, 812 A.2d 291 (2002), cert. denied , 540 U.S. 1140, 124 S.Ct. 1036, 157 L.Ed.2d 951 (2004) ). Where a party "has raised a constitutional challenge to a search or a seizure, we must make an independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case." Id.

Steck proffers several arguments to support his claim that the heroin recovered from the vehicle should have been suppressed. He first argues that the initial traffic stop was unlawful, as it was not supported by reasonable articulable suspicion that a traffic violation had occurred. Specifically, he contends that neither Sections 21-309(b)⁵ nor 21-402(a)⁶ of the Transportation ("TR") Article, Maryland Code (1977, 2012 Repl. Vol.), was violated by the driver of the vehicle, Etoyi Roach, and as a result, the stop was illegal from its inception. Steck further avers that the traffic stop was "prolonged beyond the time necessary to effectuate the purpose of the stop, to write a warning ticket, in order to permit a...