Wharton v. State

ANTHONY WHARTON v. STATE OF MARYLAND

No. 1583

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

September 4, 2018

Circuit Court for Baltimore City

Case No.: 211287005

UNREPORTED

Graeff, Shaw Geter, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

Opinion by Salmon. 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.

Anthony Wharton ("Wharton") was indicted in the Circuit Court for Baltimore City and charged with drug, firearms, and traffic offenses. After his motion to suppress evidence was denied, Wharton was convicted by a jury of possession of a firearm by a disqualified person; wearing or carrying a handgun in a vehicle; possession of oxycodone; resisting arrest; driving with a suspended license; and various traffic violations.¹ The court sentenced Wharton to five years for illegal possession of a regulated firearm; a consecutive two years for resisting arrest; a consecutive two years for possession of oxycodone; a concurrent three years for wearing, carrying or transporting a handgun in a vehicle; a concurrent one-year term for driving on a suspended license; and a $200 fine for speeding and unsafe lane change. A belated appeal was granted after Wharton filed for post-conviction relief. Appellant asks us to address the following question:

Was it error to deny the defense motion to suppress evidence seized during a traffic stop?

We answer "yes" to that question, reverse the judgment and remand for new trial as to the following charges: possession of a firearm by a disqualified person, wearing and carrying or transporting a handgun in a vehicle, and possession of oxycodone. All other convictions shall be affirmed.

BACKGROUND

Around 9:50 p.m. on August 26, 2011, Detective Nick Montemarano and his partner, Detective Jason Giordano, were on patrol in an unmarked vehicle in the 5300 blockof Denmore Avenue in northwest Baltimore, following an earlier report of a shooting in the area. Traveling eastbound on West Belvedere Avenue, the detectives spotted a grey Nissan Altima driving at a high rate of speed and weaving in and out of the two-lane roadway without using a turn signal. The area had a posted speed limit of 25 miles per hour. Detective Montemarano's vehicle was travelling at approximately 30 miles per hour when the Altima passed his vehicle.

At one point, the Altima drove in front of the detectives' unmarked car, activated its turn signal to turn right onto Park Heights Avenue, but then, "swerved back left, back to stay straight" and then "cut back left" on Belvedere. Noting that the area was a "high traffic area," with "pretty high pedestrian" traffic as well, Detective Montemarano decided to stop the Altima for "[e]rratic driving, driving at a speed greater than reasonable, and unsafe lane change." Although the detective was driving an unmarked vehicle, the car was equipped with emergency lights and both detectives were dressed in a "modified uniform," with "black police vests" with the word "police" on the front and back.

After the Altima stopped, Detective Montemarano approached the driver's side of the car, while Detective Giordano approached the passenger's window. Appellant was in the driver's seat and Tonya Mickey, the owner of the vehicle, was in the passenger seat. Appellant was "breathing heavily," "[s]eemed a little fidgety" and "a little nervous," according to Detective Montemarano. Appellant also made "a couple furtive movements just towards his pants leg" area. Later, Detective Montemarano clarified that he meant that appellant was "fidgety" and "had been touching his legs and his waistband."

Appellant, upon request, produced his driver's license but volunteered that his license was possibly suspended. Detective Montemarano then used the Maryland Judiciary Case Search internet site to check whether what appellant had said was true and learned that appellant's license was suspended about a week earlier on August 19, 2011. The detective next asked appellant to exit the vehicle and appellant complied.

After appellant stepped out of the vehicle, the detective observed an open "medication pill bottle" which he described as "the orange pill bottle that everybody in the world has," sitting in the center cup holder. The bottle "had no top on it, no white top, it was just an open bottle[.]" Detective Montemarano, a narcotics detective who had made hundreds of traffic stops during his career, testified:

[A]s a narcotics detective I find to be - - I know it to be common for, especially in the northwest we have a large problem with recreational use and sales of prescription medication. I also know it's a pretty common factor where people stash other packaged narcotics including cocaine, heroin, marijuana as well as Percocets, Oxy, Morphine in bottles.

I also, due to his sporadic driving - - people that . . . recreationally use drugs become under the influence even if they are just prescription drugs, and we have a big problem with Oxy, Percocets, Vicodin and Demerol up in the northwest. It's actually a big issue we've been coming across a lot over the last few years.

Clarifying that he only saw the bottle after appellant stepped out of the vehicle, the detective then patted appellant down for purposes of officer safety. No weapons were found and appellant was then directed to stand at the rear of the vehicle, to wait with Ms. Mickey, the passenger, and Detective Giordano. Detective Montemarano further testified:

And I leaned into the vehicle and maneuvered the pill bottle around, and I could see - you could see inside it when you lean in and I noticed there wasfive pills in there, five white pills. They were round. I turned it and observed a name on the pill bottle, which I knew was not Mr. Wharton's, because he had given me his ID and he was Mr. Wharton and the name on the pill bottle was Larry Coleman, which is a man's name and I was pretty sure Ms. Mickey was a female.

Detective Montemarano noticed that the top lid of the center console, located near the bottle, was "propped up because there was a lot of stuff in there, papers, all kinds of things." He saw a Styrofoam drinking cup inside the console and then saw .38 caliber bullets in that cup. The lid to the console was not completely closed. As a consequence, it was necessary for him to lean down to see the bullets in the console. At that point, the detective arrested appellant for possession of suspected illegal narcotics and possession of the ammunition found inside the vehicle.²

A search of the Altima uncovered a loaded Smith and Wesson .38 caliber special revolver in the back seat, located underneath a stack of clothes and a shopping bag. Detective Montemarano further testified that after appellant was arrested another officer found a clear plastic bag containing suspected cocaine in appellant's pants pocket. In addition, the pill bottle contained five white pills of Oxycodone.

Upon further examination, Detective Montemarano clarified that he saw the pills and the ammunition "when I leaned into the vehicle. I had not placed him under arrest yet."

On redirect examination, the detective said that, when he first spoke to appellant, the latter spoke "a little fast" but his speech was not slurred. Although appellant was nervous, he did not seem "unbalanced" or under the influence. The detective reiterated that when he first encountered appellant, "he was nervous and he was speaking quickly and he was breathing heavily. He was a little sweaty, but I mean he wasn't wobbling around, no."

Asked when he first noticed the pill bottle, Detective Montemarano testified that he stood behind the "pillar" on the side of the car when he spoke to appellant, for safety reasons and did not see it at first. He explained:

I can't tell you exactly when. It was as he stepped out I saw it because it was the first time I'd seen kind of the center of the car because he - when he stepped out, that's when his body wasn't oblated [sic] towards me.

The detective also testified as follows:

Q. When you looked into the car, what was your purpose of going for the pill bottle?

A. To ascertain if there was anything inside. As I looked in, saw the pills inside of the pill bottle, again, as I stated, the thought process was twofold whether he could be under the influence or whether they'd be, you know, for use of recreational use or for narcotic sales, due to, as I stated, it is common practice for both in the northwest. And as a person, it's weird to see an open pill bottle in the center console of a vehicle at almost 10:00 at night, on a, you know, I believe it was a Friday night. It was a Friday or Saturday. Somebody driving quickly, it's, you know, it's pretty common that you're probably going to get a recreational use out of that. In the totality of circumstances, when you put everything on top of it, it's pretty common actually, when you see it.

At the end of the evidentiary phase of the suppression hearing, appellant argued that the detective lacked probable cause for the initial traffic stop. He also argued that therewas insufficient evidence even after the search on the Maryland Judiciary Case Search site, to arrest appellant for driving on a suspended license. Defense counsel argued, in the alternative, that even assuming, arguendo, that there was probable cause to arrest for driving while appellant's license was suspended, such an arrest did not support a search of the vehicle. Counsel also argued that, when the detective leaned into the vehicle and manipulated the pill bottle, those actions constituted an exploratory warrantless search unsupported by probable cause.

More specifically, appellant's counsel contended that there was nothing unusual about appellant's movements, he did not appear to be under the influence, and, that, "a pill bottle, in and of itself, is not...