Williams v. State

981 A.2d 46

188 Md. App. 78

Jonathan WILLIAMS v. STATE of Maryland.

No. 2749 September Term, 2007.

Court of Special Appeals of Maryland.

October 1, 2009.

Sherrie Glasser (Nancy Forster, Public Defender, on the brief), Baltimore, MD, for Appellant.

Jessica Carter (Douglas Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: HOLLANDER, MEREDITH, and FREDERICK J. SHARER (Retired, Specially Assigned), JJ.

HOLLANDER, Judge.

Following a trial in October 2007, a jury in the Circuit Court for Baltimore City convicted Jonathan Williams, appellant,¹ of possession with the intent to distribute cocaine, in violation of Md.Code (2002, 2007 Supp.), § 5-602(2) of the Criminal Law Article ("C.L.").² The trial judge subsequently sentenced appellant to twelve years of incarceration.

On appeal, appellant asks: "Did the trial court err in denying appellant's motion to suppress evidence?" Finding no error, we shall affirm.

I. FACTUAL BACKGROUND

A. Motion to Suppress

Appellant moved to suppress the narcotics recovered from him on February 25, 2007. The court held an evidentiary hearing prior to trial, at which the following evidence was adduced.

Baltimore City Police Detective Eric L. Green was on duty shortly after midnight on February 25, 2007. A seven-year veteran of the Western District Operations Unit, he focused "mainly ... on weapons and narcotics." Detective Green had received specialized training in the packaging of street-level distribution of controlled dangerous substances ("CDS"), including 40 hours at the police academy and another 110 hours through the Federal Bureau of Investigation and the Drug Enforcement Agency, as well as yearly in-service training. In addition, he had observed "thousands and thousands of street level distribution methods," and had made over 5,000 arrests of people suspected of illegal drug activity. On this basis, he was accepted as an expert regarding the sale, identification, and distribution of illegal drugs.

Green testified that, on the night in question, he monitored a closed circuit, split-screen television from a room at the Western District precinct. The television produced images from two pole cameras mounted for such purpose. One camera produced images of the 2300 block of Druid Hill Avenue, and the other produced images of the 1100 block of Whitelock Avenue. According to Green, "Whitelock runs east and westbound. Druid Hill runs north and southbound with a southbound flow of traffic." Green described the area as "an open-air drug market," noting that "drugs are often sold in that area."

At approximately 12:30 a.m., via the pole camera located at the 2300 block of Druid Hill Avenue, Detective Green observed "a black male who was wearing a dark hat and a dark jacket at the time." Although it was dark outside, the street was "well lit with street lights," and there was nothing obstructing Detective Green's view. The male was later identified as appellant; Detective Green referred to him as Mr. Williams.

Detective Green testified that he initially observed the following:

... Mr. Williams was reaching around into his front area of his body. He had his back turned towards me. Mr. Williams then turned around, had a conversation with another unknown black man who was wearing a dark coat. At this time, the unknown black male that he had just conversated [sic] with placed both of his hands behind his back at which time Mr. Williams handed the unknown black male a small object. Mr. Williams then again reached into his front and retrieved another object from the unknown black male which I believe[d] to be U.S. currency at that time.

Demonstrating to the trial court, Detective Green continued:

Okay. If I'm—this is myself and this is my monitor. Mr. Williams had his back towards me like this. He then looked to his right where the unknown black male walked here. Had a brief conversation. The unknown black male then backed up with his hands like this. Mr. Williams then handed him an object, a small object at which time I believe [sic] to be CDS. Mr. Williams then returned his hand and retri[ev]ed an object from the unknown black male. It was kind of a grip. So, I believed it was U.S. currency that the unknown black male was handing Mr. Williams and then he went back into his front area.

As noted, appellant's back was turned toward Detective Green. Consequently, the detective could not see where, at his front, appellant was reaching. However, Detective Green believed that the drugs came from "somewhere between [appellant's] waist and the rest of his upper torso because [appellant] didn't bend down" and both of appellant's "arms were tucked— like he was reaching towards the middle for something." Green testified that appellant used his right hand to deliver the object believed to be drugs to the other male.

Based on the interaction between appellant and the unknown male, Detective Green opined: "I believe I observed a CDS transaction." Further, Detective Green stated that, based on his experience and training, he believed that appellant was the dealer and the other man was the buyer, because "the purchaser left the area which buyers do once they retrieve the drugs." The trial court asked Green how he knew that appellant handed drugs to the unknown black male, and not something else. Detective Green responded:

From the Defendant concealing what he was passing along to the unknown person. Also, the unknown person, his actions, where he held his hands behind his back trying to conceal what he was doing....

* * *

If it was candy, Your Honor, there wouldn't be a need to conceal what you're passing along. I observed thousands and thousands of street distribution methods, and the most common distribution method is for a dealer to try to conceal the actual drugs and also, when he passes it along, it's not—let's say if you're giving somebody change on the street. You're not going to try to conceal it. Drug distributions are usually with a closed hand. They drop the drugs, take the money. If you're passing something that's not contraband, it's usually not concealed. If I'm giving somebody change for $5.00, I'm going to hand him a bill. I'll hand him other $1.00 bills like this. It's not concealed. It's no need to conceal it if it's not contraband.

After witnessing what he regarded as a CDS transaction, Green "notified an arrest team to stop" appellant. But, appellant exited the area "prior to the arrest team responding." Less than one hour later, at approximately 1:20 a.m., Detective Green again identified appellant, via closed circuit cameras, at the intersection of Druid Hill and Whitelock, wearing the same clothing and cap, "just walking in the area." Detective Green communicated this information to the arrest team.

Detective Green told the arrest team that appellant "was fiddling with his sleeves." Based on this observation, Detective Green believed that "drugs [were] possibly hidden in [appellant's] sleeves," and he relayed this information to the arresting officers. He also told the team that "the drugs are probably from anywhere from his waistband, maybe in his jacket, or somewhere on his upper person." Defense counsel asked Detective Green which sleeve appellant was "fiddling with." He responded that "it was kind of both sleeves. He was doing this and reaching into both sleeves."

The arrest team "stopped [appellant] at the intersection of Whitelock and Druid Hill. They removed his jacket." According to Green, the police "recovered a zip lock baggy from [appellant's] left sleeve containing 35 smaller blue zip lock baggies with a white rock substance, suspected crack cocaine. He was placed under arrest."

Through radio communication, Detective Green positively identified appellant as the man he had observed earlier. The following testimony is pertinent:

[DEFENSE COUNSEL]: He had been gone for an hour. How did you know he had drugs?

[DETECTIVE GREEN]: He had them earlier.

[DEFENSE COUNSEL]: Okay. Well, he had what you believed to be drugs, correct?

[DETECTIVE GREEN]: Correct.

[DEFENSE COUNSEL]: When was Mr. Williams placed under arrest?

[DETECTIVE GREEN]: Approximately 1:20 a.m.

[DEFENSE COUNSEL]: No, after the—after the arrest team responded, how long after that was he placed under arrest?

[DETECTIVE GREEN]: Once Officer John recovered the CDS from his left sleeve.

[DEFENSE COUNSEL]: Why wasn't he placed under arrest when they responded if you're saying he was conducting a CDS transaction with you viewing him, why didn't you place him under arrest immediately upon stopping him?

[DETECTIVE GREEN]: Because the buyer wasn't arrested.

[DEFENSE COUNSEL]: So, you don't know what exactly happened during that time, correct?

Relying on § 2-202(b) of the Criminal Procedure Article of the Md.Code ("C.P."), the trial court found that the police had probable cause to arrest appellant based on Detective Green's observation of appellant engaging in what he (Detective Green) believed to be the sale of illegal narcotics. In making its ruling, the trial court said:

[B]ased on the officer's training and experience in the field, he clearly testified that [appellant's] actions were consistent with prior drug sales in that area. The mere fact that [appellant] alluded [sic] him after the sale isn't significant. May be significant if when he was arrested he didn't have any drugs, then it would be nothing to—since the buyer had left, there would have been nothing really to charge him with because, you're right, based on the observation, even though it would constitute probable cause, it was not a prima facie case because there was nothing to analyze.

Part of the crime of possession with distribution is possession with intent to distribute and an element of possession is, possession with intent to distribute is possession. That requires a knowing possession of the specific drug and that wouldn't be present if he didn't have any drugs on him since the buyer alluded [sic] him, but that...