Circuit Court for Montgomery County Criminal Case No. 116959-C.
Barbera, C.J., Harrell Battaglia Greene Adkins McDonald [*] Bell, JJ.
We granted certiorari in this case intending to address the nature of probable cause, as that phrase is employed in Fourth Amendment jurisprudence, and to resolve what appeared to be the interesting question of whether, under the particular circumstances of this case, there existed the requisite probable cause to arrest Petitioner Bashawn Montgomery Ray. This legal matter is important to Petitioner because he links the denial of his motion to suppress evidence to his claim that the evidence, used against him at his subsequent criminal trial, was the unlawfully obtained fruit of his illegal arrest.
Petitioner advanced this Fourth Amendment claim before the Court of Special Appeals, which, over the State's strenuous argument to the contrary, concluded that the claim was properly before that Court for review. Petitioner enjoyed only a Pyrrhic victory, however, because the Court of Special Appeals held that the claim failed on its merits. Petitioner seeks from us a second look at the same Fourth Amendment claim, and the State resurrects the argument that the claim is not properly before the appellate courts.
We agree with the State that Petitioner's claim is not properly before the appellate courts. Petitioner waived the claim by not raising it before the Circuit Court, as required by Maryland Rule 4-252, and the record otherwise does not support the conclusion reached by the Court of Special Appeals that the claim is capable of appellate review by operation of Maryland Rule 8-131(a). In the following pages we explain why that is so.
We begin with the historical and procedural facts that form the basis of the present appeal. The incident leading to Petitioner's arrest began when the police initiated a traffic stop of a vehicle traveling on Interstate 270. Petitioner was one of three occupants, in addition to the driver. As events unfolded, one of the officers on the scene asked the occupants to exit the vehicle. The officer obtained consent from a female passenger to look inside her wallet for identification. Instead of identification, the officer discovered multiple fake credit cards. At some unspecified point thereafter, all the occupants of the vehicle, including Petitioner, were arrested. Petitioner was charged with conspiracy to commit theft, making a false statement to the police while under arrest, and related offenses.
Before trial, Petitioner filed an "Omnibus Motion" pursuant to Maryland Rule 4-252. The motion included boilerplate language requesting suppression of all unlawfully obtained evidence. Relevant here, the motion alleged:
That articles of evidence taken from the Defendant by police authorities were obtained as the result of an illegal search and seizure in violation of the Defendant's constitutional rights.
WHEREFORE, the Defendant respectfully prays that this Honorable Court suppress all evidence obtained by police authorities as the result of an illegal search and seizure.
On the day before the scheduled hearing on the motion to suppress, Petitioner filed a "Supplement to Omnibus Motion to Suppress Evidence, " requesting suppression of "all evidence obtained as a result of an illegal traffic stop and illegal detention and search on or about October 5, 2010." The supplement set forth the following allegations:
1. That on October 5, 2010, the Defendant was a passenger in a black Ford Expedition that was traveling northbound on Interstate 270. The vehicle was stopped by the Montgomery County Police at approximately 1:00 p.m. for having blue headlights and for having air fresheners hanging from the rear view mirror.
2. That the Police Officers had no reasonable articulable suspicion that a traffic violation had occurred and therefore no legal basis to stop the vehicle. Whren v. [United States], 517 U.S. 806 (1996), Rowe v. State, 363 Md. 424 (2001).
3. That the Defendant has standing to challenge the illegal stop of the vehicle. Brendlin v. California, 551 U.S. 29 (2007).
4. That after the vehicle was stopped, the Officer determined that the vehicle's driver had a suspended license. The driver was taken to the officer's vehicle where he was issued traffic citations. After the citations were written, the passengers in the vehicle were illegally detained. Ferris v. State, 355 Md. 356 (1999).
5. The detention of the passengers was [a] "second stop." The Officers had no independent reasonable articulable suspicion of criminal activity to detain the passengers after making the decision to issue the driver traffic citations. Charity v. State, 132 Md.App. 5 (2000).
Neither the omnibus motion nor the supplement specified the evidence that Petitioner sought to suppress.
At the outset of the motions hearing, Petitioner, through counsel, outlined for the court why the fraudulent credit cards and other unspecified evidence found in the vehicle should be suppressed. Petitioner first asserted that he had standing to challenge the traffic stop, then articulated the basis for his suppression motion:
[I]f the State prevails on the traffic stop issue which we believe was illegal, the issue would then become that it becomes a second stop essentially of the group of people which then leads to a search of the female down the road, and that that second stop of the passengers would also be illegal.
Two witnesses testified at the hearing, Sergeant Mark White and Officer Robert Sheehan, both of whom were called by the State. Petitioner offered no evidence, testimonial or otherwise.
Sergeant White testified that he was on patrol on Interstate 270 on October 5, 2010, when he drove past a black Ford Expedition. Sergeant White noticed that the Expedition had blue-tinted headlights instead of white and there were multiple air fresheners hanging from the windshield, which he believed obstructed the view of the driver. Based on these perceived Code violations, Sergeant White initiated a traffic stop of the Expedition. Before approaching the vehicle, Sergeant White performed a computer search of the Expedition's license plate number, revealing that the driver's license of the registered owner of the vehicle, Antoine Norris, had been suspended.
Following that portion of Sergeant White's testimony, defense counsel asked the court to hear argument and rule on the legality of the stop. The court agreed, heard from counsel, and ruled that the traffic stop of the vehicle was lawful because Sergeant White's observation of the blue headlights provided the requisite justification to believe that the owner of the Expedition was violating a Maryland traffic law.
Sergeant White resumed his testimony, describing next that he approached the driver of the Expedition, Mr. Norris, and asked for his license and registration. Mr. Norris gave Sergeant White an expired learner's permit, after which Sergeant White asked Mr. Norris to accompany him to the police cruiser and informed Mr. Norris of his intent "to search the vehicle for items related to [Mr. Norris's] driving while suspended." Sergeant White then completed three traffic citations: two for driving with a suspended license and one for the obstructed windshield.
While Sergeant White was speaking with Mr. Norris in the police cruiser, three other officers arrived on the scene, including Officer Sheehan. There were three remaining passengers in the vehicle: an adult female in the front passenger seat, a juvenile female in the rear behind the driver's seat, and Petitioner in the rear on the passenger side. Officer Sheehan testified that, after briefly engaging the passengers, he asked them to exit the vehicle. Petitioner and the other passenger in the back seat complied immediately with Officer Sheehan's request, but the female in the front passenger seat, later identified as Mashea Ray,  did not get out of the vehicle, despite being asked twice by Officer Sheehan. Eventually, after stating that it was cold outside, Ms. Ray grabbed her jacket from the floor directly behind her seat and exited the vehicle. Officer Sheehan asked Ms. Ray if she had any weapons in her jacket, and she replied that she did not. Upon Officer Sheehan's request, Ms. Ray consented to a search of the jacket to ensure it contained no weapons. During the search of the jacket, Officer Sheehan discovered a large wallet. He testified, "I said is your identification in this wallet? She said no. I said can I search it and make sure? She said something to the effect of yeah, it's not in there." Officer Sheehan next testified:
As soon as I opened the wallet I immediately saw a whole stack of credit cards inside the wallet that to me appeared to be fake credit cards. I started pulling them out and one by one I'd say the name on the credit card and I'd ask the female, who's this person? She said I don't know. Who's this person? I don't know. Who's this person? I don't know. So every card that I showed or took out of the wallet and asked her who these people were, she said she didn't know.
Officer Sheehan testified that Petitioner did not reach for the jacket or claim ownership of it or the wallet.
Upon completion of the testimony of the two officers, the court heard argument of counsel. Throughout the argument of both counsel, the focus remained squarely on Petitioner's claim, disputed by the State, that there occurred an unlawful second detention of the vehicle's occupants, during which the police obtained evidence that Petitioner was entitled to have suppressed.
The State argued that the officers did not unlawfully detain the remaining passengers after issuing the citations because the passengers would have been free to leave had the vehicle not been pulled over on Interstate 270, a controlled access highway. Defense counsel disagreed, arguing that the officers unlawfully ordered Petitioner and the other passengers out of the car and detained them instead of ascertaining whether any of them had a valid driver's license and could drive the Expedition away. The following is an excerpt of the discussion that ensued:
[PROSECUTOR]: [T]he State's argument is they have to get these people out of there because we're stuck on 270, as the Timmons [v. State, 114 Md.App. 410 (1997), ] case notes. Sometimes you're in those situations where you have something that looks like a seizure but is not actually a seizure because of the circumstances.
Once that non-seizure, if you will, occurs and the defendant is asked out of the car with the female, what happens next is a variety of consent things with the female, which we already, he has no standing to contest. That leads to what are readily apparent fraudulent credit cards. And at that point, just as if drugs had been discovered, they've got probable cause to arrest everybody.
THE COURT: Presumably, at the end of the day, there's something about what was in her purse that incriminated all of the occupants or more than one of the occupants.
* * * THE COURT: [Defense counsel], where are you in this?
[DEFENSE COUNSEL]: Well, I guess sort of not knowing exactly which issue to address first, I mean, my argument, which I think a lot of which the State and I are on the same page, we agree, is that this is a classic second stop that the officers did not have the right to perform under Charity and Ferris.
Later, when the court inquired precisely what evidence Petitioner hoped to suppress, defense counsel explained: "I want to suppress everything, things found in the car,  as well as what was found on [Ms. Ray], because I don't think they had the right for that second detention of the group."
As argument before the court continued, defense counsel never strayed from the contention that the evidence found on Ms. Ray and in the Expedition must be suppressed because it was the fruit of an unlawful second stop of the passengers following issuance of the citations to the driver. Counsel argued:
[DEFENSE COUNSEL]: . . . there was an illegal detention of these three is my argument.
[DEFENSE COUNSEL]: The group is stopped again, is my argument, illegally, after ...