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Scribner v. State

Court of Special Appeals of Maryland

September 2, 2014


Appeal from the Circuit Court of Anne Arundel County. Michele D. Jaklitsch, Judge.

Submitted by: Katherine P. Rasin (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD for Appellant.

Submitted by: Brian S. Kleinbord (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.

Deborah S. Eyler, Kehoe, Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.


Page 1085

[219 Md.App. 93] Eyler, Deborah S., J.

Jamar Scribner, the appellant, was convicted by a jury in the Circuit Court for Anne Arundel County of possession with intent to distribute cocaine, possession of cocaine, and possession of a regulated firearm after being convicted of a disqualifying offense.[1] He was sentenced to eight years' imprisonment for possession with intent to distribute, and to a concurrent five years for the gun conviction. The remaining possession conviction merged for sentencing purposes.

The appellant asks two questions on appeal, which we have rephrased slightly:

I. Did the circuit court err in denying the appellant's motion to suppress evidence?
II. Did the trial court abuse its discretion by denying the appellant's motion for mistrial?

For the following reasons, we answer each question in the negative and shall affirm the judgments of the circuit court.


The Suppression Hearing

Facts and Proceedings

Prior to trial, the appellant filed a motion to suppress evidence, namely, the firearm discovered and seized during [219 Md.App. 94] the

Page 1086

search of a car in which he had been a passenger. The court held a suppression hearing on May 16, 2013, and the following facts were adduced.

Detective Ryan Holby, of the Annapolis City Police Department, testified that on January 16, 2013, he was conducting remote video surveillance of a house at 103 Clay Street in Annapolis (" the house" ) in preparation for executing a search and seizure warrant there. A video camera was located near the house, and Detective Holby was monitoring the video feed from the police station. The warrant authorized a search of the house, which was associated with the appellant, for evidence related to " drugs, paraphernalia [and] distribution type stuff." During the course of the afternoon, Detective Holby observed the appellant exit the house, smoke a cigarette, and go back inside. He also observed the appellant walking across the street, " walking around" and " going in and out of the house."

Around 4:00 p.m., the appellant and a woman exited the house, got into a Toyota Solara, and drove away. The woman was driving and the appellant was in the front passenger seat. Detective Holby and his partner, Detective Newton,[2] drove from the police station " to attempt to locate the vehicle leaving the community." Five to ten minutes later, Detective Holby located the Solara on Forest Drive, in Annapolis, and proceeded to follow it into the parking lot of the Safeway grocery store on that road. The appellant and the woman exited the car and went into the Safeway.

Detective Holby watched the Solara while the appellant and the woman were in the store. No one else approached the vehicle or entered it.

Detective Holby knew there was an open arrest warrant for the appellant for second-degree assault. He radioed for uniformed officers to come to the Safeway parking lot " so when [the appellant] came out of the store they could place him under arrest for the open warrant." About ten minutes after [219 Md.App. 95] they entered the store, the appellant and the woman exited and " began to walk towards that vehicle." Detective Holby directed the uniformed officers " to go ahead [and] place [the appellant] under arrest for the open warrant."

Detective Holby observed the events as they transpired in the parking lot. When the uniformed officers approached, the woman went to the driver's door of the Solara and the appellant went " to the passenger side front door and attempt[ed] to get in." The officers stopped the appellant and handcuffed him. They searched his person, and found " a little bit of U.S. Currency and a clear plastic baggie of crack cocaine." The officers handcuffed the woman.

According to Detective Holby, at that point, " civilians started to gather around just to watch what everyone was doing, taking out cell phones, [possibly] calling people, taking pictures." He became concerned that someone in the crowd might know the appellant and might " tip off" someone at the house " to dispose of any evidence" before officers could execute the search warrant there. He also was concerned that the safety of the officers serving the warrant at the house could be compromised. For these reasons, Detective Holby advised Corporal Christopher Kintop, one of the arresting officers, to drive the Solara to a secure location " where [they] could search it further."

The appellant was placed in a police vehicle and driven to the police station, where he was booked. The woman also was taken to the police station, but was released sometime later.

Page 1087

Detectives Holby and Newton followed Corporal Kintop as he drove the Solara to the police station. Once they all arrived, Detectives Holby and Newton searched the Solara. Detective Holby found a green bag on the floor in front of the front passenger seat, where the appellant had been sitting when he and the woman were traveling to the Safeway. Inside the bag, he found a black revolver.

On cross-examination, Detective Holby stated that the search warrant for 103 Clay Street was for the house only and did not mention the Solara or any other vehicle. He acknowledged [219 Md.App. 96] that the Solara did not belong to the appellant, but to Monica Watkins, who was not a target of the search warrant. He also acknowledged that he did not observe the appellant engaging in any behavior indicative of " drug transactions, CDS transactions" before the arrest. And he had no indication that the appellant was in possession of a gun. While he and Detective Newton were following the Solara, he did not " witness any furtive gestures or any furtive movements of any sort while [the appellant and the woman] were in the car." Nor did he witness the appellant or the woman " throw anything out the car window."

Officer Ralph DeFalco, also of the Annapolis City Police Department, testified that on January 16, 2013, Detective Holby called him and Corporal Kintop, his partner, to the Safeway on Forest Drive to arrest the appellant on the open assault warrant. He and Corporal Kintop arrived in a marked police car. As the appellant and the woman accompanying him walked out of the Safeway, the officers " drove right up to the vehicle that [the appellant] was walking to." When the appellant was standing between the passenger side of the Solara and another car parked next to it, with his back to the officers, Officer DeFalco " grabbed him and said you're under arrest." The appellant " attempted to get into the front seat of the car" by " [p]ull[ing] away [and] reach[ing] for the handle," but Officer DeFalco stopped him. The car door remained closed during the arrest.

Officer DeFalco searched the appellant's person, and found a " clear plastic baggie containing a white rock like substance" in his front right pocket. Based on his training, knowledge, and experience Officer DeFalco believed the substance was crack cocaine. He also found a $20 bill in each of the appellant's front pockets.

Corporal Kintop testified that he drove the Solara from the Safeway parking lot to the parking lot of the police station. He did not search the Solara or tamper with any of the items in it while the vehicle was in his custody. He also did not observe anyone else enter the Solara or tamper with items [219 Md.App. ...

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