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Williams v. State

Court of Special Appeals of Maryland

December 2, 2016

DEON LEROY WILLIAMS
v.
STATE OF MARYLAND

          Eyler, Deborah S., Wright, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.

          OPINION

          ALPERT, J.

         Deon Leroy Williams, appellant, was convicted by a jury sitting in the Circuit Court for Caroline County of three counts of possession with intent to distribute a controlled dangerous substance (heroin, hydrocodone, and marijuana); three counts of possessing each of those drugs; and six counts of possession of a firearm by a convicted felon.[1]Appellant raises four questions on appeal, which we have slightly reworded:

I. Did the suppression court err in denying appellant's motion to suppress the drugs and guns seized from his residence?
II. Did the trial court err when it refused to accept defense counsel's offer to stipulate to appellant's prior disqualifying conviction?
III. Did the trial court err by failing to take any action when the defense informed the court that a juror had repeatedly fallen asleep?
IV. Did the trial court err when it denied appellant's motion for judgment of acquittal on all charges?

         For the reasons that follow, we shall affirm the judgments.

         BACKGROUND FACTS

         On the evening of September 17, 2013, Sergeant Leonard Nichols[2], an 11-year veteran with the Maryland State Police, the last five years with the Caroline County Drug Task Force, executed a traffic stop of appellant for driving on a suspended and revoked driver's license in the Easton area of Talbot County. The sergeant had been told earlier by a confidential informant that appellant would have drugs on him. Pursuant to a search incident to arrest, however, no drugs were found on appellant or in his car, although he had a large sum of cash ($1, 356) on his person and he was nervous. Appellant was transported to the police barracks in Easton in Talbot County where he was strip searched and a baggie was seen protruding from his anus. Pursuant to a search warrant, the baggie was removed by medical personnel. The baggie contained two additional baggies: one contained heroin, the other contained cocaine.

         The sergeant then obtained and, about four hours later, during the early morning hours of September 18, executed a second search warrant for appellant's residence at 7188 American Corner Road in Denton, in Caroline County. From the residence, the police seized drugs (heroin, hydrocodone and marijuana) and six guns -- three handguns and three rifles. Appellant was subsequently charged in Caroline County with six drug counts and six gun counts relating to the seizure of the items from his residence.

         SUPPRESSION HEARING FACTS

         Prior to trial on those charges, appellant sought to suppress the drugs and guns recovered pursuant to the Caroline County residential search warrant. In his written motions, appellant argued that the events in Talbot County were illegal and poisoned the search and seizure warrant issued for his residence in Caroline County - the traffic stop was invalid because it was pretextual, and the cavity search and the manner in which it was conducted were illegal. In a written response, the State argued that any issues concerning the initial vehicle stop and subsequent cavity search had already been heard and decided in the State's favor in appellant's Talbot County case.[3]

         At the subsequent suppression hearing, the State again raised the same argument -that the Talbot County Circuit Court had already determined that the initial vehicular stop, arrest, and subsequent cavity search were valid. Defense counsel seemed to agree but also argued, indistinctly, "something [] survived from Talbot County." After some discussion, the suppression court stated that while there was no res judicata or collateral estoppel in this case, the issue before it was "very limited" -- whether there was a substantial basis for the Caroline County magistrate to issue the warrant for appellant's residence. The State then presented the testimony of Sergeant Nichols and admitted into evidence the 24-page affidavit in support of the residential search warrant. Appellant testified in support of his motion.

         Sergeant Nichols testified that around 6:30 p.m., on September 17, 2013, he received a telephone call from a confidential informant (CI#3) about appellant. During the telephone call, the informant told the sergeant that appellant was attending a "Narcotics Anonymous . . . or some kind of meeting, " and that when he left the meeting he would enter a described car that was parked behind the Wal-Mart on Teal Drive in Easton. Appellant would leave the area in the car and make drug "drops" - selling specified amounts of drugs to individuals. After the sergeant received the call, he learned and confirmed through dispatch that appellant's license had been suspended and revoked.

         The sergeant and his partner set up a surveillance of the area, and a short time later appellant was observed leaving the area in the described vehicle. The sergeant followed appellant's car for about a ¼ of mile when the sergeant, who had prior contact with appellant, believed that appellant had spotted him. Appellant pulled into a parking lot and stopped. The sergeant pulled his car next to appellant's car and likewise stopped. The sergeant arrested appellant for driving on a suspended and revoked license.

         Pursuant to a search incident to arrest, the sergeant searched appellant and his car but found nothing of note, except $1, 356 on appellant's person. During the search, the sergeant noted that appellant was cooperative but nervous - his chest was rapidly "moving up and down, " the muscles in his neck "were visibly contracting, " and he was sweating, even though the temperature was a mild 75 degrees. The sergeant testified that he believed "criminal activity was afoot" based on his prior contact with appellant, the information from CI#3, the large sum of cash, and appellant's nervousness. The sergeant had appellant transported to the Easton Barrack where he could be processed for driving on a suspended and revoked license and strip searched.

         Appellant was taken to the "intoximeter room" - a multipurpose room of the Easton Barrack where DUI's and fingerprints are processed, and a "secure" area of the barrack where the public is not allowed. Appellant, the sergeant and two, possibly three, other officers were present in the room. Appellant was asked to take off his clothes, turn around, bend over, and spread his buttocks apart. According to the sergeant, appellant did as he was instructed, except he did not spread his buttocks so the sergeant could see appellant's anus clearly. Nonetheless, the sergeant did see a plastic baggie protruding from appellant's rectal area. The sergeant "tried" to spread appellant's buttocks apart to retrieve the baggie but could not because appellant "clench[ed]" his muscles. When the sergeant tried to handcuff appellant, a scuffle ensued between appellant and the officers. Once appellant had been handcuffed, the sergeant told appellant what he had seen but appellant refused to retrieve the baggie himself. The sergeant left appellant naked in the room for about an hour while he applied for and received a search warrant for medical personnel to remove the baggie from appellant's anus. Appellant was then taken to a hospital where, around 12:50 a.m., a doctor physically removed from appellant's anus a plastic baggie containing what was later determined to be a baggie of heroin and a baggie of crack cocaine.

         Sergeant Nichols then applied for a search warrant for appellant's residence at 7188 American Corner in Denton in Caroline County. Appellant had listed that address with the Motor Vehicle Administration, the Maryland Sex Offender Registry, and during a prior traffic stop and a prior arrest. In the application in support of the search warrant for the American Corner residence, the sergeant provided the following information:

- Since 2002, the Caroline County Drug Task Force had received information that appellant was distributing drugs in and around Caroline County, and since 2011, information concerning his drug distribution had "increased substantially."
- In July 2011, a confidential informant made a controlled purchase of heroin from appellant in Caroline County. Appellant was arrested and pursuant to a search warrant, no drugs were found on appellant's person. Appellant is a registered sex offender and his address is listed as 7188 American Corner Road.
- Appellant is currently compliant with his sex offender registry, which still lists his address as 7188 American Corner Road. Sergeant Nichols confirmed with the officer responsible for tracking sex offenders that during several home visits at that address appellant had been present each time.
- At the end of May 2012, a confidential informant (CI#1) told members of the Caroline County Drug Task Force that on May 29, 2012, appellant had traveled to Annapolis to purchase heroin in a gold-colored four-door sedan with Maryland registration 99476Z. Sergeant Nichols had observed appellant operating a gold-colored Mercedes Benz with that license plate during that time.
- In January 2013, Sergeant Nichols arrested a person for heroin distribution. The person told Sergeant Nichols that appellant supplied him/her with heroin and that appellant was "very cautious about his business and would never meet new persons." The person stated that he/she had "never been allowed to go to [appellant's] residence to meet him[.]" The person added that appellant got his supply of heroin from Annapolis, and that appellant took a different driver and car each time he went to Annapolis.
- On February 13, 2013, the police performed a traffic stop of a vehicle occupied by appellant, Byron Drummond, and another. Sergeant Nichols came upon the traffic stop to assist. The police had information that the occupants were in possession of drugs. A K-9 scan of the car resulted in a positive alert, but a manual search of the car and the occupants uncovered no drugs. Appellant had approximately $1, 000 on his person as did the female occupant. Appellant stated during the traffic stop that his home address was the American Corner address.
- A week later, on February 20, Sergeant Nichols arrested appellant for an "outstanding parole retake warrant." Pursuant to a search incident to an arrest, Sergeant Nichols recovered a straw from appellant's pants pocket and a folded dollar bill from his car, each of which contained suspected Oxycodone residue. Appellant was charged with possession of paraphernalia.
- On July 23, 2013, a confidential informant (CI#2) told the Caroline County Drug Task Force that he/she had been buying heroin from appellant, that he/she never met appellant at his residence, and that appellant always told him/her to meet on a back road (Clark Road) in Denton.
- On August 6, 2013, an anonymous confidential informant (CI#3) called Sergeant Nichols and told him that appellant was the "largest" heroin supplier in Caroline County; that appellant got his heroin from Annapolis; that Drummond sometimes drove appellant to Annapolis; that appellant often uses different cars; that appellant lives at 7188 American Corner Road; and that he is usually home during the day and leaves during the night and early morning to distribute heroin.
- On that same day, another confidential informant (CI#4) contacted a member of the Caroline County Drug Task Force and said that appellant was selling heroin around Caroline County, that he drove a green Ford F-150, and that the informant had purchased heroin from appellant on a back road (Clark Road) in Denton.
- On August 9, 2013, an anonymous source contacted a member of the task force and said that appellant was selling "large amounts" of heroin in the Denton and Ridgely areas of Caroline County; that he lives with his father on American Corner Road; that appellant sets up his girlfriend, Becca Hutson, in a hotel in Denton to sell heroin for him; and that appellant drives a white Cadillac. During this time a member of the task force observed Hutson exit a Best Western Hotel in Denton and meet appellant, who was driving a white Cadillac.
- On August 15, 2013, Sergeant Nichols, who had been in daily contact by cell phone with CI#3, spoke to CI#3 who said that appellant was in the Ridgely area, that he/she had witnessed appellant make two hand-to-hand transactions, and that appellant was sitting in a white Cadillac parked in front of an apartment complex. Sergeant Nichols went to the area to verify the information but by the time he arrived, he only observed appellant leaving the area in a white Cadillac.
- On August 20, 2013, Sergeant Nichols was involved in the traffic stop of a car driven by Hutson in which appellant was a passenger. The car, however, did not stop immediately and a plastic bag was seen being tossed from the passenger side of the car before the car stopped. A K-9 positively alerted to the car. A search of the car and the area where the bag was tossed yielded negative results. Appellant was searched but no drugs were recovered, although appellant had over $1, 000, mostly in $20 denominations, on his person. Appellant again provided the American Corner address as his home address.
- On September 17, 2013, Sergeant Nichols received information from CI#3 that appellant would be attending "drug classes" in a building behind the Easton Wal-Mart, that he would be driving a purple Jetta, and that he would be in possession of drugs. Sergeant Nichols set up a surveillance of the area, saw appellant enter a purple Jetta that the sergeant then followed. The sergeant stopped the vehicle and arrested appellant for driving on a revoked license. Appellant and his car was searched but only $1, 356 was recovered from appellant's person. Appellant was taken to the Easton Barrack for processing and strip searched. Appellant was told to turn around, bend over, and spread his "butt cheeks." When appellant did so, Sergeant Nichols observed a plastic baggie containing an off-white brown substance protruding from appellant's anus. The sergeant was unable to retrieve the baggie because appellant clenched his buttock muscles. The sergeant obtained a search and seizure body cavity warrant, which was executed at a local hospital. A baggie, containing two additional baggies of heroin and crack cocaine, was removed from appellant's anus.

         The application also stated that CI #1, #2, and #3, who were unaware that the others were providing information to the police about appellant, had provided information on other unrelated subjects that had been true and accurate and had never provided false or misleading information. Additionally, Sergeant Nichols averred in the application that he knew, through his training and experience, that drug dealers often will not sell directly from their residence or the place they stash their supply and proceeds so as to insulate themselves from police, rival drug dealers, and customers. The affidavit also listed appellant's criminal history: November 23, 2005, arrest in Easton for manufacture/distribute CDS; November 4, 2005, arrest in Wicomico for possession of marijuana and paraphernalia; February 27, 2003, arrest in Denton for disorderly conduct, and obstruct and hinder; October 9, 2001, arrest in Easton for possession of marijuana and paraphernalia; and June 5, 2001, arrest in Berlin for possession of CDS not-marijuana, possession of paraphernalia, and handgun in a vehicle.

         The search warrant for appellant's residence was granted at 3:25 a.m., and executed about an hour later. The house was unoccupied and the officers made a forced entry. The sergeant testified that he believed that he had authority to execute the warrant. Drugs and firearms were recovered from the house.

         Appellant testified at the suppression hearing in support of his motion. He testified about the experience of the strip search. He testified that following his arrest, he was taken to the Easton Barrack where he was told to remove his clothes. Four other officers were in the room, and they stared at him. He testified that he did initially spread his butt cheeks when asked, but when asked to do so again, he said no. At that point, officers grabbed his arms and "they" started "digging in my buttocks." Appellant resisted. He testified that the house on American Corner belonged to his father, and although it was "technically" his address and he "occasionally" stayed there, he "normally" stayed at his girlfriend's home.

         At the conclusion of the testimony, defense counsel argued, among other things, that the traffic stop turned into an impermissible cavity search. The State disagreed. After hearing both parties' arguments, the suppression court denied appellant's motion to suppress. The court found the sergeant's testimony "to be credible[.]" The court found the stop and arrest valid. The court found the initial search of appellant and the car as a valid search incident to arrest. The court then stated that as part of the processing for the arrest, a strip search was performed. The court did not specifically state whether the strip search was legal but in conclusion stated that the issuing magistrate in Caroline County had a substantial basis to believe that items of illegality would be found at appellant's residence.

         I.

         Appellant argues that the suppression court erred in denying his motion to suppress the items seized pursuant to the execution of the residential search warrant. He argues that the strip search was illegal because the police did not have reasonable articulable suspicion to believe that he had secreted drugs in his anal cavity and the manner in which the search was conducted was unreasonable. He argues that when the tainted strip search evidence (the drugs) is excluded from the residential warrant, the warrant lacks probable cause to support the search of his home. He argues that the good faith exception to the exclusionary rule does not apply because "no reasonably well-trained police officer could have relied on the warrant[.]" The State responds that neither the strip search nor the manner of the strip search were illegal, but even if they were, the good faith exception to the exclusionary rule applies. Therefore, the suppression court did not err in denying appellant's motion to suppress.

         A. Was the strip search legal?

         To answer the question presented on appeal, we must first untangle and wade through several different legal theories. We shall begin with the law regarding search warrants and work our way to the legality of the strip search.

         When confronted with whether a search warrant is legal, the question before us ordinarily is "whether the issuing judge had a substantial basis to conclude that the warrant was supported by probable cause." Greenstreet v. State, 392 Md. 652, 667 (2006)(citation omitted). To determine whether the issuing judge had a "substantial basis, " we do not apply "a de novo standard of review, but rather a deferential one." Id. We apply a deferential standard because of the preference for search warrants.

Because a search warrant provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime, we have expressed a strong preference for warrants and declared that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall. Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according great deference to a magistrate's determination.

Id. at 668 (quoting United States v. Leon,468 U.S. 897, 913-14 (1984))(quotation marks omitted). The different tasks of an issuing court and a reviewing court in this context have ...


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