By David Daggett

The Maryland Court of Special Appeals issued an opinion on April 2, 2018 in the case of Carter v. State, No. 290, September Term, 2017, with the opinion authored by Judge Fader. If I didn’t know better I’d swear the Court based its legal analysis upon the MSAA PowerPoint of Stops, Searches and Seizures and the Odor of Cannabis. Whatever works, we’re cool with it.

Jason Carter’s (mis)-adventure began in the early morning hours of April 4, 2014 (almost four years to the day of the opinion. Lady Justice can be a slow moving mistress.) on the back streets of Montgomery County when patrol officer “M” observed Carter rolling through a stop sign in a high crime area known for drug activity. He was subsequently clocked doing 48 m.p.h. in a posted 40 m.p.h. zone. It was just about 12:52 a.m. when Carter’s vehicle was pulled over. As will subsequently be seen, time played an important role in this case. Carter was the driver and sole occupant. As was later argued – albeit not fanatically – it was undoubtedly a Whren stop. See Whren v. U.S., 517 U.S. 806 (1996).  Young Jason showed signs of extreme nervousness.

After obtaining Carter’s license and registration, Officer M returned to his car at 12:57 a.m., requested a K-9 unit, and then began a records check, which revealed that Carter’s license was valid and there were no outstanding warrants. See Rodriguez v. U.S., 135 S. Ct. 1609 (2015). At approximately 1:00 a.m., after the records check was completed, the officer began the process of writing warning citations for the two violations. Officer M testified at a suppression hearing that it took about five to seven minutes to write the citations. Another patrol officer (“F”) arrival at approximately 1:02 a.m. and he was briefed by Officer M regarding the stop. K-9 Officer “B” arrived at approximately 1:07 while M was still writing the citations. About two minutes later Officer M ordered Carter out of his car so that the canine could scan the vehicle. Within 15-20 seconds, the dog (let’s call him “Spuds” to protect his identity) alerted to the presence of narcotics in the vehicle.

A search of the car yielded nothing illegal and a pat-down was conducted by yet another officer, “MM”, who noticed an “unnatural bulge” in Carter’s groin area. At that point Mr. Carter became somewhat combative and he was placed in handcuffs, where a search revealed two plastic baggies containing more than 70 grams of cocaine. Carter was then placed under arrest. See Barrett v. State, 234 Md. App. 653 (2017).

At the subsequent suppression hearing in Circuit Court, the hearing judge noted for the record on a number of occasions that “there was no delay, intentional or otherwise by the stopping officer between 12:52 and 1:00a.m.”; “there was no delay by the stopping officer between 1:00 and 1:07 a.m. when the canine officer arrived”; “this was not a case where the officer engaged in delay and ‘dilly dallied’ (as opposed to  “lollygagging”) waiting for the canine officer”; “[T]here was no delay. This was ordinary course.” The court also concluded that the search that yielded the cocaine was incident to arrest and the motion to suppress the drugs was denied. After a jury trial and subsequent guilty verdict, Mr. Carter was sentenced to the mandatory minimum of five years’ incarceration. He noted his displeasure with that sentence by way of this appeal.

Mr. Carter argued to the Court of Special Appeals that the trial court made a number of errors, among them:

1.) That Officer M lacked reasonable suspicion to authorize a “second stop” to investigate potential drug activity as he had effectively abandoned the traffic stop when he paused from writing the citations to assist Officer B with the canine search. If the court were to conclude that the traffic stop ended when Officer M paused from writing the citations, then additional reasonable suspicion would have been needed in order to further detain Carter to conduct the canine stop; and

2.) That Officer M’s search of Carter was not incident to arrest as Carter was not yet arrested, and there was no indication that he would be arrested until the drugs were found.

In reading the opinion it also appears as if the Appellant made an argument that the original stop was pretextual, though it is unclear if he was arguing the evidence should have been suppressed because of it. We’ll start there.

 The original stop was pretextual.

Judge Fader gave a nice summary of Whren stops and explained that valid but pretextual traffic stops conducted for the primary purpose of investigating other illegal activity are a legitimate law enforcement tool. An otherwise-valid traffic stop does not become unconstitutional just because the actual purpose of the officer making the stop was to investigate potential drug crimes. The Court noted that a Whren stop “must be temporary and last no longer than is necessary to effectuate the purpose of the stop,” (Ferris v. State, 355 Md. 356 (1999) at 369). Most importantly for this case, it also clarified that officers may pursue investigations into both the traffic violation and another crime “simultaneously, with each pursuit necessarily slowing down the other to some modest extent.” See Charity v. State, 132 Md. App.598 (2000) at 614/Slip Opinion at p.6.

Finally, the Court warned that the investigation into the original traffic violation cannot “be conveniently or cynically forgotten and not taken up again until after the other investigation has been completed or has run a substantial course.” Charity at 614, Slip opinion, p.7.

The Court noted that it is well-established that the purpose of a traffic stop is to address the violation that precipitated the stop, check for any outstanding warrants and attend to any related safety concerns with the authority for the seizure concluding  when the tasks tied to the traffic violation are – or reasonably should have been – completed. See Rodriguez v. U.S., 135 S. Ct. 1609 (2015).

The Court then cited the Maryland cases of Henderson v. State, 416 Md. 125, 149-150 (2010) and Byndloss v. State, 391 Md. 462 (2006) further clarifying that because a scan by a drug sniffing dog serves no traffic-related purpose, the stops cannot be prolonged while waiting for the dog to arrive (See Henderson at 149-150); and that once the officer completes the tasks related to the original stop or extends the stop beyond when it reasonably should have been completed, any continued detention is considered a “second stop” for Fourth Amendment purposes and requires additional reasonable suspicion. Byndloss at 483. Without that additional justification, any further detention amounts to an unreasonable seizure, no matter how brief.

Finally, the Court stated that when determining the reasonableness of the detention, the reviewing court must look to whether the stop “extended beyond the period of time that it would reasonably have taken for a uniformed officer to go through the procedure involved in issuing a citation to a motorist.” Ferris v. State, 355 Md. 356, 371 (1999).

The Court of Special Appeals determined that Officer M’s brief interruption in writing the citations in order to advise his fellow officers of the nature of the stop and in subsequently ordering Carter out of the vehicle to allow Spuds to conduct the scan, did not amount to an impermissible delay. The Court noted that the entire episode from the initiation of the traffic stop to the canine alert, took about 17 minutes, and only ten minutes passed from the time that Officer M returned to his car until the canine officer’s arrival. The Court cautioned that the absolute amount of time taken is not dispositive but is to be determined on a case by case basis.

Had the original stop been abandoned when the canine alert occurred?

The Appellant argued that regardless of the amount of time elapsing from the initial stop to the canine alert, Officer M had effectively abandoned the traffic stop when he paused from writing the citations to brief Officer B and then again later when he asked the Appellant to exit his vehicle to allow for the canine search.

The Court of Special Appeals determined that Carter’s contention that any break from tasks related solely to the traffic stop was the equivalent to abandoning the traffic investigation was contrary to Maryland case law. The Court determined that Officer M’s actions were not unreasonable under the circumstances and cited McCree v. State, 214 Md. App. 238 (2013) for its holding that an officer’s interruption of a traffic stop to brief other newly arriving officers was neither unreasonable nor rendered the stop impermissibly long. See McCree at 263. The Court determined that Officer M’s actions did not constitute abandonment but was merely a “momentary pause for permissible multi-tasking that did not cause the seizure to extend beyond the time that was necessary to effectuate the traffic stop.” Slip Opinion at pp 10-11. The Court concluded that the traffic stop was ongoing when the canine alert occurred and therefore no ”second stop” existed which would require additional reasonable suspicion.

Was the search of Appellant incident to arrest?

The Appellant next argued that the search of his person was lacking in probable cause. The Court somewhat chastised Carter for never addressing the actual basis for the search, that it was, in fact, conducted incident to a lawful arrest. The Court of Special Appeals went on to cite a number of cases that validated the actions of the Montgomery County officers in this incident:

  • A canine alert provides probable cause to arrest the driver of the vehicle. State v. Harding, 196 Md. App. 384 (2010) and State v. Ofori, 170 Md. App. 211, 221 (2006);
  • The search incident to arrest exception to the warrant requirement is applicable as long as the search is ‘essentially contemporaneous’ with the arrest; Barrett v. State, 234 Md. App. 653, 672 (2017); and
  • A search that is followed by an arrest is considered incident to that arrest if there was probable cause to support an arrest at the time of the search; Lee v. State, 311 Md. 642, 668 (1988).

The Court determined that the canine alert provided probable cause to arrest the driver (Carter) and that the search of his person was, for all intents and purposes, contemporaneous with his arrest.

Carter argued that the Court of Appeals held in Wallace v. State, 372 Md. 137 (2002) that a positive canine alert of contraband in a vehicle, without more, does not establish probable cause to search all of the passengers in a vehicle. And while that is an accurate statement of the law, there was only one problem: Carter was not a passenger. He was the driver. But thanks for playing.

The Court concluded this part of its opinion by stating:

There is no case in which a defendant may validly say, ‘although the officer had a right to arrest me at the moment when he seized me and searched my person, the search is invalid because he did not in fact arrest me until afterwards.’  Conboy v. State, 155 Md. App. 353, 365 (2004)

Conclusion

The Court of Special Appeals found no error in the suppression court’s conclusion that Carter was searched incident to arrest and upheld the denial of the motion to suppress. The rest of the opinion dealt with the validity of the trial court’s jury instruction regarding “intent to distribute” being an element of the crime of possession of 50 or more grams of crack cocaine but, truth be told, I don’t have the time to worry about that one.

AS ALWAYS, PLEASE DIRECT ANY SPECIFIC QUESTIONS RELATING TO THIS SUBJECT MATTER TO YOUR LOCAL STATE’S ATTORNEYS’ OFFICE.