IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
SSSSSSSSSS
SEPTEMBER TERM, 2009
SSSSSSSSSS
NO. 1871
SSSSSSSSSS
JOHN ROBERT FURBUSH,
Appellant
v.
STATE OF MARYLAND,
Appellee
SSSSSSSSSS
APPEAL FROM THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
(Michelle Dane Jaklitsch, Judge)
SSSSSSSSSS
BRIEF OF APPELLEE
SSSSSSSSSS
DOUGLAS F. GANSLER
Attorney General of Maryland
BRENDA GRUSS
Assistant Attorney General
Office of the Attorney General
Criminal Appeals Division
200 Saint Paul Place
Baltimore, Maryland 21202
(410) 576-6317
bgruss@oag.state.md.us
Counsel for Appellee
TABLE OF CONTENTS
Page
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT:
I.
II.
IF PRESERVED, THE SUPPRESSION COURT
PROPERLY DENIED FURBUSH’S MOTION
TO SUPPRESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A.
Furbush failed to preserve the claim that
the search exceeded its lawful scope. . . . . . . . . . . . . . 5
B.
The search was a lawful search incident to
an arrest based upon probable cause.. . . . . . . . . . . . . . 7
C.
The search did not exceed the scope of a
Terry frisk for weapons. . . . . . . . . . . . . . . . . . . . . . . 11
THE DOCKET ENTRIES SHOULD BE
CORRECTED TO REFLECT THAT FURBUSH
WAS FOUND GUILTY OF POSSESSION OF
COCAINE; THAT THE POSSESSION OF
C OC AINE COUNT M ERGED FO R
SENTENCING PURPOSES WITH THE
POSSESSION WITH INTENT TO
DISTRIBUTE COUNT; AND THAT THE
POSSESSION OF MARIJUANA COUNT WAS
NOL PROSSED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
PERTINENT PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Page
TABLE OF AUTHORITIES
Cases
Arizona v. Hicks, 480 U.S. 321 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Barksdale v. Wilkowsky, 192 Md. App. 366 (2010) . . . . . . . . . . . . . . . . . 11
Charity v. State, 132 Md. App. 598 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 3
Conyers v. State, 354 Md. 132 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Green v. State , 81 Md. App. 747 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Hyman v. State, 158 Md. App. 618 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 7
In re David S., 367 Md. 523 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Johnson v. State, 138 Md. App. 539 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 6
Madison-Sheppard v. State, 177 Md. App. 165 (2007) . . . . . . . . . . . . . . . 15
Minnesota v. Dickerson, 508 U.S. 366 (1993).. . . . . . . . . . . . . . . 11, passim
Mobley v. State, 270 Md. 76 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Pettiford v. State, 8 Md. App. 560, 569 (1970). . . . . . . . . . . . . . . . . . . . . . 20
Powell v. State, 139 Md. App. 582 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Shade v. State, 18 Md. App. 407 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
State v. Prue, 414 Md. 531 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
State v. Smith, 345 Md. 460 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ii
Page
Conboy v. State, 155 Md. App. 353 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 3
Sykes v. State, 166 Md. App. 206 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Terry v. Ohio, 392 U.S. 1 (1968) .. . . . . . . . . . . . . . . . . . . . . . . . . 2, passim
United States v. Rivers, 121 F.3d 1043 (7th Cir. 1997) . . . . . . . . . . . . . . . 17
United States v. Yamba, 506 F.3d 251, 259 (3d Cir. 2007) . . . . . 12, passim
Wiggins v. State, 90 Md. App. 549 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 13
Williams v. State, 188 Md. App. 78, cert. denied,
411 Md. 742 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, passim
Williams v. State, 7 Md. App. 241 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . 19
Wilson v. State, 150 Md. App. 658 (2003).. . . . . . . . . . . . . . . . . . 10, passim
Rules
Maryland Rules of Procedure:
Rule 4-323.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Rule 8-131.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 18
Miscellaneous
Wayne R. LaFave et al., Search and Seizure (4th ed. 2004). . . . . . . . . . . . 14
iii
IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
SSSSSSSSSS
SEPTEMBER TERM, 2009
SSSSSSSSSS
NO. 1871
SSSSSSSSSS
JOHN ROBERT FURBUSH,
Appellant
v.
STATE OF MARYLAND,
Appellee
SSSSSSSSSS
APPEAL FROM THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
(Michelle Dane Jaklitsch, Judge)
SSSSSSSSSS
BRIEF OF APPELLEE
SSSSSSSSSS
STATEMENT OF THE CASE
Appellee, the State of Maryland, accepts the Statement of the Case set
forth in the brief of Appellant, John Robert Furbush.
QUESTIONS PRESENTED
1. If preserved, did the suppression court properly deny Furbush’s
motion to suppress?
2.
If addressed, should the docket entries be corrected to reflect that
Furbush was also found guilty of possession of cocaine; that the possession of
cocaine count merged with the possession with intent to distribute count; and
that the possession of marijuana count was nol prossed?
STATEMENT OF FACTS
The State accepts the Statement of Facts set forth in the brief of
Furbush, as supplemented and modified in the following Argument.
ARGUMENT
I.
IF PRESERVED, THE SUPPRESSION COURT PROPERLY
DENIED FURBUSH’S MOTION TO SUPPRESS.
Furbush argues that the suppression court erroneously denied his
motion to suppress, because the search exceeded the permissible scope of a
Terry1 frisk. (Appellant’s Br. at 8-11.) This claim is not preserved, because
Furbush did not raise it below. In any event, it lacks merit for two reasons.
First, at the time of the search, there was probable cause to arrest Furbush, so
the search was a lawful search incident to arrest. Second, the search was
lawful under the “plain feel” doctrine, because while conducting a lawful frisk
for weapons, the police officer felt an object whose identity as cocaine was
immediately apparent to him.
1
Terry v. Ohio, 392 U.S. 1 (1968).
2
In reviewing the denial of a motion to suppress, this Court looks only
to the record of the suppression hearing and does not consider the evidence
admitted at trial. Charity v. State, 132 Md. App. 598, 605 (2000). This Court
accepts the findings of fact made by the circuit court unless they are clearly
erroneous and otherwise reviews the evidence in the light most favorable to the
prevailing party, in this case, the State. Conboy v. State, 155 Md. App. 353,
361 (2004). This Court reviews de novo all legal conclusions, making its own
independent constitutional determination. See id. at 361-62.
At the suppression hearing, the suppression court made the following
findings of fact regarding one police officer’s observations of Furbush before
a second officer stopped him:
Now in this case we have a high drug area that Officer
[Christopher] Amoia, who has 17 years ago [sic] experience as
a police officer, including three years with DEA, has testified
too [sic] that he had made 2- to 300 arrests in the area for drugs
and weapons, violent crimes, assault with weapons. . . . And we
have Officer Amoia describing in this high drug area where he
has referenced there is violence, really a three part technique to
what he believes is a way to sell drugs. Red jacket flags him
down, black jacket discusses the deal, gray sweatshirt
consummates the transaction.
***
The officer describes in detail, this is Sergeant Amoia,
how the person he believes to be the seller reaches into his
midsection area of his waistband or his coat, sees him -- let me
get the words right -- have some type [of] an exchange. He
indicates it took a few minutes. He indicates he told Officer
3
[Robert] Owen to make a stop. That less than five minutes after
Officer Owen left he went directly to where the Defendant was,
the person that he knew and had knowledge of, wearing the gray
sweatshirt and had Officer Owen stop him.
The officer indicated that he believed based, upon his
training, knowledge, and experience, that there had in fact been
a hand-to-hand drug sale, and the officer indicated that by using
this three part team the individuals can avoid detection and the
officers may not know who has the drugs or who has the
monies.
(T 9/11/09 95-96.)
The suppression judge made further findings of fact regarding Officer
Owen’s stop of Furbush, and concluded that the stop was supported by
reasonable suspicion:
The Court finds that Officer Owen, gaining knowledge
form Sergeant Amoia, and with the nature of the area, with the
nature of what is quite frankly reasonable suspicion to believe
is a hand-to-hand transaction, that he can do the brief limited pat
down. It starts in the waistband slash waist area and goes to
where the pockets are on the hooded sweatshirt which is not
unreasonable. Immediately begins to do his pat down and feels
what he describes as a rocklike substance that he describes
based upon his knowledge, training, and experience gained from
the academy, as well as arrests on the streets to be crack cocaine,
the rocklike substance. He indicates he immediately went into
the pocket and retrieved it and that it came out to be crack
cocaine.
(T 9/11/09 98.)
The suppression judge concluded that at the time of the stop, there was
not yet probable cause for an arrest, “because the court does not have
4
testimony that the officer saw perhaps a glassine baggy with something in it
and money being exchanged. . . .” (T 9/11/09 97.) However, the suppression
judge found that by the time Officer Owen reached into Furbush’s pocket, he
had probable cause to conclude that Furbush possessed contraband:
The fact that he grabbed it, knew what it was, and
reached for it illustrates and indicates to the Court that the
Officer’s actions were based upon at that point in time an
escalation of the Terry pat down to probable cause, and the
seizure at that point is based upon probable cause when you
couple what Officer Amoia saw, the limited amount of
information Officer Owen got from watching the transaction,
the reasonable Terry pat down, the elevation at that point in time
to probable cause based upon what is immediately apparent to
him to be a controlled dangerous substance.
(T 9/11/09 98-99.)
For the reasons set forth below, to the extent preserved, the suppression
court properly denied the motion.
A.
Furbush failed to preserve the claim that the search
exceeded its lawful scope.
In support of his motion to suppress below, Furbush proffered three
grounds -- none of which is the ground he raises on appeal. Below, Furbush
argued: (1) there was no cause for a stop (T 9/11/09 85); (2) even if Sergeant
Amoia had cause, Officer Owen did not (T 9/11/09 85-86); and (3) even if the
stop were legitimate, there was no cause for a frisk because there was no
ground to believe that Furbush was armed (T 9/11/09 86). In response, the
5
suppression court said that it needed to decide whether what took place was a
Terry stop requiring reasonable articulable suspicion, or an arrest requiring
probable cause. (T 9/11/09 95.) Addressing these issues, the suppression
court held only that there was reasonable suspicion to justify the stop and
pat-down (T 9/11/09 97-98), and probable cause to arrest (and therefore search
Furbush’s pocket) once Officer Owen felt the rocklike substance that he
believed was cocaine (T 9/11/09 99). As Furbush did not argue before the
suppression court that the frisk exceeded its permissible scope, and the
suppression court did not rule on this issue, this claim is not preserved for
appeal. See Johnson v. State, 138 Md. App. 539, 560 (2000) (holding that
failure to argue particular theory in support of suppression is waiver of that
argument on appeal); Md. Rule 8-131.
Review of Furbush’s cross-examination of Officer Owen reinforces the
conclusion that Furbush did not claim below that Officer Owen’s search
exceeded its lawful scope. If this had been the case, Furbush would have
asked questions designed to show that when Officer Owen felt the object in
Furbush’s pocket, he could not have known it was cocaine; or that Officer
Owen impermissibly manipulated the object to determine its texture, and thus
its identity. (See Appellant’s Br. at 10-11; see also Argument I.C. (discussing
“plain feel” doctrine).) Furbush did not do this. Instead, Furbush tried only
to show that Officer Owen did not have reasonable suspicion to stop Furbush
6
(T 9/11/09 72-76); and that he had no reason to search Furbush for weapons
(T 9/11/09 76).2
Because Furbush did not argue below that the search
exceeded its permissible scope, he also failed to make a factual record that
would allow a court to determine that claim in his favor.
B.
The search was a lawful search incident to an arrest
based upon probable cause.
Shortly after the suppression hearing in this case, this Court held in
Williams v. State, 188 Md. App. 78, cert. denied, 411 Md. 742 (2009), that
probable cause may be found based on the totality of the circumstances in a
hand-to-hand transaction case, even if a trained, experienced police officer is
not able to see whether the object transferred by one person to another is
contraband. Id. at 92-97. As the officers here, in light of their training and
experience, had reason to believe that Furbush had participated in a drug
transaction, there was probable cause to arrest and search him, even though
neither officer saw the objects exchanged. Although the suppression court did
not adopt this conclusion, this Court may affirm on this ground. See Hyman
v. State, 158 Md. App. 618, 633 (2004) (stating that Court may affirm trial
court if it reached the right result for the wrong reasons); Powell v. State, 139
2
To be sure, Furbush asked how Officer Owen could feel the cocaine
but not the bigger bundle of marijuana, and whether he recognized the cocaine
by feel and texture. (T 9/11/09 75-76.) However, those questions were
apparently intended to cast doubt on the credibility of Officer Owen’s
testimony that he could feel the cocaine through Furbush’s sweatshirt.
7
Md. App. 582, 590 (2001) (same); Green v. State, 81 Md. App. 747, 755
(1990) (same).
At the suppression hearing in Williams, Detective Eric Green, a
seven-year veteran of a police unit focused mainly on weapons and narcotics,
testified that he had specialized training in packaging and distribution of
street-level CDS; had observed “thousands and thousands of street level
distribution methods”; and had made over 5,000 arrests of people suspected of
illegal drug activity. 188 Md. App. at 82. On the date in question, Detective
Green was in his office monitoring a closed circuit TV that produced images
of an area known as “open air drug market,” where “drugs are often sold.”
Id. at 83. He saw Williams and another man in brief conversation. Based on
their hand gestures, their manner of gripping, and the fact they each took
particular caution to conceal the small object being passed from one to the
other, Detective Green believed that Williams was engaged in a CDS
transaction. Id. at 84. Detective Green notified an arrest team. Id. at 85.
When the arrest team subsequently stopped and searched Williams, the police
officers found cocaine in his jacket. Id. at 85. This Court affirmed the
suppression court’s denial of Williams’s motion to suppress, reasoning that
although Detective Green could not describe the objects passed, “Detective
Green did not need absolute certainty in regard to the objects that were
exchanged here in order to obtain probable cause.” Id. at 96.
8
Officer Owen had at least the same level of certainty when he stopped
and searched Furbush as Detective Green had when he directed Williams’s
arrest. Like Detective Green, Officer Owen’s colleague, Sergeant Amoia, was
a trained, experienced police officer who had participated in hand-to-hand
transactions as an undercover police officer, and also participated in thousands
of drug-related arrests. (T 9/11/09 11-13.)3 In particular, Sergeant Amoia
participated in several hundreds of arrests of individuals in the location where
Furbush was observed. (T 9/11/09 14-15.) Similarly to Detective Green,
Sergeant Amoia characterized the neighborhood where the suspect was
observed as “a high drug and high crime area known for the sales and
distributions of narcotics and other drugs, and also other criminal offenses,
including crimes of violence.”
(T 9/11/09 14.)
He specified that the
“prevalent drugs” in that area were crack cocaine, heroin, and marijuana.
(T 9/11/09 23.)
Sergeant Amoia testified that on March 25, 2009, via closed circuit TV,
he saw Furbush, who he knew had previously been arrested for drug activity
and weapons violations (T 9/11/0-9 18-19), engage in tag-team flagging -- the
practice where one person flags down a vehicle, a second converses with the
3
Although Sergeant Amoia, unlike Detective Green, was not qualified
as an expert, Furbush did not object that Sergeant Amoia tendered improper
lay opinion testimony. Moreover, the Williams court did not rely upon
Detective Green’s status as an expert witness to support its holding.
9
vehicle’s occupants, and a third actually makes a drug sale to someone in the
vehicle. (T 9/11/09 11, 15, 27-31.) Within a “brief minute” after the first
person flagged the car down, and the second had a short conversation with the
vehicle’s occupants, Furbush approached the vehicle, pulled an object from his
midsection into his hand, made a “real quick” exchange from the vehicle for
that object, and walked away. (T 9/11/09 33-34.) According to Sergeant
Amoia, this tag-team flagging technique allows one drug seller to hold the
drugs and the other to keep the money, thus frustrating detection by
police. (T 9/11/09 30-31.)
In light of his training, knowledge, and experience, Sergeant Amoia
believed, just as Detective Green did, that he had witnessed a hand-to-hand
drug transaction. (T 9/11/09 33.) Accordingly, he directed Officer Owen to
stop Furbush. (T 9/11/99 38.) As in Williams, this stop was a lawful arrest,
because under the totality of the circumstances -- the environment, Furbush’s
conduct, the information known to the police officer about drug dealing in
general and Furbush’s past drug dealing in particular -- Sergeant Amoia had
probable cause to believe that Furbush had sold illegal drugs. See Mobley v.
State, 270 Md. 76, 81 (1973) (stating that probable cause may be measured in
terms of the collective information in possession of entire police team).
Consequently, the search that yielded cocaine and marijuana was lawful also.
See Wilson v. State, 150 Md. App. 658, 673 (2003) (stating that “search
10
incident to an arrest” exception to the warrant requirement applies so long as
search is “essentially contemporaneous” with arrest).
C.
The search did not exceed the scope of a Terry frisk for
weapons.
The search in this case was permissible on a second, independent
ground. Based on the evidence described in Argument I.B., the police at a
minimum had reasonable articulable suspicion to justify stopping and frisking
Furbush under the Terry doctrine.4 As Officer Owen’s frisk of Furbush did not
exceed its permissible scope, his seizure of contraband from Furbush’s pocket
was lawful.
In Minnesota v. Dickerson, 508 U.S. 366, 373 (1993), the Supreme
Court held that police officers “may seize nonthreatening contraband detected
during a protective pat-down search of the sort permitted by Terry,” provided
the frisk does not exceed the bounds prescribed by that case. The Court
explained that the rationale for “plain feel” seizures is the same as that
supporting plain view doctrine:
If a police officer lawfully pats down a suspect’s outer clothing
and feels an object whose contour or mass makes its identity
4
Although Furbush uses the phrase “even assuming the Terry stop and
frisk were justified” (Appellant’s Br. at 8), he makes no argument that they
were unjustified. It appears that he has conceded this argument; and if not,
that he has forfeited it. See Barksdale v. Wilkowsky, 192 Md. App. 366, 389
(2010) (stating that when party fails to adequately brief an argument, court
may decline to address it on appeal).
11
immediately apparent, there has been no invasion of the
suspect’s privacy beyond that already authorized by the officer’s
search for weapons; if the object is contraband, its warrantless
seizure would be justified by the same practical considerations
that inhere in the plain view context.
Id. at 375-76 (emphasis added). Thus, an officer may lawfully seize an item
if he has probable cause to believe that it is contraband before he knows it not
to be a weapon, and he acquired this knowledge in a manner consistent with
a routine frisk. See United States v. Yamba, 506 F.3d 251, 259 (3d Cir. 2007).
In Dickerson, the Court held that the frisk exceeded its permissible
scope because, although the police officer “was lawfully in a position to feel
the lump in [Dickerson’s] pocket” under Terry, “the incriminating character
of the object was not immediately apparent to him.” Id. at 379 (emphasis
added). The Court also noted that the officer determined that the lump was
contraband only after “squeezing, sliding, and otherwise manipulating the
contents of the defendant’s pocket - a pocket which the officer already knew
contained no weapon.” Id. at 378. The Court stated that “the officer’s
continued exploration of [Dickerson’s] pocket after having concluded that it
contained no weapon was unrelated to ‘[t]he sole justification of the search
[under Terry:]. . . the protection of the police officer and others nearby.’” Id.
(quoting Terry, 392 U.S. at 26). The Court held that because the officer
determined that the item was contraband only after conducting a further
12
search, one not authorized by Terry or by any other exception to the warrant
requirement, the subsequent seizure of the cocaine was unconstitutional. Id.
Dickerson’s requirement, that the item’s incriminating character must
be “immediately apparent,” is a corollary of the probable cause requirement.
Wiggins v. State, 90 Md. App. 549, 561(1992) (citing Arizona v. Hicks, 480
U.S. 321 (1987)). It requires that the facts available to the officer would
“warrant a man of reasonable caution in the belief that certain items may be
contraband or stolen property or useful as evidence of a crime; it does not
demand any showing that such a belief be correct or more likely true than
false.”
Hicks, 480 U.S. at 330 n.1.
Only a “practical, nontechnical”
probability that incriminating evidence is involved is required. Wiggins, 90
Md. App. at 561.
In this case, the suppression court found that Officer Owen
“[i]mmediately begins to do his pat down and feels what he describes as a
rocklike substance that he describes based upon his knowledge, training, and
experience gained from the academy, as well as arrests on the streets to be
crack cocaine, the rocklike substance. He indicates he immediately went into
the pocket and retrieved it and that it came out to be crack cocaine.”
(T 9/11/09 98.) This finding was supported by Officer Owen’s testimony that
it was “immediately apparent,” as he patted Furbush down for weapons, that
Furbush probably had illegal drugs in his pocket:
13
Once I approached the subject I patted him down for weapons
and any other illegal contraband, at which time I immediately
felt a rocklike substance that I immediately recognized through
training, knowledge, and experience as a police officer to have
the same texture and feel as crack cocaine.
(T 9/11/09 57 (emphasis added).) Officer Owen explained that because the
sweatshirt that Furbush was wearing was only slightly thicker than a man’s
cotton shirt, he was able to feel through the sweatshirt a substance that was
“hard, kind of granule [sic], it’ll break up in your hand.” (T 9/11/09 58.) As
Officer Owen concluded that Furbush was concealing cocaine while still
lawfully frisking Furbush for weapons, the frisk did not exceed its permissible
scope. Compare Yamba, 506 F.3d at 260 (“Officer Livingston ‘felt around’
or otherwise ‘manipulated’ the contents of Yamba’s pocket in the process of
checking for weapons when he came across what in his experience could be
contraband.”); and Sykes v. State, 166 Md. App. 206, 229 (2005) (“Officer
Anderson had not already determined that the appellant’s pocket was free from
weapons when felt the ‘decks’ of cocaine”; “Officer Anderson immediately
recognized the ‘decks’ as contraband, upon feeling them”); and Wilson v.
State, 150 Md. App. 658, 674 (2003) (“TFC Penny ‘grabbed’ the pocket and
just ‘instantaneously’ felt a ‘large mas[s],’ which he ‘immediately . . . knew’”
was contraband) with In re David S., 367 Md. 523, 546 (2002) (“The record
before us is devoid of any evidence to support a finding that it was
immediately apparent to the officer that the bag contained drugs.”); State v.
14
Smith, 345 Md. 460, 471 (1997) (“Upon feeling nothing in patting down
Smith, Officer White no longer had the same suspicion that Smith was armed
and dangerous, and thus had no legal basis for escalating his search.”); and
Madison-Sheppard v. State, 177 Md. App. 165, 187 (2007) (“when [officer]
first felt appellant’s outer clothing, he did not feel ‘an object whose contour or
mass ma[d]e[] its identity immediately apparent’”) (emphasis added). See
generally 4 Wayne R. LaFave, Search and Seizure § 9.6(b) (4th ed. 2004)
(discussing plain feel doctrine).
A variety of circumstances supported Officer Owen’s belief that the
substance he felt was cocaine. First, Officer Owen had had extensive training
on the look, feel, and smell of various types of illegal drugs, and had been
involved during his three years on the police force in approximately 200 arrests
for crack cocaine. (T 9/11/09 59-60.) The item he felt through Furbush’s
sweatshirt was consistent with what he had in the past experienced and been
trained to identify as crack cocaine. (T 9/11/09 60.) Second, based on his
experience as a police officer, Officer Owen knew that the neighborhood
where he observed and then stopped Furbush was a “high crime and drug
neighborhood.” (T 9/11/09 65, 79.) Third, Officer Owen, together with
Sergeant Amoia, had seen a woman flag and approach a vehicle, a man walk
up to the vehicle and engage in conversation, and then Furbush approach the
vehicle, reach into his midsection, retrieve something, and give it to an
15
individual or individuals in the vehicle. (T 9/11/09 70, 73, 76-77.) Fourth,
Sergeant Amoia, whom Officer Owen knew to be a veteran officer, had told
Officer Owen that he believed that the transaction they had witnessed involved
drugs. (T 9/11/09 67.) As these circumstances, taken together, yielded
probable cause to believe that the substance was cocaine, Officer Owen
lawfully put his hand into Furbush’s pocket, and retrieved the contraband
inside. See Wilson, 150 Md. App. at 673 (holding that when pat-down was
complete, totality of circumstances yielded probable cause to believe package
in pocket contained drugs).
Furbush tries to undermine this conclusion by characterizing Officer
Owen’s testimony as “rote repetition” of “magic words,” and suggesting that
Officer Owen either seized the cocaine without manipulating it to determine
whether it was cocaine, or manipulated it after concluding that it was not a
weapon. (Appellant’s Br. at 10-11.) This alternative rendition of the facts
flies in the face of the suppression judge’s factual findings, and disregards the
requirement that the facts be viewed in the light most favorable to the
prevailing party.
By repeating Officer Owen’s testimony in his factual
findings, the trial judge showed that he deemed credible Officer Owen’s
testimony that he felt what he believed was cocaine immediately while patting
Furbush down for weapons. See Yamba, 506 F.3d at 260 (“While one may
reasonably question the veracity of Officer Livingston’s testimony, it was
16
credited by the District Court. Were we the fact-finder, we may not have done
the same; but we cannot say that he Court’s finding was clearly erroneous.”);
United States v. Rivers, 121 F.3d 1043, 1046 (7th Cir. 1997) (“[Appellant]
contends that the officer could not have recognized the nature of the substance
if he had searched [appellant] as briefly as he testified, but given that
recognition by touch is not impossible, such arguments go to [the officer’s]
credibility, a matter best left for the district court to evaluate.”); Wilson, 150
Md. App. at 674-75 (refuting appellant’s argument that trooper patted down
appellant’s outer garments, asked him what was in pocket, and then grabbed
for the pocket because trooper “whose testimony was found credible by the
motions judge, never testified that he felt any part of Wilson’s clothing prior
to grabbing for the pockets of his jacket”). Furbush’s critique of Officer
Owen’s testimony at most goes to its weight. It does not show that the
suppression judge’s ruling is clearly erroneous.
17
II.
THE DOCKET ENTRIES SHOULD BE CORRECTED TO
REFLECT THAT FURBUSH WAS FOUND GUILTY OF
POSSESSION OF COCAINE; THAT THE POSSESSION OF
COCAINE COUNT MERGED FOR SENTENCING
PURPOSES WITH THE POSSESSION WITH INTENT TO
DISTRIBUTE COUNT; AND THAT THE POSSESSION OF
MARIJUANA COUNT WAS NOL PROSSED.
Furbush requests that the docket entries be corrected to reflect that
Furbush was not convicted on Count 3. (Appellant's Br. at 11-12.) Furbush is
correct that the docket entries are erroneous. However, contrary to Furbush’s
claim, the docket entries should be corrected to show a finding of guilt and
merger on Count 3.
Furbush is correct that the circuit court made an explicit finding of guilt
only on the possession with intent to distribute cocaine count (Count 1).
(T 9/29/09 17.) After Furbush was found guilty on that count, the State
informed the judge that it was nol prossing the marijuana count (Count 3), and
that the possession of cocaine count (Count 2) would merge: “As to the other
charges, Your Honor, we’re willing to nol pros those other counts, which
would be the marijuana and the simple -- well the simple possession [of
cocaine] would merge I guess, Your Honor.” (T 9/29/09 17.) After sentencing
on the possession with intent to distribute cocaine count (Count 1), the State
similarly informed the judge that, “We’ve nol prossed the marijuana, Your
Honor -- excuse me -- and I assume that the Court would have made the
18
findings
simultaneously
on
the
cocaine
and
that
would
merge.”
(T 9/29/09 21.) Attempting to confirm the accuracy of the State’s assumption,
the clerk asked, transposing the count numbers: “Three is merged into one?”
and the court replied “Correct.” The docket sheet incorrectly shows the
possession of cocaine count (Count 2) as nol prossed, and inconsistently shows
the marijuana count (Count 3) as merged into the possession with intent to
distribute cocaine count (Count 1).
This Court should order that the docket sheet be corrected to show that
Furbush was guilty of possession of cocaine (Count 2); that that count was
merged for purposes of sentencing into the possession with intent to distribute
count (Count 1); and that the possession of marijuana count (Count 3) was nol
prossed. Unless shown to be erroneous, the transcript of the proceedings takes
precedence over the docket entries. State v. Prue, 414 Md. 531, 547 (2010)
(“The record prevails over the erroneous docket entries.”); Shade v. State, 18
Md. App. 407, 411 (1973); Williams v. State, 7 Md. App. 241, 245 (1969). As
the prosecutor explicitly informed the court on the record that the marijuana
count (Count 3) had been nol prossed, the “merged” entry for Count 3 on the
docket sheet is erroneous. As evidenced by the colloquy between judge and
prosecutor, the clear intent of the judge when he responded “Correct” to the
clerk’s question about merger was that the possession of cocaine count
(Count 2) be merged into the possession with intent to distribute cocaine count
19
(Count 1). See Pettiford v. State, 8 Md. App. 560, 569 (1970) (directing that
in cases of ambiguous verdict by trial judge, reviewing court should look to
appropriate surrounding circumstance). Accordingly, a finding of guilt should
be entered on the possession of cocaine count (Count 2). See Prue, 414 Md.
at 548 (listing as exception to rule that absence of verdict on count constitutes
an acquittal, case where there is a guilty verdict on a count charging a greater
offense, and silence on a count charging an offense which is lesser included).
In addition, for sentencing purposes, that count should be shown as merged.
CONCLUSION
For the foregoing reasons, the State respectfully requests that the
judgment of the Circuit Court for Anne Arundel County be affirmed.
Respectfully submitted,
DOUGLAS F. GANSLER
Attorney General of Maryland
BRENDA GRUSS
Assistant Attorney General
Counsel for Appellee
GRUSSB\brief - Furbush.wpd
Times New Roman 13 point
20
PERTINENT PROVISIONS
Rule 4-323. Method of making objections.
(a)
Objections to evidence. An objection to the admission of
evidence shall be made at the time the evidence is offered or as soon thereafter
as the grounds for objection become apparent. Otherwise, the objection is
waived. The grounds for the objection need not be stated unless the court, at
the request of a party or on its own initiative, so directs. The court shall rule
upon the objection promptly. When the relevancy of evidence depends upon
the fulfillment of a condition of fact, the court may admit the evidence subject
to the introduction of additional evidence sufficient to support a finding of the
fulfillment of the condition. The objection is waived unless, at some time
before final argument in a jury trial or before the entry of judgment in a court
trial, the objecting party moves to strike the evidence on the ground that the
condition was not fulfilled.
(b)
Continuing objections to evidence. At the request of a party or
on its own initiative, the court may grant a continuing objection to a line of
questions by an opposing party. For purposes of review by the trial court or
on appeal, the continuing objection is effective only as to questions clearly
within its scope.
(c)
Objection to other rulings or orders. For purposes of review by
the trial court or on appeal of any other ruling or order, it is sufficient that a
party, at the time the ruling or order is made or sought, makes known to the
court the action that the party desires the court to take or the objection to the
action of the court. The grounds for the objection need not be stated unless
these rules expressly provide otherwise or the court so directs. If a party has
no opportunity to object to a ruling or order at the time it is made, the absence
of an objection at that time does not constitute a waiver of the objection.
(d)
Formal exceptions unnecessary. A formal exception to a ruling
or order of the court is not necessary.
(2009 Rules)
Rule 8-131. Scope of Review.
(a)
Generally. The issues of jurisdiction of the trial court over the
subject matter and, unless waived under Rule 2-322, over a person may be
21
raised in and decided by the appellate court whether or not raised in and
decided by the trial court. Ordinarily, the appellate court will not decide any
other issue unless it plainly appears by the record to have been raised in or
decided by the trial court, but the Court may decide such an issue if necessary
or desirable to guide the trial court or to avoid the expense and delay of
another appeal.
(b)
In Court of Appeals — Additional limitations. (1) Prior appellate
decision. Unless otherwise provided by the order granting the writ of certiorari,
in reviewing a decision rendered by the Court of Special Appeals or by a
circuit court acting in an appellate capacity, the Court of Appeals ordinarily
will consider only an issue that has been raised in the petition for certiorari or
any cross-petition and that has been preserved for review by the Court of
Appeals. Whenever an issue raised in a petition for certiorari or a crosspetition involves, either expressly or implicitly, the assertion that the trial court
committed error, the Court of Appeals may consider whether the error was
harmless or non-prejudicial even though the matter of harm or prejudice was
not raised in the petition or in a cross-petition.
(2)
No prior appellate decision. Except as otherwise provided in
Rule 8-304(c), when the Court of Appeals issues a writ of certiorari to review
a case pending in the Court of Special Appeals before a decision has been
rendered by that Court, the Court of Appeals will consider those issues that
would have been cognizable by the Court of Special Appeals.
(c)
Action tried without a jury. When an action has been tried
without a jury, the appellate court will review the case on both the law and the
evidence. It will not set aside the judgment of the trial court on the evidence
unless clearly erroneous, and will give due regard to the opportunity of the trial
court to judge the credibility of the witnesses.
(d)
Interlocutory order. On an appeal from a final judgment, an
interlocutory order previously entered in the action is open to review by the
Court unless an appeal has previously been taken from that order and decided
on the merits by the Court.
(e)
Order denying motion to dismiss. An order denying a motion to
dismiss for failure to state a claim upon which relief can be granted is
reviewable only on appeal from the judgment.
(2009 Rules)
22
JOHN ROBERT FURBUSH,
Appellant
v.
STATE OF MARYLAND,
Appellee
*
*
*
IN THE
*
COURT OF SPECIAL APPEALS
*
OF MARYLAND
*
September Term, 2009
*
No. 1871
*
*
*
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of October, 2010, three
copies of the Brief of Appellee were hand-delivered to David P. Kennedy,
Assistant Public Defender, Office of the Public Defender, Appellate Division,
William Donald Schaefer Tower, 6 Saint Paul Centre, Suite 1302, Baltimore,
Maryland 21202.
BRENDA GRUSS
Assistant Attorney General
Office of the Attorney General
Criminal Appeals Division
200 Saint Paul Place
Baltimore, Maryland 21202
(410) 576-6317