Melissa Coley pled guilty in the Circuit Court for Caroline County to possession of a controlled dangerous substance and possession of drug paraphernalia.
On appeal of a court’s decision not to suppress evidence, our review is confined to the record of the suppression hearing. See, e.g., Longshore v. State,
Deputy William Bodnar of the Caroline County Sheriffs Office testified that, on July 8, 2012, at about 7:00 p.m., he was dispatched to Walker’s Grocery Store, located at 18230 Henderson Road in Marydel. He was assisted by Trooper Norton of the Maryland State Police.
Over a several-day period occurring four or five days prior to July 8, Deputy Bodnar had been called to the store two or three times per day. Employees of the store had reported a white female who would arrive at the store in a black Ford vehicle and loiter in front of the store for short periods of
When Deputy Bodnar arrived at Walker’s Grocery Store on July 8, a store employee said that Coley had left within the previous fifteen minutes. The employee believed that Coley had gone to Walker’s Trailer Park, the entrance to which was located 100 feet from the exit to the grocery store parking lot. Deputy Bodnar and Trooper Norton went to the trailer park and located Coley, alone, sitting in the driver’s seat of a black Ford Focus, which was parked in front of Lot 30. The vehicle was not running. The driver’s side door of the vehicle was open and Coley’s feet were on the ground.
Deputy Bodnar observed an open beer can “in the cupholder of the center console of the vehicle.” “On the center console, in front of the gearshifter knob,” he “observed torn, plastic Ziploc baggies,” one-inch in length, which he “believed to be drug paraphernalia, through [his] knowledge, training and experience.” In Deputy Bodnar’s view, the baggies appeared to have been “torn open.” “They were, the pieces that you would press together were, mainly was laying in the console and they had been torn open. They weren’t, so to speak, opened up[,] and the contents of the package would have been dumped out. They were actually torn open.” Deputy Bodnar testified that such torn plastic baggies are “used to package suspected heroin. The heroin’s wrapped in wax paper and then the wax paper’s folded into approximately
Upon finding the plastic baggies, Deputy Bodnar detained Coley and placed her in handcuffs in front of her vehicle. He then searched Coley’s purse and the interior of the vehicle. In Coley’s purse, Deputy Bodnar found wax paper, a lighter, and Q-tips. In a “hidden compartment” in the vehicle, Deputy Bodnar found four syringes and Ziploc baggies containing suspected heroin wrapped in blue wax paper. The State introduced photographs of the interior of Coley’s vehicle and of the items seized from Coley’s vehicle.
After hearing argument, the suppression court summarized Deputy Bodnar’s testimony and made oral findings of fact. The court did not believe the open beer can was “evidence of anything wrong.” The court found otherwise with regard to the torn plastic baggies.
“[Deputy Bodnar] did at the same time observe two small plastic baggies and as he said they were about one inch by two inch, which is not the, obviously not a sandwich bag, but has a limited use. Further he noticed that these were not just plastic baggies, but that they had the, they were torn at one end, which to the officer in his training indicates a, something which has been used to contain controlled dangerous substance and in particular heroin. At that time, um, due to the observation of the drug paraphernalia, the officer believed he had probable cause to search the vehicle for related paraphernalia. Now paraphernalia can be in different forms, but when the plastic baggies are such that the corners have been torn off, it would be an indication that they were, had been specifically used to previously contain a controlled dangerous substance and therefore residue could be in place and that would be a charge of possession of a controlled dangerous substance, not just a fineable offense, but an incarcerable offense. He detained the, asked the Defendant to get out. He detained her and then he searched the vehicle and found other controlled dangerous substances and other paraphernalia. I find that there was a reasonable, um, for the officer to believe that there was a
After waiving a jury trial, Coley, on January 9, 2013, pled guilty on an agreed statement of facts, and was sentenced on February 25, 2013. She noted this timely appeal.
Discussion
Our standard of review is well settled. “[W]e view the suppression court’s findings of fact, and reasonable inferences drawn therefrom, in the light most favorable to the prevailing party on the motion below, in this case, the State. We do not disturb those findings unless clearly erroneous.” McCracken v. State,
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects.” “The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” Pennsylvania v. Mimms,
In Carroll v. United States,
Probable cause is merely a practical, common sense determination, given the totality of the circumstances, that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates,
“the probable-cause standard is a ‘practical, nontechnical conception’ that deals with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ‘[PJrobable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.’ ”
Coley contends that Deputy Bodnar lacked constitutionally sufficient grounds to search her vehicle, for three reasons. First, his unconfirmed suspicion of prostitution did not authorize a warrantless arrest or search. Second, the presence of an open beer can in the center console of Coley’s car, which was not running and which was parked on private property, did not provide probable cause to search the vehicle. Finally, the presence of plastic baggies did not provide probable cause to search the vehicle because the baggies were not themselves contraband and, even if they were, “the discovery of some contraband [does not suggest] the likely presence of more contraband, yet to be discovered.” Appellant’s Brief at 9 (citing Bell v. State,
As we have noted, the State concedes error. The State agrees with Coley that neither Deputy Bodnar’s suspicion of prostitution nor his observation of the open beer can provided probable cause for an arrest or search. The State also submits, based on out-of-state decisions,
“that on the facts of this case, Deputy Bodnar’s observation of the torn Ziploc baggies did not furnish probable cause to search the car.... [T]he mere observation of knotted or torn plastic bags by an officer who, in light of his training and experience, believes them to be drug paraphernalia, does not furnish probable cause to search for illegal drugs or other paraphernalia.”
The agreed statement of facts submitted in support of Coley’s guilty plea has no bearing on our review of the suppression decision made three weeks earlier by a different judge than the one who accepted the plea. Furthermore, the agreed statement of facts and Deputy Bodnar’s testimony at the suppression hearing are not necessarily inconsistent. At the suppression hearing, Deputy Bodnar testified that, during one of the conversations he had with Coley before July 8, 2012, “[s]he advised that she was a prior heroin user and she had been clean for approximately one year, close to a year.” Deputy Bodnar did not testify to whether Coley made any statements after being arrested. The agreed statement of facts did not mention any event or conversation occurring prior to July 8, 2012. According to the statement, after the search of the vehicle,
“Ms. Coley was placed under arrest, read her Miranda rights, which she waived.... She did admit to being a former heroin addict, however, she stated she had been clean for about a year.”
Deputy Bodnar’s testimony and the agreed statement of facts are not mutually exclusive. Just as Deputy Bodnar’s testimony at the suppression hearing omitted anything that occurred after his search of the vehicle, the agreed statement of facts omitted anything that occurred prior to the evening of July 8.
In any event, the fact that the State’s proffer of proof may have differed slightly from Deputy Bodnar’s testimony does not change the record that was before the suppression court. In Trusty v. State,
“ ‘ “to retry before the jury the question which he has previously presented according to law for a final determination of the judge.” Absent notice to the defense that the legality of the search and seizure is somehow an “open” question throughout the trial, the defendant might well not challenge certain trial testimony which bolsters the pretrial suppression ruling but is not particularly damaging on the issue of guilt or innocence.’ ”
Id. at 671,
“What then of the reverse situation, that is, where again there was no renewal of the motion at trial but it is now the defendant who wishes the appellate court to take into account the testimony at trial because he thinks that testimony undercuts the testimony given in the pretrial hearing? Though it has occasionally been said that an appellate court ‘will look to relevant evidence produced on trial for any adverse effect it might have on admission of disputed items,’ courts have usually declined to do so in these circumstances. The most cogent explanation for this result is that because of the ‘defendant’s failure to move at that point for a reconsideration of his motion to suppress,’ the trial judge did not err ‘in not reconsidering its suppression ruling sua sponte.’ As noted earlier, there is some dispute as to whether reconsideration of a pretrial suppression ruling is a matter entirely within the trial judge’s discretion. But even Gouled v. United States [255 U.S. 298 ,41 S.Ct. 261 ,65 L.Ed. 647 (1921) ], which speaks of the court’s ‘duty’ to reconsider, described that duty as being ‘to entertain an objection’ when ‘in the progress of a trial, it becomes probable that there has been an unconstitutional seizure of papers.’ If there is no such duty when no objection is made, it would seem to follow that there is no reason for the appellate court to consider evidence the trial judge was not required to consider.”
6 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 11.7(d), at 581-82 (5th ed.2012) (footnotes omitted).
In this case, as the suppression ruling was not actually re-litigated before Coley’s guilty plea was accepted,
Accordingly, we do consider, as part of the totality of the circumstances, both Deputy Bodnar’s observation, in plain view in Coley’s vehicle, of torn one-inch plastic baggies that he knew from his training and experience to be likely heroin paraphernalia, and Deputy Bodnar’s prior knowledge that, by her own admission, Coley had been a heroin user in the past and had used heroin as recently as one year before. In our independent constitutional appraisal, those two facts constituted probable cause for Deputy Bodnar reasonably to believe that contraband — either heroin or other heroin paraphernalia — was present in Coley’s vehicle. The subsequent search of Coley’s purse and the interior of Coley’s vehicle was, therefore, reasonable, and did not violate the Fourth Amendment.
We recognize that possession of empty plastic bags, by itself, is not necessarily criminal. Items that police officers may recognize from their training and experience as likely drug paraphernalia may also have innocent uses. As the Supreme Court explained in Gates, however,
“probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands.... In making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.”
“Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion. See Florida v. Royer,460 U.S. 491 , 502,103 S.Ct. 1319 , 1326-27 [75 L.Ed.2d 229 ] (1983) (opinion of White, J.); id., at 515-16,103 S.Ct. at 1333-34 (Blackmun, J., dissenting); id. at 523-24,103 S.Ct. at 1337-38 (Rehnquist, J., dissenting). We said in Reid v. Georgia, 448 U.S. 438,100 S.Ct. 2752 [65 L.Ed.2d 890 ] (1980) (per curiam), ‘there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.’ Id. at 441,100 S.Ct. at 2754 . Indeed, Terry [v. Ohio ] itself involved ‘a series of acts, each of them perhaps innocent’ if viewed separately, ‘but which taken together warranted further investigation.’ 392 U.S. [1, 22,88 S.Ct. 1868 , 1881,20 L.Ed.2d 889 (1968)]; see also [United States v. Cortez,449 U.S. 411 , 417-19,101 S.Ct. 690 , 694-96,66 L.Ed.2d 621 (1981) ].”
Even though the plastic baggies did not at that moment contain controlled dangerous substances, the fact that they were empty is not what aroused Deputy Bodnar’s suspicion. Deputy Bodnar observed other characteristics of the baggies that suggested to him, based on his training and experience, that they had previously been used to hold controlled dangerous substances. We may give “considerable credit ... to the expertise of law enforcement officers in conducting investigations into illegal drug activity.” See, e.g., Birchead v. State,
Deputy Bodnar observed that the baggies were approximately one inch long. This size has limited utility for household purposes, and bags of this size are often used to package narcotics. Deputy Bodnar testified that such bags are commonly
“used to package suspected heroin. The heroin’s wrapped in wax paper and then the wax paper’s folded into approximately like a, I’ll say a half inch square and it’s placed inside the one inch big Ziploc baggy.”
The bags also had been torn open at one end. From Deputy Bodnar’s training and experience, he recognized that
“[t]hey were, the pieces that you would press together were, mainly was laying in the console and they had been torn open. They weren’t, so to speak, opened up[,] and the contents of the package would have been dumped out. They were actually torn open.”
Deputy Bodnar reasonably believed that the plastic baggies were not intended for innocent use and that they were, in fact, drug paraphernalia.
Deputy Bodnar’s suspicion that the plastic baggies were drug paraphernalia was bolstered by his existing knowledge, from Coley herself, that Coley had been “a prior heroin
Coley’s claim that she was no longer a heroin user (and whether Deputy Bodnar or the suppression court believed that she was no longer a heroin user) is irrelevant. The important fact is that Deputy Bodnar knew that she at least had been a heroin user. Deputy Bodnar’s observation of something that he believed, based on his training and experience, to be heroin paraphernalia, in the vehicle of a person who had admitted to him several days earlier that she had used heroin in the past, combined to form a fair probability that heroin or other paraphernalia would be found in the vehicle. In other words, there was probable cause justifying Deputy Bodnar’s subsequent search of the vehicle.
Coley’s reliance on Bell v. State,
On appeal, we upheld with “no difficulty” the initial police intrusion into the vehicle to retrieve the vial of white powder. Id. at 53,
Contrary to Coley’s assertion in her brief, in Bell we did not “criticize” the “proposition that the discovery of some contraband suggests the likely presence of more contraband yet to be discovered.” Appellant’s Brief at 9. Rather, we simply explained that that proposition was not before us in that case. In Bell, the police officers asserted only probable cause to believe that the one vial that they had seen Bell drop into the
By contrast, that argument was raised at the suppression hearing in this case.
JUDGMENTS OF THE CIRCUIT COURT FOR CAROLINE COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Notes
. At the January 9, 2013 plea hearing, the State entered a nolle prosequi as to an additional charge of prostitution.
. An appellate court is not bound by a party’s erroneous concession of error on a legal issue. See, e.g., Tamara A. v. Montgomery County Dep’t
. Trooper Norton did not testify at the suppression hearing.
. The statement of probable cause that Deputy Bodnar submitted in support of a statement of charges in the District Court does not mention any admission by Coley that she was or had been a heroin user.
. We also note that Coley has not raised this possible inconsistency in any way, either in the circuit court or on appeal. On the contrary, in her brief to this Court, she states:
"Deputy Bodnar had repeated contacts with the female, identified as Appellant, over several days [i.e., prior to July 8], During that time period, Deputy Bodnar spoke to Appellant and learned that she was a prior heroin user, but she had been clean for one year.”
Appellant's Brief at 3.
. Although Coley renewed her motion to suppress at the plea hearing for the purpose of preserving the issue for appeal, she did so in only the broadest of terms:
*582 "THE COURT: And also, just for purposes of the record, Mr. [Defense Attorney], had we had the trial today with live testimony I’m assuming you would have reasserted, just to preserve for the record, all the issues raised on the Motion to Suppress?
"[DEFENSE COUNSEL]: That's correct, Your Honor. Yes.
"THE COURT: And just for purposes of the record, ... what were those issues?
"[DEFENSE COUNSEL]: The issue was I filed a Motion because ... in our opinion, the unconsented to search of the vehicle was not supported by probable cause, and [the suppression judge] ruled against us. But under the circumstances, that we wanted Ms. Coley’s right to appeal that ruling.
"THE COURT: So, so, it was the ...
"[DEFENSE COUNSEL]: I, I made a Motion ...
“THE COURT: The warrantless, right.
"[DEFENSE COUNSEL]: To suppress the heroin and the syringes because of the warrantless, unconsented to search of the vehicle in which Ms. Coley was located.
"THE COURT: Okay. And that was the only issue raised with [the suppression judge]?
"[DEFENSE COUNSEL]: Yes.”
This would not have put the judge who received the plea on notice that there was an inconsistency between the agreed statement of facts and Deputy Bodnar’s testimony at the suppression hearing, or that the suppression ruling should be revisited. Coley did not request an opportunity to re-litigate the motion.
. Maryland Rule 4 — 252(h)(2)(C) provides:
“(C) If the court denies a motion to suppress evidence, the ruling is binding at the trial unless the court, on the motion of a defendant and in the exercise of its discretion, grants a supplemental hearing or a hearing de novo and rules otherwise. A pretrial ruling denying the motion to suppress is reviewable on a motion for a new trial or on appeal of a conviction.”
(Emphasis added).
. At the suppression hearing, the prosecutor argued:
“Your Honor, I think there are a few issues going on here. Um, I think that the, you know, the officer dealt with Ms. Coley previously that week, knew that there’s these ongoing allegations of prostitution and knew that she, uh, had been a heroin user. Um, and it’s, I think it’s often the case, I think that you can infer that she said, 'well yeah, I'm a heroin user but I'm not using now’ as something that would be somewhat typical of a, of a drug addict when they’re talking to a police officer. Um, so when he saw the ripped, torn baggies, I think that it was reasonable. I think there’s the assumption everyone would make, especially an officer with his knowledge and experience of how heroin is packaged is that she had paraphernalia, heroin paraphernalia in her motor vehicle. Um, once there's probable cause to believe there’s paraphernalia in the vehicle, then I think that it’s, it follows very easily that he’s allowed to search that vehicle for other paraphernalia or other illegal substances. Uh, and that can be a warrantless search because of the Carroll doctrine.”