Scribner v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1265

September Term, 2013

JAMAR SCRIBNER

v.

STATE OF MARYLAND

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

JJ.

Opinion by Eyler, Deborah S., J.

Filed: September 2, 2014
 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.

I.

The Suppression Hearing

Facts and Proceedings

Prior to trial, the appellant filed a motion to suppress evidence, namely, the firearm

discovered and seized during the 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.

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The jury found the appellant not guilty of possessing a firearm under sufficient
circumstances to constitute a nexus to a drug trafficking crime.
 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.

2
Detective Newton’s first name is not in the record.

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 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 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.”

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 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.

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 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

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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 inside it before he turned it over to the detectives who conducted

the search.

At the end of the evidence phase of the suppression hearing, the prosecutor argued:

[T]his is a very clear search incident to arrest. Certainly, the officers went
there with intention to arrest [the appellant] on the open arrest warrant.
However, they then pat down the [appellant] and during the pat down – and
remember the car it still on the scene, so the search of the car has not happened

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 at that point, during the pat down of the [appellant] they find CDS on his
person.

* * *

So, I certainly think at the point that they find CDS on his person, the scope of
the arrest has now broadened and they can now search the vehicle that he has
been in, for any evidence of further criminal activity . . . .

The prosecutor pointed out that the appellant was charged with possession of crack cocaine

with intent to distribute, and simple possession, that same day, January 16, 2013. She

explained:

So, I think it’s a difficult argument to make that at that point [the appellant is]
only being arrested for the [assault charge]. [The appellant] certainly is being
booked and charged at the same time with the new CDS charges, so I think
that, certainly, they can search the vehicle for any evidence – further evidence
of CDS.

The prosecutor further argued that, under Arizona v. Gant, 556 U.S. 332 (2009), the

officers were justified in searching the Solara without a warrant for further evidence of the

crimes for which the appellant was arrested; and “because [the appellant was] also being

arrested for the CDS” the officers could search the vehicle he had recently occupied for

further CDS-related evidence.

Defense counsel countered that Gant did not apply to the facts of this case, because

the appellant was arrested for second-degree assault, not for possession of crack cocaine.

Therefore, the arresting officers were not justified in searching the Solara for additional drug

evidence.

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 At the conclusion of the suppression hearing, the court held the matter sub curia. It

ruled from the bench four days later, on May 20, 2013. The judge discussed the holding in

Gant, quoting, in relevant portion, that “‘[c]ircumstances unique to an automobile context

justify a search incident to arrest when it is reasonable to believe that evidence of the offense

of arrest might,’ highlighting the word ‘might[,]’ ‘be found in the vehicle.’” He stated,

that’s what I’m going to find here. . . . The fact that [the appellant] was found
with a controlled dangerous substance and cash, left the home that was being
surveyed [sic] for purposes of getting ready to execute a search warrant related
to the [appellant], and I believe it was related to . . . evidence presented that
was related to drugs and that’s what they were searching for, controlled
dangerous substance and related items. To me would suggest that it’s entirely
possible and in fact there might be evidence found in the vehicle. So that
would authorize the police to enter the vehicle and search it under Arizona [v.]
Gant.

The judge found that the search of the Solara took place “an hour, hour and ten, twenty

minutes” after the arrest and the police officers’ justification for searching the Solara was not

attenuated simply because the search took place at the police station in that time frame. For

these reasons, the court denied the appellant’s motion to suppress the evidence found in the

Solara.

Discussion

The appellant argues on appeal as he did below that the warrantless search of the

Solara was not lawful under Gant, because he was arrested for assault, not for drug offenses

(possession of crack cocaine and related crimes). As the appellant puts it, “[t]he fruits of the

post-arrest search cannot provide an alternate justification for the arrest.”

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 In reviewing the ruling of the suppression court, we must rely solely upon the
record developed at the suppression hearing. See, e.g., Lee v. State, 418 Md.
136, 148 (2011). We view the evidence and inferences that may be drawn
therefrom in the light most favorable to the party who prevails on the motion,
id., here, the State. We give deference to the first-level factual findings made
by the suppression court, and we accept those findings unless shown to be
clearly erroneous. See, e.g., Elliott v. State, 417 Md. 413, 427 (2010). We,
however, make an independent appraisal of the constitutionality of a search,
“applying the law to the facts found in each particular case.” Id. at 428
(quoting Belote v. State, 411 Md. 104, 120 (2009)) (internal quotation mark
omitted).

Briscoe v. State, 422 Md. 384, 396 (2011) (parallel citations omitted).

Searches conducted without a warrant “‘are per se unreasonable under the Fourth

Amendment – subject only to a few specifically established and well-delineated exceptions.’”

Gant, 556 U.S. at 338 (quoting Katz v. United States, 389 U.S. 347, 357 (1967)) (footnote

omitted in Gant). “Among the exceptions to the warrant requirement is a search incident to

a lawful arrest. The exception derives from interests in officer safety and evidence

preservation that are typically implicated in arrest situations.” Id. (citations omitted).

In Gant, the United States Supreme Court clarified its holding in New York v. Belton,

453 U.S. 454 (1981), regarding warrantless vehicle searches incident to the lawful arrest of

the vehicle’s occupant. In Belton, the Court had held “that when an officer lawfully arrests

‘the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search

the passenger compartment of the automobile’ and any containers therein.” Gant, 556 U.S.

at 340-41 (quoting Belton, 453 U.S. at 460) (footnote omitted in Gant). That holding was

based on the Court’s “assumption ‘that articles inside the relatively narrow compass of the

8
passenger compartment of an automobile are in fact generally, even if not inevitably, within

the area into which an arrestee might reach.’” Id. at 341 (quoting Belton, 453 U.S. at 460)

(some internal quotation marks omitted).

The Gant Court acknowledged that Belton had been “widely understood to allow a

vehicle search incident to the arrest of a recent occupant even if there is no possibility the

arrestee could gain access to the vehicle at the time of the search.” Id; see Briscoe, 422 Md.

at 402 (quoting the foregoing language in Gant, explaining that “Maryland courts were no

different in this regard,” and citing several Maryland appellate cases to that effect). It

rejected this broad interpretation of Belton, explaining:

The experience of the 28 years since we decided Belton has shown that the
generalization underpinning the broad reading of that decision is unfounded.
We now know that articles inside the passenger compartment [of an
automobile] are rarely “within the area into which an arrestee might reach,”
and blind adherence to Belton’s faulty assumption would authorize myriad
unconstitutional searches.

Id. at 350-51 (internal citation and some internal quotation marks omitted). Accordingly, the

Court held: “Police may search a vehicle incident to a recent occupant’s arrest only if the

arrestee is within reaching distance of the passenger compartment at the time of the search

or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at

351 (emphasis added). As to the latter, the Court explained:

In many cases, as when a recent occupant is arrested for a traffic violation,
there will be no reasonable basis to believe the vehicle contains relevant
evidence. But in others, including Belton and Thornton [v. United States, 541
U.S. 615 (2004)], the offense of arrest will supply a basis for searching the
passenger compartment of an arrestee’s vehicle and any containers therein.

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556 U.S. at 343-44 (internal citations omitted).

In Gant, the defendant was stopped for driving on a suspended license, and was

handcuffed and secured in a police patrol car. Before moving the car, officers searched it

and found a jacket. Inside a pocket of the jacket they found cocaine in a plastic bag. The

defendant was charged with possession of a narcotic drug for sale and possessing of drug

paraphernalia and was convicted. The Court concluded that the warrantless search of Gant’s

car was unlawful because Gant “was not within reaching distance of his car at the time of the

search,” and because there was no “evidentiary basis for the search,” as the officers could not

have expected to find evidence of Gant’s offense – driving on a suspended license – in the

passenger compartment of his car. Gant, 556 U.S. at 344.

We return to the case at bar. The appellant argues that the warrantless search of the

Solara in which he had been a passenger was unlawful under Gant because he was not in a

position to access the car when it was searched in the parking lot of the police station, and

because officers could not have reasonably believed there was evidence in the car related to

his second-degree assault charge – the offense for which he had been arrested. According

to the appellant, the discovery of cocaine on his person during “the post-arrest search cannot

provide an alternate justification for the arrest.”

The facts adduced at the suppression hearing show that Officer DeFalco conducted

a lawful search of the appellant’s person incident to arresting him on the second-degree

assault warrant, and while doing so discovered a “clear plastic baggie containing a white rock

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like substance” in the appellant’s front right pocket. Officer DeFalco reasonably believed

the substance to be crack cocaine. When Officer DeFalco found crack cocaine on the

appellant’s person, he had probable cause to believe the appellant was committing a drug

offense. And, based on that probable cause, the appellant was charged with various drug

offenses that day. It makes no difference that the appellant initially was arrested for second-

degree assault pursuant to the warrant. When he was found to be in possession of cocaine,

the police had probable cause of a second arrestable offense. Both offenses were

encompassed in the act of arrest; a separate act of arrest was not necessary. Thus, the

appellant was arrested both on the open warrant and for crack cocaine possession.

The appellant was arrested standing next to the Solara, in which he recently had been

riding and that he was trying to enter. Under the circumstances, the arresting officers

reasonably could have believed that the Solara contained evidence of the cocaine possession

offense the appellant was under arrest for. Under Gant, this was sufficient to justify a

warrantless search of the Solara. It was not necessary for the State also to show that the

appellant was within reaching distance of the passenger’s compartment of the Solara when

the search was conducted. The court did not err in denying the appellant’s motion to

suppress the evidence recovered in the search of the Solara.

II.

Motion for Mistrial

Facts and Proceedings

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 As discussed, the appellant was charged with possession of cocaine, possession with

intent to distribute cocaine, possession of a firearm under circumstances sufficient to

constitute a nexus to drug trafficking, and possession of a regulated firearm after having been

convicted of a disqualifying offense. The trial in this case took place over three days,

between May 21 and May 23, 2013.

Detective Newton testified that he executed the search warrant at the house at around

6:00 or 7:00 p.m. on January 16, 2013, which was after the appellant’s arrest. He was

accompanied by another police officer and six or seven members of the SWAT team, who

secured the house. In a bedroom closet on the first floor, Detective Newton found $1,400

in cash in the “toe portion of a pair of sneakers.” He also discovered photographs of the

appellant in that bedroom. In a utility room, Detective Newton located a plastic bag

containing five 9mm bullets, and a “long . . . military style rifle.”

A forensic chemist with the Anne Arundel County Police Department’s Crime

Laboratory testified that the substance found on the appellant’s person in the parking lot of

the Safeway was 6.3 grams of cocaine.

Before trial, the parties stipulated in writing that “[t]he Defendant, Jamar Scribner, has

previously been convicted of a disqualifying offense in this state and is prohibited from

possessing a regulated firearm under the law.” The parties agreed that the jurors would

receive the stipulation and that they would not be told that the appellant’s disqualifying

offense was armed robbery.

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 On the second day of trial, the prosecutor moved the stipulation into evidence,

informing the jurors that it was “the stipulation of prior conviction of disqualifying offense.”

The State recalled Detective Holby and the court accepted him as an expert in the area

of controlled dangerous substances. Detective Holby testified that street level drug dealers

package and distribute cocaine “in small baggies” or “do it loose, just break it off and give

it to somebody.” He opined that the street value of cocaine is about $100 per gram, so the

cocaine seized from the appellant had a value of roughly $630. A street level buyer usually

buys “between 20 and 40 dollars worth,” or 0.2 and 0.4 grams, respectively. Those buyers

often use the lingo of “20 rock” or “40 rock” when seeking to buy these amounts of cocaine

from a street dealer. Detective Holby personally had purchased 20 and 40 rocks on the

streets of Annapolis, in an undercover capacity.

Detective Holby opined that cocaine can be ingested by smoking, snorting, or

injecting. The type of cocaine found on the appellant ordinarily would be smoked by using

a “little glass tube or a homemade smoking device [made] out of like a . . . miniature liquor

bottle.” No such smoking devices were found on the appellant’s person or in the Solara.

Based on the amount of cocaine found on the appellant, Detective Holby opined that the

appellant “did not intend to use” it. He explained that cocaine users buy “just enough to get

them by . . . they cannot hold on to 6.3 grams because they would try to smoke it all at once

and it probably would not be good for them.” Detective Holby also opined that users

“generally have the paraphernalia on their person,” and the fact that the appellant did have

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paraphernalia on his person or in the Solara indicated he “wasn’t going to smoke that CDS.”

Toward the end of Detective Holby’s direct examination, the following colloquy took

place:

[PROSECUTOR]: Now based on all the evidence that – that you’ve
seen and your own involvement in the case, as well as your briefing with the
other officers in this case have you – have you made an opinion as to – as to
the drugs . . . recovered in this case?

[DET. HOLBY]: Yes.

[PROSECUTOR]: What is your opinion?

[DET. HOLBY]: My opinion is that the CDS in this case is consistent
with street level sales.

[PROSECUTOR]: What are you basing that opinion on? What facts or
what evidence?

[DET. HOLBY]: The amount of the CDS, which was located. What
was located at the house, as well.

[PROSECUTOR]: Okay.

[DET. HOLBY]: As well as knowledge of Mr. Scribner.

Defense counsel objected and moved to strike. The court sustained the objection and stated

“[s]trike the last response. Yes.” A bench conference ensued, at which the following

colloquy took place:

[DEFENSE COUNSEL]: I’m moving for a mistrial, Your Honor.

THE COURT: I’m going to decline. The reason I’m declining is
because there’s already been stipulation in this particular case that the
Defendant has been convicted of the disqualifying offense and so the jury has

14
 some knowledge that your client has a previous record, and I don’t think that
. . . there’s been any damage done so that’s why I’m denying the motion.

[DEFENSE COUNSEL]: I just don’t think the jury’s going to make that
leap, Your Honor, that connection that you’re making because it’s not going
to be, you know – [Detective Holby] did know [the appellant’s] record when
[he] did the search warrant but again, the – the stipulation is a disqualifying
crime.

(Indiscernible) for this very reason so then if we didn’t (indiscernible),
you know, he’s saying because I knew about him so now he’s – he’s leading
them to think [the appellant’s] got prior distribution on his record.

THE COURT: I disagree with that at this point. It’s already in evidence
that there’s a stipulation of a disqualifying past that (indiscernible) any further
(indiscernible) mistrial.

[DEFENSE COUNSEL]: I would just like to note for the record –

THE COURT: It is on the record –

[DEFENSE COUNSEL]: Right, that the prior [disqualifying offense]
is not a drug crime . . .

THE COURT: Instruct the jury to disregard but I don’t believe that
(indiscernible).

Immediately after the bench conference, the court instructed the jury that “the Court

has stricken that last response. You’re to disregard the last answer of this witness.”

At the close of trial, the court instructed the jury, in relevant part, as follows:

The State and the Defense have agreed that the Defendant, Jamar Scribner, has
previously been convicted of a disqualifying offense in this state and is
prohibited from possessing a regulated firearm under the law as it relates to
Question 4 [i.e., the verdict question asking whether the appellant is guilty or
not guilty of possessing a regulated firearm after having been convicted of a
disqualifying offense].

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After the jury was instructed but before closing arguments, Defense counsel renewed her

mistrial motion with regard to Detective Holby’s testimony that he based his opinion in part

on his “knowledge of Mr. Scribner.” The court again denied the motion.

Discussion

The appellant contends the trial court abused its discretion by denying his mistrial

motion. He argues that Detective Holby’s testimony that his “knowledge of Mr. Scribner”

was one basis for his conclusion that “the CDS in this case is consistent with street level

sales” communicated to the jurors that Detective “Holby knows appellant to be a drug

dealer.” He emphasizes that, although the jurors were told by stipulation that he had a

previous conviction that disqualified him from possessing a firearm, they were not told the

nature of the conviction. The stipulation had the effect of making Detective Holby’s

testimony “the functional equivalent of evidence that appellant had been previously

convicted of the crime for which he was on trial, possession with intent to distribute.”

According to the appellant, the court’s curative instruction could not overcome the prejudice

inherent in this communication.

“Generally, appellate courts review the denial of a motion for a mistrial under the

abuse of discretion standard, because the ‘trial judge is in the best position to evaluate

whether or not a defendant's right to an impartial jury has been compromised.’” Dillard v.

State, 415 Md. 445, 454 (2010) (quoting Allen v. State, 89 Md. App. 25, 42-43 (1991)).

Here, the court determined in denying the motion that prejudicial information about the

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appellant’s past – the stipulation about a disqualifying conviction – already was in the record

and Detective Holby’s comment about his “knowledge” of the appellant would not cause

further prejudice, if appropriately stricken. We cannot say that the trial court abused its

discretion in concluding that any prejudice caused by Detective Holby’s remark could be

cured by striking it and instructing the jurors to disregard it.

Detective Holby’s testimony that one basis for his conclusion that the cocaine

recovered was consistent with street level sales was his “knowledge” of the appellant was

not tantamount to testimony that the appellant previously was convicted of a CDS crime.

Detective Holby did not specify what knowledge he had about the appellant, or when the

knowledge was acquired. The evidence disclosed that the police already had obtained a

warrant to search for drugs at the house the appellant was associated with and that they had

watched the appellant entering and exiting. If the jurors were going to draw any conclusion

from what Detective Holby said, it was much more likely that they would conclude that his

knowledge of the appellant came from the information that supported the search warrant, not

from knowing that the appellant had a CDS-related prior conviction. Moreover, the jurors

would have no reason to think that the “disqualifying offense” referenced in the stipulation

would have to do with drugs. They were more likely to think that the prior offense had to

do with gun possession, given that its only meaning to them was within the context of the

possession of a regulated firearm offense.

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 The trial court reasonably concluded that any prejudice that may have arisen from

Detective Holby’s comment about his “knowledge” of the appellant adequately could be

offset by striking the comment and instructing the jurors to disregard it. See Carter v. State,

366 Md. 574, 589 (2001) (“If a curative instruction is given, the instruction must be timely,

accurate, and effective.”). The trial court did not abuse its discretion in denying the

appellant’s motion for mistrial.

JUDGMENTS AFFIRMED. COSTS TO BE
PAID BY THE APPELLANT.

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