Appendix — Shaw v. Maryland

la

APPENDIX A

IN THE COURT OF APPEALS OF MARYLAND

September Term, 2001

No. 42

Corinthious James NATHAN,

v.

State of Maryland.

No. 61

STATE of Maryland,

V.

Horace Shaw, Jr.

August 29, 2002

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER,

CATHELL, HARRELL and BATTAGLIA JJ.

RAKER, Judge

In this case, we again address the constitutional limitations

on searches and seizures conducted during the course of a

traffic stop. Petitioner Corinthious James Nathan and

respondent Horace Shaw, Jr. were convicted of multiple drug

possession and importation charges in the Circuit Court for

Wicomico County, following the court’s denial of their motions

to suppress evidence seized as the result of a traffic stop and

search of the van that Nathan was driving and in which Shaw

was a passenger.

2a

The trial court denied the motions to suppress on the

grounds that the scope of the initial investigative detention was

reasonable, that Shaw consented to the search of the van, and

that the officer had reasonable and articulable suspicion for the

continued detention and investigation of Nathan and Shaw and

probable cause for the search of the van’s ceiling. Because we

agree that the initial traffic stop was valid and that the police

had reasonable suspicion for the continued detention of Nathan

and Shaw and probable cause for the search of the van’s

ceiling, we shall hold that the search and seizure of the

evidence from the vehicle was lawful.

L

On July 14, 1999, at approximately 8:15 p.m., Nathan was

driving a 1988 Dodge van owned by Shaw, who was a

passenger in the van at the time. Nathan and Shaw were

traveling south on U.S. Route 13 near Salisbury, Maryland,

where Police Sergeant Mike Lewis and Trooper First Class

Robert Penny were parked in an unmarked police cruiser.

While seated in the parked car, Sgt. Lewis heard what he

described as the sound of a vehicle traveling at an apparent high

rate of speed. Sgt. Lewis and Tfc. Penny pursued the vehicle

along the Route 13 bypass, pacing it at approximately seventy

miles per hour in a marked sixty-miles-per-hour zone. Sgt.

Lewis testified that he observed the vehicle drift across the

shoulder of the roadway on two occasions and that he noted

that the left brake lamp was out on the van.'

Sgt. Lewis activated his emergency equipment and stopped

the van. While effecting the stop, Sgt. Lewis noticed that there

* Defense counsel presented to the suppression court, as well as

this Court, a videotape of the traffic stop, recorded by the camera affixed to

Sgt. Lewis’ cruiser.

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was a passenger in the rear of the vehicle who raised and

lowered his head.

Sgt. Lewis approached the vehicle on the passenger side

and asked the driver, Nathan, for his license and registration.

The officer testified that, when Nathan lowered the passenger

side window, the odor of air freshener coming from the interior

of the vehicle was overwhelming. He testified that he observed

a conversion ceiling in the roof of the van that appeared to be

lower than normal. The blue fabric around the ceiling of the

eleven-year-old van appeared to be new and extremely tight,

with no evidence of fading or sagging.

Sgt. Lewis observed the passenger in the back of the van,

Shaw, lying beneath a couple of light travel bags and a blanket.

Sgt. Lewis asked him to move to the front of the van. Sgt.

Lewis testified that Shaw acted like he was asleep and that

when asked if he had identification, Shaw provided him with

the vehicle registration, which was in Shaw’s name, and some

additional documentation.

Sgt. Lewis asked Nathan to exit the vehicle and to move to

the rear of the van. Sgt. Lewis testified that he noticed that

Nathan’s carotid artery was pounding on both sides of his neck,

that his chest was palpitating, and that his hands were

trembling. He testified that Nathan would not make eye contact

with him and that he was unable to produce a driver’s license

or other form of identification.

Sgt. Lewis questioned Nathan about the origin of his trip.

Nathan first told him that he was coming from New York, then

said that he actually was coming from New Jersey. Nathan said

that he and Shaw were in New Jersey to pick up the van and

that they were taking it back to get the oil checked. Sgt. Lewis

testified that Nathan answered many of his questions with

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Sgt. Lewis then questioned Shaw concerning the origin of

his trip. Shaw responded that he and Nathan were coming from

New York and that they had driven to New York in a rental

vehicle to pick up the van. Sgt. Lewis testified that he noticed

Shaw’s hands trembling while he was talking to him, his

carotid artery pounding, and a nervous twitch above his eye.

He asked Shaw if he would consent to a “quick check” of his

vehicle for guns and drugs. Shaw agreed and stepped from the

van.” Sgt. Lewis patted Shaw down for weapons.

Sgt. Lewis entered the van on the driver’s side. He hit the

ceiling over the driver’s seat with his hand and observed that it

was solid and hard, with no flexibility. Sgt. Lewis testified as

to his experience with false compartments and their

significance to him. The Court of Special Appeals summarized

his testimony as follows:

“He stated that the fact that the ceiling was solid and

had no ‘give’ at all suggested that it had been

reinforced by steel. Sgt. Lewis testified that, since

1995, he had searched approximately nine to twelve

hydraulically controlled false compartments in van

ceilings. Although he found traces of narcotics in all

of these compartments, he found a quantity of

narcotics only in [Shaw]’s. He located guns and

curréncy in some cases, and he stated that ‘many were

empty.’ In Sgt. Lewis’ experience, this type of

construction is only used for hydraulic compartments,

and these compartments are only used for transporting

contraband. Sgt. Lewis believed that no one would

have a legitimate reason to have such a reinforced

2 Because probable cause and exigent circumstances justified the

search of Shaw’s vehicle, the validity of the search did not depend upon

Shaw’s purported consent. See Florida v. Royer, 460 U.S. 491, 497, 103 S.

Ct. 1319, 1323-24, 75 L. Ed. 2d 229 (1983).

Sa

ceiling put in a conversion van. Thus, once he had

knocked on the ceiling of the van, he became quite

convinced that there was a compartment.”

Sgt. Lewis testified that some of the hidden compartments that

he had searched concealed guns and currency, and some were

empty, but each one contained traces of narcotics. He

attempted to shift the console and found that he was unable to

pull it down. He testified that he believed that it was affixed

_ permanently with steel plates or rods.

Sgt. Lewis testified that he left the van to get a flashlight

to examine the ceiling. Upon returning, he tried and failed

again to move the console. He left the van again and returned

with a screwdriver to attempt to pry open the console. When

he was unable to move the console, he returned to his vehicle

and called for backup and requested information on the vehicle

and its occupants.

Sgt. Lewis went over to Nathan and Shaw to tell them that

the tags on the van indicated that it was stolen. He handcuffed

Nathan and Shaw and placed them in “investigative detention.”

Sgt. Lewis admitted that he had no information that the vehicle

was stolen and that his only purpose in securing Nathan and

Shaw was to prevent a physical confrontation. Once he had

placed handcuffs on Nathan and Shaw, Sgt. Lewis told them

that he knew that there was a secret compartment in the van and

asked them for the code to open it. He advised both men that,

if they did not tell him the code, he would have to rip open the

ceiling. Nathan and Shaw did not respond, and Sgt. Lewis then

tore open the ceiling where he subsequently discovered a secret

compartment containing 4.8 kilograms of cocaine and 193

grams of pure heroin wrapped in gray duct-taped packages. At

approximately 8:34 p.m., nineteen minutes after stopping the

vehicle, Sgt. Lewis placed Nathan and Shaw under arrest,

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advised them of their Miranda rights, and transported them to

the Maryland State Police Barracks in Salisbury.

Prior to trial, Nathan and Shaw filed motions to suppress

the physical evidence found at the scene of the traffic stop on

the grounds that it was seized illegally in violation of the

Fourth Amendment and Article 26 of the Maryland Declaration

of Rights. The trial court denied their motions to suppress on

the grounds that the scope of the initial investigative detention

of Nathan and Shaw was reasonable, that Shaw freely and

voluntarily consented to the search of the van, and that the

officer had reasonable and articulable suspicion for the

continued detention of Nathan and Shaw in order to investigate

possible criminal activity at the time that Shaw was asked to

exit the vehicle and probable cause to believe that weapons and

drugs were present in order to search the van’s ceiling.

Following separate jury trials, Nathan and Shaw were

found guilty of ten counts relating to the importation and

possession of cocaine and heroin. Both men noted appeals to

the Court of Special Appeals.

The Court of Special Appeals affirmed Nathan’s

convictions in an unreported opinion. Judge Ellen Hollander,

writing for the panel, found that, by the time the detention had

been prolonged beyond the permissible scope of the initial

traffic stop, Sgt. Lewis had the requisite reasonable, articulable

suspicion necessary to prolong bis investigation, in light of his

observations and training, which led him to believe that he had

detected a hidden compartment that was being used for an illicit

purpose. The intermediate appellate court also found, based on

the totality of the circumstances, that Sgt. Lewis had probable

cause to believe that the roof of the van contained contraband,

which rendered his warrantless search of the van lawful.

A different panel of the Court of Special Appeals reached

a contrary conclusion and, in an unreported opinion, reversed

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Shaw’s convictions. The intermediate appellate court found

that, by the time that Sgt. Lewis began his extensive

questioning of Nathan and Shaw regarding their travel plans,

his focus had shifted from a traffic stop to a narcotics

investigation and that he did not- possess the articulable

suspicion required for their continued detention. With regard

to the search of the van, the court found that Shaw initially had

consented voluntarily to the search, but that, by the time Sgt.

Lewis had begun to dismantle the ceiling of the van, the

consent had “expired” and Sgt. Lewis did not have the

necessary probable cause to continue without it.

In dissent, Judge Moylan wrote:

“{Ojn the facts of this case based on the evidence

before the suppression hearing judge in this case, the

discovery of a hydraulically-controlled and reinforced

hidden ceiling compartment in the conversion van

ipso facto generated probable cause to believe that the

van may have contained contraband so as to justify a

warrantless, and perhaps painstakingly thorough,

search of it under Carroll v. United States, 267 U.S.

132, 45 S. Ct. 280, 69 L. Ed. 543 (1925).”

Although Judge Moylan would find probable cause based on

the presence of this “unexplained ‘vehicular hidden bank

vault,’” he concluded by noting that, when he considered the

other factors surrounding this stop in addition to the hidden

compartment, his probable cause determination became even

stronger.

We granted certiorari in both cases primarily to determine

whether the stop and detention of Nathan and Shaw violated

the Fourth Amendment and whether the police had reasonable

suspicion or probable cause to believe that the occupants of the

van were trafficking in guns or drugs. State v. Shaw, 365 Md.

8a

266, 778 A.2d 382 (2001); Nathan v. State, 364 Md. 534, 774

A.2d 408 (2001). We shall affirm Nathan and reverse Shaw.

I.

Nathan and Shaw argue that Sgt. Lewis violated their

Fourth Amendment rights by immediately suspending the

ostensible traffic stop in favor of an investigatory detention.

They argue that the police clearly detained them beyond the

permissible scope of a traffic stop. They also argue that the fact

that their vehicle was a conversion van, when coupled with

other innocuous facts, did not give the police reasonable,

articulable suspicion or probable cause to believe that they were

trafficking in guns or drugs. Finally, they argue that Shaw’s

assent to Sgt. Lewis’ request to conduct a “real quick check”

for guns and drugs did not authorize him to rip open the ceiling

of the van.

The State argues that Sgt. Lewis’ conduct during the initial

traffic stop, including ordering Nathan out of the vehicle and

questioning Nathan and Shaw regarding their destination and

purpose, was reasonable. The State also argues, based on the

totality of the circumstances after the initial conversations with

Nathan and Shaw, that Sgt. Lewis had reasonable suspicion to

continue the encounter. Finally, the State argues that, once Sgt.

Lewis had made an initial inspection of the van’s ceiling, he

had probable cause to conduct his more thorough search, and

that Shaw’s consent to the search of the van was voluntary.

Il.

Our review of the Circuit Court’s denial of the motion to

suppress evidence under the Fourth Amendment is based solely

upon the record of the suppression hearing. See In re David S.,

367 Md. 523, 529, 789 A.2d 607, 610 (2002). In Wilkes v.

State, 364 Md. 554, 774 A.2d 420 (2001), we reiterated the

standard of review of a ruling upon a motion to suppress:

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“In our review of the trial court’s denial of [a] motion

to suppress, we are limited to the record of the

suppression hearing. We review the facts found by

the trial court in the light most favorable to the

prevailing party .... We extend great deference to

the fact finding of the suppression court and accept

the facts as found by that court unless clearly

erroneous. We will review the legal questions de

novo and based upon the evidence presented at the

suppression hearing and the applicable law, we then

make our own constitutional appraisal.”

Id. at 569, 774 A.2d at 429 (internal citations omitted).

The Fourth Amendment to the United States Constitution

prohibits unreasonable searches and seizures, including

seizures that involve only a brief detention.* See United States

v. Arvizu, 534 U.S. 266, ___, 122 S. Ct. 744, 750, 151 L. Ed. 2d

740 (2002); United States v. Mendenhall, 446 U.S. 544, 551,

100 S. Ct. 1870, 1875, 64 L. Ed. 2d 497 (1980); Ferris v. State,

355 Md. 356, 369, 735 A.2d 491, 497 (1999). Generally,

seizures of persons require probable cause to arrest, and

investigative detentions violate the Fourth Amendment in the

absence of probable cause. See Florida v. Royer, 460 U.S. 491,

499, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983). Terry v.

Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and

its progeny created a limited exception to the probable cause

requirement for investigative detentions, because the balance

3 The Fourth Amendment provides:

“The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons

or things to be seized.”

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between the public interest and the individual’s right to

personal security tilts in favor of a standard less than probable

cause in those cases. See Arvizu, 534 U.S. at__, 122 S. Ct. at

750, 151 L. Ed. 2d 740; United States v. Sokolow, 490 U.S. 1,

7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989). Under Terry,

certain seizures are justifiable under the Fourth Amendment if

there is a reasonable and articulable suspicion that the person

is involved in criminal activity. See Royer, 460 U.S. at 498,

103 S. Ct. at 1324, 75 L. Ed. 2d 229; United States v. Cortez,

449 US. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621

(1981); David S., 367 Md. at 532, 789 A.2d at 612; Quince v.

State, 319 Md. 430, 433, 572 A.2d 1086, 1088 (1990). For

Fourth Amendment purposes, a police officer who has

reasonable suspicion that a particular person has committed, is

committing, or is about to commit a crime may detain that

person briefly in order to investigate the circumstances that

provoked suspicion. See Arvizu, 534 U.S. at___, 122 S. Ct. at

751, 151 L. Ed. 2d 740; Berkemer v. McCarty, 468 U.S. 420,

439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317 (1984).

Reasonable suspicion of criminal activity warrants a

temporary seizure for questioning limited to the purpose of the

stop. See Royer, 460 U.S. at 499, 103 S. Ct. at 1325, 75 L. Ed.

2d 229; United States v. Brignoni-Ponce, 422 U.S. 873, 881-

82, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607 (1975). The

determination of whether reasonable suspicion existed is made

by looking at the totality of the circumstances in each case to

see whether the officer had a particularized and objective basis

for suspecting illegal activity. See Arvizu, 534 U.S. at___, 122

S. Ct. at 749, 750, 151 L. Ed. 2d 740; Cortez, 449 U.S. at 417-

18, 101 S. Ct. at 695, 66 L. Ed. 2d 621; Graham v. State, 325

Md. 398, 408, 601 A.2d 131, 136 (1992).

The stop of an automobile and detention of the occupants

inside constitute a “seizure” within the meaning of the Fourth

Amendment, even though the purpose of the stop is limited and

lla

the resulting detention is brief. See Whren v. United States, 517

U.S. 806, 809, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996);

United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568,

1573, 84 L. Ed. 2d 605 (1985); Wilkes, 364 Md. at 571, 774

A.2d at 430; Ferris, 355 Md. at 369, 735 A.2d at 497. Thus,

temporary detentions for traffic violations must not be

unreasonable under the circumstances. See Whren, 517 U.S. at

810, 116 S. Ct. at 1772, 135 L. Ed. 2d 89. In Ferris, we said:

“[T]he officer’s purpose in an ordinary traffic stop is

to enforce the laws of the roadway, and ordinarily to

investigate the manner of driving with the intent to

issue a Citation or warning. Once the purpose of that

stop has been fulfilled, the continued detention of the

car and the occupants amounts to a second detention.

Thus, once the underlying basis for the initial traffic

stop has concluded, a police-driver encounter which

implicates the Fourth Amendment is constitutionally

permissible only if either (1) the driver consents to the

continuing intrusion or (2) the officer has, at a

minimum, a reasonable, articulable suspicion that

criminal activity is afoot.”

355 Md. at 372, 735 A.2d at 499 (internal citations omitted).

In this case, it is undisputed that the initial traffic stop of

Nathan and Shaw by the Maryland police for traveling in

excess of the posted speed limit was justified. See Wilkes, 364

Md. at 572, 774 A.2d at 431. Nathan was speeding on the

public highway, and Sgt. Lewis had probable cause to stop the

vehicle.

With the above principles in mind, we turn to the first

question that we must address —that is, whether the officer’s

conduct during the traffic stop was sufficiently related to the

legal basis for the stop, namely the moving violation. See

Ferris, 355 Md. at 372, 735 A.2d at 499. It is clear that an

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officer conducting a routine traffic stop may request a driver’s

license, vehicle registration, and insurance papers, run a

computer check, and issue a citation or a warning. See

Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401,

59 L. Ed. 2d 660 (1979); Wilkes, 364 Md. at 578, 774 A.2d at

434.

In order for the continued detention of Nathan and Shaw

to be permissible, therefore, there had to exist reasonable,

articulable suspicion of criminal activity sufficient to justify the

seizure, and the limits of a Terry stop must not have been

exceeded. See Royer, 460 U.S. at 498-99, 103 S. Ct. at 1324-

25, 75 L. Ed. 2d 229; Ferris, 355 Md. at 384, 735 A.2d at 506.

Under Ferris, in order to justify a greater intrusion unrelated to

the traffic stop, the totality of the circumstances known to the

police officer must establish reasonable suspicion or probable

cause to support the intrusion. See United States v. Johnson, 63

F.3d 242, 247 (3rd Cir. 1995); Wilkes, 364 Md. at 574, 774

A.2d at 432; Ferris, 355 Md. at 372, 735 A.2d at 499. Absent

consent, the officer may only detain the driver and conduct

further questioning if, during the traffic stop, the officer

acquires an objectively reasonable and articulable suspicion of

further illegal activity supported by independent facts sufficient

to justify the additional intrusion. See People v. Redinger, 906

P.2d 81, 85-86 (Colo. 1995); Caldwell v. State, 780 A.2d 1037,

1047 (Del. 2001); Ferris, 355 Md. at 372-73, 735 A.2d at 499;

Commonwealth v. Torres, 674 N.E.2d 638, 642 (Mass. 1997).

This involves an objective assessment of the officer’s actions

in light of the facts and circumstances confronting the officer

at the time. See Sokolow, 490 U.S. at 8, 109 S. Ct. at 1585, 104

‘ _ A police officer may order a driver and occupants out of a

lawfully stopped vehicle incident to a traffic stop. See Maryland v. Wilson,

519 U.S. 408, 414-15, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41 (1997);

Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S. Ct. 330, 332-33, 54

L. Ed. 2d 331 (1977); Ferris, 355 Md. 356, 382 n.9, 735 A.2d 491, 505 n.9.

13a

L. Ed. 2d 1; Terry, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed.

2d 889; Ferris, 355 Md. at 384, 735 A.2d at 506; Derricott v.

State, 327 Md. 582, 588, 611 A.2d 592, 595-96 (1992).

Fundamentally, in determining whether the search and seizure

of Shaw’s automobile was reasonable, our initial inquiry is a

dual one— whether Sgt. Lewis’ action was justified at its

inception and whether it was reasonably related in scope to the

circumstances that justified the interference in the first place.

See Terry, 392 U.S. at 19-20, 88 S. Ct. at 1878-79, 20 L. Ed. 2d

889.

Reasonable suspicion is more than a mere hunch but is “a

less demanding standard than probabie cause and requires a

showing considerably less than preponderance of the evidence.”

Illinois v. Wardlow, 528 U.S. 119, 123, 120S. Ct. 673, 675-76,

145 L. Ed. 2d 570 (2000). The United States Supreme Court

has most recently discussed the concept of reasonable suspicion

in Arvizu. Noting that the concept is somewhat abstract and

elusive, not finely tuned, the Court has deliberately avoided

reducing it to a uniform set of legal rules. See Arvizu, 534 U.S.

at__, 122 S. Ct. at 751, 151 L. Ed. 2d 740; Ornelas v. United

States, 517 U.S. 690, 695-96, 116 S. Ct. at 1661, 134 L. Ed. 2d

911 (1996). Nonetheless, we do know that reasonable

suspicion is a less demanding standard than probable cause.

See David S., 367 Md. at 532, 789 A.2d at 612. The Supreme

Court has made clear that otherwise innocent behavior may

constitute reasonable suspicion when analyzed as part of the

totality of the circumstances. See Sokolow, 490 U.S. at 9-10,

109 S. Ct. at 1586-87, 104 L. Ed. 2d 1; Illinois v. Gates, 462

U.S. 213, 244 n.13, 103 S. Ct. 2317, 2335 n.13, 76 L. Ed. 2d

527 (1983); Ferris, 355 Md. at 386, 735 A.2d at 507. In this

regard, the Court stated:

“When discussing how reviewing courts should make

reasonable-suspicion determinations, we have said

repeatedly that they must look at the ‘totality of the

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circumstances’ of each case to see whether the

detaining officer has a ‘particularized and objective

basis’ for suspecting legal wrongdoing. This process

allows officers to draw on their own experience and

specialized training to make inferences from and

deductions about the cumulative information available

to them that ‘might well elude an untrained person.’

Although an officer's reliance on a mere ‘hunch’ is

insufficient to justify a stop, the likelihood of criminal

activity need not rise to the level required for probable

cause, and it falls considerably short of satisfying a

preponderance of the evidence standard.”

Arvizu, 534 U.S. at __, 122 S. Ct. at 750-51, 151 L. Ed. 2d

740 (internal citations omitted). |

Even though each of a series of acts is innocent standing

alone, taken together they can constitute reasonable suspicion.

See id. at__, 122 S. Ct. at 751, 151 L. Ed. 2d 740; Sokolow,

490 U.S. at 9, 109 S. Ct. at 1586, 104 L. Ed. 2d 1.

Furthermore, a determination that reasonable suspicion exists

need not rule out the possibility of innocent conduct. See

Arvizu, 534 U.S. at ___, 122 S. Ct. at 753, 151 L. Ed. 2d 740;

Wardlow, 528 U.S. at 125, 120 S. Ct. at 677, 145 L. Ed. 2d

570.

In Arvizu, the Supreme Court also discussed the

application of the totality of the circumstances test to otherwise

“innocent” conduct, stating:

“We think that the approach taken by the Court of

Appeals here departs sharply from the teachings of

these cases. The court's evaluation and rejection of

seven of the listed factors in isolation from each other

does not take into account the ‘totality of the

circumstances,’ as our cases have understood that

phrase. The court appeared to believe that each

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observation by [the border patrol agent] that was by

itself readily susceptible to an innocent explanation

was entitled to ‘no weight.’ Terry, however, precludes

this sort of divide-and-conquer analysis. The officer in

Terry observed the petitioner and his companions

repeatedly walk back and forth, look into a store

window, and confer with one another. Although each

of the series of acts was ‘perhaps innocent in itself,’

we held that, taken together, they ‘warranted further

investigation.’”

534 U.S. at___, 122 S. Ct. at 751, 151 L. Ed. 2d 740 (internal

citations omitted). Thus, Arvizu makes clear that courts must

not view in isolation factors upon which police officers rely to

create reasonable suspicion.

The fact that Nathan, the driver, was unable to produce

identification, in combination with Sgt. Lewis’ observations of

Nathan and Shaw’s extreme nervousness,’ Shaw’s apparent

pretense of sleep when the vehicle was initially stopped,

Nathan’s evasive answers regarding his travel plans, the

inconsistent versions of the trip itinerary and purpose provided

by Nathan and Shaw, the “overwhelming” odor of air freshener,

and the altered ceiling that led the officer to believe that the van

5 In Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999), we

cautioned against “placing too much reliance upon a suspect’s nervousness

when analyzing a determination of reasonable suspicion.” Jd. at 389, 735

A.2d at 509. Nonetheless, we also characterized Ferris’s nervousness as

being “unexceptional.” Jd. We concluded that “Ferris’s unexceptional

nervousness, in reaction to encountering Trooper Smith, was simply too

ordinary to suggest criminal activity.” Jd. In the instant case, however,

Nathan and Shaw’s nervousness was characterized by Sgt. Lewis as extreme.

As indicated supra, the fact that conduct may be innocent does not

immunize it from consideration in determining reasonable suspicion.

Nonetheless, we reiterate that a claim that ordinary nervousness indicates

complicity in criminal activity must be treated with caution. Jd.

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had a hidden compartment, as well as the police observations

prior to the traffic stop (the passenger’s head bobbing up and

down in the rear window), were sufficient grounds, taken

together, reasonably to warrant an investigative detention. See

Royer, 460 U.S. at 502, 103 S. Ct. at 1326, 75 L. Ed. 2d 229;

United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir. 1995);

United States v. Springer, 946 F.2d 1012, 1017 (2nd Cir.

1991); United States v. Hardy, 855 F.2d 753, 758 (11th Cir.

1988). Therefore, Sgt. Lewis had reasonable, articulable

suspicion to believe that Nathan and Shaw were engaged in

criminal activity, and that suspicion was sufficient to support

their continued detention.

We turn next to the question of whether the police had

grounds to search the van. As we have indicated supra, we

need not consider whether the police conduct exceeded the

scope of Shaw’s consent to search because we find that Set.

Lewis had probable cause to search the vehicle and the hidden

compartment. See supra note 2 and accompanying text.

Police officers who have probable cause to believe that

there is contraband or other evidence of criminal activity inside

an automobile that has been stopped on the road may search it

without obtaining a warrant. See Maryland v. Dyson, 527 U.S.

465, 466-67, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d 442 (1999);

Florida v. Meyers, 466 U.S. 380, 381, 104 S. Ct. 1852, 1852-

53, 80 L. Ed. 2d 381 (1984); Carroll v. United States, 267 U.S.

132, 153-54, 45 S. Ct. 280, 285, 69 L. Ed. 543 (1925). If

supported by probable cause, every part of a vehicle that may

conceal the object of the search may be searched. See United

States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 2173, 72 L.

Ed. 2d 572 (1982); United States v. Zucco, 71 F. 3d 188, 192

(Sth Cir. 1995).

The significance of a vehicle alteration or hidden

compartment in a vehicle is an issue of first impression for this

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Court. Every court that has considered the question has

concluded that evidence of a hidden compartment can

contribute to a finding of probable cause to search. See, e.g.,

United States v. Anderson, 114 F.3d 1059, 1066 (10th Cir.

1997); United States v. Inocencio, 40 F.3d 716, 723-24 (Sth

Cir. 1994); United States v. Martel-Martines, 988 F.2d 855,

858-59 (8th Cir. 1993). We need not decide in this case

whether a false ceiling or hidden compartment alone would

constitute probable cause to believe that drugs or contraband

are secreted in a vehicle because, in the case sub judice, that

factor is only one part of the mosaic.

By the time Sgt. Lewis began his extensive search and

dismantling of the van’s ceiling, he had probable cause to

believe that the van contained contraband and, therefore, he

was justified in searching it without a warrant under the well-

established “automobile exception” enunciated in Carroll. 267

U.S. 132, 153-54, 45 S. Ct. 280, 285, 69 L. Ed. 543 (1925).

Considering the totality of the circumstances, we conclude that

Sgt. Lewis’ observations of the van’s ceiling, in combination

with Nathan and Shaw’s suspicious behavior, were sufficient

to constitute probable cause to search the van, including the

ceiling. Before Shaw consented to any search, Sgt. Lewis had

noticed that the height of the ceiling in the van was lower than

normal and that the fabric was new and taut, not as one would

normally expect in an eleven-year-old van. The ceiling of the

van was solid, hard, with no flexibility, and the map lights

would not move, indicating to the officer that there was a false

hydraulic compartment containing contraband similar to one

that he found in a conversion van four weeks earlier. Sgt.

Lewis testified that the console felt like it was affixed with steel

plates and that, in a normal van ceiling, the screws would be

removable in the center section to allow for the replacement of

bulbs and vents dealing with air conditioning and heating.

18a

These factors, taken together, clearly amounted to sufficient

probable cause for his search of the van’s ceiling.

The facts of the case sub judice are strikingly similar to

those in United States v. Anderson, 114 F.3d 1059 (10th Cir.

1997). In that case, a Kansas Highway Patrol officer stopped

Anderson’s vehicle because he was following the car in front

of him too closely. During the course of the traffic stop, the

trooper made the following observations: the driver of the car

and his passenger gave slightly conflicting versions of their

travel itinerary, the trooper detected the scent of air freshener

in the car, the driver was carrying a pager, the car’s gas tank

had been tampered with, and there appeared to be a hidden

compartment in the gas tank. The United States Court of

Appeals for the Tenth Circuit concluded that those factors

together constituted sufficient probable cause to search the

car’s gas tank. Id. at 1066.

United States v. Inocencio, 40 F.3d 716 (Sth Cir. 1994), is

likewise instructive. In that case, border patrol agents stopped

a pick-up truck exiting a ranch after triggering directional

vehicular sensors set up to detect narcotics smugglers

attempting to circumvent checkpoints along a major drug

smuggling artery. See id. at 719-20. When the agents spotted

the truck, several factors aroused their suspicions: they were

unfamiliar with the vehicle, it had no company logos, tools, or

pipe racks typical of oil field trucks, the agents were unaware

of any oil activity in the area, and Reyes’ (the driver) clothes

appeared to be too clean for him to have been working in the

oil field. Jd. at 720. Based on their suspicions, the agents

stopped the truck for an immigration inspection. While

questioning Reyes, one agent noticed signs of a false

compartment in the bed of the truck— the back of the truck was

higher than normal, and there was fresh paint and undercoating

around and underneath the bed of the truck. Following a search

of the truck, the agents recovered approximately 300 pounds of

19a

cocaine from a false compartment in the bed of the truck and,

as a result, they arrested Reyes. The Court of Appeals for the

Fifth Circuit held that reasonable suspicion for the immigration

stop existed. Jd. at 723. The court also concluded that Reyes’

nervousness, conflicting statements explaining his presence on

the ranch and his inability to read oil charts and graphs,

together with the agents’ observations regarding the existence

of a false compartment, created sufficient probable cause to

search the vehicle. Id. at 724.

The United States Court of Appeals for the Eighth Circuit

reached a similar conclusion in United States v. Martel-

Martines, 988 F.2d 855, 858-59 (8th Cir. 1993). In that case,

police stopped the truck that Martel-Martines was driving for

speeding. Jd. at 856. During the course of the traffic stop,

Martel-Martines consented to allow the police to search the

truck. Jd. at 857. While walking around the rear of the truck,

the patrol officer observed a custom-cut plywood board

covering the length of the truck bed. When he lifted the board,

he saw two lines of caulking in the metal bed. Looking

underneath the truck with his flashlight, the trooper could

observe that the truck bed recently had been reconstructed to

support a concealed compartment. The officer had the truck

taken to the police headquarters garage where a small hole was

made in the hidden compartment, through which the officers

could smell chemicals and observe cellophane wrapping around

a brown object. At that point, the police arrested Martel-

Martines, and the police ultimately discovered a large quantity

of cocaine during thorough searches of the vehicle. Although

the court found that Martel-Martines had consented to the

search of his truck, the court, assuming arguendo that the

search exceeded the scope of the consent given, held that, by

the time that the officers punched the hole in the truck

compartment, they had sufficient probable cause to support a

warrantless search of the concealed compartment, based on

20a

Martel-Martines’s evasive and inconsistent answers to routine

questions and their visual observations of the hidden

compartment. Jd. at 858-59.

For all of the above stated reasons, we find that the search

of the vehicle and the seizure of the evidence from within were

lawful.

JUDGMENT OF THE COURT OF SPECIALAPPEALS IN

NO. 42 AFFIRMED. COSTS TO BE PAID BY

PETITIONER NATHAN. JUDGMENT OF THE COURT

OF SPECIAL APPEALS IN NO. 61 REVERSED. CASE

REMANDED TO THAT COURT WITH INSTRUCTIONS

TO CONSIDER REMAINING ISSUES PREVIOUSLY

RAISED BUT NOT DECIDED. COSTS IN THIS COURT

TO BE PAID BY RESPONDENT SHAW AND COSTS IN

THE COURT OF SPECIAL APPEALS TO ABIDE THE

RESULT.

2la

Dissenting Opinion by BELL, Chief Judge, in which

ELDRIDGE, Judge, joins

I agree with the conclusion reached by a divided Court of

Special Appeals in its unreported opinion in Horace Shaw, Jr.

v. State, filed June 5, 2001, and most of the rationale offered in

the very perceptive majority opinion by Judge Kenney. The

opinion proceeded on the premise that, subsequent to the traffic

stop, there was a second stop, as Ferris v. State, 355 Md. 356,

372, 735 A.2d 491, 499 (1999) recognized there could be and

it applied Ferris, its progeny, Charity v. State, 132 Md. App.

598, 753 A. 2d 556, cert. denied, 360 Md. 487, 759 A.2d 231

(2000), Snow v. State, 84 Md. App. 243, 578 A. 2d 816 (1990)

and Whitehead v. State, 116 Md. App. 497, 698 A. 2d 1115,

cert. denied, 348 Md. 207, 703 A.2d 148 (1997), faithfully and

forthrightly.

Acknowledging that the traffic stop was valid, based on the

speed of the defendants’ van, an equipment defect and the

officers’ observations of the manner in which the van was

driven after it was signaled to pull over, the court analyzed

whether, and if so, when, a second stop, based on the shifting

of the focus from the traffic violation to a criminal, and more

specifically, a narcotics, violation, occurred. Notwithstanding

that Sgt. Lewis, upon approaching the defendants’ van,

noticed, as the trial court reported, a “lowered ceiling,

conversion ceiling in the roof part of the van that appeared to

be new fabric, blue, it wasn’t faded at all in this eleven-year-old

van” and the ceiling “was extremely tight or erect, there was no

sagging in the ceiling,” an observation likely to arouse Sgt.

Lewis’s suspicion, given his recent experience with a

conversion van he discovered to have a hidden hydraulic

compartment in the ceiling directly above the driver and right

front seat passenger, it concluded that when the defendants

were ordered out of the van, it was done pursuant to the

officer’s prerogative under Pennsylvania v. Mims, 434 U.S.

22a

106, 111, 98 S. Ct. 330, 333, 54 L. Ed.2d 331, 337 (1977) and

Maryland v. Wilson, 519 U.S. 408, 411-12, 117 S. Ct. 882,

884-85, 137 L. Ed.2d 41,46 (1997). Although he might have

been operating with a dual motive, the court believed that Sgt.

Lewis’s questions were proper, “even though they did not

appear to have much to do with whether Nathan had committed

traffic violations, and that Sgt. Lewis was “ostensibly obtaining

information related to the traffic stop” when he obtained

Nathan’s particulars. During the course of that interview, due

to Nathan’s obvious nervousness - according to Sgt. Lewis, his

carotid pulse was “pounding in his neck, his chest was

palpitating, his hands were trembling”- his changing in mid-

sentence his answer as to the origin of the trip, the manner in

which he answered a question with a question and his refusal

to look Sgt. Lewis in the eye, Sgt. Lewis became more

susf icious.

It was when the Sergeant left Nathan to question Shaw “for

the apparent purpose of catching the men with inconsistent

stories” that the focus of the stop shifted, the intermediate

appellate court determined. It was during this questioning that

Sgt. Lewis’s suspicions were further raised as a result of

Shaw’s behavior and response; Shaw displayed similar

nervousness to that displayed by Nathan: Sgt Lewis noticed that

Shaw’s hands were trembling, there was a nervous twitching

just above and behind his right eye and, like Nathan, his carotid

pulse was racing in his neck. Noting that the questions put to

Shaw was directed not to the traffic offences, but to the

Origination and, perhaps, the circumstances, the court

determined that the focus of the stop had shifted to the

narcotics investigation rather than the traffic stop. It, thus,

proceeded to consider whether there was either a valid consent

or a reasonable, articulable suspicion of criminal activity to

support a further detention of the defendants.

23a

Although the court concluded that the defendants

consented to the search of the van, it, nevertheless, addressed

whether Sgt. Lewis had reasonable suspicion. It listed the

historical facts known to Sgt. Lewis:

“Two African Americans pulled over by two

Caucasian, Maryland State troopers are nervous.

“The van contained air fresheners.

“The van, which turned out to be a 1988 model, had

some recent work done on the inside such that the

ceiling covering seemed new and pulled tight; Sgt.

Lewis had found a hydraulic compartment containing

a weapon in a conversion van approximately four

weeks earlier.

“Both the driver and the passenger had been

cooperative and totally compliant with all of his

instructions despite initial cause for alarm, including

the fact that [Shaw] had been lying down in the back.

“Nathan, who did not own the van and was not related

to [Shaw], gave a different story than [Shaw] as to

where they were coming from and why they were

there.’”

It then considered whether any of them or collectively,

those factors provided the requisite level of certainty that

Criminal activity was afoot.

Discounting the air fresheners on the basis of Charity, 132

Md. App. at 639, 753 A.2d 578 (“The air fresheners, although

they may have created a hunch, did not create an articulable

' The most significant discrepancy, the court determined, was

whether the defendants went to New York in the van or in a rental car.

24a

suspicion”) and Snow,’ the nervousness of the defendants on

the strength of Ferris’ and Snow, 84 Md. App. at 260, 578 A.

2d at 824 (nervousness is a “highly subjective observation”)

and the inconsistent stories with Whitehead, 116 Md. App. at

504, 698 A. 2d at 1119 (“There is nothing about not having

their stories together, about just whom they visited, or about the

day that they left Baltimore, that somehow yields an inference

of possession of narcotics. Or, put another way, there is

nothing about narcotics laws violators that police can recognize

2 In Snow v. State, 84 Md. App. 243, 261, 578 A. 2d 816, 824

(1990), the Court of Special Appeals observed, as to air fresheners:

“Air fresheners are, as far as we know, a completely legitimate

object; some are, undoubtedly, thought to be ornamental as well

as functional. Nor is the fact that Snow had three air fresheners,

as opposed to one, suspicious. The addition of a new freshener

without removing the old one is not unusual. As with other

cleaning products, when the consumer is uncertain regarding the

useful life of a product, the tendency is to keep the old one for a

while longer.

% We were emphatic in Ferris v. State, 355 Md. 356, 388, 735

A.2d 491, 508 (1999):

“The nervousness, or lack of it, of the driver pulled over by a

Maryland State trooper is not sufficient to form the basis of

police suspicion that the driver is engaged in the illegal

transportation of drugs. There is no earthly way that a police

officer can distinguish the nervousness of an ordinary citizen

under such circumstances from the nervousness of a criminal

who traffics in narcotics. An individual's physiological reaction

to a proposed intrusion into his or her privacy cannot establish

probable cause or even grounds to suspect. Permitting citizen's

nervousness to be the basis for a finding of probable cause would

confer upon the police a degree of discretion not grounded in

police expertise, and, moreover, would be totally insusceptible

to judicial review.” (Quoting Whitehead v. State, 116 Md. App.

497, 698 A. 2d 1115, cert. denied, 348 Md. 207, 703 A.2d 148

(1997)).

25a

from an inability to agree upon these details of their journey to

New Jersey.”), the court held:

“These factors may certainly have given rise to a

“hunch” on Sgt. Lewis’s part, but we do not believe

they add up to articulable suspicion in light of Ferris

and Charity. We note further that, at this point, Sgt.

Lewis had not radioed in any information to his

dispatch to determine the status of the van or its

occupants, and he also saw or smelled nothing other

than air freshener that would lead him to believe that

the van contained contraband.”

Although “[hJe never conducted a thorough search of the

interior of the van, did not look under the seats, in the bags

[Shaw] and Nathan had in the back of the van, or in the glove

box or other containers,” and never checked for weapons,

despite an earlier profession of concern arising from Shaw’s

movements in the back of the van, the court observed that Sgt.

Lewis entered the van five times in an effort to locate, open and

search the hidden compartment he was convinced was there.

Based on his earlier experience with a conversion van

containing a hydraulic ceiling compartment, the court further

pointed out, his focus was on the front part of the van, where

the map lights are located. Quoting Sgt. Lewis, it described the

first entry: having hit the ceiling twice and checked the two

map lights for functionality and finding them to both be

working, he tried to pry down that area, where the entrance to

the compartment in the earlier van was located, without

success; “[a]t that point in time I couldn’t budge it, it wouldn’t

even pull down at all, it wouldn’t budge, it was like it was

permanently affixed with steel plates or steel rods.”

The second entry was with a flashlight, “to further inspect

the area.” When he still could not gain entry, Sgt. Lewis

obtained a screwdriver, which he concealed from the

26a

defendants, for assistance. Even with that assistance, he failed

to gain entry to any hidden compartment. The intermediate

appellate court concluded, as to these search efforts:

“We believe that all of these actions were acceptable,

although Sgt. Lewis walked on the line of what a

reasonable person would find acceptable pursuant to

a consent to search when he tried to pry the ceiling

compartment open.”

(footnote omitted).

After reviewing the testimony of Sgt. Lewis at the

suppression hearing, the Court of Special Appeals concluded

that he was convinced that there was a hidden compartment

once he knocked on the ceiling of the van. To the court, it was

significant that, after the third entry and attempt to find and

search the compartment, Sgt. Lewis stopped and “advised

[Shaw] and Nathan that he was going to get them ‘right out of

here’ and that he was going to radio in that everyone was “all

right,’” and did, in fact, call the dispatcher, but, rather than wait

for a response as to whether there were any outstanding

warrants, he told the defendants that the van was reported

stolen, which he knew to be false. It was also significant that,

after handcuffing them, Sgt. Lewis acknowledged that the van

had not been reported stolen, advised them for the first time of

his belief that the van had a false hydraulically controlled

compartment in the ceiling and demanded that they provide

him with the location. When neither defendant cooperated,

indeed indicated that they did not know about what he was

talking, Sgt. Lewis “stated multiple times that he would tear

into the ceiling of the van even though he did not want to do

so.”

Observing that, when he began to pry open the

compartment, he was “looking for narcotics more so than other

contraband,” the Court of Special Appeals opined that, “[t]o the

27a

extent that [Shaw] had previously consented to a search of his

van, . . . that consent had expired by this point.” Moreover, it

rejected the State’s argument that the consent continued

because neither man instructed Sgt. Lewis to stop or in any way

objected:

“Prior to radioing in to dispatch, Sgt. Lewis had

- indicated to appellant and Nathan that he would have

them on their way shortly, which, no doubt, any

reasonable person would interpret as a sign that the

search was over. Moreover, to the extent that Sgt.

Lewis was asking for consent to rip into the ceiling of

the van, such consent was hardly voluntary in view of

the fact that he was threatening to do so anyway and

both men were in handcuffs.”

(Citing Doering v. State, 313 Md. 384, 401-02, 545 A. 2d

1281, 1289 (1988).

Turning to the question of whether, at that time, Sgt. Lewis

had probable cause to believe that the van contained

contraband, the court answered, “no.” Its reasoning is clear and

logical. Reviewing the definition of probable cause, as

explicated in Dixon v. State, 133 Md. App. 654, 678, 758 A.2d

1063, 1076 (2000), “a fair probability that contraband or

evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76

L.Ed.2d 527 (1983); see State v. Lee, 330 Md. 320, 326, 624

A.2d 492 (1993), i.e., a nontechnical conception of a

reasonable ground for belief of guilt and recognizing, as

Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657,

134 L.Ed.2d 911 (1996) teaches, that:

“The principal components of a determination of

probable cause will be the events which occurred

leading up to the stop or search, and then the decision

whether these historical facts, viewed from the

28a

standpoint of an objectively reasonable police officer,

amount to. . .probable cause,”

the court enumerated the historical facts in the case up to the

point of the expiration of the consent, with an eye toward

determining whether they amounted to probable cause. In

addition to those historical facts already identified, they were

determined to be:

* * * *

“The two men were driving a van with out of state

license plates down Route 13.

* * * *

“Sgt. Lewis found that the ceiling of the van was hard.

“There was a television mounted into a panel

extending perpendicular to the ceiling, a Sony

Playstation mounted in that same panel, and a VCR

or other component mounted underneath the panel.

“Sgt. Lewis was unable to find any openings or

wires suggesting the presence of a hydraulic

compartment, nor was he able to pry open the panel

containing the map lights, the site of a hydraulic

container in [a] van detained previously.

“There were containers in the car, such as bags, but

Sgt. Lewis did not look inside them.”

Then viewing the facts from the point of view of a reasonable

police officer, as it was required to do, see Ornelas, 517 U.S.

at 700, 116 S. Ct. at 1664, 134 L. Ed.2d at 921, the

intermediate appellate court opined:

“[T]he majority of the factors listed above do not rise

to the level of probable cause. For example, air

fresheners, only two of which were in the front of the

van, are not indicative of criminal behavior, nor

is nervousness. Suspicions might be aroused by the

29a

two men's differing stories as to how they got to New

York. but this gives rise to generalized suspicion

rather than objective proof of wrongdoing. This leaves

us with some generalized suspicion along with a hard

ceiling in the van. Sgt. Lewis certainly provided

expert testimony regarding the uses of hydraulically

controlled compartments in conversion vans, yet we

must look at this from the point of view of an

objectively reasonable police officer with training and

experience in narcotics trafficking.”

The court discounted the cases from other jurisdictions

involving searches of hidden compartments, noting “[i]n

virtually all cases, there was something more than was present

in this case.” It concluded:

“An objectively reasonable police officer might have

suspected that the van contained a_ hidden

compartment, but, other than the fact that the ceiling

was hard, there was nothing else, i.e., wires or an

obvious opening, that would indicate the presence of

acompartment. We do not believe that, in this case,

the generalized suspicion tips the scale into the realm

of probable cause. Both men were extremely

cooperative and nothing was present to indicate the

presence of contraband.”

On the basis of this opinion, therefore, I would affirm the

judgment in Shaw and reverse the judgment in the companion

case, Nathan, in which another panel of the intermediate

appellate court reached the opposite result.

To the majority, sufficient grounds to justify an

investigative detention have been established by the following

facts, taken together:

30a

“that Nathan, the driver, was unable to produce

identification, in combination with Sgt. Lewis’s

observations of Nathan and Shaw’s extreme

nervousness,‘ Shaw’s apparent pretense of sleep when

the vehicle was initially stopped, Nathan’s evasive

answers regarding his travel plans, the inconsistent

versions of the trip itinerary and purpose provided by

Nathan and Shaw, the “overwhelming” odor of air

fresheners, and the altered ceiling that led the officer

to believe that the van had a hidden compartment, as

well as the police observations prior to the traffic stop

(the passenger’s head bobbing up and down in the rear

window),”

— aa A. 2d ___, ____ (2002)[slip op. at 16-

17], leading to the conclusion that‘ “S gt. Lewis had reasonable,

articulable suspicion to believe that Nathan and Shaw were

engaged in criminal activity, and that suspicion was sufficient

to support their continued detention.” Jd. at 17,___ A. 2d at

__.. The majority also holds that Sgt. Lewis had probable

cause to search the van, reasoning:

“Considering the totality of the circumstances, we

conclude that Sgt. Lewis’s observations of the van’s

* In Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999), we

cautioned against “placing too much reliance upon a suspect’s nervousness

when analyzing a determination of reasonable suspicion.” Jd. at 389, 735

A.2d at 509. Nonetheless, we also characterized Ferris’s nervousness as

being “unexceptional.” Jd. We concluded that “Ferris’s unexceptional

nervousness, in reaction to encountering Trooper smith, was simply too

ordinary to suggest criminal activity.” Jd. In the instant case, however,

Nathan and Shaw’s nervousness was characterized by Sgt. Lewis as extreme.

As indicated supra, the fact that conduct may be innocent does not

immunize it from consideration in determining reasonable suspicion.

Nonetheless, we reiterate that a claim that ordinary nervousness indicates

complicity in criminal activity must be treated with caution. Id.

3la

ceiling, in combination with Nathan and Shaw’s

suspicious behavior, were sufficient to constitute

probable cause to search the van, including the

ceiling. Before Shaw consented to any search, Sgt.

Lewis had noticed that the height of the ceiling in the

van was lower than normal and that the fabric was

new and taut, not as one would normally expect in an

eleven-year-old van. The ceiling of the van was solid,

hard, with no flexibility, and the map lights would not

move, indicating to the officer that there was a false

hydraulic compartment containing contraband similar

to one that he found in a conversion van four weeks

earlier. Sgt. Lewis testified that the console felt like

it was affixed with steel plates and that, in a normal

van ceiling, the screws would be removable in the

center section to allow for the replacement of bulbs

and vents dealing with air conditioning and heating.

These factors, taken together, clearly amounted to

sufficient probable cause for his search of the van’s

ceiling.”

Id, at 18-19,___ A. 2d at___.

In reaching the latter conclusion, the majority focuses

heavily on Sgt. Lewis’s observations of the van’s ceiling, the

conclusions he drew from those observations and his having

discovered a false hydraulic compartment in a conversion van

similar to Shaw’s four weeks earlier. It finds support for that

focus in three cases involving hidden compartments, United

States v. Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997);

United States v. Inocencio, 40 F.3d 716, 723-24 (Sth Cir.

1994); United States v. Martel-Martines, 988 F.2d 855, 858-59

(8th Cir. 1993). The “suspicious behavior” to which the

majority refers relates back, I surmise, to the “grounds” found

sufficient to justify the defendants’ continued detention.

32a

_ Iam disturbed by the majority’s holding that the facts that

the defendants were nervous and gave inconsistent versions of

the trip’s itinerary and purpose and that air fresheners were

present in the van are significant indicia of the existence of

probable cause. As we have seen, the appellate courts of this

state have previously considered each of these factors and

determined that they are slender reeds on which to base

reasonable suspicion, not to mention probable cause.

In Ferris, this Court, as the majority itself acknowledges,

cautioned against “placing too much reliance upon a suspect’s

nervousness when analyzing a determination of reasonable

suspicion.” Jd. at 389, 735 A.2d at 509. It cited a number of

cases from other courts to that effect. United States v. Wood,

106 F.3d 942, 948 (10th Cir. 1997); Gonzalez-Rivera v.

Immigration & Naturalization Service, 22 F.3d 1441, 1447 (9th

Cir. 1994); Buffkins v. City of Omaha, 922 F.2d 465, 470 n. 13

(8th Cir. 1990); United States v. Andrews, 600 F.2d 563, 566

(6th Cir. 1979), cert. denied sub nom._Brooks v. United States,

444 US. 878, 100 S. Ct. 166, 62 L. Ed.2d 108 (1979); State v.

Washington, 623 So.2d 392, 398-99 (Ala. Crim. App.1993);

State v. Magner, 191 Ariz. 392, 956 P.2d 519, 524 (Ct.

App.1998); State v. DeMarco, 263 Kan. 727, 952 P.2d 1276,

1283-84 (1998); State v. Mendoza, 748 P.2d 181, 184 (Utah

1987). We pointed out that characterizing an individual as

nervous, even unusually so, “is an extremely subjective

evaluation.” Ferris, 355 Md. at 389, citing United States v.

Fernandez, 18 F.3d 874, 879 (10th Cir. 1994). That is

especially the case when the officer has had no prior interaction

with the person whose behavior is being characterized; under

those circumstances, we noted, the officer “could not

reasonably gauge [the person’s] behavior during the traffic stop

with his usual demeanor.” Jd. citing, for that proposition,

United States v. Beck, 140 F.3d 1129, 1139 (8th Cir. 1998).

33a

To be sure, we characterized the “nervousness” in Ferris

as being “unexceptional,” and, therefore, “simply too ordinary

to suggest criminal activity.” Ferris, 355 Md. at 389, 735 A.2d

at 509 On the other hand, citing Whitehead, 116 Md. App. at

505, 698 A. 2d at 1119, with approval, we acknowledged:

“Permitting a citizen's nervousness to be the basis for

a finding of probable cause would confer upon the

police a degree of discretion not grounded in police

expertise, and, moreover, would be totally

insusceptible to judicial review.”

In the instant case, the majority finds solace in the fact that

Nathan and Shaw’s nervousness was characterized by Sgt.

Lewis as extreme. Unfortunately, it does not provide a basis

for differentiating between “ordinary nervousness,” which still

must be treated with caution and extreme nervousness, which

does not and cannot be the basis for probable cause, except by

reference to the police officer’s characterization. The majority,

thus, seems to be ceding the determination of the level of

nervousness of a driver to the police, whom it has already

decided, because of lack of prior experience and expertise, as

well as the unreviewability of any conclusion thereby made, are

ill-equipped to do so. Moreover, this analysis undermines the

very forceful statement in Ferris, providing the road map for

getting around its proscription: simply characterize the

nervousness as extreme. This is particularly distressing because

that is precisely what the characterization will be in each

succeeding case, every police officer will become quite aware,

and quite adept at discerning palpitations, of the carotid pulse.

In Ferris, we accepted the admonition of the court in United

States v. Millan-Diaz, 975 F.2d 720, (10th Cir.1992), against

according too much weight to the State’s routine claim that

garden variety nervousness accurately indicates complicity in

criminal activity: “This repetitive assertion by the Government

in all cases of this kind must be treated with caution.” United

34a

States v. Millan-Diaz, 975 F.2d at 722 . 355 Md. at 389, 735

A. 2d at 508-09. No less caution should be shown when the

routine claim is of extreme nervousness.

The Court of Special Appeals, in Whitehead, addressed the

effect on the probable cause calculus of two or more persons

giving inconsistent stories with regard to the trip’s destination,

purpose or origin during a traffic stop. It held that an inability

to agree upon these details does not establish probable cause.

116 Md. App. at 504, 698 A.2d at 1119. The same conclusion

was reached as to air fresheners in Charity; a hunch the

presence of such fresheners may provide, but certainly not

probable or even reasonable suspicion. In Charity, it also must

be remembered, there were 72 air fresheners on the rear view

mirror. In this case, there were but four, two in the front of the

van and two in the rear. It is also interesting that the

characterization of this effect, by the same officer, by the way,

was the same — overwhelming.

Whether the driver of the van produced a driver’s license

adds little, if anything to the inquiry. To be sure, Maryland

Code (1977, 1998 Repl. Vol.) § 16-112 (c) of the

Transportation Article requires every driver to have his or her

driver’s license with him or her and to display it on demand to

any uniformed police officer. Failure to have a license in

possession and, thus, to display it, is a misdemeanor punishable

only by afine. See Md. Code (1977, 1998 Repl. Vol.) § 27-101

(a) and (b) of the Transportation Article. This is to be

contrasted with the requirement that every driver be licensed.

See Md. Code (1977, 1998 Repl. Vol.) § 16-101 of the

Transportation Article. No serious effort was made by Sgt.

Lewis to determine which it was, driving without license in

possession or driving without a license. Nor does the driver’s

evasiveness appreciably advance the inquiry. In fact, it would

seem to fall squarely within the ambit of the rule with respect

to conflicting stories. Shaw’s pretense of sleep when Sgt. Lewis

35a

initially approached the van and the observations of the police

prior to the traffic stop (the passenger’s head bobbing up and

down in the rear window) may have had relevance early on, but

it was dissipated by subsequent events - both defendants were

very cooperative and it was not deemed necessary by Sgt.

Lewis to even search the area of the van where Shaw first was

seen.

This leaves for consideration only Sgt. Lewis’s

observations of the van’s ceiling. At the outset, I am offended

by the suggestion that customization of, or an alteration to, a

1988 conversion van, or any older model vehicle, for that

matter, provides a basis for reasonable suspicion to justify a

further detention or probable cause to support a search. As far

as I know, there is no law against, and indeed no sound basis

for discouraging, the owner of such a vehicle from customizing

it, repairing it and/or improving it, as an option to purchasing

anew one. But the rule that the majority formulates, because

it potentially subjects to search all conversion vans so altered

and perhaps all vehicles that have been customized and altered

from factory specifications, would burden the decision to

customize and alter and, thus, discourage its being done.

Nor does the inspection of the van’s ceiling justify the

conclusion that there was reasonable suspicion for detention or

probable cause to search. This is true notwithstanding that Sgt.

Lewis had an experience several weeks before which resulted

in his discovery in a conversion van of a hydraulically operated

compartment. Neither this experience,’ nor Sgt. Lewis’s

* __Indubitably, the hidden compartment found in the conversion van

several weeks earlier was not a prototype for the hidden compartment in this

conversion van, as the location of its entrance was different than the

location of the entrance to this one, a fact that Sgt. Lewis discovered after

taking claw hammer to ceiling in the area where he located the other

compartment and finding nothing.

36a

asserted extensive training and experience in drug interdiction®

suffices to establish, with the requisite degree of certainty,

without empirical data to support it, that this conversion van, or

any other, has a hidden compartment and, if so, that those

compartments are frequently used to conceal contraband.

Certainly, the likelihood that hidden compartments in

conversion vans will frequently or almost always be used to

conceal contraband is a matter of statistical fact, which is

subject to proof. The anecdotal testimony of Sgt. Lewis simply

does not suffice as such proof. Indeed, as Nathan reminds us:

“Tt cannot fairly be disputed that automobiles are

endlessly accessorized and customized in perfectly

innocent ways. To say that the fact that a vehicle has

had some customized improvement satisfies the

requirement that there is a ‘fair probability that

contraband or evidence of a crime will be found in a

particular place,’ would . . . place all manner of

innocent drivers at risk for unwarranted governmental

6 Sgt. Lewis’s testimony that other conversion vans had hidden

compartments, in his experience, and were used to conceal contraband is not

probative. Relevant in this regard is the proffer made at the suppression

hearing to the effect that “there is nothing unusual about an older van being

converted. It’s much cheaper to spend five or six thousand dollars in putting

in all this equipment than spending forty or fifty thousand for a new van.

And it’s done all the time. And one person even said that by safety

regulations they have to reinforce the ceiling above the driver when they put

in TV’s, et cetera, into such vans. And that it would be nothing unusual

about this particular van.”

Also, As Nathan points out, Sgt. Lewis testified that in fifteen years, he had

personally search nine to twelve compartments of the type in this conversion

van and in only one of them was any quantity of contraband discovered. In

any event, that Sgt. Lewis has seen other hidden compartments in which

contraband was concealed is far from dispositive of probable cause. The

police regularly find contraband in various parts of vehicles and, yet, those

prior discoveries do not provide probable cause to search the next car or

another vehicle ia the location where the contraband was found.

37a

intrusion. See Ferris v. State, 355 Md. at 386 (‘factual

circumstances which “describe a very large category

of innocent travelers” cannot in of themselves justify

a seizure.’ (Quoting Reid v. Georgia, 448 U.S. 438,

441, 100 S. Ct. 2752, 2754, 65 L. Ed.2d 890, 894

(1980))”

The majority’s assertion that Anderson, Inocencio and

Martel-Martines support the result in this case is not

persuasive. Anderson is similar to the case, sub judice, insofar

as three of the factors relied upon for probable cause, the smell

of air fresheners, conflicting stories about the travel itinerary,

the existence of a hidden compartment, are concerned. Two of

them, the former two, do not suffice in Maryland to establish

either reasonable suspicion or probable cause. As to the hidden

compartment, there is a significant difference between coming

upon such a compartment inadvertently and surmising that

there must be one simply because work has been done on an

older vehicle and because the officer recently has come across

a vehicle with one. Moreover, there is a significant difference

between a hidden compartment in a gas tank and one suspected

of being in the ceiling of a van, based only on the fact that the

older van was improved.

Inocencio involved a roving Border Patrol stop and, so, is

subject to a different analysis, that is guided by the principles

enunciated by the United States Supreme Court in United

States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L.

Ed. 2d 607 (1975). 40 F. 3d at 722. Those principles permit

Border Patrol officers on roving patrol to detain vehicles

temporarily for investigation when they are “aware of specific

articulable facts, together with rational inferences from those

facts, that reasonably warrant suspicion” that the vehicle is

involved in illegal activities. Jd. citing United States v.

Cardona, 955 F.2d 976, 980 (Sth Cir.), cert. denied, 506 U.S.

942, 113 S. Ct. 381, 121 L. Ed.2d 291 (1992) (quoting

38a

Brignoni-Ponce, 422 U.S. at 884, 95 S. Ct. at 2581-82, 45 L.

Ed.2d at 618 ) and noting that United States v. Cortez, 449 U.S.

411, 421-22, 101 S. Ct. 690, 66 L. Ed.2d 621 (1981) expanded

the Brignoni-Ponce “reasonable suspicion” test for alien

smuggling to encompass vehicle stops for any suspected

criminal activity. Factors have been developed to assess

whether a Border Patrol agent has acted with reasonable

suspicion:

“(1) known characteristics of a particular area, (2)

previous experience of the arresting agents with

criminal activity, (3) proximity of the area to the

border, (4) usual traffic patterns of that road, (5)

information about recent illegal trafficking in aliens or

narcotics in the area, (6) the behavior of the vehicle's

driver, (7) the appearance of the vehicle, and (8) the

number, appearance and behavior of the passengers.”

Id., citing United States v. Castaneda, 951 F.2d 44, 47 (Sth Cir.

1992) (citing United States v. Melendez-Gonzalez, 727 F.2d

407, 411 (Sth Cir. 1984) (in turn citing Brignoni-Ponce, 422

U.S. at 885)). Notwithstanding the absence of the proximity

factor, the court in Reyes determined that Brignoni-Ponce

applied, nonetheless, and that “[a] careful examination of the

facts creates a reasonable suspicion of illegal activity,”

including several of the Brignoni-Ponce factors, Inocencio, 40

F.3d at 723, as follows:

“The agents testified at trial that Reyes [the driver]

appeared nervous and offered conflicting statements

in explaining his presence on Helen Ranch Road. In

addition, they testified that Reyes was unable to read

certain graphs and charts that he claimed he was

working on while in the area [and] that the bed of the

vehicle was higher than normal, the discovery of fresh

paint (on a brand new truck) around the fender wells

39a

and the fresh undercoating beneath the bed of the

truck.”

Id. at 723-24. The court concluded that the cumulation of these

factors amounted to probable cause. Thus, given the context,

there was a good deal more in that case than in this one.

The result in Martel-Martines is governed by the consent

to search that the defendant gave in that case. The analysis

based on a lack of valid consent is pure dicta.

There was a time in America when a person with an older

van or car could alter or improve that vehicle, whether to save

money or to make it more comfortable or attractive or simply

because he or she felt like doing so, by accessorizing and/or

customizing it, and drive it on any interstate highway, even one

patrolled by police whose major focus is drug interdiction,

without fear of the improvement being the cause for suspicion

of wrong-doing’ and, thus, the basis for him or her being

subjected to the intrusiveness of a search of that vehicle. After

today, I fear that time is no more. Any alteration to an older

vehicle that a police officer, experienced in drug interdiction,

says may contain a hidden compartment will suffice, so long as

he or she also characterizes the occupants, or, I suspect, at least

one of them, as extremely nervous and the van has air

7 Lest it be forgotten, Sgt. Lewis focused on the newness of the

ceiling and its incongruity with the age of the van from the very moment that

he approached the van. As reported by the majority opinion:

“The officer testified that, when Nathan lowered the passenger

side window, the odor of air freshener coming from the interior

of the vehicle was overwhelming. He testified that he observed

a conversion ceiling in the roof of the van that appeared to be

lower than normal. The blue fabric around the ceiling of the

eleven-year-old van appeared to be new and extremely tight, with

no evidence of fading or sagging.”

___ Md. at___,_.__ A. 2d at __ [slip op. at 2).

40a

fresheners, the odor from which, the officer says, is

overwhelming and, perhaps, there is not 100 percent identity in

the reporting of the itinerary.

Moreover, the record does not demonstrate that Trooper

Smith had any. Furthermore, the statement that an individual

appeared unusually nervous is an extremely subjective

evaluation. United States v. Fernandez, 18 F.3d 874, 879 (10th

Cir. 1994).

I emphatically dissent.

Judge Eldridge joins in the views expressed herein.

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APPENDIX B

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 282

September Term, 2000

HORACE SHAW, JR.

v.

STATE OF MARYLAND

Kenney Butanis, Victor K. (specially assigned),

“Moylan, Charles E. Jr. (Retired, specially assigned), JJ.

Opinion by Kenney, J.

Dissenting opinion by Moylan, J.

Filed: June 5, 2001

Appellant, Horace Shaw, Jr., was convicted by a jury in the

Circuit Court for Wicomico County of multiple counts relating

to trafficking cocaine and heroin. He raises two issues on

appeal:

1. Did the Court err by denying Shaw’s Motion to

Suppress the Search of the Vehicle?

Moylan, J., participated in the hearing and conference of this case

while an active member of this Court; he participated in the adoption of this

opinion as a retired, specially assigned member of this Court.

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2. Was the evidence sufficient to support the conviction

of Shaw?

Because we answer “yes” to the first question, we need not

address the second.

Statement of Facts

On Wednesday, July 14, 1999, at approximately 8:15pm,

appellant was a passenger in his eleven-year-old conversion

van, which at the time was being driven by Corinthius Nathan

(“Nathan”). The van had been recently refurbished and

contained a new television, VCR, and Sony Playstation

mounted in the ceiling in the back. The two men (both of whom

are African American) were traveling south on U.S. Route 13

near Salisbury. They were pulled over by two Maryland State

Police troopers in the same patrol car, Sergeant Mike Lewis

(“Sgt. Lewis”) and Trooper First Class Robert Penny (“Tfc.

Penny”). Sgt. Lewis recorded the stop on a videotape.

Sgt. Lewis’ attention was drawn to the vehicle, because as

he heard it pass, he believed it to be traveling at a high rate of

speed. Sgt. Lewis then “paced” the van driving 70-71 miles per

hour in a 60 mile per hour zone. During the “pace,” the van

drifted 8-10 inches onto the shoulder of the road. Sgt. Lewis

activated the lights on his patrol car, and the van moved onto

the shoulder. As it did, Sgt. Lewis remarked that one of the

taillights was out.

At the time the van pulled over, appellant was in the back.

Sgt. Lewis testified that he saw a passenger moving in the back

of the van while it was slowing to a stop, and he believed that

the van took too long to stop.

During the course of the stop, Sgt. Lewis became

suspicious that Nathan and appellant were involved in illegal

activity. Specifically, after both visually inspecting and

touching the ceiling of the van, he believed it contained a

43a

hydraulically operated compartment. In his experience, such

compartments were used for transporting contraband. Sgt.

Lewis conducted five separate searches of the van, all focusing

on the ceiling. Eventually, after tearing open the ceiling using

a crowbar, Sgt. Lewis located a compartment containing a

duffel bag. Inside the duffel bag were “4.8 kilograms of

cocaine, one hundred ninety-three grams of pure heroin, all

wrapped in large gray duck [sic] tape packages. There was also

a plastic bag up there with hundreds of money wrappers and a

straight edge screwdriver in it.” Further facts surrounding the

search will be discussed as they become relevant to our

discussion.

Appellant and Nathan were arrested and given Miranda

warnings. Neither was given a traffic citation. Appellant was

charged on September 24, 1999, in a ten-count information

with: (1) importation of cocaine; (2) conspiracy (to import

cocaine); (3) felonious possession of cocaine (carrying a

mandatory sentence); (4) felonious possession of cocaine; (5)

possession of cocaine; (6) importation of heroin; (7) conspiracy

(to import heroin); (8) felonious possession of heroin (carrying

a mandatory sentence); (9) felonious possession of heroin; and

(10) possession of heroin.

A motions hearing was held on November 5, 1999, at

which appellant raised, inter alia, a motion to suppress

evidence obtained in the search of the van. On March 10, 2000,

the trial court denied the motion to suppress.

A trial was held in this case before a jury on March 20,

2000. The jury found appellant guilty of all ten courts, and he

was sentenced on March 28, 2000. At sentencing, four of the

44a

ten counts were merged,’ and appellant was sentenced to a total

of twenty-five years, twenty of which were mandatory and

carried no possibility of parole.

Discussion

Standard of Review

In reviewing the circuit court’s denial of appellant’s

motion to suppress, we look only at the record of the

suppression hearing. In re Tariq A-R-Y, 347 Md. 484, 488, 701

A.2d 691 (1997), cert. denied, 522 U.S. 1140, 118 S.Ct. 1105,

140 L.Ed.2d 158 (1998). On appeal, the State filed a motion to

strike appendix of appellant. Appellant’s appendix contained a

time line of the events occurring on the videotape as well as a

summary of 147 different Maryland State Police Form 130's for

Sgt. Lewis. It appears that these documents were submitted to

the court after the suppression hearing. Therefore, we will grant

the State’s motion to strike.

We review the evidence at the suppression hearing in the

light most favorable to the prevailing party, in this case the

State. We review the circuit court’s factual findings only for

clear error, but we review the circuit court’s legal conclusions

de novo. Id., 347 Md. at 488-89.

The Fourth Amendment protects against unreasonable

searches and seizures, including seizures of only brief duration,

like those of a traffic stop. Ferris v. State, 355 Md. 356, 369,

735 A.2d 491 (1999) (citations omitted). Traffic stops do not

ordinarily violate the Constitution, because the police generally

have probable cause that a violation of the traffic laws has been

' Counts 4 (felonious possession of cocaine) and 5 (possession of

cocaine) were merged with Count 3 (felonious possession of 448 grams of

more of cocaine). Counts 9 (felonious possession of heroin) and 10

(possession of heroin) were merged with Count 8 (felonious possession of

more than 28 grams of heroin).

45a

committed. Whren v. United States, 517 U.S. 806, 810, 116

S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). The Supreme Court

has nevertheless clearly stated that the detention “must be

temporary and last no longer than is necessary to effectuate the

purpose of the stop.” Ferris, 355 Md. at 369 (quoting Florida

v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d

229 (1983)). Of course, the purpose of a traffic stop is to give

the driver either a warning or a citation for having violated

traffic laws.

The Traffic Stop

Appellant argues that the traffic stop itself violated his

constitutional rights, because it was based on race and “without

any legally justifiable grounds.” At the suppression hearing,

appellant introduced evidence regarding Sgt. Lewis’ possible

racial motivations in making the stop. This issue need not

detain us, however, because we agree with the circuit court that,

in this case, there was nothing to suggest that either Sgt. Lewis

or Tfc. Penny were aware of the race of the occupants of the

van when the stop was initiated. We adopt the circuit court’s

findings:

The credible testimony at the hearing was that Sgt.

Lewis was writing notes on the back of a previous

ticket when he was distracted by the sound of a motor

vehicle go by his location at what he believed was a

high rate of speed. When asked by prosecutor if he

was able to make any observations regarding the

physical characteristics of any occupants of the

vehicle, he responded in the negative.

Appellant overlooks the fact that the initial stop of the van

was legitimate. The van was paced at /0-71 miles per hour in

a 60 mile per hour zone, it had drifted onto the shoulder, and it

had a broken taillight. The initial stop in this case was proper.

46a

Was there a “Second” Stop Pursuant to

Ferris v. State?

Appellant argues that, after Sgt. Lewis approached the van

to speak with the driver, Lewis almost immediately began

pursuing a narcotics violation rather than a traffic violation.’

This, he contends, constituted a second stop pursuant to Ferris,

355 Md. 356 and Charity v. State, 132 Md. App. 598, 753 A.2d

556, cert. denied, 360 Md. 487, 759 A.2d 231 (2000). He

asserts that, once Sgt. Lewis smelled air fresheners and noticed

that the interior ceiling of the van had been lowered and was

covered in new fabric, he was hunting for contraband. We

believe our analysis begins earlier in the chain of events.

While waiting for the van to pull over, Sgt. Lewis

remarked that he believed it was “riding the shoulder” for too

long. In addition, he saw the passenger, appellant, rise up in the

back of the van and then go back down. We note that traffic

stops can be dangerous for police officers, and appellant’s

actions might certainly provide a reasonable person in Sgt.

Lewis’ position with cause for concern.

After the van stopped, Sgt. Lewis approached on the

passenger side. He asked Nathan for his drivers’ license and

registration. Nathan had no identification with him, and Sgt.

Lewis asked if there were any passengers in the van. Appellant,

who was lying down in the back of the van,’ got up and came

to the front of the van. He provided Sgt. Lewis with

identification and the vehicle registration. Sgt. Lewis testified

that appellant’s hands were trembling as he handed over the

papers.

2 We recognize that Sgt. Lewis’ primary job responsibility is drug

interdiction, not the enforcement of traffic laws. Charity v. State, 132 Md.

App. 598, 609-10, 753 A.2d 556 (2000).

3

Sgt. Lewis described appellant as feigning sleep.

47a

Both Nathan and appellant were cooperative. Despite

initial apprehension about the stop, Sgt. Lewis now had two

cooperative men providing him with all required information

about themselves and the vehicle. Although there was cause for

concern, particularly for officer safety, those concerns appeared

to have been somewhat dispelled, since Lewis initially did not

order either Nathan or appellant out of the vehicle, as he had a

right to do under Pennsylvania v. Mimms, 434 U.S. 106, 111,

98 S.Ct. 330, 54 L.Ed.2d 331 (1977) and Maryland v. Wilson,

519 U.S. 408, 411-12, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

Of course, Sgt. Lewis was noticing other things. We quote

from the circuit court’s opinion:

Upon approaching the vehicle, Sgt. Lewis

testified that he was “overwhelmed with the odor of

air freshener emanating from the vehicle’s interior.”

He also testified that he noticed a “lowered ceiling,

conversion ceiling in the roof part of the van that

appeared to. . .be lower than normal. The fabric that

wrapped around this lowered ceiling appeared to be

new fabric, blue, it wasn’t faded at all in this eleven-

year-old van.” Sgt. Lewis went on to indicate that the

ceiling area appeared to be “extremely tight or erect,

there was no sagging in the ceiling.”

The Court learned subsequently, that four weeks

prior to the stop of Defendants’ vehicle, Sgt. Lewis

made a stop of another conversion van and discovered

a hidden hydraulic compartment in the ceiling directly

above the driver and right front seat passenger.

Therefore, given the Sergeant’s observations of the

conversion van, it is not unreasonable to assume that

Sgt. Lewis had developed suspicions regarding the

ceiling area of the Defendants’ van. But is it clear at

this point, by any objective standard, that there was no

48a

valid reason to detain the driver or passenger on the

basis of any suspected criminal drug or other

contraband activity. What also is clear, however, is

that the Sergeant had every right to continue his

investigation into violations to the traffic laws,

especially with respect to a driver who was without

proper identification. [Citations to record omitted. ]

Sgt. Lewis had the right to order Nathan out of the car.

Charity, 132 Md. App. at 619 (citing Mimms, 434 U.S. at 111;

Wilson, 519 U.S. at 411-12). Appellant relies heavily on

Charity in arguing that, once Sgt. Lewis smelled air freshener

and noticed the newly modified ceiling of the van, the purpose

of the stop turned into a narcotics investigation such that

everything that occurred after that was a second stop under

Ferris requiring that “either (1) the driver consents to the

continuing intrusion or (2) the officer has, at a minimum, a

reasonable, articulable suspicion that criminal activity is afoot.”

Ferris, 355 Md. at 372 (citing United States v. Sandoval, 29

F.3d 537, 540 (10th Cir. 1994)).

We find that, although Sgt. Lewis may have had a dual

purpose in ordering Nathan out of the van, this did not

automatically turn the traffic stop into questioning that “had no

conceivable relationship to the purpose of the traffic stop.”

Charity, 132 Md. App. at 619. Notwithstanding Nathan and

Shaw’s polite cooperation after the stop was effectuated, the

fact that they were slow to pull over and that Shaw had raised

up in the back of the van were enough to cause Sgt. Lewis

concern. Thus, we conclude that Sgt. Lewis’ prerogative under

Mimms and Wilson to order Nathan out of the car was still

intact.

At this point, Sgt. Lewis was still ostensibly obtaining

information related to the traffic stop. He took down Nathan’s

full name, birth date, and social security number. He also asked

49a

Nathan where they were coming from. During this latter part of

his questioning, Sgt. Lewis testified that he became more and

more suspicious, because of Nathan’s nervousness, which he

described as follows: Nathan’s “carotid pulse I could clearly

see pounding in his neck, he chest was palpitating, his hands

were trembling. He changed his story in mid-sentence

[regarding the origin of their trip]...[When] I would ask him a

question, he answered a question with a question, which my

experience leads me to believe he’s attempting to fabricate

something, he’s trying to be deceptive in his response.” Sgt.

Lewis further indicated that Nathan would not look him in the

eye. We do not believe Sgt. Lewis’ questions were improper

even though they did not appear to have much to do with

whether Nathan had comnitted traffic violations.

Sgt. Lewis then left Nathan standing on the side of the road

after conducting a brief pai-down search for weapons, and he

went to speak with appellan'. Sgt. Lewis’ actions at this point

suggest that the stop was almost solely focused on narcotics

rather than the traffic violations. We believe that, if Sgt. Lewis

had been as concerned about his safety as the State argues he

was, he would have, and should have, conducted a pat search

of Nathan immediately after he got out of the van. In addition,

he could have ordered Shaw out of the van and searched him as

well.

Although Sgt. Lewis had all the information he needed to

process the traffic stop — Nathan’s personal information,

appellant’s identification, and the vehic’_ registration* — he

‘ Although the State contended at oral argument that Sgt. Lewis did

* not have all of the facts necessary to complete a traffic ticket or warning

when he went to speak with appellant because he did not have appellant’s

identification, Sgt. Lewis testified that “on my initial approach, Mr. Shaw

got up from the back and gave me ID, I believe that’s the time he gave me

ID, gave me a registration card for the vehicle.”

50a

went back to ask appellant questions for the apparent purpose

of catching the men with inconsistent stories. Appellant’s

behavior and responses to his questions apparently further

raised Sgt. Lewis’ suspicions that he had stopped two

individuals engaged in criminal activity. Sgt. Lewis noticed that

appellant’s hands were trembling, he “observed a nervous

twitching just above and behind his right eye.... And his carotid

pulse was racing in his neck as well.” Moreover, appellant

provided a somewhat different account of the trip’s origin and

the reasons for it.

These questions were more focused on where they were

coming from than in attempting to ensure that appellant

actually owned the van and had a license to drive it. We believe

that Sgt. Lewis had, at this point, focused on a narcotics

investigation rather than a traffic stop, so we must look to

whether “(1) the driver consent[ed] to the continuing intrusion

or (2) the officer ha[d], at a minimum, a reasonable, articulable

suspicion that criminal activity is afoot.” Ferris, 355 Md. at

372.

Reasonable Suspicion to Search and Consent

At this point in the encounter, Sgt. Lewis was quite firmly

convinced that there was contraband in the vehicle, because he

asked appellant if he could conduct a search:

We have a big problem with guns and drugs up and

down this highway. I’m getting ready to get a bite to

eat but I was going to check another vehicle real

quick. Do you mind if I check the vehicle for guns and

drugs real quick and ll have you guys on your way.

We check them all the time.’

* This quote comes from the videotape.

Sla

Appellant apparently acquiesced to this request, got out of the

van, and submitted to a brief pat search. Appellant was allowed

to urinate, and then he and Nathan leaned against the guardrail

to wait for Sgt. Lewis to finish.

The State argues that Sgt. “Lewis had reasonable suspicion

to believe that criminal activity was occurring in the present

case.” We will engage in a discussion of Sgt. Lewis’

“reasonable suspicion,” even though we ultimately find that

appellant initially consented to the search.

Sgt. Lewis described himself as “overwhelmed” by the

odor of air fresheners in the car. Two air fresheners were hung

in the front of the car, and two in the back. This Court has

previously noted that “air fresheners, although they may have

created a hunch, did not create an articulable suspicion.”

Charity, 132 Md. App. at 39. Charity also involved a stop by

Sgt. Lewis who “was overcome with the odor of air fresheners

emanating from the vehicle’s interior.” Charity, 132 Md. App.

at 618. Unlike appellant’s van, however, the car in Charity

contained 72 air fresheners. Jd. at 603. As this Court has stated

in the past:

Air fresheners are, as far as we know, a completely

legitimate object; some are, undoubtedly, thought to

be ornamental as well as functional. Nor is the fact

that Snow had three air fresheners, as opposed to one,

suspicious. The addition of a new freshener without

removing the old one is not unusual. As with other

cleaning products, when the consumer is uncertain

regarding the useful life of a product, the tendency is

to keep the old one for a while longer.

Snow v. State, 84 Md. App. 243, 261, 578 A.2d 816 (1990).

Thus, we believe that the relevance of the air fresheners in this

case is far less than in Charity. ;

32a

Both this Court and the Court of Appeals have cautioned

against placing too much stock in either nervousness or

conflicting stories, even when both of these characteristics are

present in a stop. Nervousness has long been recognized as a

“highly subjective observation.” Snow, 84 Md. App. at 260. Of

course, many people become nervous when they are confronted

by a police officer, even if they are engaging in no wrongdoing

other than the traffic violation. Ferris, 355 Md. at 388 (citations

omitted).

The nervousness, or lack of it, of the driver pulled

over by a Maryland State trooper is not sufficient to

form the basis of police suspicion that the driver is

engaged in the illegal transportation of drugs. There is

no earthly way that a police officer can distinguish the

nervousness of an ordinary citizen under such

circumstances from the nervousness of acriminal who

traffics in narcotics. An individual’s physiological

reaction to a proposed intrusion into his or her privacy

cannot establish probable cause or even grounds to

suspect. Permitting [a] citizen’s nervousness to be the

basis for a finding of probable cause would confer

upon the police a degree of discretion not grounded in

police expertise, and, moreover, would be totally

insusceptible to judicial review.

Ferris, 355 Md. at 388 (quoting Whitehead v. State, 116 Md.

App. 497, 505, 698 A.2d 1115, cert. denied, 348 Md. 207, 703

A.2d 148 (1997) (footnote omitted)). .

In Whitehead, the suspects were both perceived to be quite

nervous, and they told conflicting stories. Judge Sonner,

writing for this Court, stated: “There is nothing about not

having their stories together, about just whom they visited, or

ebout the day that they left Baltimore, that somehow yields an

53a

inference of possession of narcotics.” Whitehead, 116 Md. App.

at 504.

We recognize that the United States Supreme Court has

“recognized that nervous, evasive behavior is a pertinent factor

in determining reasonable suspicion.” Illinois v. Wardlow, 528

U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing

United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct.

2574, 45 L.Ed.2d 607 (1975) (discussing evasive driving

maneuvers)); Florida v. Rodriguez, 469 U.S. 1, 6, 105 S.Ct.

308, 83 L.Ed.2d 165 (1984) (per curiam) (discussing obvious

attempts to walk away from an airport search or otherwise

evade the authorities); and United States v. Sokolow, 490 U.S.

1, 8-9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (discussing the

evasive path taken through an airport in an apparent attempt to

avoid the authorities). Wardlow involved “eight officers in a

four car caravan that was converging on an area known for

heavy narcotics trafficking,” and the defendant fled when he

noticed the police. Wardlow, 528 U.S. at 124. While it appears

as though Nathan and appellant-may have been nervous, they

did not display the sort of evasive behavior discussed in the

Supreme Court cases listed above. They generally were

cooperative throughout the stop.

Although we recognize that Sgt. Lewis has tremendous

experience and great success in narcotics cases, his articulable

suspicion, at this point in the stop, had been triggered by the

following:

- Two African Americans pulled over by two

Caucasian, Maryland State troopers are

nervous.

— The van contained air fresheners.

— The van, which turned out to be a 1988

model, had some recent work done on the

54a

inside such that the ceiling covering seemed

new and pulled tight; Sgt. Lewis had found

a hydraulic compartment containing a

~ weapon in a conversion van approximately

four weeks earlier.

— Both the driver and the passenger had been

cooperative and totally compliant with all of

his instructions despite initial cause for

alarm, including the fact that appellant had

been lying down in the back.

— Nathan, who did not own the van and was

not related to appellant, gave a different

story than appellant as to where they were

coming from and why they were there.

These factors may certainly have given rise to a “hunch” on

Sgt. Lewis’ part, but we do not believe they add up to

articulable suspicion in light of Ferris and Charity. We note

further that, at this point, Sgt. Lewis had not radioed in any

information to his dispatch to determine the status of the van or

its occupants, and he also saw or smelled nothing other than air

freshener that would lead him to believe that the van contained

contraband.

In any event, ws find that, despite his protestations to the

contrary, appellant consented to a search of his van. Of course,

a search conducted pursuant to a consent is valid despite the

lack of a warrant. Schneckloth v. Bustamonte, 412 U.S. 218,

219,93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973). The Court

of Appeals has summarized the law concerning consent

searches as follows:

The burden of proving that the consent was freely and

voluntarily given is upon the State. Consent that is

coerced by threats or force, or granted only in

55a

submission to a claim of lawful authority, is not

voluntary. Coercion that defeats voluntariness may be

by explicit or implicit means, by implied threat or

covert force. Although custody is a factor to be

considered in determining voluntariness, it is not

dispositive, and a person in custody may validiy

consent to a search.

Doering v. State, 313 Md. 384, 401-02, 545 A.2d 1281 (1988)

(citations omitted).

We believe, when appellant acquiesced in response to Sgt.

Lewis’ request, he did so voluntarily and freely. There was no

hesitation on his part, and appellant got out of the van without

prompting.

The Initial Search

Sgt. Lewis went into the van five different times. He never

conducted a thorough search of the interior of the van, did not

look under the seats, in the bags appellant and Nathan had in

the back of the van, or in the glove box or other containers.

Despite his earlier apprehension stemming from appellant’s

movements in the back of the van, Sgt. Lewis never checked

for weapons.

From the first time Sgt. Lewis entered the van, his focus

was on the ceiling in the front part of the van, where the map

lights are located, in light of his earlier experience with a

conversion van containing a hydraulic ceiling compartment.

Sgt. Lewis described his actions as follows:

[hit [the ceiling] twice with the bottom portion of my

hand. I then went to one area dead center of the

ce?‘ing, which contained two map lights. I checked to

see if the map lights were functional, both were. I then

tried to pry down the area where the map lights were.

This was the actual entrance to the compartment just

56a

four weeks earlier that led to the contraband in that

compartment. At that point in time I couldn’t budge it,

it wouldn’t even pull down at all, it wouldn’t budge,

it was like it was permanently affixed with steel plates

cr steel rods.

Sgt. Lewis then went back to his patrol car and retrieved his

flashlight in order to further inspect the area. It stili wouldn’t

budge, so he again retreated to his patrol car to get a

screwdriver. He put the screwdriver in his back pocket to

conceal it from appellant and Nathan. Even with the help of the

screwdriver, the panel still would not come loose. We believe

that all of these actions were acceptable, although Sgt. Lewis

walked on the line of what a reasonable person would find

acceptable pursuant to a consent to search when he tried to pry

the ceiling compartment open.®

We believe it useful to review Sgt. Lewis’ testimony at the

suppression hearing about after-market modifications to

conversion vans. He stated that the fact that the ceiling was

solid and had no “give” at al! suggested that it had been

reinforced by steel. Sgt. Lewis testified that, since 1995, he had

searched approximately nine to twelve hydraulically controlled

false compartments in van ceilings. Although he found traces

of narcotics in all of these compartments, he found a quantity

6 Acconsent to search a car has been held to apply to containers

within the car. See, e.g., Wilkerson v. State, 88 Md. App. 173, 189, 594

A.2d 597 (1991) (citing Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801,

1804, 114 L.Ed.2d 297 (199:)). The scope of consent in terms of

intrusiveness and duration, however, is up to the consenting party. State v.

Jones, 103 Md. App. 548, 555, 653 A.2d 1040 (1995), rev’d on other

grounds, 343 Md. 448, 682 A.2d 248 (1996). Evening assuming that the

space in the ceiling of the van was a “container,” we doubt that a reasonable

person who had consented to a search of his or her car would consent to the

pe Rea eee ee ee eee

to pry open interior panels.

57a

of narcotics only in appellant’s. He located guns and currency

in some cases, and he stated that “many that were empty.” In

Sgt. Lewis’ experience, this type of construction is only used

for hydraulic compartments, and these compartments are only

used for transporting contraband. Sgt. Lewis believed that no

one would have a legitimate reason to have such a reinforced

ceiling put into a conversion van.’ Thus, once he had knocked

on the ceiling of the van, he became quite convinced that there

was a compartment.

At this point, however, Sgt. Lewis stopped. He advised

appellant and Nathan that he was going to get them “right out

of here” and that he was going to radio in that everyone was

7 We note that, at the suppression hearing, appellant made a proffer

regarding testimony by people who do work on conversion vans:

Your Honor, as I indicated we made great

efforts in calling at least half a dozen people as far

away as New Jersey, in trying to get someone here to

testify that they do conversion vans all the time, that

there’s nothing unusual about an older van being

converted. It’s much cheaper to spend five to six

thousand dollars in putting in all this equipment than

spending forty or fifty thousand for a new van. And

it’s done all the time. And one person even said that

by safety regulations they have to reinforce the ceiling

above the driver when they put in TV’s, et cetera, into

such vans. And that it would be nothing unusual about

this particular van....

[T]here is a convention going on now in Las

Vegas where the conversion van people that I

contacted are presently attending, and therefore, I

couldn’t get anyone here.

This evidence was never introduced, and appellant never pointed either the

circuit court or this court to the safety regulations referenced above.

Appellant did file an affidavit with a motion to take additional evidence on

defendant’s suppression motion, but that motion that was denied. Thus, we

are not taking this information into account.

58a

“all right.” Sgt. Lewis provided the dispatcher with the vehicle

license plate number, and both men’s names and dates of birth.

Sgt. Lewis also requested backup. He did not wait for the

dispatcher to advise whether there were any outstanding

warrants for either appellant or Nathan, he did not request a

canine unit, and he did not request that someone bring his

fiberoptic contraband kit.

Sgt. Lewis testified that, normally, he had equipment with

him that would allow him to detect such a compartment

without having to pry anything open:

I have what’s known as a contraband kit, it’s a

thirteen-thousand-dollar kit with a fibrotic [sic] scope,

a buster in it, which is a glorified density meter, other

types of probes which are very less intrusive. Had I

had my fibrotic [sic] scope in the car which I had just

taken out of my trunk the week before this stop, I was

doing a presentation up in Baltimore City with this

particular contraband kit and never put it back in my

car. Had I had that I would have utilized the fibrotic

[sic] scope in feeding it above the compartment down

inside. Once I fed the scope in there a white light

comes on, it’s a camera, and it views the

compartment’s interior. I look through a scope and I

can actually view the contents of the compartment’s

interior without having to go into it. But I didn’t have

that with me.

Rather, Sgt. Lewis handcuffed Nathan and appellant after

falsely advising them that the van had been reported as

“stolen.” Once he had them in handcuffs, he advised them: “I

know the vehicle is not stolen but you have a false

hydraulically controlled compartment in the ceiling.” He

demanded several times that they provide him with the

location, but they provided no assistance.

59a

The Final Search

_ After handcuffing appellant and Nathan, Sgt. Lewis

repeatedly requested instructions as to how to open the

hydraulic compartment.® Appellant repeatedly stared that he did

not know what Sgt. Lewis was talking about, and Sgt. Lewis

stated multiple times that he would tear into the ceiling of the

van even though he did not want to do so. At the time Sgt.

Lewis began to pry open the compartment, he appeared to be

looking for narcotics more so than other contraband, as he

advised appellant and Nathan that he would “get the cocaine,

heroin or whatever” they had in the van.

To the extent that appellant had previously consented to a

search of his van, we believe that consent had expired by this

point. The State suggests continuing consent by pointing out

that neither man instructed Sgt. Lewis to stop or objected in any

way. We are not persuaded. Prior to radioing in to dispatch,

Sgt. Lewis had indicated to appellant and Nathan that he would

have them on their way shortly, which, no doubt, any

reasonable person would interpret as a sign that the search was

over. Moreover, to the extent that Sgt. Lewis was asking for

consent to rip into the ceiling of the van, such consent was

hardly voluntary in view of the fact that he was threatening to

do so anyway and both men were in handcuffs. Doering, 313

Md. at 401-02.

Thus, the question becomes whether, in light of the

foregoing, Sgt. Lewis had probable cause to believe that the

van contained contraband such that he could conduct a search.

Brown v. State, 132 Md. App. 250, 261, 752 A.2d 620 (2000)

$ Sgt. Lewis had testified that, with such compartments, there is a

certain sequence of events that must take place in order to open the

compartment. For example, one compartment might open upon turning the

ignition key, hitting the rear defrost button, and then activating the lights,

and another might open upon a different sequence of events.

60a

(citing Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013,

2014, 144 L.Ed.2d 442 (1999)). In this case, Sgt. Lewis

suspected that the van contained a hydraulically controlled

compartment, but we must determine whether he had probable

cause to believe that, if he accessed the compartment, it would

contain contraband. See Dixon v. State, 133 Md. App. 654, 677,

758 A.2d 1063 (2000).

Probable cause is defined as “a fair probability

that contraband or evidence of a crime will be found

in a particular place.” JIlinois v. Gates, 462 U.S. 213,

238, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983); see State

v. Lee, 330 Md. 320, 326, 624 A.2d 492 (1993);

Braxton v. State, 123 Md. App. 599, 620, 720 A.2d 27

(1998). It is anontechnical conception of a reasonable

ground for belief of guilt. A finding of probable cause

requires less evidence than is necessary to sustain a

conviction, but more evidence that would merely

arouse suspicion. Our determination of whether

probable cause exists requires a nontechnical,

common sense evaluation of the totality of the

circumstances in a given situation in light of the facts

found to be credible by the trial judge. Probable cause

exists where the facts and circumstances taken as a

whole would lead a reasonably cautious person to

believe that a felony had been or is being committed

by the person arrested.

Dixon,- 133 Md. App. at 678-79 (emphasis in original)

(citations omitted). “The principal components of a

determination of...probable cause will be the events which

occurred leading up to the stop or search, and then the decision

whether these historical facts, viewed from the standpoint of an

objectively reasonable police officer, amount to...probable

cause.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct.

1657, 134 L.Ed.2d 911 (1996); Parker v. State, 66 Md. App. 1,

6la

9, 502 A.2d 510, cert. denied, 306 Md. 70, 507 A.2d 184

(1986). The historical facts in this case are as follows:

- Two African Americans pulled over by two

Caucasian Maryland State troopers are

nervous.

— The two men were driving a van with out of

state license plates down Route 13.

- The van contained air fresheners, two in the

front and two in the back.

- The van, which turned out to be a 1988

model, had some recent work done on the

inside such that the ceiling covering seemed

new and pulled tight; Sgt. Lewis had found

a hydraulic compartment containing a

weapon in a conversion van approximately

four weeks earlier.

- Both the driver and the passenger had been

cooperative and totally complaint with all of

his instructions despite initial cause for

alarm, including the fact that appellant had

been lying down in the back.

- Nathan, who did not own the van and was

not related to appellant, gave a different

story than appellant as to where they were

coming from and why they were there, with

the most significant discrepancy being

whether the two went to New York in the

van or in a rental car.

- Sgt. Lewis found that the ceiling of the van

was hard.

62a

— There was a television mounted into a panel

extending perpendicular to the ceiling, a

Sony Playstation mounted in that same

panel, and a VCR or other component

mounted underneath the panel.

— Sgt. Lewis was unable to find any openings

or wires suggesting the presence of a

hydraulic compartment, nor was he able to

pry open the panel containing the map lights,

the site of a hydraulic container in van

detained previously.

— There were containers in the car, such as

bags, but Sgt. Lewis did not look inside

them.

Of course, we need to look at the foregoing facts from the

point of view of an objectively reasonable police officer, who

“may draw inferences based on his own experience in deciding

whether probable cause exists.” Ornelas, 517 U.S. at 700.

Nevertheless, as we remarked above, the majority of the

factors listed above do not rise to the level of probable cause.

For example, air fresheners, only two of which were in the front

of the van, are not indicative of criminal behavior, nor is

nervousness. Suspicions might be aroused by the two men’s

differing stories as to how they got to New York, but this gives

rise to generalized suspicion: rather than objective proof of

wrongdoing. This leaves us with some generalized suspicion

along with a hard ceiling in the van. Sgt. Lewis certainly

provided expert testimony regarding the uses of hydraulically

controlled compartments in conversion vans, yet we must look

at this from the point of view of an objectively reasonable

police officer with training and experience in narcotics

trafficking.

63a

We have conducted a review of cases in other jurisdictions

involving the search of hidden compartments. In virtually all

cases, there was something more than was present in this case.

In many cases, for example, the secret compartment was far

more obvious. United States v. Arredondo-Hernandez, 574

F.2d 1312 (Sth Cir. 1978) (an obvious structural discrepancy in

a pickup truck camper revealed a hidden compartment and

appellant himself gave the officer a screwdriver to open it);

United States v. Espinosa, 782 F.2d 888 (10th Cir. 1986) (a

thorough consensual search led the police to observe that the

rear quarter panel of the car was loose because of missing and

loose screws); United States v. Price, 869 F.2d 801 (Sth Cir.

1989) (the interior of appellant’s vehicle contained an obvious

attempt to cover up a secret compartment and the underside of

the vehicle an obvious and newly constructed steel

compartment that was inconsistent with the vehicle model);

United States v. Strickland, 902 F.2d 937 (11th Cir. 1990)

(during consent search officer noticed a spare tire that seemed

too large for the car and that did not fit into its space in the

trunk; when the officer removed the tire, it was heavy and

something was rolling around inside it); State v. Jones, 592

So.2d 363 (Fla. App. 1992) (the gas tank had been obviously

altered and it did not appear as though it could even be filled);

State v. Ramirez, 625 So.2d 119 (Fl. App. 1993) (the door to

the hidden compartment was ajar); United States v. Martel-

Martines, 988 F.2d 855 (8th Cir. 1993) (officer lifted boards

resting on a pickup truck bed and saw caulking; further

inspection underneath the truck showed a recent, obvious

reconstruction of the truck bed); United States v. Soto, 988 F.2d

1548 (10th Cir. 1993) (a thorough consensual search led police

to observe that the back seat was loose, the hooks holding it in

place had been altered, and the area underneath the seat was

clean although the car was a 1984 model; further inspection at

a gas station revealed alterations in the gas tank); United States

v. Fowler, 1994 U.S. App. LEXIS 34525 (6th Cir. 1994)

64a

(screws in pickup truck tailgate were loose and the tailgate

seemed solid whereas the rest of the truck’s construction was

hollow); United States v. Botero-Ospina, 1995 U.S. App.

LEXIS 36677 (10th Cir. 1995) (when officer looked underneath

after noting discrepancies with interior floor construction of

appellant’s van, he discovered a door); United States v. Toro-

Pelaez, 893 F.Supp. 963 (D. Kan.) (pickup truck obviously

contained a subfloor and had other indicia of a poorly

concealed hidden compartment); People v. Blakely, 278 Il.

App. 3d 704, 663 N.E.2d 760 (1996) (a consent search led

officer to notice that the car stereo was loose; moving it led to

the discovery of a secret compartment); United States v.

Kincaide, 145 F.3d 771 (6th Cir. 1998), reh’g denied, cert.

denied, 525 U.S. 1166, 119 S.Ct. 1085, 143 L.Ed.2d 86 (1999)

(there was an obvious structural addition to the underside of

appellant’s truck, and the discovery of the secret compartment

was also conducted as an inventory search); United States v.

Plaskett, 97 F.Supp.2d 686 (E.D. Va. 2000) (a false floor was

Clearly visible underneath the vehicle).

In other cases, the presence of objects indicative of drug

dealing inside the car provided probable cause to search which

led to the location of a secret compartment. United States v.

Olivier-Becerril, 861 F.2d 424 (Sth Cir. 1988) (the spare tire

was not in its normal place, and several bags of coffee and a

garlic wreath, often used to conceal the scent of narcotics, was

in the trunk of the car, and traces of plastic material used in

vehicle body repair were also present); State v. James, 87 Md.

App. 39, 589 A.2d 81 (1991) (the officer smelled marijuana

smoke emanating from the vehicle, and a bag was sticking out

of the hidden compartment); State v. Nunez, 262 N.J. Super.

251, 620 A.2d 251 (1993) (there was an open container of

alcohol in the car and two marijuana roaches were in the

ashtray; a subsequent search led the officer to an obvious gap

under the rear passenger window which led to a hidden

65a

compartment); United States v. Nicholson, 17 F.3d 1294 (10th

Cir. 1994) (officer smelled marijuana and found

methamphetamine on appellant’s person); United States v.

Bullock, 94 F.3d 896 (4th Cir. 1996) cert. denied, 519 U.S. 119,

117 S.Ct. 966, 136 L.Ed.2d 851 (1997) (in acase involving Sgt.

Lewis, he had observed a large amount of cash, which the

driver tried to conceal, in addition to two cellular telephones

and a beeper in plain view, and appellant was far more evasive

than appellant in this case).

In other cases, police undercover work or police

observation led to probable cause to search, which then

revealed a hidden compartment. United States v. Harwood, 998

F.2d 91 (2nd Cir. 1993) (a traffic stop of a vehicle driven by a

suspect who had sold LSD to an undercover officer after

advising that the LSD was located in a vehicle he was packing

led to the discovery of a poorly concealed hidden

compartment); United States v. Veras, 51 F.3d 1365 (7th Cir.

1995) (an officer observed appellant loading contraband into a

car in the same area where the compartment was located and

also found a gun in the car); United States v. Salazar, 1997

U.S. App. LEXIS 23183 (6th Cir. 1997) (a drug-sniffing dog

alerted to narcotics, which were subsequently discovered in a

secret compartment hidden under the spare tire); State v. Eloy

Guzman, 1999 Tex. App. LEXIS 4120 (Tex. Ct. App. 1999)

and State v. (Blanca Estella) Guzman, 1999 Tex. App. LEXIS

7963 (Tex. Ct. App. 1999) (drug dog alerted to gas tank, which

showed signs of recent alteration); United States v. Alverez, 235

F.3d 1086 (8th Cir. 2000) (the officer noticed a usable spare

tire when appellant claimed to be having tire problems; on

shaking it, there was something rattling around inside, leading

to the discovery of contraband).

In still other instances, confidential informants have

advised the police about the existence of hidden compartments.

66a

United States v. Padro, 52 F.3d 120 (6th Cir. 1995); United

States v. Lomeli, 76 F.3d 146 (7th Cir. 1996).

An objectively reasonable police officer might have

suspected that the van contained a hidden compartment, but,

other than the fact that the ceiling was hard, there was nothing

else, i.e., wires or an obvious opening, that would indicate the

presence of acompartment. We do not believe that, in this case,

the generalized suspicion tips the scale into the realm of

probable cause. Both men were extremely cooperative and

nothing was present to indicate the presence of contraband.

Appellant and Nathan were caught with a very large

amount of narcotics. It is unfortunate that the key evidence in

the case must be suppressed. Mapp v. Ohio, 367 U.S. 643, 658-

59, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Although the

evidence must be suppressed, it, at least, will not reach its

intended destination, adding to the cost of doing business in the

drug trade. Without question, Sgt. Lewis’ instincts proved to be

correct, but a determination of a constitutional violation cannot

be tempered by a “proof’s in the pudding” standard. The key is

what the officer has probable cause to believe before the search

rather than what the search revealed.

Because we are reversing this case due to the violation of

appellant’s constitutional rights, we need not address whether

the evidence was sufficient to convict Shaw.

JUDGMENT REVERSED.

COSTS TO BE PAID BY WICOMICO COUNTY

67a

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 282

September Term, 2000

HORACE SHAW, JR.

V.

STATE OF MARYLAND

Kenney Butanis, Victor K. (specially assigned),

“Moylan, Charles E. Jr. (Retired, specially assigned), JJ.

DISSENTING OPINION BY MOYLAN, J.

Filed: June 5, 2001

Respectfully, I dissent. I agree with every step of the

analysis in the majority opinion save one (or possibly two, the

second being a spin-off of the first).

I agree with the majority that the initial traffic stop, albeit

admittedly opportunistic under Whren v. United States, 517

U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), was

objectively justifiable. I further agree with the majority that in

the course of the traffic stop, the appellant consented to a

search of the van. In this regard, the majority opinion

concluded:

Moylan, J., participated in the hearing and conference of this case

while an active member of this Court; he participated in the adoption of this

opinion as a retired, specially assigned member of this Court.

68a

In any event, we find that, despite his

protestations to the contrary, appellant consented to a

search of his van....

We believe, when appellant acquiesced in

response to Sgt. Lewis’ request, he did so voluntarily

and freely.

I further agree with the majority that the discovery of the

existence of a hidden ceiling compartment, as opposed to the

subsequent prying open of that ceiling compartment, did not

offend the Fourth Amendment. I agree with the majority’s

conclusion in this regard:

We believe that all of these actions were acceptable,

although Sgt. Lewis walked on the line of what a

reasonable person would find acceptable pursuant to

a consent search when he tried to pry the ceiling

compartment open.

It is at that point in the investigative narrative that my

analysis departs from that of the majority. Were I to agree with

the next conclusion of the majority, to wit, that there was no

probable cause to believe that the hidden compartment

contained contraband, I would have no problem agreeing with

the rest of the majority’s analysis. The subsequent tearing apart

of the ceiling of the van clearly exceeded the scope of what the

van owner consented to or any reasonable interpretation by the

officer of what had been the scope of the consent. Before

reaching that point, however, my analysis takes a different turn,

rendering the scope of the consent question immaterial.

I believe that on the facts of this case based on the

evidence before the suppression hearing judge in this case, the

discovery of a hydraulically-controlled and reinforced hidden

ceiling compartment in the conversion van ipso facto generated ~

probable cause to believe that the van may have contained

69a

contraband so as to justify a warrantless, and perhaps

painstakingly thorough, search of it under Carroll v. United

States, 267 U.S. 132, 45 S. Ct. 280, 69 L.Ed. 543 (1925).

With respect to the existence of probable cause, an

appellate court makes its own independent de novo appraisal.

Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L.

Ed. 2d 911 (1996). It extends deference, however, to the first-

level findings of historic fact, if not clearly erroneous. In this

case those first-level findings included:

Upon approaching the vehicle, Sgt. Lewis

testified that he was “overwhelmed with the odor of

air freshener emanating from the vehicle’s interior.”

He also testified that he noticed a “lowered ceiling,

conversion ceiling, in the roof part of the van that

appeared to...be lower than normal. The fabric that

wrapped around this lowered ceiling appeared to be

new fabric, blue, it wasn’t faded at all in this eleven-

year-old van.” Sgt. Lewis went on to indicate that the

ceiling area appeared to be “extremely tight or erect,

there was no sagging in the ceiling.”

In this case, our de novo probable cause determination

turns on the significance of that hidden ceiling compartment.

Although we make a de novo determination, we extend

deference to the special training and experience of veteran

police officers. We are also circumscribed, in my judgment, by

the evidence before the suppression hearing judge; we do not

range abroad and conduct empirical investigations of our own.

For this panel member, my de novo decision as to the

significance of such a hidden compartment is, I freely confess,

one of first impression and I must take my guidance from the

evidence in the case. There was, on the one hand, no evidence

70a

as to a legitimate and innocent purpose for such a

compartment.?

The evidence, on the other hand, with respect to the

sinister purpose of such elaborately constructed compartments

came from Sgt. Lewis. Sgt. Lewis knows far more about these

things than I and this de novo factfinder has no reason not to

defer to his experience and expertise. As to the labyrinthine

security measures guarding access to such compartments, Sgt.

Lewis testified:

[W]ith such compartments, there is a certain sequence

of events that must take place in order to open the

compartment. For example, one compartment might

open upon turning the ignition key, hitting the rear

defrost button, and then activating the lights, and

another might open upon a different sequence of

events.

Those are security codes worthy of a Brinks truck and the

Fourth Amendment does not require me to be naive as to why

they are there. Probable cause does not require proof beyond a

reasonable doubt. All that is required is a reasonable likelihood

that such expensive and elaborately constructed compartments

are designed for the express purpose of concealing contraband.

The majority opinion well summarizes Sgt. Lewis’s experience

with such false compartments and his expert opinion as to their

significance:

We believe it would be useful to review Sgt.

Lewis’ testimony at the suppression hearing about

after-market modifications to conversion vans. He

stated that the fact that the ceiling was solid and had

no “give” at all suggested that it had been reinforced

% There had been, to be sure, a proffer by the appellant but no

evidence was ever introduced.

Tila

by steel. Sgt. Lewis testified that, since 1995, he had

searched approximately nine to twelve hydraulically

controlled false compartments in van ceilings.

Although he found traces of narcotics in all of these

compartments, he found a quantity of narcotics only

in appellant’s. He located guns and currency is some

cases, and he stated that “many were empty.” In Sgt.

Lewis’ experience, this type of construction is only

used for hydraulic compartments, and these

compartments are only used for transporting

contraband. Sgt. Lewis believed that no one would

have any reason to have such a reinforced ceiling put

in a conversion van. Thus, once he had knocked on

the ceiling of the van, he became quite convinced that

there was a compartment.

Some hidden compartments had contained guns and

currency; some were empty. Most significantly, however, each

and every one of them had contained traces of narcotics.

Narcotics had been there in those compartments even if they

were no longer there at the precise moment of the search. That,

for me, establishes probable cause because it establishes the

self-evident purpose of such elaborately coded and steel

reinforced hidden ceiling compartments. As the interstate

courier theater of the war on drugs begets constantly escalating

measures and countermeasures, my de novo verdict, at least on

the facts of this case, is to put this countermeasure out of

business.

Although I suspect that the very nature of this otherwise

unexplained “vehicular hidden bank vault” would be enough,

without more, to garner my de novo verdict that probable cause

existed, I am in this case relieved of having to make that

decision in a vacuum. Other factors, admittedly of only

minimal significance in and of themselves, operate to tilt at

72a

least slightly what might otherwise be a closely balanced

decision in the direction of probable cause.

For starters, this expensive and almost bizarrely elaborate

refitting of an eleven-year-old van was not something sitting on

a showroom floor. It was traveling south on Interstate 13, a

known courier route for the southbound narcotics traffic from

New York City to the Norfolk area.

When the police first signaled for the van to pull over, the

appellant was apparently lying down on the back seat. As he

was alerted to the approach of the police, he rose up to look and

then went down again. A moment or two later he was feigning

sleep, as Sgt. Lewis first walked up to the van. Although of

little independent significance, the conduct was sufficiently

strange to raise an eyebrow.

Sgt. Lewis testified that as he approached the van, he was

“overwhelmed with the odor of air fresheners emanating from

the vehicle’s interior.” There were four air fresheners in the car.

Although there are, of course, many non-criminal uses of air

fresheners, it is also true that narcotics couriers frequently use

air fresheners in an automobile to conceal the tell-tale odor of

narcotics. If a probable cause determination were teetering right

on the cusp, it would take only the slightest of nudges to move

it off dead center.

Because they are observations competent to be received in

evidence, I do take note of 1) the appellant’s visible

nervousness, 2) his avoidance of eye contact, 3) his changing

of his story in mid-sentence, and 4) his answering of a question

with a question. The appellant and his passenger, when

separated for questioning, gave different stories, moreover,

about where they were coming from and why they had been

there. Inconsistent stories suggest to me that someone was not

telling the truth.

73a

All of these “other factors,” even in combination, do not

come close to establishing probable cause. I am not suggesting

that they do. They are, on the other hand, admissible evidence

and may provide a slight tilt in cases where only a slight

incremental tilt is needed. In this case, they are consistent with

and, therefore, fortify my de novo determination that probable

cause existed for a Carroll Doctrine search of the appellant’s

van.

Given probable cause for a Carroll Doctrine search of the

van, I find no doctrinal significance in the fact that Sgt. Lewis

did not necessarily conduct that search by the least intrusive

means. That he could have waited for the arrival of a canine

unit or that he could have requested that someone bring his

fiberoptic contraband kit to the scene is without significance.

All they could have done was to supply, redundantly, the

probable cause that I find was already established. Those

“kinder gentler” techniques only pertain to the justification for

the search, not to the execution of the search. The wall to the

hidden compartment still had to be breached. The degree of

force required was but a function of the degree of resistance

encountered.

74a

APPENDIX C

STATE OF MARYLAND IN THE CIRCUIT

COURT FOR

WICOMICO COUNTY

STATE OF

MARYLAND

HORACE SHAW, JR. CRIMINAL CASE NO.

K990892

IN THE CIRCUIT

COURT FOR

WICOMICO COUNTY

STATE OF

MARYLAND

STATE OF MARYLAND

V.

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CORINTHIOUS JAMES )

NATHAN ) CRIMINAL CASE NO.

) K990893

OPINION AND CRDER OF COURT

This matter is before the Circuit Court for Wicomico

County, Maryland by way of motions to suppress filed in the

above captioned cases. The Defendants, Horace Shaw, Jr.

(“Shaw”) and Corinthious J. Nathan (“Nathan”) are charged

with numerous violations of the criminal law arising out of a

traffic stop on July 14, 1999 in Wicomico County, Maryland,

in which approximately five kilograms of cocaine and 200

grams of heroin were seized. The Defendants’ moved for, and

were granted, separate trials on the merits, but consented to a

joint hearing on motions on November 5, 1999. After a day

long hearing, counsel for the Defendants requested, after

obtaining and reviewing the transcript of the day’s proceedings,

an opportunity to submit memoranda. The Court held the

matter sub curia, pending the submission of all memoranda.

75a

Defendant Shaw, represented at the hearing by Paul R.

Kramer, Esquire, and Defendant Nathan, represented by Harold

I. Glaser, Esquire, argued that the physical evidence found at

the scene of the stop should be suppressed for reason that it was

illegally seized. In addition, Nathan argued that his statement

made shortly after his arrest was illegally obtained and should

be suppressed.’ The Defendants allege that the motions to

suppress the physical evidence rest on the following grounds:

1. The stop and continued detention of the Defendants

was motivated by the Defendants’ race in violation of

the Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution.

2. The search of the Defendants’ vehicle” and the

recovery of the narcotics was the result of an

unreasonably long detention in violation of the Fourth

Amendment of the United States Constitution and

applicable Maryland case law.

3. The search of the Defendants’ vehicle and the

discovery of the narcotics was unsupported by

probable cause in violation of the Fourth Amendment

of the United States Constitution and applicable

Maryland case law.

4. Defendant Shaw’s consent to search his vehicle was

not voluntary and thus constituted an unreasonable

search and seizure in violation of the Fourth

' _ Anumber of other motions were filed by both Defendants. At the

time of the hearing, those motions were either found to be moot or to have

no application to the proceedings.

2 Although reference throughout is to Defendants’ vehicle, only

Defendant Shaw was the owner. Defendant Nathan was the driver at the time

of the traffic stop.

76a

Amendment of the United States Constitution and

applicable Maryland case law.

5. Any consent to search Defendant’s vehicle was

beyond the scope of consent and was unreasonably

invasive in violation of the Fourteenth Amendment to

the United States Constitution and applicable

Maryland case law.

6. That the consent to search Defendant’s vehicle was

without probable cause pursuant to the provisions of

the Fourth Amendment of the United States

Constitution, Article 26 of the Maryland Declaration

of Rights and applicable Maryland case law.

Nathan further alleges that his statement at State Police

Headquarters following his arrest “should not be considered

because it was obtained by coercion, promises and not proper

process under the rulings regarding ‘Miranda’ warnings.”

As the issues raised by the Defendants are intertwined, the

Court will combine the specific issues and address them as

“The Stop,” “The Search and Detention,” and “The Statement.”

Facts

Given the fact that the stop of the Defendants’ vehicle was

recorded on audio and video tape, the facts surrounding the

stop are largely undisputed, including the specific times at

which certain events during the stop occurred.°

3 Any differences in the specific times are largely insignificant,

although the total time from stop to arrest is a factor that the Court has

considered.

T7a

On July 14, 1999, at approximately 8:15 p.m., Shaw was

a passenger in a 1988 Dodge conversion van‘ driven by Nathan

traveling southbound on U.S. Route 13 near Salisbury,

Maryland. Maryland State Police Sgt. Mike Lewis and Tfc.

Robert Penny was seated in Sgt. Lewis’ unmarked police

cruiser in the parking lot of Zia’s (a restaurant), just north of

Centre Road, across from The Centre at Salisbury. Sgt. Lewis

was writing notes on the back of a previously issued ticket. Tfc.

Penny had entered Sgt. Lewis’ car for the purpose of using

Lewis’ cellular telephone.

While seated in his parked car, Sgt. Lewis heard what he

described as the sound of a vehicle go by his location at an

apparent high rate of speed. Sgt. Lewis and Tfc. Penny pursued

the vehicle onto the U.S. Route 13 bypass pacing the van at 70-

71 miles per hour in a marked 60 miles per hour speed zone.

Sgt. Lewis testified that he observed the vehicle drift across the

shoulder of the roadway on two occasions and that he noted the

left brake lamp was out on the van.

Activating his emergency equipment, Sgt. Lewis stopped

the van. In the process of effecting the stop, Sgt. Lewis noted

that there was a passenger in the rear portion of the vehicle who

raised and then lowered his head. There is no indication in the

testimony that either of the officers was able to make any

observations regarding the physical characteristics of the

occupants including their race or gender until such time as the

van was stopped. Indeed, until the van was stopped, there is no

indication that either of the officers knew how many occupants

there were in the vehicle.

Sgt. Lewis approached the vehicle on the passenger side

and asked the driver, later identified as Defendant Nathan, for

‘ The conversion van is erroneously described as a 1998 Dodge

Ram Van in footnote 2 on page two of Defendants’ memoranda.

78a

his license and registration. The officer testified that he was

overwhelmed with the odor of air freshener coming from the

interior of the vehicle when Nathan lowered the passenger side

window. He further testified that he observed a conversion

ceiling in the roof part of the van that appeared to be lower than

normal. The fabric around the ceiling appeared to be new with

no evidence of fading. Sgt. Lewis further indicated that the

fabric appeared to be extremely tight or erect with no sagging

in the ceiling.

The passenger in the back of the van was later identified as

Defendant Shaw. He was observed by Sgt. Lewis lying beneath

a couple of light travel bags and a blanket. He was asked to

move to the front of the van; Sgt. Lewis indicated that he acted

like he had been asleep. Shaw provided Sgt. Lewis with the

vehicle registration and some additional paperwork. Thereafter,

Nathan was asked to exit and move to the rear of the vehicle.

Sgt. Lewis testified that he noticed that Nathan’s carotid pulse

was pounding on both sides of his neck, that his chest was

palpitating, and that his hands were trembling. Sgt. Lewis

indicated that Nathan would not look him in the eyes. He said

that Nathan could not produce a driver’s license or any other

form of identification.

Upon questioning Nathan as to the origin of the trip, Sgt.

Lewis said that Nathan indicated that he was coming from New

York, then said that he actually had been coming from New

Jersey. Nathan indicated that he and Shaw had been to New

Jersey to pick up the van, then said that they were taking it back

after 500 miles to get the engine oil checked. Concerned with

the lack of identification on Nathan, with the physical

characteristics that he observed and that Nathan had changed

his stury in mid-sentence, Sgt. Lewis testified that he decided

to question Shaw.

79a

Sgt. Lewis testified that he asked questions of Shaw

concerning the origin of the trip. His response was that they

were coming from New York; that they had driven to New

York in a rental vehicle to pick up the van and that they had

just picked it up. Sgt. Lewis testified that he noticed Shaw’s

hands trembling while he was talking to him, that his carotid

artery was pounding and that he observed a nervous twitch over

his eye. Shaw was asked if he would consent to a search of the

vehicle to check for guns and drugs. Shaw agreed and stepped

from the van. He consented to a pat down for weapons.

Sgt. Lewis entered the van on the driver’s side. He hit the

ceiling area over the driver’s seat with his hand and noted that

the ceiling was very solid and very hard with no flexibility. He

observed that the ceiling area was consistent with the ceiling

area of a van he had stopped about four weeks earlier in which

he found an after-market-installed compartment with hydraulic

pistons. He attempted to shift the console area and found that

he was unable to pull it down. He testified that he believed that

it was permanently affixed with steel plates or steel rods.

Sgt. Lewis testified that he exited the van to retrieve a

flashlight to use in an attempt to look into the ceiling area.

Upon returning he was still unable to move the console area.

He exited the van again and returned with a screwdriver to use

in an attempt to pry open the console area. Unable to budge any

part of the console area, Sgt. Lewis returned to his vehicle and

called for backup and requested information on the vehicle and

its occupants.

Upon exiting his vehicle he indicated to the Defendants

that the tags on the vehicle indicated that it was stolen. He had

the Defendants handcuffed and placed them in investigative

detention. The Sergeant admitted that he had no information

that the vehicle was stolen and that his only purpose in securing

the Defendants was to prevent a physical confrontation. When

80a

the handcuffs were placed on the Defendants, Sgt. Lewis

advised them that he knew that there was a secret compartment

in the van and asked them what the code was to open the

compartment.’ He advised the Defendants that if the code was

not revealed that he would have to rip open the ceiling area.

Upon receiving no response from the Defendants, Sgt. Lewis

proceed to tear open the ceiling area and subsequently found a

secret compartment containing 4.8 kilograms of cocaine and

198 grams of pure heroin wrapped in gray duct tape packages.

Also found were several hundred money wrappers.

At approximately 8:34 p.m., about 19 minutes after the

stop of the vehicle, both Defendants were placed under arrest

and transported to the Maryland State Police Barracks in

Salisbury, Maryland. Shaw made no custodial statements,

however, Nathan made a statement to Special Agent (“S/A”’)

David Rivello of the United State’s Department of Justice,

Drug Enforcement Administration. The statement was made

approximately two hours after Nathan had been Mirandized® on

the side of the road by Sgt. Lewis. Nathan was also advised of

his rights under Miranda by S/A Rivello.

Analysis

The Stop

1.

Defendants argue that the initial stop by Sgt. Lewis was

based on racially selective enforcement in violation of the

5 Sgt. Lewis testified that often times there is a complicated

_ sequence of electronic events that has to occur in order to open a secret

compartment. Sgt. Lewis explained, “[y]ou [have] to put the vehicle in drive

one, put your foot on the brake, activate the rear defrost button, hit the cruise

control and a steel door would slide open.” Tr. at 179.

6 Miranda vy. Arizona, 384 U.S. 436 (1966).

8la

Equal Protection Clause of the United States Constitution. They

suggest that there were no legally justifiable grounds for the

stop and that traffic stops of the Maryland State Police

generally, and Sgt. Lewis particularly, are motivated by

discriminatory purposes. In support of their argument, they cite

Statistics that show that 54% of Sgt. Lewis’ stops between

January, 1995 and September, 1999 involved minorities. They

allege that it is inconceivable that 54% of all traffic violators on

Route 13 in Maryland are minorities.

In further support of their argument, Defendants point to,

inter alia, statements made by Sgt. Lewis in an interview with

The New York Times Magazine (Defendants’s Exhibit 13), and

to racially discriminatory statements allegedly made to Sgt.

James C. Collins of the Maryland State Police, the reporting of

which is the subject of a pending lawsuit in the United States

District Court.’

A great deal of the questioning by counsel for Defendant

Shaw at the hearing on motions centered around allegations of

racial discrimination and motivation by Sgt. Lewis. In his

argument to the Court, Shaw suggests that the stop was without

“any legally justifiable grounds.” (Defendant Shaw’s

Memorandum at 5). What Shaw ignores is the fact that the

vehicle in which he was a passenger was operating in excess of

the posted speed limit and ran off onto the shoulder of the road

7 By stipulation, the State and Defendants agreed that Sgt. Collins,

who is white, would testify that Sgt. Lewis told him that there was “nothing

prettier than niggers in handcuffs.” Sgt. Lewis denies making the statement.

See Collins v. Md. State Police, et al., 98-CV-1534 (Md. District).

82a

on more than one occasion.’ Upon following the van, it was

also observed that the vehicle’s left brake lamp was not

functioning. Sgt. Lewis has been a state trooper for over fifteen

years and by his estimation has made thousands of traffic stops.

Tr. at 153. It does not strain the bounds of credulity to accept

that he could make some judgment of a motor vehicle’s speed

by its sound and movement. Clearly, those factors alone may

not be enough to sustain a conviction for exceeding the posted

speed limit or even to justify a stop of the vehicle, but the

Sergeant’s observations surely constitute sufficient reason for

further investigation. Further investigation revealed that, in

fact, the vehicle was operating ten or more miles per hour

above the speed limit and failed to stay within a single lane of

travel.

Moreover, there,is nothing to suggest that Sgt. Lewis (or

Tfc. Penny) knew the race of the occupants of the motor

vehicle prior to the stop. The credible testimony at the hearing

was that Sgt. Lewis was writing notes on the back of a previous

ticket when he was distracted by the sound of a motor vehicle

go by his location at what he believed was a high rate of speed.

When asked by the prosecutor if he was able to make any

observations regarding the physical characteristics of any

occupants of the vehicle, he responded in the negative. Tr. at

142.

§ — Shaw argues that pacing a motor vehicle is unreliable and that

“[i]t is a stretch of reason to believe that Sgt. Lewis took notice of a full size

van crossing the white line less than a foot, or that it amounted to a valid

reason to make a traffic stop.” To the contrary, it is a “stretch” to suggest

that speeding and failing to stay within a single lane are violations of the

traffic laws of Maryland that should be ignored when observed by a trained

police officer with fifteen years of experience. “The Fourth Amendment

does not require a policeman who lacks the precise level of information

necessary for probable cause to arrest to simply shrug his shoulders and

allow a crime to occur or a criminal to escape.” Terry v. Ohio 392 US. 1

(1968).

83a

Courts should carefully review traffic stops which result in

searches and seizures when there is evidence that the stop may

have been effected for reasons other than reasonable suspicion

or probable cause. Race, ethnicity and drug courier profiles may

give rise to questions concerning motivation. In Derricott v.

State, the Court of Appeals noted that “a profile alone may

‘describe a very large category of presumably innocent

travelers, who would be subject to virtually random seizures’

if a mere match to such a profile were deemed sufficient

suspicion to justify a search or seizure.” Derricott v. State, 327

Md. 582, 589, 611 A.2d 592 (1992). In this case, however, the

arguments that suggest racial discrimination are not persuasive.

Sgt. Lewis’ enthusiasm and his comments taken out of context

may cause concerns in some quarters, nonetheless, there is

nothing to suggest that the stop of the van was motivated by

anything more than a state trooper investigating what he

reasonably believed were violations of the traffic laws of the

State of Maryland. If police officers must monitor the

percentage of their stops as they relate to race, ethnicity or even

gender and use those percentages in order to determine whether

to make a stop of a motor vehicle or to detain or arrest a

criminal defendant, all manner of lawbreakers may escape the

scrutiny and application of the law.

Accordingly, this Court finds no evidence that the police

officers generally, and Sgt. Lewis particularly, acted improperly

in the stop of the Defendants’ vehicle. Any attempt to suggest

that the stop of the vehicle was racially motivated is lacking in

legal or factual basis and misplaced in this case.

2.

For the same or imilar reasons previously advanced by the

Defendants, they suggest that their continued detention was

based on their race and the bias that Sgt. Lewis had against

black motorists. The short answer to the Defendants’

84a

allegations is that there simply is no evidence to substantiate

their contentions. The Court finds their bald allegations to be

without merit.

The Search and Detention

Once the determination had been made that there may have

been violations of the traffic laws of the State of Maryland

justifying the stop of the Defendants’ vehicle, Sgt. Lewis’

questioning of the driver of the vehicle, and subsequently, of

the passenger, amounted to little more than a non-constitutional

accosting. Judge Davis, writing for the Court of Special

Appeals in Reynolds v. State, in describing a typical accosting

wrote: “an accosting occurs when police officers approach a

citizen and ask for information, usually one’s name, address,

date of birth, destination, point of origin, and contents of

luggage or vehicle.” Reynolds v. State, 129 Md. App. 410, 428,

742 A.2d 55 (1999). Judge Davis explained further that

“[v]irtually all such interviews conducted during the course of

an officer’s duties are done for the purpose of gathering

information to ferret out criminal offenses or to elicit from

witnesses facts relative to a criminal event or an ongoing

investigation.” Reynolds at 428. An accosting or questioning is

not a seizure, therefore, reasonable articulable suspicion may

not be necessary. Sgt. Lewis believing that there had been a

violation of the traffic laws of the state of Maryland, as a part

of his investigation into those violations, approached the

vehicle and requested of the driver that which any reasonable

officer would request. Nathan was asked to produce his license

and the vehicle registration. He had no identification on his

person or in the vehicle.

Upon approaching the vehicle, Sgt. Lewis testified that he

was “overwhelmed with the odor of air freshener emanating

from the vehicle’s interior.” Tr. at 144. He also testified that he

noticed “‘a lowered ceiling, conversion ceiling in the roof part

85a

of the van that appeared to...be lower than normal. The fabric

that wrapped around this lowered ceiling appeared to be new

fabric, blue, it wasn’t faded at all in this eleven-year-old van.”

Tr. at 143. Sgt. Lewis went on to indicate that the ceiling area

appeared to be “extremely tight or erect, there was no sagging

in the ceiling.” Tr. at 143.

The Court learned subsequently, that four weeks prior to

the stop of Defendants’ vehicle, Sgt. Lewis made a stop of a

another conversion van and discovered a hidden hydraulic

compartment? in the ceiling directly above the driver and right

front seat passenger. Therefore, given the Sergeant’s

observations of the conversion van, it is not unreasonable to

assume that Sgt. Lewis had developed suspicions regarding the

ceiling area of the Defendants’ van. But it is clear at this point,

by any objective standard, that there was no valid reason to

detain the driver or passenger on the basis of any suspected

criminal drug or other contraband activity. What also is clear,

however, is that the Sergeant had every right to continue his

investigation into violations of the traffic laws, especially with

respect to a driver who was without proper identification.

Sgt. Lewis asked Nathan to exit the vehicle and questioned

him about his date of birth and the trip’s point of origin. In the

course of the questioning, Sgt. Lewis testified that Nathan

“changed his story in mid-sentence.” Tr. at 149. Sgt. Lewis

testified that he was able to make certain observations about

Nathan including the fact that his hands were trembling, that he

appeared tense, that he avoided eye contact, that his carotid

pulse was pounding on both sides of his neck and that his chest

® Sgt. Lewis testified that he was the “agency [Maryland State

Police] instructor for hydraulic and electronically controlled compartments”

and that he had received between 100 to 150 hours of training dealing

specifically with those compartments. He was qualified by the Court as an

expert in hydraulically and electronically controlled equipment.

86a

was palpating.’° It was at this time that Sgt. Lewis decided to

speak to Shaw. When asked his reasons for doing so by the

prosecutor, Sgt. Lewis responded, “Mr. Nathan had absolutely

no ID on him at all, he just gave me a name and date of birth.”

Tr. at 149. Sgt. Lewis went on the say, “I wanted to verify who

my driver was if, in fact, I had a licensed driver or a wanted

individual.” Tr. at 150. Although it is apparent that Sgt. Lewis’

suspicions were becoming aroused as to possible criminal

activity by one or more of the persons in the van (Tr. at 150),

he was still in the process of gathering information directly

related to the traffic violations for which he had originally

stopped the vehicle.

Sgt. Lewis’ conversations with Shaw produced a version

of events leading up to the traffic stop different from that

10 During Sgt. Lewis’ direct and cross examination there was

considerable reference by Sgt. Lewis to the observation of certain of the

physical characteristics of both Defendants that tended to indicate their

involvement in criminal activity as opposed to merely being involved in

violations of the traffic laws. Counsel for Shaw had produced for the Court,

detailed records known as DSP 130 forms reflecting the reasons for Sgt.

Lewis’ traffic stops from 1995 through 1999. Counsel suggested at the

hearing that in most instances where nervousness was cited as a factor in

determining grounds for conducting a search, no contraband, especially

drugs or weapons were found. A review of the Form 130's indicates that in

many of Sgt. Lewis’ searches, nervousness without reference to more

detailed physical observations was cited as one of the grounds for a search

or request to search. However, contrary to Defendants’ assertions, in most

of the instances where detailed descriptions of physical characteristics were

noted, e.g. heart palpitations, and pounding of the carotid artery, contraband

was found. This Court recognizes that nervousness alone is not sufficient to

form a basis for police suspicion that the driver or passenger of a motor

vehicle is engaged in the illegal transportation of drugs or weapons.

Whitehead v. State, 116 Md. App. 497, 698 A.2d 1115 (1997). Nonetheless,

nervousness and specific observations of physical characteristics tending to

evidence nervousness when viewed by the experienced eye of a police

officer take on a special meaning which a reasonable officer may consider

in forming reasonable articulable suspicion and/or probable cause.

87a

related to the Sergeant by Nathan. Sgt. Lewis also noted that

Shaw’s hands were trembling, his carotid artery was racing in

his neck and he had a nervous twitching just above and behind

his right eye. Sgt. Lewis testified that as a result of his fifteen

years experience with the Maryland State Police that the

physical observations that he noted were indicative of criminal

activity. “In Derricott, 327 Md. at 591, 611.A.2d at 597, the

Court of Appeals recognized that a police officer, ‘by reason of

training and experience, may be able to explain the special

significance of...observed facts.’ Thus, conduct that appears

innocuous to the average layperson may in fact be suspicious

when observed by a trained law enforcement official.” Ferris

v. State, 355 Md. 356, 391-92, 735 A.2d 491 (1999). See

Footnote 10. Sgt. Lewis asked and received consent from Shaw

to search his van. Up to and including the request to search the

vehicle, Sgt. Lewis’ actions were not unreasonable under the

circumstances. Indeed, it appears that only a little more than

four and one-half minutes had elapsed from the beginning of

the traffic stop to the time in which consent to search was

given. While an argument may be made that Sgt. Lewis

believed that he was involved in an interdiction stop, his

questioning of both Defendants was directly related to his

search for information relative to the traffic stop of the 1988

van. If, in the course of an investigation, evidence of other

illegal activity begins to unfold and become apparent to a

police officer, that officer should not be precluded from using

that information to determine if it is constitutionally

permissible to move his investigation to another level.

2.

Defendants argue that Shaw’s consent to search his vehicle

was not voluntarily given. They suggest that evidence of

involuntariness of consent is the fact that the consent was

preceded by an illegal racially motivated traffic stop and a

second detention unsupported by any articulable suspicion. For

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the reasons previously stated in this Opinion, this Court is not

persuaded that the initial stop of the motor vehicle was

motivated by anything other than an intention to enforce the

traffic laws of this state. Likewise, the Court has determined

that up to the point that consent to search was given, that the

officer was involved in his invéstigation of violations of the

traffic laws.

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) points out

that it is constitutionally permissible to conduct a search

without a warrant, as long as there is valid consent. In

Schneckloth, the United States Supreme Court held that the

question of whether consent to search is voluntary is a question

of fact to be determined by the totality of the circumstances.

Shaw’s consent, given a short time after the traffic stop, was

given while he was seated in his van: He had not been made, at

this point in the stop, to exit his vehicle and was not in the

immedizte presence of more than one police officer. A review

of the video reflecting the stop, although absent significant

audio, does not indicate that Shaw was forced, threatened or in

any other way intimidated into giving consent to search. The

Court believes, considering the totality of the circumstances,

that the consent to search the 1988 van was freely and

voluntarily given by Defendant Shaw, the owner of the van.

3.

Once consent to search had been given to Sgt. Lewis, Shaw

was asked to exit the vehicle in order that the search could be

performed. Although the purpose of the traffic stop had not yet

been completed, it is clear that Sgt. Lewis’ attention was now

focused on matters other than Nathan’s speeding and failing to

drive a motor vehicle within a single lane. Shaw contends that

he was detained shortly after he exited the vehicle and was told

to “sit tight” by Sgt. Lewis. He suggests that Sgt. Lewis did not

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have “independent, réasonable articulable suspicion” that Shaw

(and presumably Nathan) was engaged in criminal activity.

Assuming for arguments sake that Sgt. Lewis had

concluded or abandoned the original purpose of the traffic stop,

a police-driver, and in appropriate cases, police-passenger,

encounter which implicates the Fourth Amendment is

constitutionally permissible only if either (1) the driver

consents to the continuing intrusion or (2) the officer has, at a

minimum, a reasonable, articulable suspicion that criminal

activity is afoot. United States v. Sandoval, 29 F.3d 537, 540

(10th Cir. 1994). In Alabama v. White, the United States

Supreme Court noted that establishing reasonable suspicion is

a significantly less onerous burden than required to establish

probable cause:

Reasonable suspicion is a less demanding standard

than probable cause not only in the sense that

reasonable suspicion can be established with

information that is different in quantity or content

than that required to establish probable cause, but also

in the sense that reasonable suspicion can arise from

information that is less reliable than that required to

show probable cause.

Alabama v. White, 496 U.S. 325, 330 (1990).

When Shaw gave permission to search his vehicle he

consented to a continuing intrusion on his person and property.

At some point during that intrusion, a point difficult to

determine, it can be argued that the Sergeant’s actions exceeded

Shaw’s consent amounting to a second or subsequent detention.

By this time, however, Sgt. Lewis’ level of suspicion had

ripened into reasonable suspicion or reasonable articulable

suspicion. In fact, this Court is persuaded that considering the

totality of the circumstances, Sgt. Lewis had reasonable

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articulable suspicion to investigate pos

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