author: Woodward, J.

text:
    148 A.3d 95
    Larry JACKSON v. STATE of Maryland
    No. 1606,
    Sept.Term, 2015
    Court of Special Appeals of Maryland.
    October 26, 2016

      Submitted by: Jeffrey M. Ross (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.
    Submitted by: Benjamin A. Harris (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.
    Krauser, C.J., Woodward, James P. Salmon (Senior Judge, Specially Assigned), JJ.
   Woodward, J.

A jury in the Circuit Court for Baltimore City convicted Larry Jackson, appellant, of second-degree assault following a domestic dispute at the home occupied by his girlfriend and her family. The court sentenced appellant to a term of imprisonment of ten years. Appellant presents three questions on appeal:

1. Did the court err in admitting other crimes evidence and other irrelevant and unfairly prejudicial evidence?
2. Did the court abuse its discretion in denying appellant’s mistrial motion?
3. Did the court improperly consider a murder charge for which appellant had been acquitted, in imposing sentence?

For the reasons that follow, we answer these questions in the negative and affirm.

BACKGROUND

On September 1, 2014, Tiffani Wilson hosted a birthday party for her husband, Javon Evans, at their home at 1816 McCulloh Street in Baltimore, Maryland. Several family members were in attendance, including Tiffani’s daughter and Evans’s stepdaughter, Shakeara Wilson. Shakeara lived in the basement of the home with her boyfriend, appellant. At this time, Shakeara was five or six months pregnant with a child conceived with appellant. When the festivities concluded around 11:00 p.m. or midnight and party-goers had gone home, Tiffani was cleaning up on the main floor. Evans had gone upstairs to the bedroom, and Shakeara was in the basement with appellant.

Shakeara testified that she and appellant began to argue, which led to a fight, which Shakeara described as “words and pushing.” After some mutual pushing, appellant “restrained” Shakeara by grabbing her around the throat, but “didn’t squeeze.” When appellant released Shakeara, she ran upstairs to get Evans.

Tiffani observed that Shakeara was upset when she came upstairs; she was “hollering and screaming,” crying, and saying “Larry” repeatedly. According to Tiffani, Shakeara, Evans, and Tiffani went down to the basement to confront appellant.

Evans approached appellant and said, “Didn’t I tell you about putting your hands on my daughter” before punching appellant. In response, appellant pulled out a gun and fired it into the ceiling.

Tiffani testified that after this incident, she went upstairs to keep others from coming down to the basement. Later, she observed that Shakeara had a “swollen and red” eye, like she “had a blood clot.” When Tiffani asked Shakeara about her injuries, Shakeara stated that appellant punched her in the face and stomach before leaving the house.

By contrast, Shakeara testified that, when Evans and Tiffa-ni went downstairs to confront appellant, she remained upstairs and could hear arguing. Shakeara stated that she never saw anyone with a gun, nor did she hear a gunshot. Shakeara’s taped statement to police was played for the jury. In that taped statement, Shakeara stated that she heard her mother say, “oh you got a gun” meaning appellant, and Shakeara heard a shot go off. During the interview, a detective asked Shakeara, “did you pass out when you were choked?” Shak-eara responded “borderline.” Shakeara stated that, as she was breaking free from appellant, she “felt herself going out a little bit,” but she was able to run upstairs and tell Evans. Shakeara further stated that appellant punched her in the face at some point before leaving the house.

The record is unclear as to how the police were summoned to the Evans/Wilson residence. Nevertheless, Officer Joseph Banks Jr., from the Baltimore City Police Department, responded to the residence and assisted in the investigation of the incident. Officer Banks interviewed Shakeara, who stated that appellant hit her.

Detective Valencia Vaughn from the Baltimore City Police Department later executed a search warrant at the residence, and a gun, shell casing, cell phone, and wallet were recovered. Tassew Mekuria, a technician with the Baltimore Crime Laboratory, recovered the gun from the third floor bedroom. Tiffani testified that she found that gun by the back door and asked Evans to take it upstairs. She stated that the recovered gun was not the one appellant had used in the September 1st incident. Tiffani had intended to turn it over to the police, but the police searched the house before she had the opportunity to do so. The gun had Evans’s DNA on it, but not appellant’s.

Mekuria also noted that the ceiling in the basement had a bullet hole in it, but he was unable to recover the bullet. He did, however, recover a shell casing from the basement floor. Christopher Faber, a firearms examiner with the Baltimore City Police Crime Lab Mobile Unit, was accepted as an expert in firearms and tool mark identification. Faber examined the recovered gun and shell casing. He testified that the recovered gun was a Taurus PT908 9mm handgun, and the recovered shell casing had been fired from a 9mm handgun. Faber opined, however, that the shell casing did not come from the recovered gun. He testified that another 9mm semi-automatic handgun was used to fire it.

In continuing the investigation, the police were unable to find another handgun. Detective Vaughn interviewed appellant, and he admitted assaulting Shakeara. The prosecutor played portions of this interview for the jury. Appellant denied any knowledge of a handgun, however.

Additional facts will be included as needed in the discussion below.

DISCUSSION

I. Evidentiary Issues

A.

Appellant contends that the court committed several evidentiary errors in the course of the trial. First, appellant contends that the court erred in admitting three pieces of evidence in violation of Maryland Rule 5-404(b). These three pieces of evidence were testimony: (1) from Tiffani that appellant and Shakeara had a “violent” relationship; (2) from Tiffani as to an incident wherein appellant “knocked [Shakeara’s] bottom tooth out” with a phone; and (3) from Shakeara, during her redirect examination, that appellant had assaulted her before. Appellant contends that the above testimony did not fall into any exception of Rule 5-404(b) and also had no probative value.

The State argues that evidence of appellant’s prior conduct with his girlfriend—domestic abuse—is probative of his motive, which is a recognized exception of Rule 5-404(b), If the court erred in admitting this testimony, however, the State argues any error was harmless, because appellant admitted to striking Shakeara, the photographs depicting Shakeara’s injuries were admitted into evidence, and the jury convicted appellant of second-degree assault instead of first-degree assault.

Rule 5-404(b) provides: “Evidence of other crimes, wrongs, or acts ... is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.” Md. Rule 5-404(b). Ordinarily, we review the trial court’s evidentiary rulings for an abuse of discretion. See Wilder v. State, 191 Md.App. 319, 335, 991 A.2d 172, cert. denied, 415 Md. 43, 997 A.2d 792 (2010).

As to other crimes evidence, however, the Court of Appeals has established a three-part test for its admission:

When a trial court is faced with the need to decide whether to admit evidence of another crime—that is, evidence that relates to an offense separate from that for which the defendant is presently on trial—it first determines whether the evidence fits within one or more of the Ross [v. State, 276 Md. 664, 350 A.2d 680 [] (1976)] exceptions. That is a legal determination and does not involve any exercise of discretion.
If one or more of the exceptions applies, the next step is to decide whether the accused’s involvement in the other crimes is established by clear and convincing evidence. We will review this decision to determine whether the evidence was sufficient to support the trial judge’s finding.
If this requirement is met, the trial court proceeds to the final step. The necessity for and probative value of the other crimes evidence is to be carefully weighed against any undue prejudice likely to result from its admission. This segment of the analysis implicates the exercise of the trial court’s discretion.

Snyder v. State, 361 Md. 580, 603-04, 762 A.2d 125 (2000) (citations and internal quotation marks omitted) (quoting State v. Faulkner, 314 Md. 630, 634-35, 552 A.2d 896 (1989)). In the instant case, appellant finds fault with the trial court’s determinations as to the first and third elements of the three-part test.

Motive is a recognized exception to the general rule against admission of other crimes evidence. See Md. Rule 5-404(b). The Court of Appeals has defined motive as “ ‘the catalyst that provides the reason for a person to engage in criminal activity.’ ” Ayala v. State, 174 Md.App. 647, 658, 923 A.2d 952 (2007) (quoting Snyder, 361 Md. at 604, 762 A.2d 125), cert. denied, 401 Md. 173, 931 A.2d 1095 (2007). “To be admissible as evidence of motive, however, the prior conduct must be committed within such time, or show such relationship to the main charge, as to make connection obvious, ... that is to say they are so linked in point of time or circumstances as to show intent or motive.” Snyder, 361 Md. at 605, 762 A.2d 125 (ellipses in original) (internal quotations marks omitted).

The Court of Appeals has held that “[ejvidenee of previous quarrels and difficulties between a victim and a defendant is generally admissible to show motive.” Snyder, 361 Md. at 605, 762 A.2d 125. For example, in Jones v. State, the State sought to admit evidence that Jones had committed violent acts against his wife during the course of the marriage in his trial for her murder. 182 Md. 653, 657, 35 A.2d 916 (1944). The Court noted: “[T]here was almost a continuous state of hostility between them. These other crimes of the accused, having been committed on the same person, are so closely connected to the offense charged as to be evidence as to the intent and motive of the accused in this case.” Id.

In Snyder, where Snyder was on trial for the murder of his wife, the Court held that the trial court had properly admitted testimony of a physical dispute between Snyder and his wife that occurred nearly a year before her murder, that the couple had a “stormy” relationship, and a fight the night before the murder during which Snyder said that his wife was “a dead woman.” Snyder, 361 Md. at 608, 762 A.2d 125. The Court stated: “That evidence was probative of a continuing hostility and animosity, on the part of [Snyder], toward the victim and, therefore, of a motive to murder, not simply the propensity to commit murder.” Id. at 608-09, 762 A.2d 125. Similarly, the Court held that the trial court had properly admitted testimony from the couple’s daughter of prior instances of Snyder hitting his wife. Id. at 609, 762 A.2d 125. Snyder argued that these past episodes were too remote in time to the murder to be relevant, but the Court held that “the incidents [which occurred over a period of at least the previous thirteen years] are logically related to motive ‘to show that the accused made declarations reflecting on his wife, the deceased, to show a long course of ill treatment; to show that they quarreled, [and] that he [ ] maltreated her.’ ” Id. at 611, 762 A.2d 125 (quoting Jones, 182 Md. at 656-57, 35 A.2d 916); see also Stevenson v. State, 222 Md.App. 118, 148-50, 112 A.3d 959 (finding evidence that a witness observed Stevenson argue with his wife a week before her death, that the wife told the witness that Stevenson tried to force her to have sex, and that the wife had a slap mark and other bruises on her face two weeks before her death was admissible to show motive), cert. denied, 443 Md. 737, 118 A.3d 863 (2015).

In this case, the challenged evidence is probative of appellant’s motive in that it shows a history of abuse by appellant of Shakeara, similar to the properly admitted evidence in Jones, Snyder, and Stevenson. It is of no moment that those cases were for murder, and the case at bar is for assault. The motive is the same: the exertion of control over the victim through the perpetration of a cycle of violence. Accordingly, the evidence of appellant’s previous history of abuse of Shakeara' was properly admitted as evidence of motive pursuant to Rule 5-404(b).

As to the third element of the three-part test, we are not persuaded that the court abused its discretion in admitting the subject evidence. A court abuses its discretion where the ruling “is ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’ ” Hebron Vol. Fire Dep’t, Inc. v. Whitelock, 166 Md.App. 619, 644, 890 A.2d 899 (2006) (quoting Rolley v. Sanford, 126 Md.App. 124, 131, 727 A.2d 444 (1999)). Stated another way, a court abuses its discretion “ ‘where no reasonable person would take the view adopted by the [trial] court [] or when the court acts without reference to any guiding rules or principles.’ ” Nash v. State, 439 Md. 53, 67, 94 A.3d 23 (quoting North v. North, 102 Md.App. 1, 13, 648 A.2d 1025 (1994)) (internal quotation marks omitted), cert. denied, — U.S. -, 135 S.Ct. 284, 190 L.Ed.2d 209 (2014).

The challenged evidence was clearly probative of appellant’s motive. We, therefore, disagree with appellant’s contention that this evidence had no probative value whatsoever. Consequently, appellant has failed to convince us that the trial court abused its discretion in determining that the subject evidence’s probative value was not outweighed by the danger of undue prejudice.

Even if the trial court admitted the subject evidence in error, any such error is harmless beyond a reasonable doubt. In a recording played to the jury, appellant admitted that he struck Shakeara. The photographs of Shakeara’s battered face also were in evidence for the jury to review. Finally, and most importantly, defense counsel repeatedly stated in closing argument that “this is a second[-]degree assault,” and told the jury “that conviction, if you find one, should only involve second[-]degree assault, because that’s all that this is.” The jury apparently agreed with defense counsel’s argument, convicting appellant of one count of second[-]degree assault and acquitting him of all other more serious charges. Therefore, any testimony relating to appellant’s prior assaults on Shakeara could not have had any effect on the verdict.

B.

As part of his case, appellant recalled Detective Vaughn to the stand, and the following occurred:

[DEFENSE COUNSEL]: Detective Vaughn, if you could refer to your progress reports, again, please?
[DETECTIVE VAUGHN]: Yes, sir.
[DEFENSE COUNSEL]: Do you have them in front of you?
[DETECTIVE VAUGHN]: Yes.
[DEFENSE COUNSEL]: Um, what is the line that you use at the end of ever [sic] progress report?
[DETECTIVE VAUGHN]: Investigation to continue.
⅝ ⅜ ⅜
[DEFENSE COUNSEL]: Do you have a progress report that shows that the DNA analysis report came back negative to [appellant]?
[PROSECUTOR]: Objection.
THE COURT: I will allow it in that form.
[DETECTIVE VAUGHN]: No, I do not.
[DEFENSE COUNSEL]: Okay. Thank you for allowing you to ask me these two questions [sic].
* * *
THE COURT: [Prosecutor], any cross-examination?
[PROSECUTOR]: Briefly, your Honor.
Detective Vaughn, you have a whole series of progress notes, don’t you?
[DETECTIVE VAUGHN]: Yes, sir.
[PROSECUTOR]: This wasn’t the only incident you were investigating as it relates to this case?
[DEFENSE COUNSEL]: Objection. Beyond the scope.
THE COURT: Overruled.
[DETECTIVE VAUGHN]: Yes, sir, it was not.
THE COURT: You asked about.
[PROSECUTOR]: In fact, what unit are you with, Detective Vaughn?
[DETECTIVE VAUGHN]: The Homicide Unit.
[DEFENSE COUNSEL]: Objection, your Honor. May we approach?
THE COURT: No. And you may sit down. Overruled.
‡ ⅝ ‡
[PROSECUTOR]: Those progress reports indicate an investigation you were handling that related to the events at the 6—1816 McCulloh Street?
[DETECTIVE VAUGHN]: Yes, sir.

Appellant contends that the court erred in permitting the State to elicit testimony as to the additional investigation conducted by Detective Vaughn and her position in the Homicide Unit. Appellant argues that the “clear implication” of this testimony is that appellant was under investigation for homicide. Appellant contends that Detective Vaughn’s testimony is inadmissible “other crimes” evidence pursuant to Rule 5-404(b), and even if it wasn’t, such testimony is irrelevant and outside the scope of appellant’s direct examination.

As to evidence of Detective Vaughn’s assignment to the Homicide Unit, “[i]t is a long-standing rule in Maryland that any objection to the admission of evidence is waived by the subsequent admission, without objection, of the same evidence at a later point in the proceedings.” Standifur v. State, 64 Md.App. 570, 579, 497 A.2d 1164 (1985), aff'd, 310 Md. 3, 526 A.2d 955 (1987); see also Clark v. State, 97 Md.App. 381, 394-95, 629 A.2d 1322 (1993) (noting that objection to evidence will be waived if it is admitted elsewhere without objection). The jury was well aware that Detective Vaughn worked in the Homicide Unit, as she so stated at least twice prior to appellant’s objection: the first on direct examination in the State’s case-in-chief; and the second on direct examination in the appellant’s case. Appellant failed to object previously when Detective Vaughn stated that she worked in the Homicide Unit. Accordingly, appellant has waived this issue.

As to evidence of Detective Vaughn’s other investigation, the State points out that appellant questioned her about her other duties. For example, during cross-examination of Detective Vaughn in the State’s case, the following occurred:

[DEFENSE COUNSEL]: Um, now you—you were the investigating officer on—on—on the investigating detective on this case?
[DETECTIVE VAUGHN]: I was investigating another matter.

Appellant did not object to this testimony. Accordingly, evidence that Detective Vaughn was investigating another matter had been admitted without objection. Appellant’s subsequent objection is, therefore, waived.

II. Motion for Mistrial

At the conclusion of the prosecutor’s cross-examination of Detective Vaughn, the following occurred:

[PROSECUTOR]: And, in fact, um, those progress reports are related to a homicide, am I correct?
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Move to strike.
THE COURT: It will be stricken. The question and the answer—
[DEFENSE COUNSEL]: May we approach?
THE COURT: —the question—there’s no need to approach. I sustained the objection. I did everything you asked.
* * *
[DEFENSE COUNSEL]: Your Honor, I’m going to move for a mistrial.
THE COURT: And the basis?
[DEFENSE COUNSEL]: May I be heard? The basis is that the [prosecutor] intentionally tried to introduce evidence of the homicide without any (inaudible) basis, trying to prejudice my client in this case by making the jury think that the investigation found something more serious than the domestic incident, after we specifically talked about that. It had nothing to do with my questioning.
THE COURT: Okay.
[DEFENSE COUNSEL]: And I think it was really obvious.
THE COURT: [Prosecutor]?
[PROSECUTOR]: Your Honor, the—the reason that Detective Vaughn was brought up was to highlight her lack of documentation in her progress notes. The notes that she had in those progress notes contained more than just this investigation. It was on cross-examination. The defense was well aware that that was a possibility, and despite that, he called her as a -witness.
THE COURT: Okay.
[DEFENSE COUNSEL]: Cross-examination on the issues at hand. I asked her about the DNA analysis and about notes at the bottom of the—of the incident.
THE COURT: They were all her progress reports she referred—you referred to all of her progress reports, It’s at the bottom of all of the progress reports.
[DEFENSE COUNSEL]: That doesn’t make irrelevant material relevant.
THE COURT: I’m noi>-
[DEFENSE COUNSEL]: What does that have to do with—
THE COURT: I’m [sic] sustained the objection. I struck the response. I don’t think it rises to the level of requiring a mistrial. There was no addition of other attempt at that, so I am not granting a mistrial.

On appeal, appellant contends that the trial court should have granted the motion for mistrial because Detective Vaughn’s statement that she was investigating a homicide deprived him of a fair trial. Appellant notes that the court had admonished the prosecutor prior to trial from eliciting any testimony as to the homicide investigation. Although he concedes that the trial court sustained his objection and struck “the question and the answer,” appellant argues that there is a point at which the jury cannot be expected to ignore a prejudicial remark. Appellant contends that the prosecutor’s cross-examination of Detective Vaughn is just such an instance.

The State responds that there was no clear prejudice stemming from Detective Vaughn’s testimony. The State contends, moreover, that appellant “repeatedly worked at the edges” of Detective Vaughn’s other investigation, and the jury was aware that Detective Vaughn worked in the Homicide Unit. The State argues, therefore, that the jury could have inferred that Detective Vaughn was investigating a homicide at the Evans/Wilson residence, and her explicit testimony of this fact was not a surprise. Indeed, the State contends that the only person that was clearly prejudiced by Detective Vaughn’s testimony was Evans because the jury heard evidence that Evans’s DNA was found on the recovered gun, and he refused to testify by invoking his Fifth Amendment privilege against self-incrimination in front of the jury.

The Court of Appeals has recognized that “ ‘a decision to grant a mistrial lies within the sound discretion of the trial judge and that the trial judge’s determination will not be disturbed on appeal unless there is abuse of discretion.’ ” Simmons v. State, 436 Md. 202, 212, 81 A.3d 383 (2013) (quoting Carter v. State, 366 Md. 574, 589, 785 A.2d 348 (2001)); see also Powell v. State, 406 Md. 679, 694, 961 A.2d 1131 (2008) (stating “that a mistrial is generally an extraordinary remedy”). The abuse of discretion standard is appropriate, because “ ‘[t]he judge is physically on the scene, able to observe matters not usually reflected in a cold record. The judge is able ,.. to note the reaction of the jurors and counsel to inadmissible matters. That is to say, the judge has his finger on the pulse of the trial.’ ” Simmons, 436 Md. at 212, 81 A.3d 383 (quoting State v. Hawkins, 326 Md. 270, 278, 604 A.2d 489 (1992)). In some instances, however, a court must declare a mistrial to preserve an accused’s right to a fair trial. See Johnson v. State, 423 Md. 137, 149, 31 A.3d 239 (2011); Powell, 406 Md. at 694, 961 A.2d 1131 (noting necessity of mistrial where “it is the remedy ‘necessary to serve the ends of justice.’ ”) (quoting Cooley v. State, 385 Md. 165, 173, 867 A.2d 1065 (2005)). “We will not reverse a trial court’s denial of a motion for mistrial unless the defendant was so clearly prejudiced that he or she was denied a fair trial.” Wright v. State, 131 Md.App. 243, 253, 748 A.2d 1050, cert. denied, 359 Md. 335, 753 A.2d 1032 (2000).

Although it is true that prior to trial, the trial court warned the prosecutor not to elicit any testimony as to the homicide investigation, the question to Detective Vaughn was the single reference to the other investigation being a homicide. In determining whether to grant a mistrial, courts should consider

whether the reference ... was repeated or whether it was a single, isolated statement; whether the reference was solicited by counsel, or was an inadvertent and unresponsive statement; whether the witness making the reference is the principal witness upon whom the entire prosecution depends; whether credibility is a crucial issue; [and] whether a great deal of other evidence exists[.]

Carter, 366 Md. at 590, 785 A.2d 348 (internal quotation marks omitted) (quoting Rainville v. State, 328 Md. 398, 408, 614 A.2d 949 (1992)). As noted, the prosecutor’s question was the single reference to the other investigation being for a homicide. Detective Vaughn never answered the subject question, nor did she ever state or imply that appellant was the subject of a homicide investigation.

Also, the trial court immediately sustained appellant’s objection to the question and struck it. Appellant did not request a curative instruction. In instructing the jury after the presentation of evidence, the court stated: “The following things are not evidence and you should not give them any weight or consideration. Any testimony that I struck or told you to disregard_”

We are, therefore, not persuaded that appellant was so clearly prejudiced that he was denied a fair trial. See Carter, 366 Md. at 592, 785 A.2d 348 (noting that jurors are presumed to follow the court’s instructions); see also Bryant v. State, 129 Md.App. 150, 161, 741 A.2d 495 (1999) (“An accused ‘has a constitutional right to a fair trial but not necessarily to that seldom experienced rarity, a perfect trial.’ ” (quoting State v. Babb, 258 Md. 547, 552, 267 A.2d 190 (1970))), cert. denied, 358 Md. 164, 747 A.2d 645 (2000).

III. Sentencing Considerations

At the sentencing hearing, the following occurred:

[PROSECUTOR]: Your Honor, ultimately, the [State] strongly believes that [appellant] is responsible for the death of Richard Mira. Did assault—
[DEFENSE COUNSEL]: Objection. What—what does that have to do with this hearing?
[PROSECUTOR]: A lot.
THE COURT: It’s a disposition.
[DEFENSE COUNSEL]: He was found not guilty of that.
THE COURT: It’s a disposition.
[DEFENSE COUNSEL]: For an assault, okay.
THE COURT: I’ll hear it.
[PROSECUTOR]: Your Honor, I think this court, and I think, you know, [defense counsel] brings up a good point. But I think this court can consider those under Henry v. [S]tate[, 273 Md. 131, 328 A.2d 293 (1974) ], “The trial judge is not required to remain oblivious to the evidence of the defendant’s involvement in crimes for which he was acquitted.” [sic]
And I’m asking the Court to take those—those larger circumstances into consideration when it is looking at an appropriate sentence for [appellant].

Appellant contends that the trial court impermissibly considered his acquittal for murder in sentencing him in this case. Accordingly, to appellant, the State failed to provide any reliable evidence of his involvement in the murder for which he was acquitted. Appellant concedes that the court did not mention the acquittal in sentencing him, but he contends that the court clearly considered it because it said, “I’ll hear it.”

The State counters that, although it has the discretion to offer evidence of appellant’s participation in a crime for which he was acquitted pursuant to Henry, it chose not to do so in this case. Moreover, the State contends, the court did not mention the acquittal in announcing the sentence; instead, the court focused on appellant’s three convictions.

The Court of Appeals has held that an appellate court will review a sentence on three grounds: “ ‘(1) whether the sentence constitutes cruel and unusual punishment or violates other constitutional requirements; (2) whether the [trial court] was motivated by ill-will, prejudice^] or other impermissible considerations; and (3) whether the sentence is within statutory limits.’ ” Sharp v. State, 446 Md. 669, 685-86, 133 A.3d 1089 (2016) (quoting Jones v. State, 414 Md. 686, 693, 997 A.2d 131 (2010)). Here, appellant contends that in sentencing him, the court impermissibly considered his acquittal for murder.

In reviewing a challenge to a sentence, we “must read the trial court’s statements ⅛ the context of the entire sentencing proceeding’ to determine whether the trial court’s statements ‘could lead a reasonable person to infer that the [trial] court might have been motivated by an impermissible consideration.’ ” Sharp, 446 Md. at 689, 133 A.3d 1089 (quoting Abduh-Maleek v. State, 426 Md. 59, 73-74, 43 A.3d 383 (2012)). A trial court, however, “ ‘is vested with very broad discretion in sentencing criminal defendants[,]’ ” and “ ‘[a] judge should fashion a sentence based upon the facts and circumstances of the crime committed and the background of the defendant, including his or her reputation, prior offenses, health, habits, mental and moral propensities, and social background.’ ” Jackson v. State, 364 Md. 192, 199, 772 A.2d 273 (2001) (quoting Poe v. State, 341 Md. 523, 531-32, 671 A.2d 501 (1996)).

The Court of Appeals has held that “a sentencing judge may properly consider uncharged or untried offenses.” Smith v. State, 308 Md. 162, 172, 517 A.2d 1081 (1986) (citations omitted). This includes consideration of circumstances surrounding an acquittal. See Henry, 273 Md. at 147-48, 328 A.2d 293. “Indeed, since an acquittal does not necessarily establish the untruth of all evidence introduced at the trial of the defendant, the ‘sentencing judge also may properly consider reliable evidence concerning the details and circumstances surrounding a criminal charge of which a person has been acquitted.’ ” Logan v. State, 289 Md. 460, 481, 425 A.2d 632 (1981) (quoting Henry, 273 Md. at 148, 328 A.2d 293); see also Hamwright v. State, 142 Md.App. 17, 42-43, 787 A.2d 824 (2001).

Appellant acknowledges Henry and its progeny. Appellant contends, nevertheless, that the State failed to produce any reliable evidence of the circumstances surrounding the murder charge for which appellant was acquitted.

In sentencing appellant, the court remarked:

So, there—there is a history of violent behavior involving convictions. Stand up, sir. And I’m sure the social worker would agree that history is a precursor of the future.
The report that was provided discusses a lot of things which if they had happened at various times in [appellant’s] life things may have been different. Unfortunately, we have to deal with the [appellant] who is here, not the [appellant] that it would be nice to have had society and his family create.
The report makes all kinds of recommendations and things with [appellant], but it sort of overlooks one of the significant things, which this court has to address, and that is the potential for future criminality.
He has been convicted three times of behavior which would normally be classified as violent. In 2008, assault and robbery or assault and theft. The case before Judge Jackson [which was not the murder case], and the case that was just tried in front of me.
In spite of all the things in which the social worker believes would be of benefit to [appellant], the greatest concern I have is his threat to society, and the fact that this is essentially a domestic related case because the person assaulted was a woman who was pregnant with his child, makes it even more troubling.
Because as we seem to see on a regular basis, persons who engage in such activity involving intimate acquaintances, continue, and it’s not unusual for the intimate acquaintance, especially one who bears a child, oh, well, no, I didn’t really want—I don’t want him to go to jail. I don’t want anything bad to happen to him. I want him to come home.
It’s going to be awhile [sic] before [appellant] gets home. The sentence of the court is ten years. You may advice [sic] him of his post-trial rights.

(Emphasis added).

Although it would have been acceptable for the trial court to have considered reliable evidence of the circumstances surrounding appellant’s acquittal, here, after examining the totality of the sentencing proceeding, we are not persuaded that the trial court considered appellant’s acquittal for murder at all. The court never mentioned the acquittal in its remarks, but it did explicitly refer to appellant’s three convictions as reasons supporting the sentence. We simply cannot find error based on the court’s remark of “I’ll hear it,” which permitted the prosecutor to proffer evidence of appellant’s acquittal for murder, which the prosecutor subsequently did not do. Accordingly, we are not convinced that a reasonable person would infer that the sentencing court was motivated by an impermissible consideration.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . Appellant was charged with three counts of first-degree assault, three counts of second-degree assault, use of a handgun in a crime of violence, and possession of handgun by a prohibited person. The jury acquitted appellant of all charges, except for one count of second-degree assault.

      . The prosecutor called Evans to the stand, but he refused to testify, invoking his Fifth Amendment privilege against self-incrimination.

      . We also note that, when asked by defense counsel who requested the firearms analysis of the recovered gun and shell casing, firearms examiner Faber stated: "Detective Vaughn from—from the Homicide Unit." Appellant failed to object to this testimony.

      . Detective Vaughn gave no answer to the question that was stricken.


source: Caselaw Access Project

author: Wright, J.

license: Public Domain

text:
    148 A.3d 108
    Pedro Almazo ROJAS, et al. v. BOARD OF LIQUOR LICENSE COMMISSIONERS FOR BALTIMORE CITY
    No. 1020,
    Sept.Term, 2015
    Court of Special Appeals of Maryland.
    Filed: October 26, 2016

      Argued by: Peter A. Prevas (Prevas and Prevas on the brief) all of Baltimore, MD, for Appellant.
    Argued by: Benjamin M. Grossman (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.
    Wright, Kehoe, Arthur, JJ.
   Opinion by

Wright, J.

This appeal arises from a judgment of the Circuit Court for Baltimore City entered on June 23, 2015, which affirmed the decision of appellee, the Board of Liquor License Commissioners for Baltimore City (“Liquor Board”), finding that appellants, Pedro Almazo Rojas, Carlos Navarro Sotelo, and Amigos Bar, Inc. t/a Amigos Bar violated Rule 4.05(a) “Prohibited Hours” and Rule 4.18 “Illegal Conduct” of the Rules and Regulations for the Baltimore City Liquor Board (“Liquor Board Rules”). Accordingly, the circuit court upheld the sanctions imposed by the Liquor Board, which included a four-day suspension, a $3,000.00 fine, and a $125.00 administrative fee. On July 10, 2015, appellants timely appealed.

Questions Presented

Appellants ask:

1. Did the Liquor Board err in finding [appellants] guilty of violating Liquor Board Rule 4.05(a) Prohibited Hours, where [appellants were] not open past 1:00 a.m. Eastern Standard Time on November 2, 2014?
2. Did the Liquor Board err in finding [appellants] guilty of violating Liquor Board Rule 4.18 Illegal Conduct, where two patrons were dancing together on November 2, 2014?
3. Did the Liquor Board deny [appellants] a fair hearing by reviewing letters ex parte from two city councilmen and a community association official requesting that the Liquor Board impose the maximum penalty allowed?

We answer “no” to the first and third questions, and as to the second question, the Liquor Board concedes that it erred in finding that appellants violated Rule 4.18. As such, we uphold the Liquor Board’s finding of a Rule 4.05(a) violation, reverse its finding of a Rule 4.18 violation, and remand the case to the circuit court with instructions to remand to the Liquor Board so that it can reassess the sanctions accordingly.

Facts

Amigos Bar is a tavern business located at 400 South Eaton Street, Baltimore, Maryland 21224, for which Rojas and Sotelo served as the liquor licensees. Appellants hold a Baltimore City Class D Liquor License authorizing the sale of beer, wine, and liquor at Amigos Bar. The liquor license permits alcohol sales “at any time except from [ ] 1:00 A.M. until 6:00 A.M. daily and no sales on Sunday from 1:00 A.M. until 6:00 A.M. Monday unless such hours shall be further extended or limited by law.” In addition, Amigos Bar has a Certificate of Occupancy specifying that it may “continue to use 1st [floor] of premises for a tavern with out [sic] live entertainment ....”

On November 2, 2014, at 1:23 a.m. Eastern Daylight Time (“EDT”), Baltimore City Police Lieutenant William Colburn and Baltimore City Liquor Inspector Tommy Karanikolis were conducting random checks of liquor licenses throughout the Southeastern District of Baltimore City when they noticed that Amigos Bar appeared to be open. Lt. Colburn knew the time restrictions on Amigos Bar’s license from previous experience, and both men knew that on that night, Daylight Saving Time would end at 2:00 a.m. EDT, at which time Eastern Standard Time (“EST”) would resume.

Inspector Karanikolis approached Amigos Bar first. He saw a bouncer outside and a sign indicating that the tavern was open. Upon entering the building, Inspector Karanikolis observed about 13 or 14 people with drinks. Although he did not see anyone actually drinking their beverages, he noted that the patrons had drinks inches away from them, and he saw people paying for drinks as they left the bar.

Lt. Colburn entered the tavern approximately two minutes later and observed the same: numerous alcoholic drinks on the bar and in the bar area, about 12 to 15 patrons seated around the bar or standing, many with drinks inches away from them. He also saw two individuals dancing together to loud music. Lt. Colburn then “ordered the establishment to close, turn the music off and have patrons exit the establishment.”

By notice dated November 4, 2014, the Liquor Board cited appellants with violation of Rule 4.05(a), for being open and operating Amigos Bar past 1 a.m., and Rule 4.18, for having “live entertainment” (ie., “2 people dancing on the first floor area of the establishment while music was being played”), on November 2, 2014. The Liquor Board held a hearing on December 11, 2014, at which time appellants, represented by counsel, were tasked with showing why its liquor license should not be suspended or revoked. With regard to Rule 4.05(a), counsel for appellants argued that Amigos Bar complied with the code because the statute “makes [no] clarification” regarding Daylight Saving Time and “as long as they close by the second one o’clock they have complied with the statute.” Counsel further argued that there was no violation of Rule 4.18 because patron dancing, as opposed to a “dance performance,” did not fall within the definition of “live entertainment.”

Following the hearing, the chairman of the Liquor Board rejected appellants’ arguments, “rule[d] that the facts are clear” and “found the licensee responsible,” thereby recommending a “closing of four days” and a “$3,000 fine because ... it’s a subsequent offense.” The remaining two commissioners on the Liquor Board agreed. One commissioner noted that despite Amigos Bar being located in a district that allows dancing and live entertainment, appellants did not “get approval from zoning to have dancing at the location.” In addition, the other commissioner stated that, with regard to the daylight saving time issue, “it’s a clever argument, but ... it’s clear that there was a violation.”

Counsel for appellants argued for mitigation of the penalty, prompting the Liquor Board to refer to three letters that it had received on the day of the hearing, over appellants’ objection. Two of the letters were from Baltimore City Councilmen Brandon M. Scott and James B. Kraft, respectively, and one was from Kevin L. Bernhard, a Liquor Board member, on behalf of the Highlandtown Community Association, Inc. All three letters asked the Liquor Board to consider or impose the maximum penalty, which at that time included revocation or suspension of the license, and/or “a fine of not more than $3,000.” See Md. Code (1957, 2011 Repl. Vol.) Art. 2B, §§ 10-401(a)(2) & 16-507; Liquor Board Rule 1.01 et seq.

On December 12, 2014, appellants filed a petition for judicial review. Following a hearing on June 11, 2015, the circuit court affirmed the Liquor Board’s decision. This appeal followed.

Standard of Review

Judicial review of the decision of a local licensing board is governed by Md. Code (2016), § 4-901 et seq. of the Alcoholic Beverages Article (“AB”). Pursuant to AB § 4-905(a), “the court shall presume that the action of the local licensing board was proper and best served the public interest.” In addition, the petitioner has the burden of proof to show that the decision of the local licensing board being reviewed was against the public interest and either not honestly and fairly arrived at, arbitrary, procured by fraud, unsupported by substantial evidence, unreasonable, beyond the powers of the board, or illegal. AB § 4-905(b); see also Bd. of License Comm’rs For Prince George’s Cnty. v. Glob. Exp. Money Orders, Inc., 168 Md.App. 339, 346, 896 A.2d 432 (2006).

We have “consistently explained that judicial review of a decision by the Board is similar to review of decisions by most other administrative agencies.” Blackburn v. Bd. of Liquor License Comm’rs for Baltimore City, 130 Md.App. 614, 623, 747 A.2d 725 (2000) (citations omitted). When reviewing administrative decisions, we look through the circuit court, although applying the same standard of review, and evaluate the decision of the agency. Cnty. Council of Prince George’s Cnty. v. Zimmer Dev. Co., 444 Md. 490, 553, 120 A.3d 677 (2015) (citation omitted).

In so doing, we are limited to determining if there is substantial evidence in the record as a whole to support the agency’s finding and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law. Stated differently, [o]ur primary goal is to determine whether the agency’s decision is in accordance with the law or whether it is arbitrary, illegal, and capricious. In applying the substantial evidence test, we must decide whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.

Matthews v. Hous. Auth. of Baltimore City, 216 Md.App. 572, 582, 88 A.3d 852 (2014) (internal citations omitted). Moreover, “[w]hen reviewing factual issues, we must review the agency’s decision in the light most favorable to the agency since its decision is prima facie correct and carries with it the presumption of validity.” Bd. of License Comm’rs for Prince George’s Cnty., 168 Md.App. at 345, 896 A.2d 432 (citation omitted).

“When deciding issues of law, ... our review is expansive, and we may substitute our judgment for that of the agency if there are erroneous conclusions of law,” employing a de novo standard of review. Matthews, 216 Md.App. at 582, 88 A.3d 852. But,

[e]ven with regard to some legal issues, a degree of deference should be accorded the position of the administrative agency. Therefore, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. As the [Court of Appeals] noted, the expertise of the agency in its own field should be respected. Similarly, we defer to an agency’s interpretation of its own regulations.

Young v. Anne Arundel Cnty., 146 Md.App. 526, 569, 807 A.2d 651 (2002) (internal citations omitted). Only “when statutory language is clear and unambiguous” should a reviewing court give no weight to an agency’s interpretation and application of the statute it administers. Macke Co. v. Comptroller of the Treasury, 302 Md. 18, 22-23, 485 A.2d 254 (1984).

Discussion

I. Prohibited Hours

Appellants do not dispute that Amigos Bar was open at 1:23 a.m. on November 2, 2014, and that Daylight Saving Time ended on that day. Appellants argue, however, that because their liquor license and the applicable statute “speak in terms of when the Licensee must close as opposed to when the Licensee may remain open,” then Amigos Bar was “in compliance ... so long as it closes by 1:00 A.M. (eastern standard time).” Accordingly, they ask us to answer this “purely legal question” by determining, de novo, that appellants were required to stop selling alcohol only “by the second 1:00 A.M.,” or during the changeover from Daylight Saving Time to standard time, at 1 a.m. EST,

The Liquor Board found that appellants violated Liquor Board Rule 4.05, which at that time provided that “[n]o licensee shall permit any person to consume alcoholic beverages on the licensed premises during hours when such sales are prohibited by law.” In turn, appellants’ liquor license permitted alcohol sales “at any time except from [ ] 1:00 A.M. until 6:00 A.M. daily and no sales on Sunday from 1:00 A.M. until 6:00 A.M. Monday ” At the time of the incident at issue, Eastern Daylight Time was the standard time in effect and, thus, alcohol sales were prohibited beginning at 1 a.m. EDT, on November 2, 2014. Because it is undisputed that Amigos Bar remained open for at least 23 minutes past that time, and that there was evidence of the sale, service, or on-premises consumption of alcohol during that time, we agree with the Liquor Board that appellants violated Rule 4.05. We explain further.

Under Maryland law, “[t]he standard time in the State shall be that of the 75th meridian of longitude west from Greenwich,” better known as the Eastern Time Zone. Md. Code (2014), § l-301(a) of the General Provisions Article; 49 C.F.R. § 71.4 (establishing the boundaries of the Eastern Time Zone, in which Maryland is included). The “standard time” of the Eastern Time Zone, like all other U.S. time zones, is established and regulated by federal law. See 15 U.S.C. § 261. The parties do not dispute that the standard time changes by one hour when Daylight Saving Time is in effect: “[d]uring the period commencing at 2 o’clock antemeridian on the second Sunday of March of each year and ending at 2 o’clock anteme-ridian on the first Sunday of November of each year, the standard time of each zone ... shall be advanced one hour and such time as so advanced shall ... be the standard time of such zone during such period.” 15 U.S.C § 260a(a). Thus, “the standard time of each State observing Daylight Saving Time”—including Maryland— “shall be advanced 1 hour beginning at 2 a.m. on the second Sunday in March of each year and ending at 2 a.m. on the first Sunday in November.” “This advanced time shall be the standard time of each zone during such period.” 49 C.F.R. § 71.2 (emphasis added). As such, at 1:23 a.m. EDT on November 2, 2014, the standard time remained Daylight Saving Time and, therefore, appellants were in violation of Rule 4.05, which prohibited Amigos Bar from selling alcohol “on Sunday from 1:00 A.M. until 6:00 A.M. Monday.”

Our holding is not only consistent with the decision of the Liquor Board, to whom we give some deference in the interpretation and application of its own statute, Young, 146 Md.App. at 569, 807 A.2d 651; our holding is also consistent with previous decisions of our sister states. As the Supreme Court of Wisconsin has noted, this construction of a standard time “conforms to the evident purpose of the legislature to establish a single standard of time which would be in conformity to the standard upon which interstate commerce was based, and to avoid [] confusion ....” State v. Badolati, 241 Wis. 496, 6 N.W.2d 220, 222 (1942). As such, “courts cannot recognize any hours or time other than that recognized and established by law, state and national.” Daylight Saving v. Standard Time, 49 Pa.C.C. 107, 110 (Pa. Com. Pl. 1920) (“Any attempt on the part of the court and court officials to indicate expressly a different standard ... locally, would lead to confusion and might result in loss and serious embarrassment to individuals”). As the Court of Common Pleas of Pennsylvania aptly stated, “those not so limited may if they wish change their hours of labor or meeting and move the hand on their clocks forward or backwards accordingly, but they cannot by so doing change the hour of the day any more than they can change Monday to Tuesday or January to June by so calling them.” Id.

II. Illegal Conduct

Next, appellants contend that the Liquor Board erred in finding that they violated Liquor Board Rule 4.18 because “there was no evidence that the patrons were engaged in any type of live entertainment.” In a footnote at the end of its brief, the Liquor Board “concedes that it erred in finding that [appellants] violated Rule 4.18 by allowing ‘live entertainment.’ ” According to the Liquor Board, “for purposes of Rule 4.18 patron dancing is not within the definition of ‘live entertainment.’” (Citing Zoning Code, Baltimore City, § 1-153.2, § 1-194.2, § 14-309(b)(l),(2)). Thus, we reverse the circuit court’s judgment upholding the Liquor Board’s finding that a Rule 4.18 violation occurred.

III. Fair Hearing

Finally, appellants aver that they were denied a fair hearing because the Liquor Board reviewed letters ex parte from two city councilmen and a community association. According to appellants, the Liquor Board improperly reviewed correspondence from the community that was not available to appellants until the day of the hearing. Moreover, they argue that the Liquor Board imposed a severe sanction due to political pressure. Although we are remanding this case so that the Liquor Board can reassess the sanctions to be imposed based only on a violation of Liquor Board Rule 4.05(a), we shall nonetheless address this issue in the event that the acts complained of recur upon remand.

First, the Liquor Board did not deprive appellants of a fair hearing by receiving the three letters. As explained on the record, the Liquor Board received the correspondence only on the day of the hearing, and informed counsel for appellants that the chairman could “certainly give them to you right now as soon as I see them.” After seeing the letters, however, appellants did not seek a postponement to prepare a response to the information, request a brief adjournment to discuss the contents, or refute any of the information in the correspondence. Appellants’ failure to take any of these actions does not equate to a denial of a fair hearing.

Moreover, the Liquor Board’s review of the letters did not render the hearing unfair. As the Liquor Board correctly states, its role as both a prosecutor and decision maker permits it to review evidence of community complaints about a licensee. Bd. of Liquor License Comm’rs for Baltimore City v. Hollywood Prods., Inc., 344 Md. 2, 9, 684 A.2d 837 (1996) (“the Liquor Board has rule making, investigatory, and prosecutorial authority”) (citation omitted). The alcohol beverage laws permit Maryland’s various liquor boards to receive community input about possible violations by licensees. See AB § 4-603(a) (stating that the Liquor Board is authorized to receive written complaints from “citizens, residents, real estate owners and voters of the precinct” in which a liquor licensee is located). The Liquor Board has the authority to revoke or suspend a liquor license “for any reason to promote the peace or safety of the community in which the premises are located.” AB § 4-604(a)(1).

In this case, the Liquor Board reviewed complaints about Amigos Bar from two Baltimore City Council Members who wrote to the Liquor Board to raise concerns from their constituents. Additionally, the local community association, on behalf of the residents in the area surrounding Amigos Bar, expressed concerns about appellants’ conduct in a letter to the Liquor Board. The Liquor Board, in its capacity as both prosecutor and investigator, was permitted to review these letters from the community.

Next, we also reject appellants’ contention that the Liquor Board was biased and lacked impartiality in imposing sanctions. Preliminarily, we note that appellants did not raise this issue by objecting to the Liquor Board’s ruling below and, therefore, it is not preserved for our review. Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided [below]”). But, even if it had been preserved, appellants’ argument still fails.

Appellants’ claim of bias relates to the Liquor Board’s review of community letters calling for the maximum penalty. The Liquor Board, however, rejected the requests of the two local councilmen in that it did not impose the maximum penalty. While the Liquor Board could have imposed a maximum sanction of revocation of the liquor license and a $3,000.00 fine, it imposed only a four-day suspension and a $3,000.00 fine. See Art. 2B, §§ 10-401(a)(2) & 16-507; Liquor Board Rule 1.01 et seq. Therefore, appellants have not shown that, in rendering its decision or imposing the penalty, the Liquor Board was biased or not impartial.

For all of the foregoing reasons, we affirm the circuit court’s judgment upholding the Liquor Board’s finding of a violation of Liquor Board Rule 4.05(a), reverse that which upheld a finding of a violation of Liquor Board Rule 4.18, and remand this case to the circuit court with instructions to remand to the Liquor Board for imposition of sanctions based only on the single violation.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.

      . Appellants served the four-day suspension prior to filing their Petition for Judicial Review, as the Liquor Board denied their request for a stay.

      . According to appellants, while this matter was pending before the circuit court, Rojas ceased to continue as a licensee. Sotelo, however, continues to be a licensee on behalf of Amigos Bar.

      . Lt. Colburn testified that police had warned Amigos Bar to stop serving after 1 a.m. on three or four previous occasions, including one incident where police responded to a 911 call by a citizen complaining about the tavern being open past 1 a.m.

      . "Federal oversight of time zones began in 1918 with the enactment of the Standard Time Act, which vested the Interstate Commerce Commission with the responsibility for establishing boundaries between the standard time zones in the continental United States.” U.S Department of Transportation, Uniform Time, https://www.transportation.gov/ regulations/time-act (last visited Oct. 12, 2016). Daylight Saving Time was also introduced in 1918. Library of Congress, Today in History— November 18, https://www.loc.gov/item/today-in-history/november-l 8 (last visited Oct. 12, 2016).
      Daylight Saving Time is "the part of the year when we advance our clocks by one hour, shifting the time of day in relation to where the Sun is above Earth,” such that " 'daylight' begins an hour later in the morning and lasts an hour longer in the evening,” in order to "keep the hours of daylight coordinated with the time that most people are active.” National Institute of Standards and Technology, Local Time FAQs, https://www.nist.gov/node/437216 (last visited Oct. 12, 2016). Daylight Saving Time begins each year on the second Sunday in March at 2 a.m., at which time clocks must be moved ahead one hour. Id. The changeover back to standard time occurs on the first Sunday in November at 2 a.m., at which time clocks must be moved back one hour. Id. "Today, the Uniform Time Act of 1966 (15 U.S.C. §§ 260-64) establishes a system of uniform Daylight Saving Time throughout the Nation and its possessions ....” U.S Department of Transportation, Uniform Time, supra.

      . On direct examination, Lt. Colburn testified to seeing "two people dancing on an open area in front of the DJ, which I can only describe as a dance floor.” On cross-examination, however, upon being shown photos of the interior of Amigos Bar, Lt. Colburn agreed that there was no DJ and that the two patrons were dancing in a small area between a “pool table and the bar.”

      . Appellants were also responsible for an $125.00 administrative fee.

      . Prior to July 1, 2016, this statute was codified at Md. Code (1957, 2011 Repl. Vol.) Art. 2B, § 16-101.

      . Neither party raised or discussed Art. I § 8 of the Baltimore City Charter, which provides, in pertinent part:
      The official time of the City of Baltimore shall conform to standard time based upon the time of the seventy-fifth meridian, except that, from two o’clock a.m. of the last Sunday in April until two o'clock a.m. of the last Sunday in September of each year, the official time throughout the City of Baltimore shall be advanced one hour ....
      In any event, to the extent that such provision is applicable to this case, we deem it preempted by federal law, which we discuss, infra.

      . In the Legislative Notes to AB § 11-2003, the Revisor stated:
      Former Art. 2B, § ll-502(c), which stated that the hours established by the article for the sale of alcoholic beverages .., are declared to be in accordance with Eastern Standard Time on the last Sunday of October in each year, is deleted as obsolete and unnecessary. Since 2007, Eastern Standard Time begins in Maryland on the first Sunday in November; thus, on the last Sunday of October, the State now observes Eastern Daylight Savings Time.


author: Beachley, J.

text:
    148 A.3d 117
    Anthony SANTOS v. STATE of Maryland
    No. 2448,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    October 26, 2016

      Argued by: Allison R. Levine (Roland Walker & Marc Zayon PA on the brief) all of Baltimore, MD, for Appellant.
    Argued by: Todd W. Hesel (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.
    Arthur, Reed, Beachley, JJ.
   Beachley, J.

Anthony Santos, appellant, presents one question for our review: whether the Circuit Court for Baltimore County erred in denying appellant’s motion to suppress evidence seized as a result of an illegal search. Appellant entered conditional guilty pleas to distributing heroin and possession with intent to distribute cocaine. We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 30, 2014, at approximately 12:45 p.m., Detective Dominic Bridges and Sergeant George Rakowski were patrolling in an unmarked car near the Eastpoint Mall in Dundalk. Both officers were assigned to the narcotics section of the Baltimore County Police Department. While traveling on an access road around the mall, the officers observed a black car parked outside a McDonald’s restaurant. Detective Bridges noticed the car because, in his experience, “drug transactions and things like that are occurring at places, public places where you can blend in.” He also noted that the vehicle was parked away from the restaurant itself, though spaces were available closer to the McDonald’s. Sergeant Rakowski noted that the officers knew the parking lot to be “highly concentrated for narcotics transactions.”

Detective Bridges saw appellant in the driver’s seat and a white female, later identified as Amanda Fitch, in the passenger’s seat. He noticed that they were “looking around” and believed they were checking for the presence of police. The officers observed Ms. Fitch exit the car, enter the McDonald’s restaurant, and sit at a table with a white male. Both officers noted that she was wearing pajama pants. Appellant then drove out of the parking lot, passing the officers. The officers noticed that appellant was not wearing a seat belt and was “manipulating” his cell phone. Detective Bridges believed that everything he had observed to that point was consistent with a drug transaction. He told Sergeant Rakowski that he intended to stop the vehicle. The officers followed appellant and conducted a traffic stop in a parking lot in front of a Bank of America branch on the other side of the mall.

Detective Bridges approached the driver’s side of appellant’s car while Sergeant Rakowski went to the passenger’s side. Detective Bridges identified himself as an undercover detective, explained the reasons for the stop, and asked for appellant’s license and registration. Both officers observed that appellant was unusually nervous and “sweating profusely” even though it was “not a hot day.” Detective Bridges noted that appellant was trembling; he instructed appellant to place the vehicle in park and appellant complied. Sergeant Rakowski asked appellant where he was coming from. Appellant replied that he had just come from the mall. Sergeant Rakowski then asked appellant if he had stopped anywhere or met with anyone. Appellant replied that he had not met anyone and was headed home. Because he had just seen appellant at the McDonald’s with Ms. Fitch, Detective Bridges concluded that appellant was lying. Detective Bridges asked appellant to exit and move to the rear of the car.

Detectives Herr and Johnson arrived in a second vehicle within two to three minutes after the initial stop. While Detective Bridges conducted a record and registration check, Sergeant Rakowski and Detective Johnson went back to the McDonald’s to try to find Ms. Fitch. Appellant’s record check revealed two possible warrants. Detective Bridges asked the precinct desk to confirm whether the warrants were active.

Meanwhile, after arriving at the McDonald’s, which was “right around the corner” from the location of the traffic stop, Sergeant Rakowski went inside to look for Ms. Fitch. Unable to find her in the dining area, Sergeant Rakowski asked the manager to check the women’s bathroom for a female matching Ms. Fitch’s description. The manager obliged and told Sergeant Rakowski that a woman matching the description was in the bathroom. After she exited the bathroom, Sergeant Rakowski asked Ms. Fitch about “the stuff you just got from the guy in the car, the black car at the top of the hill.” Ms. Fitch replied that she had “already used it.” She explained that appellant had retrieved the heroin from behind the passenger’s seat of the car. Sergeant Rakowski then radioed Detective Herr at the scene of the traffic stop and informed him that Ms. Fitch had admitted to buying heroin from appellant. Sergeant Rakowski estimated he made the radio report six minutes after leaving the traffic stop. According to Detective Bridges, he and Detective Herr received Sergeant Rakowski’s call after appellant’s license and registration had been verified, but before learning the status of appellant’s warrants.

Based on the information he received from Sergeant Ra-kowski, Detective Bridges arrested appellant and searched his car. Detective Bridges found a modified WD-40 can containing suspected illegal drugs behind the passenger’s seat. A laboratory analysis confirmed that the substances were heroin and cocaine.

At the hearing on appellant’s motion to suppress evidence, appellant’s counsel attempted to pinpoint the timing and sequence of the events. Detective Bridges testified that the stop occurred at 12:47 p.m. and that the warrants check came back as negative at 1:00 p.m. This testimony was based on audio recordings between the detective and police dispatch. Sergeant Rakowski testified similarly. Appellant’s counsel then showed both officers the written dispatch record indicating that unit “N-120”—Sergeant Rakowski—was “in route” to an unspecified destination at 1:03 p.m. Neither officer could initially determine whether “in route” meant that Sergeant Ra-kowski was traveling to or from the McDonald’s. Sergeant Rakowski ultimately concluded, based on the audio-record of communications, that he was at the McDonald’s when he made a radio request for a marked patrol car. Sergeant Rakowski made that call at 1:01 or 1:02 p.m., fourteen to fifteen minutes after the initial traffic stop at 12:47 p.m.

Appellant also testified at the suppression hearing. He denied using his phone while driving, but acknowledged the “possibility” of not wearing his seat belt.

Based on the testimony and evidence, the circuit court denied the motion to suppress, specifically finding the testimony of both Detective Bridges and Sergeant Rakowski credible. The trial court also made the following findings of facts:

• The officers noticed appellant’s car parked on the “upper lot” away from the McDonald’s.
• Both appellant and his female passenger (Ms. Fitch) ■ were “looking around.”
• The female passenger exited the vehicle and went into the McDonald’s where she “sat with a man.”
• As appellant passed the officers, they noticed that appellant was not wearing a seat belt and was “manipulating his phone.”
• Appellant was “nervous beyond what one would normally expect” when stopped by the officers.
• Appellant was “sweating profusely.”
• When asked where he had been, appellant stated that he had been at the mall. Appellant denied having met with anyone “when, in fact, he had met with the red haired pajama bottom lady” (Ms. Fitch). Appellant provided those answers before exiting the car.
• Sergeant Rakowski left the scene of the traffic stop to go to the McDonald’s before dispatch provided the record check.
• Approximately thirteen minutes elapsed between the traffic stop at 12:47 p.m. and the report at 1:00 p.m. verifying that appellant did not have any active warrants.
• Sergeant Rakowski was at the McDonald’s when he requested a patrol car.

The trial court concluded that the traffic stop was a valid Whren stop, the questions posed to appellant by the officers were “routine,” and that the officers had “reasonable suspicion” to detain appellant based on his answers and the officers’ other observations. The trial court therefore denied the motion to suppress.

In order to preserve his right to appeal, appellant entered a conditional guilty plea to charges of distributing heroin and possession of cocaine with intent to distribute. The court accepted the plea and sentenced appellant to ten years without the possibility of parole on the distribution charge and fifteen years consecutive, but suspended, on the possession with intent charge. Appellant timely noted this appeal.

STANDARD OF REVIEW

“When reviewing the disposition of a motion to suppress evidence alleged to have been seized in contravention of the Fourth Amendment ... we view the evidence adduced at the suppression hearing, and the inferences fairly deducible therefrom, in the light most favorable to the party that prevailed on the motion.” Crosby v. State, 408 Md. 490, 504, 970 A.2d 894 (2009). The one qualification to this general rule is that “[t]he actual findings of fact made by the hearing judge, unless clearly erroneous, ‘trump’ the version most favorable to the prevailing party to the extent to which they might be in conflict.” Charity v. State, 132 Md.App. 598, 606, 753 A.2d 556 (2000). “Nevertheless, in resolving the ultimate question of whether the detention and attendant search of an individual’s person or property violates the Fourth Amendment, we make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.” Crosby, 408 Md. at 505, 970 A.2d 894 (internal quotation marks omitted). Here, the trial court made several specific findings of fact in denying appellant’s motion to suppress. We will therefore accept these facts unless clearly erroneous. As to all other facts and evidence, we will assume the version of the facts most favorable to the State and make our own independent conclusions of the law.

DISCUSSION

Our analysis begins with the so-called “Whren-stop.” We observed in Charity v. State, 132 Md.App. 598, 601, 753 A.2d 556 (2000):

In Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the Supreme Court extended law enforcement officers a sweeping prerogative, permitting them to exploit the investigative opportunities presented to them by observing traffic infractions even when their primary, subjective intention is to look for narcotics violations.

In assessing the traffic stop, the only concern is whether the officer possessed sufficient information to objectively justify the stop; the officer’s subjective intent is irrelevant. Jackson v. State, 190 Md.App. 497, 503, 988 A.2d 1154 (2010). Here, the officers observed appellant not wearing a seat belt and “manipulating” his cell phone while driving. Appellant correctly notes that only uniformed police officers are authorized to stop motorists for seat belt violations. See Md. Code (1977, 2012 Repl. Vol., 2016 Supp.) § 22-106(a) of the Transportation Article (“TR”). At oral argument appellant conceded that there is no such limitation for stopping a driver while using a handheld telephone. Accordingly, the trial court correctly found that the traffic stop was justified under Whren.

A. Limitations of a Traffic Stop Under Ferris v. State

In Ferris v. State, 355 Md. 356, 369, 735 A.2d 491 (1999), the Court of Appeals explained the limitations imposed upon law enforcement after a valid traffic stop:

The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention. United States v. Mendenhall, 446 U.S. 544, 551, 100 S.Ct. 1870, 1875, 64 L.Ed.2d 497 (1980). The Supreme Court has made clear that a traffic stop involving a motorist is a detention which implicates the Fourth Amendment. See United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); Berkemer v. McCarty, 468 U.S. 420, 489, 104 S.Ct. 3138, 3150, 82 L,Ed.2d 317 (1984) (analogizing the degree of intrusiveness of the usual traffic stop to the degree of restraint imposed by the typical Terry stop). It is equally clear, however, that ordinarily such a stop does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Nonetheless, the Supreme Court has also made it clear that the detention of a person “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (plurality opinion).

The Court further explained that,

the 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. See Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26. 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.

Id. at 372, 735 A.2d 491. It is that second component— reasonable articulable suspicion—that formed the basis of the trial court’s ruling in this ease and to which we turn our attention.

B. Reasonable Articulable Suspicion Under Terry

The officers detained appellant at 12:47 p.m. for two traffic violations. Almost immediately, the status of appellant’s detention embarked upon a parallel track of a Terry investigation for a narcotics violation. In State v. Ofori, 170 Md.App. 211, 245, 906 A.2d 1089 (2006), we recognized the potential for a second, independent justification for a detention:

The caselaw universally recognizes the possibility that by the time a legitimate detention for a traffic stop has come to an end, or more frequently while the legitimate traffic stop is still in progress, justification may develop for a second and independent detention. Unfolding events in the course of the traffic stop may give rise to Terry-level articulable suspicion of criminality, thereby warranting further investigation in its own right and for a different purpose.

And in Jackson, 190 Md.App. at 515, 988 A.2d 1154, we further explained:

There is no logically sound reason why at any point in the course of a traffic stop, articulable suspicion might not achieve critical mass for a Terry criminal investigation. If such articulable suspicion may develop in the total absence of a traffic stop, it may as readily develop in the course of one. From that point on, the processing of 1) the traffic infraction and 2) the Terry investigation for narcotics involvement may proceed simultaneously on parallel tracks. The time limit for processing the traffic infraction, to be sure, might run its course before the Terry drug investigation time limit runs out; but the detention itself will still be reasonable as long as either of its justifying rationales, the old one or the new one, remains vital.

As in Jackson, the traffic stop and detention of appellant in this case almost immediately morphed into a parallel Terry-stop. The trial court found reasonable suspicion under Terry rather than the ripening of probable cause to arrest while waiting for the records check. While we may decide a suppression issue on any legal basis supported by the facts, we will limit our de novo constitutional review in this case to the Terry-based justification for the detention.

1, Articulable Suspicion for a Narcotics Violation

Whether the police have reasonable articulable suspicion to investigate further is based on the totality of circumstances. The Supreme Court unanimously articulated that standard in United States v. Arvizu:

When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the “totality of the 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.

534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (emphasis added) (citations omitted).

With this framework, we turn our attention to the present case. Officers first noticed appellant because he had parked away from the McDonald’s despite closer parking spaces being available. Sergeant Rakowski testified that he knew the parking lot to be “highly concentrated for narcotics transactions.” Detective Bridges testified that appellant and Ms, Fitch were “looking around”; inferentially, he believed they were checking the area for the presence of police officers. Ms, Fitch exited the vehicle, went into the McDonald’s, and sat down at a table with a male. Based on his training and experience, Detective Bridges believed he was observing a drug transaction.

After performing the traffic stop, Detective Bridges noticed appellant sweating profusely and trembling. Sergeant Rakow-ski testified that appellant had “sweat rolling down his face,” which he believed to be abnormal. Detective Bridges testified what occurred:

[STATE]: Okay. Based on the observations that you just described, what happened next? Or what did you ask him to do, if anything?
[DETECTIVE]: Sergeant Rakowski had asked him some questions and after that occurred, we asked him to step out of the vehicle.
[STATE]: Okay. Do you recall what questions were asked? [DETECTIVE]: I do.
[STATE]: What, what did he ask him?
[DETECTIVE]: I don’t remember the specific words that were used, but Detective Sergeant Rakowski asked where he was coming from and the [appellant] said that he was leaving the mall or he had just come from the mall and which I took notice of because he was coming from a McDonald’s restaurant and then Sergeant Rakowski said, well, did you meet with anybody or who were you just talking with and he said no, I didn’t meet with anybody, I’m headed home.
[STATE]: And that was inconsistent with what you just observed?
[DETECTIVE]: Exactly.
[STATE]: Okay.
[DETECTIVE]: I, obviously, had just seen that that was false.

The officers then asked appellant to exit the car.

The trial court found both officers credible and made specific findings of fact. It concluded that, under the totality of the circumstances, the police had reasonable articulable suspicion to detain appellant for further investigation. We agree.

Although a totality of the circumstances analysis is unique to each case, case law informs our decision. In Jackson, the defendant was stopped for speeding on Interstate 95. Jackson, 190 Md.App. at 502, 988 A.2d 1154. During the course of the traffic stop, a K-9 unit scanned defendant’s car and alerted for the presence of drugs. Id. at 504, 988 A.2d 1154. This Court ultimately held that the K-9 scan occurred while the traffic violation was still being processed and therefore the stop was not unreasonably prolonged. Id. 514. However, we further held that, even if the detention were excessive under Whren and its progeny, the officer still had reasonable articulable suspicion to detain the defendant. Id. We considered the following factors as part of that analysis: defendant’s extreme nervousness, the presence of multiple air fresheners and cell phones (hallmarks of drug trafficking), the location of the stop in a known drug area, the use of a rental car with out-of-state tags, and defendant’s illogical explanation for where he had been. Id. at 519-24, 988 A.2d 1154.

The last factor carried particular weight. The defendant claimed that “he was coming from Hagerstown, Maryland and had stopped at the Baltimore Travel Plaza.” Id. at 524, 988 A.2d 1154. The officer became immediately suspicious because “[defendant] was North of where he said he was traveling from and traveling Southbound.” Id. We described this as being “irremediably suspicious,” noting, “That the appellant was self-evidently caught in, to put it gently, an awkward quandary was another factor, and a big one, in the totality that added up to reasonable articulable suspicion.” Id. at 525, 988 A.2d 1154.

In Carter v. State, 143 Md.App. 670, 795 A.2d 790 (2002), police received an anonymous call about a suspicious vehicle parked on the parking lot of an elementary school. Id. at 680, 795 A.2d 790. The caller stated that individuals were possibly selling drugs and that juveniles were approaching and leaving the vehicle. Id. When the police arrived six minutes after the call, they observed two individuals walking away from a van, the only vehicle on the lot. Id. at 681, 795 A.2d 790. The two individuals began running as the police approached. Id. The officers stopped the van as it attempted to exit the lot. Id. What occurred after the stop aids our analysis:

In the first minutes of the stop, moreover, articulable suspicion of drug activity continued to mount. The driver, for starters, could not produce an operator’s license. The driver was then asked what the van was doing on the school parking lot at that hour. He stated that he and the others were on the parking lot for the purpose of “picking someone up.” He was unable to state, however, who that person to be picked up was or how they would know him. The front seat passenger was independently asked by another officer why the van and its occupants were on the school property lot. By contrast with the driver’s explanation, he explained that they were there for the purpose of just “hanging out.”

Id. at 682, 795 A.2d 790. The Carter Court noted the significance of inconsistent statements in Terry-stop analysis:

The fundamental purpose of a Teny-stop, based as it is on reasonable suspicion, is to confirm or to dispel that suspicion by asking for an explanation of the suspicious behavior. A major factor in then determining whether to terminate or to prolong the Terry-stop, therefore, is necessarily the nature of the response or responses given to the police.

Id. at 683-84, 795 A.2d 790.

In United States v. Mason, 628 F.3d 123 (4th Cir. 2010), the United States Court of Appeals for the Fourth Circuit held that an officer had reasonable articulable suspicion based on the totality of the circumstances. The officer there made the following observations:

• The defendant driver did not pull his vehicle over promptly.
• The officer detected an “extreme” odor of air fresheners.
• There was only a single key on the defendant’s key ring (leading the officer to conclude that the defendant and his passenger may have been on a “turnaround” trip as drug couriers).
• Defendant was sweating and unusually nervous.
• Defendant and his passenger gave conflicting stories about where they had stayed and the purpose of their travel.

Id. at 130-31.

In finding reasonable articulable suspicion, the Fourth Circuit noted the significance of the conflicting stories provided by the defendant and his passenger:

We recognize that several of these facts could hardly have distinguished suspicious activity from innocent travel. But when all the articulated facts are taken as a whole, especially when they include the fact of Mason and Govan’s conflicting stories about the place where they stayed and the purpose of their travel, sufficient facts existed to have given an experienced officer a reasonable suspicion that criminal activity was afoot.

Id. at 129 (emphasis added).

Turning to the case at bar, there might have been an innocent explanation for appellant parking in the upper lot away from the McDonald’s. There might have been an innocent explanation for appellant and Ms. Fitch “looking around” while seated in the vehicle. It is certainly understandable that appellant was nervous when he was stopped by the police. It is even conceivable that appellant had an innocent explanation for lying to the police about where and with whom he had been minutes before the stop. Nevertheless, as explained by the Supreme Court in United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), reasonable suspicion can develop from “ ‘a series of acts, each of them perhaps innocent’ if viewed separately, ‘but which taken together [warrants] further investigation.’ ” We also note the Supreme Court’s observation in Arvizu that reasonable suspicion determinations allow “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 not be readily apparent to an untrained person. 584 U.S. 266, 278, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). The circumstances in this case, taken together, sufficed to form reasonable articulable suspicion and permitted the officers to further investigate.

Appellant argues that the officers exceeded the permissible scope of the traffic stop when they asked appellant where and with whom he had been. In appellant’s view, those questions were improper because they were wholly unrelated to the traffic stop. We are persuaded by the Fourth Circuit’s response to that contention as recounted in Mason:

There is no support in Fourth Amendment jurisprudence for the notion that questioning unrelated to the purpose of a traffic stop requires reasonable suspicion, provided that the questioning occurs within the timeframe reasonably necessary to effectuate the traffic stop. An officer’s questions or actions during the course of a traffic stop or any other legal detention need not be solely and exclusively focused on the purpose of that detention. In Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 788, 172 L.Ed.2d 694 (2009), a unanimous Supreme Court noted just that:
A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop .... An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.

628 F.3d at 131 (internal citations omitted). Here, the unrelated questions posed by the officers to appellant did not measurably extend the duration of the traffic stop. Indeed, those questions were asked within minutes of the stop, clearly before any traffic citation could be written or record check completed. It is this fact that distinguishes this case from Charity where we held that inconsistent stories provided by the defendant and his passenger “were all post-Whren phenomena.” 132 Md.App. at 631, 753 A.2d 556.

In summary, we hold that, under the totality of the circumstances, the trial court correctly ruled that the police had reasonable articulable suspicion that drug activity was afoot. Hence, appellant was properly detained while the officers further investigated their suspicions.

2. The Duration of the Stop

The final issue—the duration of the detention—requires little discussion. The constitutional duration of a Terry-stop varies dramatically from that of a traffic stop generally, including Wferew-inspired stops. Carter, 143 Md.App. at 692, 795 A.2d 790. Under Ferris, once the purpose of the traffic stop is fulfilled, further detention is not permitted. Ferris, 355 Md. at 372, 735 A.2d 491. With Terry-stops, the inquiry is whether the police “diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). “The permitted duration of a Terry-stop cannot be measured by the clock alone.” Carter, 143 Md.App. at 692, 795 A.2d 790. Where reasonable suspicion quickly appears after a Whren traffic stop as in the present case, the rules pertaining to Terry-stops take over. The inquiry shifts to whether the police pursued their investigation from that point in a diligent and reasonable manner.

Applying that standard to this case, the answer is clear. Armed with reasonable suspicion minutes after the traffic stop, Sergeant Rakowski and Detective Johnson went to the McDonald’s to locate Ms. Fitch. With the assistance of the restaurant manager they quickly found her. Ms. Fitch confirmed that she had purchased heroin from appellant. Sergeant Rakowski then radioed Detective Herr, who was at the scene of the traffic stop, to advise Detective Herr about Ms. Fitch’s admission. Sergeant Rakowski estimated that he made this radio call within six minutes of leaving the traffic stop. Specifically, Sergeant Rakowski testified that he made the call for a marked police car at 1:01 or 1:02 p.m. while still at the McDonald’s after talking to Ms. Fitch. Given that the traffic stop occurred at 12:47 p.m. and Sergeant’s Rakowski made his call for a patrol car at 1:02 p.m., at the latest, it is clear that the officers had confirmed their suspicions within fifteen minutes. We conclude that the officers here pursued their on-going Terry investigation in a diligent and reasonable manner.

Finding no constitutional infirmity, we affirm the trial court’s denial of appellant’s motion to suppress.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. APPELLANT TO PAY COSTS.

      . Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

      . TR § 21-1124.2(d)(2) states: A driver of a motor vehicle that is in motion may not use the driver’s hands to use a handheld telephone other than to initiate or terminate a wireless telephone call or to turn on or turn off the handheld telephone.

      . Appellant also cites Whitehead v. State, 116 Md.App. 497, 698 A.2d 1115 (1997) for the proposition that the officers unnecessarily prolonged the traffic stop. We note that Whitehead focuses on a lack of probable cause; there is minimal Terry analysis.

      . It is arguable that probable cause to arrest ripened within the constitutionally permissible time frame articulated in Ferris. Detective Bridges testified he received Sergeant Rakowski's radio call about Ms, Fitch’s admission of a drug deal before Detective Bridges learned the status of appellant's warrants. The trial court did not make any finding of fact on this issue and did not deny the motion to suppress on this basis. We find it unnecessary to resolve this question. Viewing the evidence in a light most favorable to the State, however, it would appear that the Ferris clock had not expired prior to the ripening of probable cause to arrest.