Alfred v. State

MOYLAN, Judge. For all of the Supreme Court’s commendable movement toward general reasonableness as a realistic touchstone of Fourth Amendment propriety, there is still no such thing as a legitimate investigatory arrest or a legitimate frisk incident to a consensual trip to the station house. With that brief prologue, we turn our attention to the conviction of the appellant, Patrick Larell Alfred, by a Montgomery County jury for theft. The sole issue before us on this appeal is the failure of a pretrial hearing judge to grant the appellant’s motion to suppress a small gold chain and a silver brooch taken from the appellant’s rear pants pocket a little more than one hour after the theft occurred.

The seizure of these two items of stolen jewelry hangs by a chain of justification consisting of five separate links, no one of which is more than modestly adequate and several of which are structurally flawed to the constitutional breaking point. To support its ultimate burden, the State must establish the sustaining adequacy of each of five propositions: 1) That there was articulable suspicion for the stop of the appellant as of the very inception of that stop; 2) That the stop, even if properly initiated, was not, in terms of its duration, unreasonably excessive in scope prior to the critical frisking; 3) That there was articulable suspicion for the frisk; ⁶⁵³ 4) That the frisk was truly an incident of the stop and not an incident to a consensual trip to the station house; and 5) That the frisk remained appropriately limited in scope to an actual probe for offensive weapons and did not degenerate into a search for and seizure of suddenly suspected stolen goods. THE STOP The initial police response in this case was alert, intelligent, and highly commendable in every way; it simply became a bit unravelled (in the constitutional sense, not in the investigative sense) as the evening wore on. 1 The real dilemma, vis-á-vis this appellant, was that the police were walking the razor’s edge, having too much (in their judgment) to let him go but not having enough to hold him further. They were required to respond in black or white, when their legitimate investigative senses perceived only gray.

The hard reality is that they are not permitted to equivocate even when all the surrounding circumstances are equivocal. The victim, Norma Solis, was watching television in her Pear Tree Lane apartment, when she heard noises from her bedroom as if Venetian blinds were rattling. Thinking that she had shut the bedroom window, she went to investigate. She discovered the top of one of her jewelry boxes on the floor and a second jewelry box, normally sitting on a ⁶⁵⁴ dresser right under the open window, missing.

She immediately called the police, reporting a burglary and describing items of missing jewelry. The time was about 10:30 p.m. At least three police cruisers responded to the scene within minutes. Officer Thomas Abbamonte was in the lead cruiser.

As he turned from Connecticut Avenue into, a relatively large apartment complex, which contained the victim’s apartment house, he observed a Datsun, occupied by three or four black males, leave the apartment complex at a higher than normal rate of speed. The execution of a “U” turn presented a difficult maneuver. Word was passed back to the third cruiser in the convoy, driven by Officer Thomas Scafide, to go in pursuit of the Datsun. There is no quarrel with this judgment to trail and stop the Datsun; it was alert police work.

By the time that Officer Scafide negotiated his “U” turn and began the pursuit southbound on Connecticut Avenue, the Datsun had made a right-hand turn on Grand Pre Road and disappeared from Officer Scafide’s view. When, moments later, he turned north on Grand Pre Road, the Datsun was out of sight. Within blocks, however, he found the Datsun, unoccupied but with its motor still running, at the side of the road. There was no key in the ignition; it had been hot-wired.

A radio check soon revealed that it had been stolen from the Seabrook area of Prince George’s County. Officer Scafide, shortly reinforced by other officers, began combing the area for three or four young black males. A neighboring resident, walking his dog, reported to one of the officers that he had just seen a young black male, dressed in a green hospital gown and cut-off shorts, run from the vicinity of the abandoned automobile into an apartment development across the street. The police had this information when a few minutes later, Samuel Hall, a black male, came jogging by in a green hospital gown and cut-off shorts.

After an unassailable Terry -stop, brief questioning revealed that Hall was from the same neighborhood in Prince George’s County from ⁶⁵⁵ which the Datsun had been stolen. Minutes later, Jeffrey Jones, a black male, came walking by and was similarly stopped. He also gave the Seabrook area of Prince George’s County as his address. The explanations of both Hall and Jones as to what they were doing in the neighborhood and particularly why Hall was out jogging were classically unsatisfactory.

The detention of both, under the general guidelines of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968), was beyond reproach, but those stops are not dispositive of the constitutionality of the later stop of the appellant. At that point, however, the police were still legitimately scouring the surrounding area for one, or perhaps two, other black males. The entire case hinges exclusively on the judgment made approximately ten minutes later and approximately one mile (by road) away by Officer Charles Penney. He was driving northbound on Georgia Avenue when he saw the appellant and Anthony Alexander, both black males, walking southbound on Georgia Avenue and just about to cross Ralph Road.

He stopped them, thereby initiating a process that soon involved a number of other officers and that culminated between 45 minutes and an hour later when Officer Abbamonte searched the appellant’s pants pocket and recovered the two items of stolen jewelry. For reasons to be discussed in a moment, we hold that this was the critical instant when a Terry -level stop, requiring no less than articulable and particularized suspicion, and not a mere accosting, requiring no Fourth Amendment justification, occurred. If it had been a mere accosting, of course, Officer Penney would have required no justification at all under the Fourth Amendment, for the gears of the Fourth Amendment would not even have been engaged. Florida v. Royer, 460 U.S. 491, 497 , 103 S.Ct. 1319, 1324 , 75 L.Ed.2d 229, 236 (1983), was very clear in this regard: ⁶⁵⁶ “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” In the case at bar, however, both the police testimony and the State’s argument are framed in terms of justifying Officer Penney’s encounter with the appellant and Alexander as a legitimate stop at its very inception.

It has never been urged, at the suppression hearing or on appeal, that the initial encounter was a mere accosting and that certain responses elicited and observations made in the course of that mere accosting contributed to the articulable suspicion for what only ripened into a Terry -level stop at some short time thereafter. It appears very clear that neither the appellant nor Alexander felt free utterly to ignore Officer Penney’s questions and simply to walk upon their way. It appears equally clear that Officer Penney did not contemplate any such prerogative on their part. The line between a mere accosting and a stop based on police authority is a constitutional watershed, as Florida v. Royer, at 460 U.S. 497 -498, 103 S.Ct. at 1324 , made unequivocally clear: “The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way____ He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.” (Citations omitted).

The only basis that Officer Penney had for making a Terry stop of the appellant and his companion, at the very inception of that stop, was that they were two black males within less than a mile of an automobile that had been abandoned by three or four black males approximately ten minutes before. As we analyze these proximities of time and space, it is clear that the relevant epicenter was the ⁶⁵⁷ spot on Grand Pre Road where the Datsun was abandoned and not the apartment on Pear Tree Lane that had been burglarized. The presence of two black males within a circle of almost a mile in radius would have little significance if that circle were imposed upon a densely populated and essentially all black neighborhood; the same presence in rural Finland might have far greater significance. Obviously, the demographics of this centrifugal force field could have some bearing on the probabilities which are offered as the basis for a stop.

The State, which bears the burden of justifying warrantless activity, offered no direct evidence on the demographics. The indirect demographic clues argue against the State’s position. The two suspects — Hall and Jones — who were picked up near the abandoned Datsun made reference to the nearby home of the aunt or grandmother of Jones. Hall, moreover, took the police to the home of a Mr. Hill in the 3200 block of Pear Tree Court, where all of the young men had been visiting earlier that evening.

Officer Penney, before stopping the appellant and Alexander, had stopped in a 7-11 Store situated between the abandoned Datsun and the spot where the appellant was first observed. He described five or six young black males who were in the 7-11, whom he cleared of suspicion because the proprietor vouched for their presence there through most of the evening. Officer Penney also described several commercial establishments in the immediate area — a Dart Drug Store and a K-Mart. The whole point is that a large area of relatively well populated suburbia lay within the suspect perimeter; and within that perimeter, there was nothing unusual about the presence of a black male.

Under the circumstances, we find that the initial stop was no more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry v. Ohio, supra, at 392 U.S. 27 , 88 S.Ct. 1883 . The State argues that the gash (per Officer Penney) or the gouge (per Officer Abbamonte) observed on the ⁶⁵⁸ ankle of Alexander contributed to the accumulation of articulable suspicion. 2 The problem with the argument is that the observation of the ankle wound was not something that preceded the stop but rather something that occurred during the course of the stop. The State argues that the evasive answers given by the appellant and Alexander contributed to articulable suspicion. Once again, the evasive answers were a product of the stop, not a predicate for the stop.

The State argues that the fact that the appellant and Alexander were from the Seabrook vicinity in Prince George’s County had strong relevance. Of course it did; but, once again, that fact was a product of the stop, not a predicate for the stop. The State may no more justify a stop by what develops in the course of the stop than it may justify a search by what it finds in the course of the search. Even if, for the sake of argument, we were to assume that the initial encounter between Officer Penney and the appellant was a mere accosting and that that encounter did not ripen into a Terry stop until after the ankle wound had been observed, the evasive nature of the answers had been noted, and the link to Seabrook had been established, the State still will have surmounted only the least of its hurdles.

THE SCOPE OF THE STOP The establishment of a sufficiently individualized and articulable suspicion to believe that the appellant, and his companion, had recently been involved in a crime, would serve only to justify the stop at its moment of inception. There remains the problem of its scope. As Terry v. Ohio, supra, at 392 U.S. 19 , 88 S.Ct. 1878 , made clear, the scope of the stop “must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” The Supreme Court has been emphatic that the manner and scope of a stop are “as vital a part of the inquiry” as ⁶⁵⁹ whether the stop was “warranted at all.” The Supreme Court, at 392 U.S. 28 -29, 88 S.Ct. 1883 -1884, discussed in detail this issue of the permitted scope of the intrusion: “The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing pre-conditions upon its initiation____ The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on the assumption that ‘limitations upon the fruit to be gathered tend to limit the quest itself.’ ... Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation.” (Citations omitted).

The entire rationale for permitting a Fourth Amendment intrusion on a predicate less substantial than probable cause is that the intrusion is fundamentally minimal. The conclusion that a stop is a slight or minimal, albeit reviewable, intrusion rests in large part upon the anticipated brevity of its duration. Florida v. Royer, supra, addressed this very issue, at 460 U.S. 500 , 103 S.Ct. 1325 : “The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case.

This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” As we measure in this case the reasonableness not of the stop, but of the scope of the stop, the burden of proving that reasonableness is clearly allocated to the State: “It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” Id. Just as Officer Penney was the key actor in our assessment of reasonableness of the initiation of the stop, Officer ⁶⁶⁰ Abbamonte became the key actor in our assessment of the reasonableness of its duration. He was on Grand Pre Road with the abandoned Datsun and with the recently detained Hall and Jones when word came over the police radio that Officer Penney had stopped two other individuals on Georgia Avenue. Officer Abbamonte left Grand Pre Road immediately and headed for Georgia Avenue, arriving several minutes later.

Before he began his interrogation of the appellant and Alexander, it is to be noted that the status of the stolen Datsun had already been learned and that responses from Hall and Jones as to their identities and their residences had already been elicited. From the initial detention of the appellant by Officer Penney until the critical search of his hip pocket here in issue, between 45 minutes and one hour elapsed. The arrest, which immediately followed the search of the hip pocket, was at 11:30 p.m. We see no remote justification for a detention of that length.

The limited purpose of the stop was clear. As Officer Abbamonte explained: “I asked them general questions, such as, what are you doing here? Where are you from? Where are you going to?

Where have you been; to which they responded.” Officer Abbamonte in short order received his answers: “They explained to me that they were from the Lanham-Seabrook area; that they had been out partying. They had been hitchhiking. They were on their way home. I asked specifically, the other subject, Mr. Alexander, how he had cut himself.

It was an impaling type cut — a hole into the ankle. He said that he had fallen off the curb.” As Officer Abbamonte himself concluded, he did not have probable cause to arrest the two: Q: “As a result of that conversation and that obvious physical observation of Mr. Alexander, what if any — 'did you place the defendants under arrest at that time? A: No. ⁶⁶¹ Q: Why not? A: I did not have probable cause to place them under arrest.

There was no reason to believe that they were involved at that time.” Notwithstanding his acknowledged lack of probable cause to make an arrest, Officer Abbamonte proceeded to give the Miranda warnings which he himself admitted are associated with being placed in custody: Q: What did you do, then? A: At that time, I advised them both that, again, we had a problem; that they matched what we were looking for; that there was a problem in the area and that I wished to talk to them and advised them together, in unison, of their rights, verbally.” Paradoxically, even as Officer Abbamonte disclaimed any justification for arresting the two, he began taking the very steps that are associated with arrest. One characterization of the encounter, given by the police as they attempted to explain what they were doing over this protracted period of time, strikes us as absolutely bizarre. They claim that they and the two detainees were, for a large part of the time, just “chatting.” Although in an encounter such as this, the contending parties might conceivably “chat” if they were required to kill time, in a holding period waiting for something else to happen, that was not the situation at bar.

The only extrinsic happening that occasioned any waiting at all was a radio cheek on the appellant and Alexander to see if they had criminal