Ames v. State

Moylan, J. In 1968 the Supreme Court, in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), extended to the police a broad new investigative prerogative, along with a concomitant self-protective measure, permitting for the first time official intrusion into the privacy of citizens on predicates less substantial than probable cause. Recognizing the potential for abuse of the new prerogatives, the Supreme Court sought to keep them under tight control by circumscribing them with austere limitations. With the passage of 49 years, however, the police inevitably still embrace the prerogatives enthusiastically but are increasingly less than vigilant in observing the limitations. The specimen of this tendency now on the table for examination is a Terry frisk.

The appellant, Brandon Ames, was convicted by a Wicomico County jury of the possession of a fake controlled dangerous substance with intent to distribute, the possession of heroin, and the possession of drug paraphernalia. On appeal, he raises the single contention that his pre-trial motion to suppress the physical evidence was erroneously denied. ⁶⁶⁵ The Handwriting on the Wall In denying the motion to suppress the physical evidence, the suppression hearing judge was ominously prophetic: “It’s very thin, ... and Ms. Bell is making some real good arguments that may hold up on appeal[.] [But] with all of these facts coupled together under the totality of the circumstances, I don’t think it was an unreasonable search and seizure. I’m going to deny your motion to suppress. “But I commend you for a good argument, and I think maybe an Appellate Court should parse this out, because there is ... caselaw [that] is kind of contradictory, and this is a close one on the facts.” (Emphasis supplied). Mene.

Mene. The handwriting was on the wall. The Constitutional Tilt Against Warrantless Activity As we undertake our analysis, the constitutional starting point is clear. As this Court pointed out in State v. Mason, 173 Md.App. 414, 429 , 919 A.2d 752 (2007): “We must never lose sight of our starting point that warrantless searches and seizures, including the ongoing seizure of a person at the curbside, are presumptively unreasonable and that the burden is on the State to rebut that presumption and persuade the suppression hearing judge otherwise.” An Anonymous Phone Call and Its Aftermath The State’s case is, indeed, thin in many respects.

The single witness at the suppression hearing was Delmar Police Officer Nicholas Aungst. On September 18, 2015, at 4:23 p.m., Officer Aungst received an anonymous telephone call from someone who “refused to give their name.” The caller said that a black man “wearing dark grey sweatpants and a Chicago Bulls hat” was standing in front of “the 700 building of Chestnut Manor” with a gun in the waistband on his pants. There was no description of the man’s height or weight, his hairstyle, his shirt, or his shoes. ⁶⁶⁶ Officer Aungst responded to the Chestnut Manor Apartments but did not see anyone matching the description. He continued with his regular patrol duties.

At 4:45 p.m., Officer Aungst received a call from Dispatch providing the “exact description” he had earlier received directly, of a black man wearing sweatpants and a Chicago Bulls hat “in front again with a gun in his waistband.” We note at this point that the second call added nothing to the first call in terms of our Fourth Amendment analysis. There was no identification of the source of Dispatch’s information. The anonymous caller may have called back a second time. Dispatch, on the other hand, may simply have sent out the message that had earlier been received.

Our analysis will be based upon the police receipt of a presumptively single anonymous message. After that call from Dispatch, Officer Aungst returned to the apartment complex. On this occasion, he saw the appellant, a black man wearing gray sweatpants and a Chicago Bulls hat. The appellant was “leaning up against the building” in the entranceway of the 700 block of Chestnut Manor.

The appellant’s hands were visible and empty. He did not throw anything, nor did he attempt to flee as the officer approached. Officer Aungst began questioning the appellant. We will give the officer the benefit of the doubt and characterize that questioning as a mere accosting.

Officer Aungst stated that the appellant “seemed very nervous.” At the suppression hearing he testified: “I asked [the appellant] if he had anything on him that I needed to worry about. He said no and started shaking.” The appellant denied having a weapon, but the officer noted that he “kept touching his left front pocket,” which the officer interpreted as an “involuntary response” to contraband in his pockets. According to the officer, the appellant made no threatening gestures. Although we will elaborate on this more fully infra, we note that there is no such Constitutionally sanctioned procedure as a Terry frisk as an adjunct to a mere accosting. ⁶⁶⁷ An Immediate Escalation to the Terry Level At that point, which we designate as the critical point for analysis, Officer Aungst shifted the encounter into operational Fourth Amendment gear.

He subjected the appellant to a Terry frisk by executing an “open-hand pat-down of [the appellant’s] outer garments.” In the course of the frisk, Officer Aungst felt nothing in the appellant’s waistband but did detect a soft “large bulge” in the appellant’s left front pants pocket. The officer asked, “What is this?” The appellant “didn’t answer ... at first and just started shaking.” The officer asked, “Is there anything in here that can hurt me?” The appellant responded, “Yes, I do have needles.” The officer reached into the appellant’s pocket and removed an opaque coin purse.” Inside the purse, the officer found “a plastic bag containing ... a hard rock-like substance” that “resembled crack cocaine.” He also found other bags, some containing a white powdery substance, plus a spoon and two needles. There obviously had been a significant Fourth Amendment intrusion. The single issue on appeal is whether that intrusion was justified.

Assessing an Anonymous Informant’s Reliability The initial scenario in this case is virtually indistinguishable from that before the Supreme Court in Florida v. J.L., 529 U.S. 266 , 120 S.Ct. 1375 , 146 L.Ed.2d 254 (2000). The gist of the tip in this case is that the appellant had a gun in his waistband. Such was the issue, 529 U.S. at 268, 120 S.Ct. 1375 , in Florida v. J.L. “The question presented in this case is whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer’s stop and frisk of that person. We hold that it is not.” (Emphasis supplied).

Even as in the present case, the anonymous tip in Florida v. J.L. identified a place, described the suspect’s clothing, and alleged that the suspect was carrying a gun. “On October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young black male standing at ⁶⁶⁸ a particular bus stop and wearing a plaid shirt was carrying a_gun.,.. [N]othing is known about the informant. Sometime after the police received the tip—the record does not say how long—two officers were instructed to respond. They arrived at the bus stop about six minutes later and saw three black males “just hanging out [there].” One of the three, respondent J.L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct.

The officers did not see a firearm, and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., told him to put his hands up on the bus stop, frisked him, and seized a gun from J.L.’s pocket.” 529 U.S. at 268, 120 S.Ct. 1375 . (Emphasis supplied). The Supreme Court recognized at the outset, 529 U.S. at 270, 120 S.Ct. 1375 , the general unreliability of an anonymous informant. “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” (Emphasis supplied; internal citations and quotations omitted).

The Court hastened to add, however, that even an anonymous tip may be sufficiently corroborated, by independent police verification of some of the information supplied by the informant, to justify reliance, at least to the level of Terry v. Ohio’s reasonable suspicion standard. “As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. The question we here confront is whether the tip pointing to J.L. had those indicia of reliability.” 529 U.S. at 270, 120 S.Ct. 1375 . (Emphasis supplied; quotations omitted). ⁶⁶⁹ The very low level of independent police verification available in Florida v. J.L., however, was inadequate to raise the anonymous telephone tip to Terry’s constitutional standard. Absent such bolstering, the tip could not justify interfering with a citizen’s rights. “All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.” 529 U.S. at 271, 120 S.Ct. 1375 .

The inadequacy of the independent police verification in Florida v. J.L. does not bode well for almost precisely the same independent police verification in the case now before us. “Florida contends that the tip was reliable because its description of the suspect’s visible attributes proved accurate: There really was a young black male wearing a plaid shirt at the bus stop.” (Emphasis supplied). The tip there was about a young black male. The tip here was about a young black male. The tip there described his clothing.

The tip here described his clothing. The tip there had the suspect standing in front of a bus stop. The tip here had the suspect standing in front of a building. The tip there alleged the possession of a gun.

The tip here alleged the possession of a gun. In both cases, the independent police investigation confirmed that a young black male was, indeed, wearing the previously described clothing at the previously described location. In each case, everything was corroborated except the possession of the gun. The Supreme Court explained, 529 U.S. at 272, 120 S.Ct. 1375 , why the tip in that case failed to pass constitutional muster. “An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse.

Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires ⁶⁷⁰ that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” (Emphasis supplied). The absence of corroboration of the anonymous telephone tip in Florida v. J.L. (as well as in the present case) contrasts sharply with the massive independent police verification corroborating an anonymous telephone tip in Alabama v. White, 496 U.S. 325 , 110 S.Ct. 2412 , 110 L.Ed.2d 301 (1990).

The tipster in Alabama v. White was able to predict the suspect’s future activity of a type that only an insider would know. As the police watched, the predicted activities came to pass, as the tip, step by step, ripened into reliability. “We think it also important that, ‘the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.’ The fact that the officers found a car precisely matching the caller’s description in front of the building is an example of the former. Anyone could have ‘predicted’ that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information—a special familiarity with respondent’s affairs.

The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.” 496 U.S. at 332 , 110 S.Ct. 2412 . (Emphasis supplied).

There was, of course, no such massive corroboration of predicted behavior in Florida v. J.L. and no such massive ⁶⁷¹ corroboration in the case now before us. Even Alabama v. White, with its massive corroboration, was modest about its own adequacy: “it is a close case.” Id. The bare-bones anonymous telephone tip in the present case, with no significant independent police verification, failed to establish the reasonable suspicion that a crime had occurred, was then occurring, or was about to occur necessary to justify a Terry stop or the reasonable suspicion that the appellant was armed and dangerous necessary to justify a Terry frisk. A Terry Stop This is exclusively a Terry frisk case and not a Terry stop case, and the two do not conflate.

A brief word about Terry stops is desirable, nonetheless, simply to provide the necessary context for an analysis that looks to the relationship between a stop and a frisk. The Terry stop and the Terry frisk, of course, serve quite distinct purposes. The stop is crime-related, its purpose being to prevent or to detect crime. The reasonable articulable suspicion for a stop must be framed in terms of that purpose.

The frisk, by diametric contrast, is not intended to be an investigative tool at all. Its express purpose and animating concern is the safeguarding of the life and limb of the stopping officer. In Graham v. State, 146 Md.App, 327, 358-59, 807 A.2d 75 (2002), we stressed this difference in purposes: “The respective interests served by stops and by frisks are distinct. The stop is crime-related.

What is, therefore, required is reasonable suspicion that a crime has occurred, is then occurring, or is about to occur. The frisk, by contrast, is concerned only with officer safety. What is, therefore, required is a reasonable articulable suspicion that the person stopped is armed and dangerous.” (Emphasis supplied). In Gibbs v. State, 18 Md.App. 230, 241 , 306 A.2d 587 (1973), this Court had earlier pointed out that the purpose of a Terry frisk was not to prevent or to detect crime. “Even after a reasonable ‘stop’ has been made, the governmental interest which permits the further intrusion of a limited search—a ‘frisk’—of the person is not the prevention ⁶⁷² or the detection of crime, but rather the protection of the officer making the ‘stop.’ ” (Emphasis supplied).

Terry v. Ohio itself, 392 U.S. at 23 , 88 S.Ct. 1868 , made the distinction in purpose absolutely clear. “We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him... (Emphasis supplied). As a result, the Terry stop and the Terry frisk each require separate justification. As was stated in Alfred v. State, 61 Md.App. 647, 664 , 487 A.2d 1228 (1985): “Even if the stop had been legitimate, that would not imply the legitimacy of the frisk.

As a distinct intrusion, the frisk requires its own independent justification.” (Emphasis supplied). The distinct requirements were fully articulated in Gibbs v. State, 18 Md.App. at 238-39 , 306 A.2d 587 : “It is furthermore clear that the policeman must be able to articulate specific facts justifying both the ‘stop’ and, quite independently, the ‘frisk.’ The latter does not follow inexorably from the former. Terry points out very emphatically that different governmental interests are involved in ‘stops,’ on the one hand, and ‘frisks,’ on the other hand. Although a reasonable ‘stop’ is a necessary predecessor to a reasonable ‘frisk,’ a reasonable ‘frisk’ does not inevitably follow in the wake of every reasonable ‘stop.’ ” (Emphasis supplied).

In the present case, there was no Terry stop. At the suppression hearing, the State did not attempt to establish a Terry stop. Before us, the State does not contend that there was an antecedent Terry stop. As he was asking questions of the appellant, Officer Aungst went immediately for a Terry ⁶⁷³ frisk.

It was as if Officer Aungst considered a Terry frisk to be a permissible adjunct to a mere accosting. Even if, purely arguendo, there had been an antecedent Terry stop, however, it is clear from everything we have said about the anonymous telephone tip and the essentially insignificant police observation that followed it, that there was no reasonable articulable suspicion to justify a Terry stop. The ostensible Terry frisk is on its own. The Terry Frisk The ostensible Terry frisk, which was the lone rationale for the State’s seizure of the physical evidence in this case, failed abjectly to pass constitutional muster in three separate ways, any one of which would be fatal.

A. The Lack of Reasonable Suspicion That the Stopee Was Armed and Dangerous. The purpose for a Terry stop and the purpose for a Terry frisk are, as we have stated, very different. The Terry stop is part of law enforcement’s arsenal in its war on crimes. In the words of Terry v. Ohio itself, 392 U.S. at 22 , 88 S.Ct. 1868 , “[W]e consider first the nature and extent of the governmental interests involved.

One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” (Emphasis supplied). And see, Gibbs v. State, 18 Md.App. at 239-40 , 306 A.2d 587 . The purpose of the Terry frisk, by diametric contrast, is not directly crime-related at all but is exclusively concerned with officer safety, with safeguarding the life and limb of the officer who is thrust into the potentially dangerous situation of conducting a Terry stop, perhaps in a darkened alley and perhaps ⁶⁷⁴ at three o’clock in the morning. Terry addressed, 392 U.S. at 28-24 , 88 S.Ct. 1868 , the distinct purpose of the Terry frisk: “We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.” (Emphasis supplied).

See also Gibbs v. State, 18 Md.App. at 241 , 306 A.2d 587 ; Alfred v. State, 61 Md.App. 647, 666 , 487 A.2d 1228 (1985). Before we even turn to the qualitative assessment of the rationale being urged as a justification for the Terry frisk, there is first the threshold requirement that the frisking officer articulate his specific reasons for believing that the suspect was armed and dangerous. It is not enough that objective circumstances be present that might have permitted some other officer in some other case to conclude that the suspect was armed and dangerous. It is required that the frisking officer himself expressly articulate the specific reasons he had for believing that the frisk was necessary.

In Graham v. State, 146 Md.App. 327, 359 , 807 A.2d 75 (2002), this Court spoke of the articulation requirement: “One of the key requirements of reasonable suspicion, for either a stop or a frisk, is not only that it be present but that it be actually articulated. For a good frisk, it is not enough that in the abstract facts have been developed that might, objectively, permit some officer somewhere to conclude that the suspect or stoppee was armed and dangerous. It is required that the frisking officer actually articulate the factors that lead to his reasonable suspicion that a frisk was necessary for his own protection.” (Emphasis supplied). The companion case to Terry v. Ohio was Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968).

The stopping officer in Sibron lunged for Sibron’s shirt pocket from which he recovered drugs. The State contended that ⁶⁷⁵ when Sibron himself moved toward his shirt pocket, that could have justified the officer in believing that a weapon might be there. 1 The Supreme Court reminded the State that the officer failed to articulate any such reasons and gave instead a different reason that failed to mention a fear of a weapon: “In the case of the self-protective search for weapons, [the officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Patrolman Martin’s testimony reveals no such facts. The suspect’s mere act of talking with a number of known narcotics addicts over an eight-hour period no more gives rise to reasonable fear of life or limb on the part of the police officer than it justifies an arrest for committing a crime.

Nor did Patrolman Martin urge that when Sibron put his hand in his pocket, he feared that he was going for a weapon and acted in self-defense.” 392 U.S. at 64, 88 S.Ct. 1889 . (Emphasis