Brown v. State

WILNER, Judge. At about 2:30 in the morning of August 7,1987, agents of the Sheriff’s Department of Wicomico County, the Maryland State Police, and the Salisbury Police Department began to implement a pre-planned paramilitary operation unparalleled in the annals of this Court or, we hope, of any other court of this State. They first intended to cordon off an area of Salisbury referred to in the record before us as the “Rose Street Area.” Officers were to be stationed at the various exit points from that area to “block off all traffic or anyone that tried to leave from the Rose Street Area.” This included “[a]ny vehicle, any person on foot.” Once the blockade was in place, the police intended to move into the area, to accost anyone they found there, to obtain identification, and to detain the person long enough to check for any outstanding warrants. They were also to look for and take action against any drug trafficking.

Deputy Sheriff G.L. Brown was given explicit instructions to block off the area at Rose Street and East Road. ⁵¹⁵ He was to stop any person, driving or on foot, attempting to cross his checkpoint and to “check their identification and everything and run a check----” Just as Deputy Brown was preparing to take up his position, appellant, who had been parked on Rose Street, started to drive off, proceeding east on Rose Street. Deputy Brown, traveling west on Rose Street, switched on his flashing lights, and swerved in front of appellant, blocking the street. He was promptly joined by another patrol car driven by Deputy Van Meter. At that point, appellant had violated no traffic law and the officers had no reason to suspect that he had done anything wrong.

He was stopped solely as part of the dragnet about to be dropped on the whole area. As Deputy Brown approached appellant’s car to demand identification, he “noticed [appellant] moving around in the vehicle” and deduced that appellant “seemed to be awful nervous or something.” While appellant was searching for his license and registration, Deputy Brown spotted “alligator clips around his sunvisor” 1 and noticed that “[t]here was a lot of smoke in the vehicle.” Brown said that “[i]t didn’t appear to smell as though it was ordinary cigarette smoke,” but he confessed that he didn’t know “what it was.” Deputy Brown then ordered appellant to get out of the car because, as he put it, “there was a female, black female, on the rear seat of the vehicle. When I stopped the vehicle, this female was sitting on the rear seat between the seats of the vehicle. If you — seemed to be bucket seats and I could see her in the back.

Once I approached the vehicle, she laid down in the back seat.” At that point, Deputy Van Meter approached appellant and Deputy Brown turned his full attention to the as-yet-un ⁵¹⁶ identified woman. 2 According to Deputy Van Meter, “As I was approaching, I noticed [appellant] had a large bulge in his left [front] pants pocket. I suspected this might be a weapon. I ran my hand into his pocket after I told [appellant] to place his hands on his head. For my protection, I ran my hand into his pants pocket and, instead of a weapon, I found a large quantity of suspected crack cocaine in a clear plastic bag.” (Emphasis added.) 3 Deputy Van Meter immediately placed appellant under arrest and handcuffed him.

He then conducted a search of appellant’s person, finding a roll of dollar bills. Then he searched the car, seizing a brown paper bag containing residue of cocaine, three cigarette lighters, a pipe, and the aforementioned “alligator” clips. 4 On this evidence, appellant was charged with, convicted of, and sentenced to three years in prison for (1) possession ⁵¹⁷ of with intent to distribute cocaine, (2) simple possession of cocaine, and (3) possession with intent to use drug paraphernalia. He raises but one issue in this appeal — did the trial court err in denying his motion to suppress the evidence taken from him? We are quite convinced that it did, and so shall reverse.

Both the initial stop and the search of appellant’s pocket were flagrantly illegal. The State most earnestly urges that the dragnet operation in which appellant was caught is not unlike the sobriety checkpoint procedure sustained in Little v. State, 300 Md. 485 , 479 A.2d 903 (1984), and it relies on Little and some of the cases cited in Little for the proposition that “the State’s valid interest in executing warrants for violations of the controlled dangerous substance laws justified the limited intrusion on individual liberty.” Analogizing this operation with the sobriety checkpoint procedure at issue in Little , in our view, is about as valid as asserting that an anaconda is like an earthworm because they are both elongated and move on their bellies. The operation sustained in Little was a highly publicized and tightly regulated and controlled program designed to promote public safety by deterring drunk driving. Safety and convenience were paramount considerations in choosing the locations for the checkpoints, which were well-marked and illuminated.

The locations were announced in advance, and they were set up so that motorists could easily avoid them if they chose to do so. The procedure was described by the Court at 492, 479 A.2d 903 : “A motorist wishing to avoid a sobriety checkpoint may make a U-turn or turn onto a side road prior to reaching the roadblock. No action is taken against a driver doing so unless the motorist drives erratically. For example, on several occasions, drivers ran off the road while trying to turn around and they were stopped.

Likewise, a driver who stops at the checkpoint but refuses to roll down the car window is allowed to proceed. If other signs of intoxication are observed, the driver may be followed to detect signs of erratic driving. The officers operating the ⁵¹⁸ checkpoint do not search the interior of the vehicle or its occupants. A flashlight is used to illuminate the driver only; the officers do not inspect the area around the driver or the remainder of the passenger compartment.” The actual stop was further described at 491: “The regulations detail the duties of each officer attending the roadblock: ‘All traffic approaching the checkpoint will be stopped as long as traffic congestion does not occur.

The trooper will approach each motorist and state, “I am Trooper {John Doe) of the Maryland State Police. You have been stopped at a sobriety checkpoint set up to identify drunk drivers.” If there is no immediate evidence of intoxication, a traffic safety brochure developed specifically for this enforcement strategy will be given to the motorist. The trooper will suggest to the motorist that he read the brochure at a later time for a more complete explanation of the stop. The motorist will then be assisted to safely proceed.' The brochures also contain a questionnaire for the motorist to return with comments about the program.

Each checkpoint stop lasts between fifteen and thirty seconds.” Citing Delaware v. Prouse, 440 U.S. 648, 653-54 , 99 S.Ct. 1391, 1395-96 , 59 L.Ed.2d 660 (1979), the Court recognized at the outset that “the essential purpose of the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by governmental officers in order to safeguard the privacy and security of individuals against arbitrary invasions” and that “ ‘the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’ ” Little [300 Md.] at 494, 479 A.2d 903 . In striking that balance, the Little Court drew on principles applied by the Supreme Court in condemning roving or