Carter v. State

CHARLES E. MOYLAN, Jr., Judge, Retired, Specially Assigned. This case involves the Fourth Amendment law of “stop and frisk” pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). More precisely, it involves only the “stop” aspect of “stop and frisk” law. There was no frisk and the law governing frisks is not implicated in any way.

See Gibbs v. State, 18 Md.App. 230, 239 , 306 A.2d 587 , cert. denied, 269 Md. 759 (1973), for the differences in the respective purposes of the two police procedures and their respective justifications. The appellant, Dominique Carter, was convicted in the Circuit Court for Howard County by Judge James B. Dudley, sitting without a jury, of possession of marijuana with intent to distribute within 1000 feet of an elementary school and related charges. On this appeal, he raises the single contention that at a pretrial suppression hearing, Judge Raymond J. Kane, Jr., erroneously failed to suppress physical evidence on Fourth Amendment grounds. We shall confine our review, therefore, to that evidence brought out at the suppression hearing.

Cartnail v. State, 359 Md. 272, 282-83 , 753 A.2d 519 (2000). At approximately 7:47 p.m. on December 17, 2000, the van in which the appellant was sitting and all of its occupants were subjected to a Terry-stop. At 8:25 p.m., a K-9 officer and a ⁶⁷⁴ trained drug-sniffing dog arrived at the scene. The dog scanned the vehicle and “alerted” to the presence of drugs.

From that point on, there is no question about the Fourth Amendment proprieties. The dog “alert” supplied the probable cause for a warrantless search of the van. As we stated in State v. Funkhouser, 140 Md.App. 696, 711 , 782 A.2d 387 (2001): When a qualified dog signals to its handler that narcotics are in a vehicle, moreover, that is ipso facto probable cause to justify a warrantless Carroll Doctrine search of the vehicle. See also Wilkes v. State, 364 Md. 554, 586-87 , 774 A.2d 420 (2001); Gadson v. State, 341 Md. 1, 8 , 668 A.2d 22 (1995); Timmons v. State, 114 Md.App. 410, 417 , 690 A.2d 530 (1997); In Re Montrail M., 87 Md.App. 420, 437 , 589 A.2d 1318 (1991); Snow v. State, 84 Md.App. 243, 248 , 578 A.2d 816 (1990).

The marijuana found on the floorboard behind the passenger’s seat, where the appellant had been sitting, supplied the probable cause for the warrantless arrest of the appellant. Folk v. State, 11 Md.App. 508, 511-12 , 275 A.2d 184 (1971). The appellant, indeed, admitted that the marijuana was his. Our concern is only with the time period from 7:47 p.m. to 8:25 p.m.

Our concern in that regard is twofold. Our first inquiry will be whether articulable suspicion existed for the initiation of the Terry-stop. Our second concern will be whether a detention of 35-40 minutes exceeded in its duration the permissible scope of a Terry-stop. A False Trail: The Irrelevance of Arrest Law In terms of the initial justification for the police intrusion, the appellant attempts to transmute a Terry-stop into an arrest and thereby to raise significantly the bar of reasonableness that the State must clear from the level of articulable or reasonable suspicion up to the level of probable cause.

In ⁶⁷⁵ volved in this case, however, is a Terry-stop, pure and simple. There is, to be sure, a Fourth Amendment hurdle to be cleared, but a less intimidating one than that proposed by the appellant. ’For his alchemy of turning base metal into gold, of turning a Ten^-stop into an arrest, the appellant relies on for his philosopher’s stone the case of United States v. Mendenhall, 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980). The only transmutation he achieves, however, is that of representing Mendenhall as something it never was. The appellant asserts that in Mendenhall “the Court distinguished arrest from a mere traffic or Terry stop.” The Supreme Court did no such thing.

Mendenhall did not concern the law of arrest. What it distinguished was a Terry-stop, which requires Fourth Amendment justification, from a mere accosting, which does not. The Supreme Court explained, 446 U.S. at 553-54 , 100 S.Ct. 3870 : We adhere to the view that a person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards.

The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543, 554 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 . As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized objective justification. (Emphasis supplied). The conclusion in Mendenhall was that a Terry-stop had not occurred and that the Fourth Amendment was not, therefore, involved so as even to require satisfaction. ⁶⁷⁶ On the facts of this case, no “seizure” of the respondent occurred.

The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent’s identification and ticket.

Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official. 446 U.S. at 555 , 100 S.Ct. 1870 (emphasis supplied). What the appellant attempts to do is to equate 1) a Fourth Amendment “seizure of the person” and 2) the denial by the police of the citizen’s “freedom to leave” with the status of being arrested.

Mendenhall , however, describes those conditions as the classic indicia of a Terry-stop. An arrest involves more. Citing Terry v. Ohio as its authority, Mendenhall explained the circumstances that turn a mere accosting into a Terry-stop. We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.

Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. See Terry v. Ohio. 446 U.S. at 554 , 100 S.Ct. 1870 (emphasis supplied). Sylvia' Mendenhall was stopped, but she was not arrested. ⁶⁷⁷ United States v. Hensley, 469 U.S. 221 , 105 S.Ct. 675 , 83 L.Ed.2d 604 (1985), was also a “stop and frisk” case and nothing more, notwithstanding the fact that the stopping officer approached Hensley’s car with his service revolver drawn and pointed into the air. He had Hensley and a passenger seated next to him step out of the car. 469 U.S. at 224 , 105 S.Ct. 675 .

And see United States v. Oates, 560 F.2d 45, 57 (2d Cir.1977) (“While it is clear that Oates and Daniels were not at that point free to do as they pleased, it can no longer be questioned that, although every arrest is a form of detention, the converse is not true.”). The appellant solemnly insists that he “was not free to leave.” Of course, he wasn’t. That’s why this was a Terry-stop requiring the Terry level of Fourth Amendment justification. Had he been free to leave, this would have been a mere accosting and the Fourth Amendment would not even have been implicated.

Under Terry, a stopee’s freedom of movement is most definitely restricted under the command of the law. If he attempts to leave after being ordered, perhaps at gunpoint, to stop, he may be shot or otherwise forcibly restrained. Such consequences, notwithstanding the appellant’s urging to the contrary, do not ipso facto transform a Terry-stop into an arrest. Although the appellant would understandably like to set the bar of police justification at the higher probable cause level, we hold that it rests only at the articulable or reasonable suspicion level.

Indeed, the entire rationale for “stop and frisk” law is that these lesser seizures of the person, not amounting to a full-scale arrest, are permitted on a predicate less substantial than probable cause. That is why they are severely limited in scope. The lesser justification only permits a lesser intrusion. Alfred v. State, 61 Md.App. 647, 659 , 487 A.2d 1228 (1985).

As Chief Judge Murphy pointed out for this Court in Pryor v. State, 122 Md.App. 671, 679 , 716 A.2d 338 , cert. denied, 352 Md. 312 , 721 A.2d 990 (1998): ⁶⁷⁸ It is well settled ... that the forcible stop of a motorist may be based on reasonable articulable suspicion that is insufficient to establish probable cause. Articulable Suspicion For the Terry Stop Having settled the level of justification required, we hold that articulable or reasonable suspicion did exist in this case for the initial Terry-stop of the van and its occupants. A. An Anonymous Phone Call and Its Nature At about 7:40 p.m. the Howard County Police Department received a telephone call. The caller, to be sure, was anonymous.

The circumstances were such, however, as to give rise to a reasonable inference that the caller was a concerned neighbor and, therefore, a “citizen informer” rather than the more suspect confidential informant “from the criminal milieu.” For the distinction, see Dawson v. State, 14 Md.App. 18, 33-34 , 284 A.2d 861 (1971); Hignut v. State, 17 Md.App. 399 , 410 n. 2, 303 A.2d 173 (1973). Throughout the 1960’s and 1970’s, an extensive body of law developed as to how courts should assess information received by the police from informants (including telephone callers). The earlier cases involved instances in which the informant was the classic police “snitch” or “stool pigeon,” someone “from the criminal milieu,” exchanging underworld information for cash payment or for other under-the-table police favors. The assessment of information from such sources was accordingly circumscribed with scepticism.

The suspect’s credibility needed bolstering in order to be given any weight. As the analysis of information from third-party sources evolved, however, it soon came to be recognized that there was also a broad category of third-party sources, such as concerned citizens or fellow law enforcement officers, whose veracity was not inherently suspect and as to whom the skepticism directed at police stool pigeons was not appropriate. In Dawson v. State, 14 Md.App. at 34 , 284 A.2d 861 , this ⁶⁷⁹ Court quoted with approval the Supreme Court of Colorado in People v. Glaubman, 175 Colo. 41 , 485 P.2d 711, 717 (1971): “More often than not, the informant is paid or provides information in exchange for immunity from prosecution of his own misdeeds. “Our view, which is supported by a number of decisions, is that the citizen-informer, adviser, or reporter who acts openly to see that our laws are enforced should be encouraged, and his information should not be subjected to the same tests as are applied to the information of an ordinary informer.” See also Edmondson v. United States, 402 F.2d 809 (10th Cir.1968); Coyne v. Watson, 282 F.Supp. 235 (D.C.Ohio 1967); People v. Hester, 39 Ill.2d 489 , 237 N.E.2d 466 (1968); People v. Lewis, 240 Cal.App.2d 546 , 49 Cal.Rptr. 579 (1966); State v. Paszek, 50 Wis.2d 619 , 184 N.W.2d 836 (1971); People v. Hoffman, 45 Ill.2d 221 , 258 N.E.2d 326 (1970); People v. Carter, 116 Ill.App.2d 62 , 253 N.E.2d 490 (1969); State v. Mazzadra, 28 Conn.Supp. 252 , 258 A.2d 310 (1969); People v. Griffin, 250 Cal.App.2d 545 , 58 Cal.Rptr. 707 (1967); Walker v. State, 196 So.2d 8 (Fla.App. 3 Dist.1967); and People v. MacDonald, 173 Colo. 470 , 480 P.2d 555 (1971). In this case, abundant independent police verification renders the distinction between 1) citizen-informers and 2) informants from the criminal milieu less critical than might sometimes be the case.

It nonetheless pays to remember that every anonymous telephone call need not necessarily be viewed with the scepticism appropriate for a police “stool pigeon.” B. The Content of the Call and Its Significant Verification The telephone call reported that, on a Sunday evening when school was not in session, a suspicious vehicle was parked on the parking lot of the Deep Run Elementary School. The call further recounted that individuals may be selling drugs and ⁶⁸⁰ that there were juveniles “approaching the van and leaving the van.” An anonymous call that might not be reliable enough to establish probable cause might nonetheless be reliable enough to establish reasonable suspicion. The predicate information may not only be of a lesser quantity; it may also be of a lesser quality. In Alabama v. White, 496 U.S. 325 , 110 S.Ct. 2412 , 110 L.Ed.2d 301 (1990), as here, the initial suspicion was triggered by an anonymous telephone call.

In that case, as here, there was then independent police verification of some of the contents of the call. In Alabama v. White, the Supreme Court held that there was articulable suspicion for a Terry-stop. It contrasted the required predicate for a Te'rry-stop with the required predicate for probable cause. Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. 496 U.S. at 330 , 110 S.Ct. 2412 (emphasis supplied).

In this case, as in Alabama v. White, there was significant independent police verification of the content of the call. When the police arrived at the school six minutes after the call, the van was the only vehicle on the school parking lot. Two persons were seen walking away from the van. The time and place were enough to set the antennae of a “savvy” investigator aquiver.

What was the van doing at the school on a Sunday evening? Why were groups of persons generally or juveniles specifically “approaching the van and leaving the van?” A decent respect for constitutional liberties did not require the police to assume that the occupants of the van were dispensing candy bars. What immediately ensued as the police approached, moreover, added additional suspicion. ⁶⁸¹ C. Flight or Other Apparent Avoidance of the Police As the police arrived on the scene, two persons were walking away from the van. As those two persons observed the approach of the police, they stopped walking and began running.

At the approach of the police, the van itself also started to pull out of the parking lot, but was immediately stopped. With respect to both the attempted departure of the van and the sudden accelerated departure of the two pedestrians upon the approach of the police, the observation of the Supreme Court in Illinois v. Wardlow, 528 U.S. 119, 124-25 , 120 S.Ct. 673 , 145 L.Ed.2d 570 (2000), is apt, just as it was deemed pertinent there in helping to justify a Terry-stop. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight — wherever it occurs — is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such....

We conclude Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further. (Emphasis supplied). Pertinent also is Justice Scalia’s observation for the Court in California v. Hodari D., 499 U.S. 621 , 623-24 n. 1, 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991): That it would be unreasonable to stop, for brief inquiry, young men who scatter in panic upon the mere sighting of the police is not self-evident, and arguably contradicts proverbial common sense. See Proverbs 28:1 (“The wicked flee when no man pursueth.”).

It is simply intuitive wisdom that, as a statistical generality, law breaking persons are more likely than law abiding persons to fear the police and to seek to avoid their presence. Conversely, law abiding persons are more likely than law breaking persons to welcome the police and to be reassured by their presence. Apparent reaction to the police is a factor at least worthy of consideration. There clearly was in this case rea ⁶⁸² sonable suspicion, under Terry, to stop the van and to make further inquiry.

D. Suspicion Continues to Mount: Strange and Inconsistent Responses 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 parking lot. By contrast with the driver’s explanation, he explained that they were there for the purpose of just “hanging out.” For purposes of analysis, a Terry-stop is not frozen in time at the split second of its inception. It is a continuing investigative activity, and as it unfolds, reasonable suspicion may mount. As suspicion mounts, moreover, it may justify a longer detention than would initially have been justified.

The escalating suspicion in this case is remarkably akin to the escalating suspicion in United States v. Hardy, 855 F.2d 753 (11th Cir.1988). In that case, an automobile occupied by two persons was stopped on a rural Georgia highway for exceeding the speed limit by twelve miles per hour. “At approximately 9:25 p.m., [Trooper] Ralston gave [the driver] a warning for the speeding offense, ending the investigation of the traffic violation.” 855 F.2d at 757 . Without more, the detention should have then terminated. In the course of the processing of the initial stop, however, several circumstances caused the suspicion to escalate into a reasonable basis for an investigatory stop for a narcotics violation.

That enhanced suspicion justified a further detention pending the arrival of a drug-sniffing canine. The dog arrived fifty minutes after it had been summoned and ⁶⁸³ one horn* and twenty-eight minutes after the initiation of the original traffic stop. The enhancement of suspicion that justified prolonging the detention in that case closely resembled the enhancement of suspicion in this case. After the initial traffic stop, the driver had been asked “to produce a driver’s license and vehicle registration.” 855 F.2d at 754 .

As in this case, the driver “was unable to provide a driver’s license.” He told the trooper that “he had lost his wallet and driver’s license while on vacation in Florida.” Id. The primary mounting justification for detaining the suspects until a drug-sniffing canine could be brought to the scene, however, was the conflicting and inconsistent stories told by the two occupants of the vehicle as to where they had been. The driver told the trooper that he and the passenger “had spent a couple of weeks in Fort Myers, Florida, that they had been fishing, and that they had stayed with friends in Fort Myers.” Id. The passenger, by contrast, told the trooper that he and the driver “had been to Fort Myers for four days and that they had stayed in a trailer owned by [the passenger].” Id. at 755 .

In the holding of the Eleventh Circuit, the “gaps and inconsistencies” in the two stories contributed significantly to the reasonable suspicion for detaining the suspects pending the arrival of the drug-sniffing dog. [The trooper] knew that Huffman claimed that the two had taken a two-week vacation and had stayed with friends whereas Hardy said that they had been in Fort Myers for only four days and had stayed in Hardy’s trailer.... For two friends who supposedly had taken a fishing trip to Florida together, Hardy and Huffman knew remarkably little about each other. The gaps and inconsistencies observed by Ralston created a reasonable suspicion justifying the investigative stop. 855 F.2d at 758 (emphasis supplied). The fundamental purpose of a Terry-stop, based as it is on reasonable suspicion, is to confirm or to dispel that ⁶⁸⁴ 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. In State v. Watson, 165 Conn. 577, 585 , 345 A.2d 532, 537 (1973), the Supreme Court of Connecticut described the legal significance of the responses given to the police. The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go.

If, on the contrary, the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances. (Emphasis supplied). People v. Rogers, 71 Ill.App.3d 1046 , 28 Ill.Dec. 375 , 390 N.E.2d 542, 545 (1979), also reasoned that it “would be illogical for a statute to authorize an officer to demand an explanation of an individual’s actions yet require the officer to stop all questioning even when the response was clearly inadequate.” See also State v. Noel, 137 N.H. 384, 386 , 628 A.2d 692, 693 (1993) (a 42 minute detention was held to be reasonable because the stories told by the defendant and his companion “were inconsistent,” which inconsistency “heightened the officers’ suspicions.”); State v. Moffatt, 450 N.W.2d 116, 119 (Minn.1990) (a 60 minute stop on suspicion of burglary held to be reasonable because “the men were soaked with sweat and gave a lame excuse for being in the area.” (emphasis supplied)); United States v. Richards, 500 F.2d 1025, 1029 (9th Cir.1974) (“Appellant’s implausible and evasive responses to these questions indicated that something was awry and created even more reason for the investigation being pursued further.”); State v. Davis, 104 N.J. 490, 508 , 517 A.2d 859, 869 (N.J.1986) (“As the questioning unfolded, Officer D’Andrea received answers that tended to strengthen his suspicions that the suspects were up to no good. For defendant and his ⁶⁸⁵ compatriot not only failed miserably to dispel the officer’s suspicions, they effectively talked themselves into the arrest at issue.”).

In this case, we have not only inconsistent explanations as to why the van was on the deserted parking lot but, even more suspicious, the bizarre explanation (“a lame excuse”) offered by the driver about being there “to pick someone up” with no clue as to who was to be picked up. There was obviously something “fishy” about the explanation, and that is a pertinent circumstance in confirming an initial suspicion. E. The Analytic Focus Must Embrace the Totality of the Circumstances. There might, of course, have been an innocent explanation for what the van was doing on the school parking lot on a Sunday evening.

There might have been an innocent explanation for why it started to leave as the police approached. There might have been an innocent explanation for why the two persons on foot suddenly began to run at the approach of the police. There might have been an innocent explanation for the inherently strange and inconsistent purposes for being there stated by the driver and the front seat passenger. As United States v. Sokolow, 490 U.S. 1, 9-10 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989), explained, however: Terry itself involved “a series of acts, each of them, perhaps innocent” if vieiued separately, but which taken together warranted further investigation.” We noted in [Illinois v. ]Gates[ 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983)] that