Carter v. State

Kennard Carter v. State of Maryland, No. 478, September Term 2018. ARREST > NECESSITY FOR CAUSE FOR ARREST For the purposes of ascertaining whether Fourth Amendment guarantees against unreasonable searches and seizures are implicated in an encounter between an individual and a police officer, the encounter is classified as investigatory detention when, in view of all the circumstances surrounding the incident, by means of physical force or show of authority, a reasonable person would have believed that he was not free to leave or is compelled to respond to questions. U.S. Const. amend.

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ARREST > WHAT CONSTITUTES A SEIZURE OR DETENTION Factors that might indicate that a seizure has occurred, thus implicating Fourth Amendment guarantees against unreasonable searches and seizures, include: threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of language or tone of voice indicating that compliance with the officer's request might be compelled, approaching the individual in a nonpublic place, and blocking the individual's path. U.S. Const. amend.

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ARREST > WHAT CONSTITUTES A SEIZURE OR DETENTION Crucial test in determining whether a person was seized within the meaning of the Fourth Amendment is whether, taking into account all of the circumstances surrounding the encounter between the individual and the police, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. U.S. Const. amend.

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CRIMINAL LAW > ATTENUATION OR DISSIPATION PURGING TAINT Evidence is admissible under the “attenuation doctrine” when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained. CRIMINAL LAW > ATTENUATION OR DISSIPATION PURGING TAINT Three factors guide the court's analysis into whether the attenuation doctrine applies to allow admission of evidence obtained following unconstitutional conduct: (1) the court looks to the temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search; (2) the court considers the presence of intervening circumstances; and (3) particularly significant, the court examines the purpose and flagrancy of the official misconduct. U.S. Const. amend.

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Circuit Court for Baltimore City Case No. 117303014 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 478 September Term, 2018 _____________________________________ KENNARD CARTER v. STATE OF MARYLAND _____________________________________ Leahy, Reed, Friedman, JJ. _____________________________________ Opinion by Reed, J. _____________________________________ Filed: November 14, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-11-19 10:33-05:00 Suzanne C. Johnson, Clerk Kennard Carter (“Appellant”) was charged with (1) possession of a firearm after having been convicted of a crime of violence; (2) possession of a firearm after having been convicted of a disqualifying crime; (3) wearing, carrying, and transporting a handgun on his person; (4) possession of a controlled dangerous substance (cocaine); and (5) resisting arrest.1 Prior to trial, defense counsel stipulated that Appellant had a prior conviction that disqualified him from possessing a weapon. At trial, Appellant’s counsel filed a Motion to Suppress physical evidence seized by Maryland Transit Administration (“MTA”) officers subsequent to Appellant being removed from a Light Rail Train. The Motion claimed that Appellant’s Fourth Amendment right to be free from unreasonable searches and seizures had been violated. Following the suppression hearing, the Court denied Appellant’s Motion to Suppress.

On March 26, 2018, a jury in the Circuit Court for Baltimore City convicted Appellant of Counts 1, 3, and 5.2 Appellant was then sentenced to ten (10) years’ imprisonment as to Count 1, suspending all but a mandatory minimum of five years without the possibility of parole, and to concurrent three-year (3) terms on Counts 3 and 5, with three (3) years’ supervised probation. This appeal followed. In bringing his appeal, Appellant presents one question for appellate review: I. Did the trial court err in denying Appellant’s Motion to Suppress? 1 Appellant was also charged with failure to pay for the Light Rail Train but the charge was dropped by the State once Appellant prayed a jury trial. 2 The trial court granted judgments of acquittal as to Counts 2 and 4. For the following reasons, we hold that Appellant was illegally seized.

Furthermore, we hold that Appellant’s Motion to Suppress should have been granted, as the Strieff factors weigh against attenuation in this case. As such, we reverse the convictions of Appellant. FACTUAL & PROCEDURAL BACKGROUND On October 2, 2017, at approximately 8:00 p.m., six Maryland Transportation Authority (“MTA”) officers3 gathered on the Mount Royal station platform and waited for the train to arrive in order to conduct a fare inspection. Fare inspections, also referred to as “fare sweeps,” are used by MTA officers to check whether passengers have committed the crime of not paying their fare.

Anyone who travels on a Light Rail Train without paying their fare is subject to a fifty-dollar ($50) citation pursuant to Maryland Code, Transportation Article § 7-705. Fare inspections are typically conducted by teams of MTA officers, where the officers broadcast an announcement through the train that a fare inspection is being conducted while the train is stopped and instruct all passengers to show their passes when approached. There was no evidence establishing whether any signs warning passengers that they would be subject to being checked for payment for a possible violation of the Transportation Article were posted at the station or on the train. At that time, some officers walked through the train seeking proof of payment from each passenger; the remaining 3 Officer Tobin testified that the MTA is sanctioned by the State of Maryland, and MTA officers are empowered with the same arrest powers as those granted to the Maryland State Police.

Md. Code, Trans. § 4-208(a)(2) (“a Maryland Transportation Authority police officer has all the powers granted to a peace officer and a police officer of this State”); see also Okwa v. Harper, 360 Md. 161 (2000). 2 officers remained on the platform outside the train. During the suppression hearing in this matter, Corporal Latoya Russell (hereinafter “Corporal Russell”) testified that passengers are not allowed to leave the train while the inspections are conducted. Any passenger who refuses, or is unable, to produce their fare ticket is ordered off the train and directed to the officers on the platform to receive a citation. Corporal Russell also testified that officers typically collect identifying information and run warrant checks through MTA dispatch on every passenger who receives a citation for traveling without a fare ticket.

Furthermore, when later asked, Corporal Russell answered in the affirmative that fare inspections are “an apparatus to be able to check people for warrants.” As a Light Rail Train arrived at the Mount Royal station on October 2, 2017, an officer boarded each of the four train cars. Each officer broadcasted an announcement that they were about to conduct a fare inspection and instructed passengers that officers were checking tickets. The officers then proceeded to ask every passenger onboard for their ticket. Appellant was travelling in one of the train cars boarded by MTA officers on October 2, 2017.

After Corporal Russell boarded Appellant’s car, Appellant approached Corporal Russell and informed her that he did not have a ticket. Corporal Russell then instructed Appellant to get off of the train and directed him to Officer Zachary Tobin, who was waiting on the platform. Officer Tobin then escorted Appellant to a bench on the platform, where he remained until the Light Rail Train departed from Mount Royal station. Once the train left the Mount Royal station, Officer Tobin collected Appellant’s name, date of birth, and social security number.

Officer Tobin then provided that 3 information to MTA dispatch, who informed Officer Tobin that Appellant had a possible positive arrest warrant. At that time, Appellant attempted to get up from the bench where he had been sitting and leave the platform, prompting three officers to tackle Appellant. During the ensuing melee, Officer Tobin yelled that Appellant had a gun. In response, Corporal Russell utilized her taser to subdue Appellant until Officer Tobin was able to fully handcuff Appellant.

After Appellant was handcuffed, Officer William Camphor searched Appellant and found ten bags of white powder. Officers also located a gun and bullets in the track area, which were introduced into evidence at Appellant’s trial. The officers then transported Appellant to Central Booking, where it was confirmed that a warrant existed for Appellant’s arrest. Appellant was subsequently charged with (1) possession of a firearm after having been convicted of a crime of violence; (2) possession of a firearm after having been convicted of a disqualifying crime; (3) wearing, carrying, and transporting a handgun on his person; (4) possession of a controlled dangerous substance (cocaine); and (5) resisting arrest.

At Appellant’s trial, Appellant’s counsel filed a Motion to Suppress the physical evidence found on Appellant and in the track area on the ground arguing that Appellant’s Fourth Amendment right to be free from unreasonable searches and seizures had been violated. Denying the motion, the court ruled that Corporal Russell had “engaged in a mere accosting by announcing the fare inspection, and therefore [her] inquiry did not require Fourth Amendment justification.” The trial court further reasoned that “after the fare inspection was announced, [Appellant] voluntarily approached Corporal Russell” to 4 confess he did not have a fare ticket, thus providing MTA officers probable cause to detain him and conduct the warrant check which ultimately led to his arrest. The court also stated that even had Corporal Russell’s actions been an unlawful investigatory stop, “the discovery of a valid, pre-existing warrant attenuated the connection between the unlawful stop and the evidence seized from [Appellant] incident to arrest.” On March 26, 2018, a jury convicted Appellant of possession of a firearm with a disqualifying conviction; wearing, carrying, and transporting of a handgun on his person; and resisting arrest. That day, Appellant was sentenced to ten years’ imprisonment with all but five years suspended for the possession of a firearm conviction, without the possibility of parole, and two concurrent three-year sentences for the second and third convictions.

Appellant was also sentenced to three years of supervised probation once released. STANDARD OF REVIEW In reviewing a trial court’s decision to grant or deny a motion to suppress, this Court limits its review to the record of the motions hearing. Trusty v. State, 308 Md. 658 , 669– 72 (1987). The evidence is viewed in the light most favorable to the prevailing party, and the trial court’s fact findings are accepted unless clearly erroneous.

Williamson v. State, 413 Md. 521, 531 (2010). “The ultimate determination of whether there was a constitutional violation, however, is an independent determination that is made by the appellate court alone, applying the law to the facts found in each particular case.” Belote v. State, 411 Md. 104, 120 (2009) (citations omitted); see also Carter v. State, 367 Md. 447, 457 (2002). DISCUSSION 5 A. Parties’ Contentions Appellant contends that he was unconstitutionally seized by MTA officers on October 12, 2017. Appellant further contends that his encounter with Corporal Russell was a nonconsensual encounter based on Corporal Russell’s show of authority upon entering the train car. As there was no probable cause to believe that he or anyone else aboard the train had committed any crime prior to that point, Appellant asserts that Corporal Russell violated his Fourth Amendment rights.

Furthermore, Appellant emphasizes that the MTA officers were acting with a primarily law enforcement purpose when boarding the Light Rail Train. Appellant objects to the trial court’s conclusion that Corporal Russell had merely accosted him prior to Appellant voluntarily confessing his failure to purchase a fare ticket. Appellant asserts that the illegal seizure began the moment Corporal Russell entered the train car, and case law establishes that consent to search is invalid if such consent is preceded by an illegal seizure. Appellant further rejects the trial court’s reliance on the typical nature of fare inspections; Appellant argues that the absence of particularized suspicion on the part of MTA officers makes their conduct more objectionable than the trial court believed.

Finally, Appellant asserts that the discovery of a valid arrest warrant against Appellant does not attenuate the taint created by the alleged illegal seizure. Citing Brown v. Illinois, 422 U.S. 590 (1975), Appellant claims that his alleged seizure was too temporally proximate to the discovery of the warrant, there was no intervening circumstance between those two events, and the alleged misconduct committed by 6 Corporal Russell was too flagrant to allow for the attenuation doctrine to apply. In relying on Utah v. Strieff, 136 S. Ct. 2056 (2016), Appellant concludes that the MTA’s “suspicionless fishing expeditions” are strictly prohibited by the Fourth Amendment. As such, Appellant believes that the trial court erred in denying his Motion to Suppress.

The State argues that Appellant and Corporal Russell’s interaction constitutes a voluntary encounter and not a seizure. The State emphasizes the lack of evidence supporting Appellant’s accusation that the MTA officers showed authority or that Appellant could not leave freely at any point prior to his arrest. The State also contends that fare inspections are voluntary under the principle of implied consent. Specifically, the State asserts that “societal norms” exist and that reasonable individuals using the Light Rail Train understand that they are expected to pay for a fare ticket and be ready to provide proof upon request.

The State turns to the video evidence presented at trial and the signage around Mount Royal station indicating the requirement that patrons buy fare tickets prior to traveling on the Light Rail Train. Even if Corporal Russell’s actions constituted a seizure, the State asserts that such a seizure was reasonable. The State compares the MTA’s action with a sobriety checkpoint to show that warrantless seizures have been deemed constitutional in the past. It also rejects Appellant’s reliance on City of Indianapolis v. Edmond, 531 U.S. 32 (2000), by emphasizing that while Edmond rejected seizures whose purpose is to reveal if a motorist committed any crime, the MTA’s fare inspections were tailored solely towards finding those who violated Md. Code, Trans. § 7-705.

As such, the State contends that the facts in this matter are highly distinguishable from those in Edmond. 7 Finally, the State disputes Appellant’s contention that the discovery of his arrest warrant did not attenuate the taint had Appellant been illegally seized. Rejecting Appellant’s interpretation of Strieff, the State believes that an intervening circumstance existed, the discovery of Appellant’s positive arrest warrant, prior to finding the evidence Appellant seeks to suppress. Because officers are required by law to arrest individuals who have active warrants, the arrest of Appellant was a compelling “intervening circumstance” under Strieff. Furthermore, the state contends that the MTA officers’ conduct was not “flagrant,” but instead a “negligibly burdensome precaution for officer safety.” The State also emphasizes that fare inspections are not implemented for the sole purpose of engaging in warrant checks.

As such, even had Appellant been illegally seized, the State contends that discovery of his arrest warrant attenuated any taint of the illegal seizure. We agree with Appellant that he was illegally seized by Corporal Russell prior to Appellant voluntarily admitting he did not possess a fare ticket. Furthermore, after a review of the facts and testimony presented at the motion hearing, we find that the attenuation doctrine is inapplicable here. As such, Appellant’s Motion to Suppress should have been granted.

B. Analysis i. Unlawful Seizure The Fourth Amendment to the United States Constitution guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” The exclusion of evidence obtained in violation of these provisions is essential to the Fourth Amendment. See Mapp 8 v. Ohio, 367 U.S. 643 , 655–56 (1961); State v. Lee, 374 Md. 275 , 297–98 (2003). It is well established that the Fourth Amendment guarantees are not implicated in every interaction between the police and an individual.

See Scott v. State, 366 Md. 121, 131 (2001). In Maryland, like in many states, courts analyze the applicability of the Fourth Amendment in three tiers of interaction between a citizen and the police. See, e.g., Ferris v. State, 355 Md. 356 , 374 n. 5 (1999). The most intrusive encounter, an arrest, requires probable cause to believe that a person has committed or is committing a crime.

See Florida v. Royer, 460 U.S. 491, 499 (1983); Dunaway v. New York, 442 U.S. 200, 207 (1979). The second category, commonly known as a Terry stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime, which permits an officer to stop and briefly detain an individual. See Berkemer v. McCarty, 468 U.S. 420, 439 (1984); Ferris, 355 Md. at 384 . A police officer may engage in an investigatory detention without violating the Fourth Amendment as long as the officer has a reasonable, articulable suspicion of criminal activity.

See Royer, 460 U.S. at 498 . A Terry stop is limited in duration and purpose and can only last as long as it takes a police officer to confirm or to dispel his suspicions. See Ferris, 355 Md. at 372–73, 735 A.2d at 499–500; See also Terry v. Ohio, 392 U.S. 1 (1968). A person is seized under this category when, in view of all the circumstances surrounding the incident, by means of physical force or show of authority a reasonable person would have believed that he was not free to leave or is compelled to respond to questions.

Factors that might indicate a seizure include a threatening presence 9 of several officers, the display of a weapon by an officer, some physical touching of the person, the use of language or tone of voice indicating that compliance with the officer’s request might be compelled, approaching the citizen in a nonpublic place, and blocking the citizen’s path. See Michigan v. Chesternut, 486 U.S. 567, 575 (1988); United States v. Mendenhall, 446 U.S. 544, 554 (1980); cf. Royer, 460 U.S. at 502–03. The least intrusive police-citizen contact, a consensual encounter, involves no restraint of liberty and elicits an individual’s voluntary cooperation with non-coercive police contact. See United States v. Mendenhall, 446 U.S. 544, 553 (1980); United States v. Werking, 915 F.2d 1404, 2408 (10th Cir. 1990).

A consensual encounter does not require any suspicion by the police, and because an individual is free to leave at any time during the encounter, the Fourth Amendment is not implicated. As such, an individual is not considered to have been “seized” within the meaning of the Fourth Amendment. See Ferris, 355 Md. at 373–74 n. 4. Encounters are consensual in situations where the police approach a person in a public space, request information voluntarily, and the person is free to walk away without being required to answer.

See, e.g., Mendenhall, 445 U.S. at 543–44. The Fourth Amendment guarantees are not implicated in such encounters unless the police use either physical force or a show of authority to restrain the person’s liberty so that a reasonable person would not feel free to decline the officer’s requests or walk away from the encounter. Id. at 554; see also Terry v. Ohio, 392 U.S. 1 (1968). In Ferris, the Maryland Court of Appeals described a consensual encounter as simply the voluntary cooperation of a private citizen in response to non- 10 coercive questioning by a law enforcement officer.

Because an individual is free to leave at any time during such an encounter, he is not “seized” within the meaning of the Fourth Amendment. 355 Md. at 373 n. 4 (citations omitted). The Supreme Court has made clear that law enforcement officers do not violate the Fourth Amendment by merely approaching an individual in a public place or asking if he or she is willing to answer questions. See Florida v. Royer, 460 U.S. 491, 497, 506 (1983). As such, consensual encounters are those where the police simply approach a person in a public place, engage in conversation, request information, and the person is free to walk away without answering.

The Supreme Court has also made clear that the request by a law enforcement officer to examine a person’s identification or search his or her belongings does not, in and of itself, make an encounter non-consensual. See INS v. Delgado, 466 U.S. 210, 216 (1984); Florida v. Bostick, 501 U.S. 429, 435 (1991). Fourth Amendment guarantees are implicated, however, when an officer, by physical force or show of authority, restrains a person’s liberty so that a reasonable person would not feel free to terminate the encounter or decline the officer’s request. See Mendenhall, 446 U.S. at 553– 54.

Under the Mendenhall standard, seizure based on a show of authority does not occur unless the subject yields to the authority. California v. Hodari, 499 U.S. 621 , 626–27 (1991). In determining whether the person has been seized, the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Bostick, 501 U.S. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)). 11 In Swift v. State, 393 Md. 139 (2006), Swift was walking down a public street in a high-crime area when a police officer stopped his marked patrol car, exited the vehicle, and asked Swift for permission to speak with him. During the stop, the officer did not activate his emergency equipment or siren and did not draw his weapon, but he did shine his headlights in the direction of Swift.

Upon receiving Swift’s identification information, the police determined that there was an outstanding warrant out for Swift. The officer then asked Swift if he had any weapons or drugs on him and asked for permission to search Swift. Without orally responding, Swift put both hands on the hood of the officer’s patrol car, which the officer viewed as consent. When the officer went to search Swift, Swift pushed off from the hood and fled.

After a foot pursuit and upon his ultimate capture, a bag of crack cocaine was found on Swift’s person. Prior to trial, Swift filed a motion to suppress the bag of crack cocaine, arguing that he was illegally seized by the officer prior to the search. Specifically, Swift contended that, based on the totality of the circumstances, a reasonable person in Swift’s situation would not have felt free to leave. The circuit court ultimately denied Swift’s motion, and Swift appealed.

After this Court affirmed the circuit court’s ruling, review was granted by the Court of Appeals. In making its ruling, the Court of Appeals noted factors that are probative in determining whether a reasonable person would feel free to leave, including the time and place of the encounter, the number of officers present and whether they were uniformed, whether the police removed the person to a different location or isolated him or her from others, whether the person was informed that he or she was free to leave, whether the police indicated that the person was suspected of a crime, whether the police retained the person’s 12 documents, and whether the police exhibited threatening behavior or physical contact that would suggest to a reasonable person that he or she was not free to leave. 393 Md. at 153 (citing Ferris, 355 Md. at 377 ) (emphasis added). If a reasonable person would feel free to leave under the circumstances, however, then there has not been a seizure within the meaning of the Fourth Amendment. Whether a reasonable person would have felt free to leave police presence