Chase v. State

BATTAGLIA, J. This case presents us with the opportunity, yet again, to explore the parameters of reasonable suspicion to support a Terry stop, 1 as well as what constitutes an arrest for Fourth Amendment purposes. Ira Chase, Petitioner, presents the following questions for our review: 1. Does reasonable suspicion that an individual is engaged in drug activity, by itself, constitute reasonable suspicion that the individual is armed and dangerous? 2. Under this Court’s case law recognizing that a display of force by the police, such as placing a suspect in handcuffs, constitutes an arrest requiring probable cause absent reasonable suspicion that the suspect is armed and dangerous, was Petitioner under arrest when he and the co-occupant of Petitioner’s Jeep Cherokee were removed from the Jeep and placed in handcuffs, where the police had reasonable suspicion that the two men were engaged in drug activity in the Jeep but lacked reasonable suspicion that they were armed and dangerous? 3.

Assuming, arguendo, that the police had reasonable suspicion to believe that Petitioner and his co-occupant were ²⁸⁷ armed and dangerous when they were removed from the Jeep and handcuffed, was that reasonable suspicion dispelled when the officers patted them down and found no weapons, thereby rendering their continued detention and questioning by the officers while awaiting the arrival of a drug sniffing dog an arrest, and not a mere detention, that was not supported by probable cause? In 2013, Chase was indicted in the Circuit Court for Baltimore County, Maryland for possession of cocaine with intent to distribute, manufacturing cocaine, possession of cocaine and possession of less than 10 grams of marijuana. He moved to suppress various pieces of evidence seized by Baltimore County police officers from his person, that being a motel key, and from the motel itself, to include narcotics and narcotics paraphernalia; he alleged that his detention in handcuffs while a car that he had been driving was searched constituted an unlawful arrest and the attendant seizure of the motel key and discovery of physical evidence in the motel room were the fruits of that arrest. Judge Patrick Cavanaugh of the Circuit Court for Baltimore County denied Chase’s motion to suppress, and Chase, thereafter, entered a conditional guilty plea 2 to one count of possession of cocaine with ²⁸⁸ intent to distribute.

Judge Cavanaugh, in denying the motion to suppress, determined: Okay. It’s a very interesting case. I’m familiar with all the cases you’ve handed up, Mr. Tompsett. The Carter case is of particular interest, it’s one of Judge Moylan’s shorter opinions.

The man was stopped or he wasn’t stopped, he’s already parked under the policeman’s observation when the other car pulls in. They’re backed in next to each other, it’s a high crime area. I’m familiar with the area. I don’t know how many cases I’ve had from that side of town involving drugs.

They’re in the parking lot of the hotel, nobody gets out of the car, goes into a hotel, don’t do anything except meet each other at a car. The furtive acts give me some concern because of the officer’s safety. They see this going on inside the vehicle as they’re approaching. The inconsistent stories, you know, one’s watching the ballgame, the other one is going to Maryland Live Casino.

I think that’s what really triggered the call for the K-9 to come out and it was fairly quick after they were stopped. I believe the K-9 arrived within ten minutes of the police approaching the vehicle to begin with. I think it is a classic Terry case, (inaudible) to the high crime in the area, drugs, we know that guns are involved with drugs. So I can understand the concern for officers’ safety.

The dog alerts on the side of the vehicle that Mr. DeLillo just got out of and he’s the one who later on states, you know, I came to buy an eight ball to get, got fourteen grams, got more than he came for. Certainly, got more than he came for when he got the cuffs on him. I believe I don’t have any choice but to deny your Motion, Mr. Cardin. I think it’s a good stop, it’s a good search.

I was concerned about the cuffs going on when they went on and the comments that were made by the two gentlemen were after they were read Miranda. They were Mirandized right away. I know you disagree with me, Mr. Davis, you’ve been sitting there shaking your head sideways since you came in the door today. The Motion to Suppress is denied.

Chase appealed to the Court of Special Appeals, which, in a reported opinion, Chase v. State, 224 Md.App. 631 , 121 A.3d ²⁸⁹ 257 (2015), affirmed. 3 During the suppression hearing, Detective Andrew Melnyk of the Baltimore County Police Department testified that in September of 2013 he and his partner, Detective Young, 4 assigned to the Vice/Narcotics Unit, were patrolling the area around Security Boulevard. Detective Melnyk related that the area was “known for illicit narcotic activity,” as it is close to Interstate 70 and the Baltimore Beltway. Detective Melnyk further noted that on the evening of September 10th he and Detective Young were in the area around the Days Inn on Whitehead Court, which they knew to be a “high area of drug trafficking.” Detective Melnyk testified that “My unit as well as myself have participated in numerous search warrants and apprehensions resulting in the seizure of illicit drugs and U.S. currency, as well as weapons!,]” and continued to describe the events of that evening in which two individuals interacted in a Jeep Cherokee: STATE: And do you recall what time of day you were on the parking lot at the Days Inn? DETECTIVE MELNYK: It was the evening shift, around 6:00, 6:45.

STATE: And was it, was it, what position did you take on the parking lot of the Days Inn? ²⁹⁰ DETECTIVE MELNYK: As we pulled in the parking lot, we noticed a, a white Jeep Cherokee parked on the lot occupied later identified by the Defendant. He was utilizing his cell phone backed into a parking spot, so we took up a position where we could maintain surveillance on this vehicle. STATE: And how long did you watch the Defendant’s vehicle for? DETECTIVE MELNYK: Approximately two minutes when we observed a second vehicle, a Lexus, back into a parking spot, he actually backed in catty-corner, taking up two parking spots next to the Jeep Cherokee. * * * DETECTIVE MELNYK: The driver of the Lexus exited his vehicle, approached the Jeep Cherokee and got into the passenger side of the Jeep Cherokee, leaving his vehicle parked like I explained in two parking spots.

STATE: Does this type of behavior have any type of significance to you? DETECTIVE MELNYK: Through, through my, I’ve taken a forty hour basic narcotic investigator class as well as a weeklong class in the Academy for drug identification and characteristics of people that are involved in the distribution of illegal narcotics, often times nowadays people utilize vehicles to conceal the transactions from law enforcement as well as the hotel that they’re at— DETECTIVE MELNYK: They use the hotel to conceal the identity of their home address. So with the Defendant in his vehicle, as well as the Lexus pulling in and the driver of the Lexus getting out of his vehicle into the Defendant’s vehicle, as well as the area that they’re in, it’s a known high drug area, they did not utilize any services of the Days Inn, which is where they were parked. We believed that there was ²⁹¹ illegal drug activity taking place, or criminal activity at that matter.

Detective Melnyk further related that after waiting a short period of time to see if any further activity occurred, he and Detective Young approached the Jeep, identified themselves as police officers and removed its occupants: DETECTIVE MELNYK: We waited a brief period to, to see if there was going to be any activity farther and there wasn’t. At that point, we drove our vehicle, identified ourself as police, approached the vehicle and detained both occupants inside the white Jeep Cherokee. STATE: And why did you detain those two subjects? DETECTIVE MELNYK: Based on the reasonable suspicion that they were involved in illegal activity based on the totality of the circumstances, the location, the lack of activity involving the hotel room and the way they were parked, as well as the mannerisms that, from the driver entering the Grand Cherokee from the Lexus.

On cross-examination, Detective Melnyk testified in more detail about the furtive movements of the driver in reaching under his seat and putting his hand in his pocket which precipitated the removal of the driver, who turned out to be Chase, and his companion from the Jeep Cherokee and handcuffing them: MR. CARDIN: All right. Now, when you say they were detained, they were handcuffed? DETECTIVE MELNYK: Yes.

MR. CARDIN: All right. DETECTIVE MELNYK: The reason we take them out of the vehicle, Your Honor, is to prevent them from accessing any sort of weapons that could harm us. ... They were, they were asked to step from the vehicle at which point we placed them in handcuffs.

MR. CARDIN: I see. * * ²⁹² STATE: Why did you place them in handcuffs prior to the K-9 alerting for probable cause? DETECTIVE MELNYK: We noticed, as we were approaching the vehicle, the driver specifically, as well as the passenger, they were moving, looks like they were moving things around there, reaching under the seat. The passenger immediately put his hands in his pocket.

At that point, for the safety of myself and Detective Young, they were requested to exit the vehicle and we put them in handcuffs just to make sure they didn’t have any weapons and detaining them. They were not free to leave. The, the reason for the handcuffs were solely based on the safety of everybody involved, based on the furtive movements that we observed inside the vehicle as we were approaching the vehicle. Detective Melnyk continued his testimony, recounting the differing stories given by Chase and the other man and the detectives’ decision to request that a K-9 unit come to the location: STATE: And starting with the individual who got out of his Lexus and into Mr. Chase’s car, this Defendant’s car, what, if anything, did he tell you about what was going on there?

DETECTIVE MELNYK: He advised that he was meeting Phil and that him and Phil were going to a hotel room to watch the Oriole game. STATE: And did you speak to Mr. Chase? DETECTIVE MELNYK: I did. STATE: And what did Mr. Chase advise?

DETECTIVE MELNYK: Mr. Chase advised that he was going to meet his cousin and attend the Maryland Live Casino. * * * STATE: Can you explain to the Court Mr. Chase’s demean- or while you were speaking with him? DETECTIVE MELNYK: He was, he was very irate with the police presence. He claimed that he had done nothing ²⁹³ wrong and I explained to him our observations which caused us to maintain the detention of the Defendant. STATE: So with the maintained detention and now these two different stories, what, if anything, did you do?

DETECTIVE MELNYK: Based on reasonable suspicion, I notified via my police radio dispatch to start a K-9 to our location to further the investigation. Officer Bernardo Tubaya of the Baltimore City Police K-9 Unit also testified. He recounted that he was dispatched to the motel parking lot at 6:52 pm and arrived approximately eight minutes later. He also related that the police dog alerted to the presence of narcotics during the “sniff’ of the Jeep Cherokee: STATE: And what type of response, if any, did your dog give for [the Jeep Cherokee]?

OFFICER TUBAYA: When he scanned the vehicle, he gave me indicators and he alerted to the passenger side door. STATE: Okay and how does your dog alert? OFFICER TUBAYA: He, his breathing pattern changes, he stops, he looks at the door and he gives me a sit alert, in which he sits and looks at the door. STATE: Okay and he did all those things in this ease?

OFFICER TUBAYA: Yes. Detective Melnyk related that he subsequently performed a search incident to arrest, after the police dog had alerted, which produced a motel room key: STATE: And when the K-9 officer arrived, did you explain to him what was going on at the scene? DETECTIVE MELNYK: I did. ... STATE: And did he use his dog?

DETECTIVE MELNYK: He did use his dog. STATE: And did his dog alert on either one of the vehicles? DETECTIVE MELNYK: His dog alerted on the Jeep Cherokee. ²⁹⁴ STATE: And the Jeep Cherokee belonged to which Defendant? DETECTIVE MELNYK: Defendant Chase.

STATE: Okay. When the dog alerted, what, if anything, did you and your partner do? DETECTIVE MELNYK: We initially questioned the Defendant for illegal substances within his vehicle. At that point, he began to ignore our, our requests and stop talking to us, which at that point, it became an arrest.

STATE: And did you search the Defendant incident to that arrest? DETECTIVE MELNYK: I did. STATE: And what, if anything, did you find? DETECTIVE MELNYK: We found some currency as well as a room key for the Days Inn.

Detective Melnyk related that he and Detective Young then applied for and obtained a search warrant for the room associated with the key found during the search of Chase’s person; the subsequent search of the room uncovered 138 grams of cocaine and narcotics paraphernalia. Chase contends that he was subject to an unlawful arrest when he had been removed from the Jeep and handcuffed without the officers having a reasonable suspicion that he possessed a weapon, citing a footnote in Dashiell v. State, 374 Md. 85, 101 , 821 A.2d 372, 381-82 (2003), in which we acknowledged that, “[wjeapons and guns are widely known to be used in narcotics trafficking,” but that “[wjhile this may be a factor in a totality determination of whether the officers possessed the requisite reasonable suspicion to fear for their safety, this, merely coupled with evidence of drug trafficking, normally will not be the determinative factor.” Id. at n. 4, 821 A.2d at 381 -82 n. 4. Chase asserts that Detective Melnyk offered no particularized facts in his testimony to support a belief that he was armed and dangerous and, therefore, lacked the reasonable suspicion necessary to lawfully detain him. ²⁹⁵ The State argues, conversely, the totality of the circumstances supported the officers’ actions, as Detectives Melnyk and Young were patrolling an area known for illegal narcotic activity, observed Chase and his associate engaging in behavior indicative of illegal drug activity and observed movements by Chase and his companion that raised concern regarding the possibility that the individuals were armed, thereby compromising the safety of the officers. Thus, according to the State, Detective Melnyk articulated particular facts to support his having placed handcuffs on Chase.

Under the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend.

IV

In Terry v. Ohio, 392 U.S. 1, 30 , 88 S.Ct. 1868, 1884-85 , 20 L.Ed.2d 889, 911 (1968), the United States Supreme Court addressed the issue of whether the investigatory detention and frisk of an individual for weapons was violative of the Fourth Amendment. In Terry , a lone police officer, McFadden, observed two men, including Terry, pacing back and forth in front of a store. Based upon his experience, McFadden suspected that the men were “casing a job, a stick-up” and, when a third man arrived, intervened. Id. at 6-7 , 88 S.Ct. at 1872 , 20 L.Ed.2d at 897 .

Dissatisfied with their answer to his request for their names and concerned that the men may have been armed, McFadden patted-down the exterior of their clothing, feeling for a gun. Id. at 7 , 88 S.Ct. at 1872 , 20 L.Ed.2d at 897 . He recovered a gun from the pocket of the overcoat of one of the men, later identified as Terry, as well as another gun from the pocket of one of the other men’s coats. Id.

The Supreme Court determined that McFadden’s actions in stopping Terry and frisking him for the presence of weapons did not violate the Fourth Amendment based upon the officer’s belief that Terry was armed and dangerous. In so doing, ²⁹⁶ the Court balanced officer and public safety against the individual’s right against intrusion: Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Id. at 27 , 88 S.Ct. at 1883 , 20 L.Ed.2d at 909 .

The Court iterated, however, that the officer’s reasonable belief that the person is armed must be based on more than an “inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. at 27 , 88 S.Ct. at 1883 , 20 L.Ed.2d at 909 . Almost a decade later, the Court reiterated in Pennsylvania v. Mimms, 434 U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977), that officer safety could justify a Tetry stop and frisk. In Mimms , two police officers on patrol spotted a vehicle bearing an expired license plate and stopped the car. 434 U.S. at 107 , 98 S.Ct. at 331 , 54 L.Ed.2d at 334 . As Mimms, responding to a request from one of the officers, stepped out of the car, one of the officers noticed a “bulge” under Mimms’s jacket.

Id. Concerned that the bulge could be a gun, the officer frisked Mimms and recovered a loaded .38 caliber gun from Mimms’s waistband. Id. The Pennsylvania Supreme Court reversed Mimms’s conviction for carrying a concealed weapon and for the unlawful possession of a firearm without a license on Fourth Amendment grounds.

The Supreme Court reversed, basing its decision on the rationale of Terry , which justified the police ordering Mimms out of the car, once he had been lawfully detained. Id. at 109 , ²⁹⁷ 98 S.Ct. at 382 , 54 L.Ed.2d at 335-36 . The Court stressed that the safety of the officers was of paramount concern: We think it too plain for argument that the State’s proffered justification — the safety of the officer — is both legitimate and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, supra. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.

Id. at 110 , 98 S.Ct. at 333 , 54 L.Ed.2d at 336 . The Court iterated that the request by the officer that Mimms step out of the car was de minimis, and “at most a mere inconvenience [that] cannot prevail when balanced against legitimate concern for the officer’s safety.” Id. at 111 , 98 S.Ct. at 333 , 54 L.Ed.2d at 337 . Following Terry and Mimms , we have had a number of occasions to refine our jurisprudence regarding what is reasonable suspicion and the level of particularization necessary to warrant a Terry stop. In Crosby v. State, 408 Md. 490 , 970 A.2d 894 (2009), we articulated that which constitutes an officer’s reasonable suspicion under a “totality of the circumstances”: There is no standardized test governing what constitutes reasonable suspicion. ...

First, reasonable suspicion is a “ ‘common sense, nontechnical conception that considers factual and practical aspects of daily life and how reasonable and prudent people act.’ ” While the level of required suspicion is less than that required by the probable cause standard, reasonable suspicion nevertheless embraces something more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Second, a court’s determination of whether a law enforcement officer acted with reasonable suspicion must be based on the totality of the circumstances. Thus, “the court must ... not parse out each individual circumstance for separate consideration.”... In making its assessment, the court should give due deference to the training and experience of ²⁹⁸ the law enforcement officer who engaged the stop at issue. Such deference “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” To be sure, “[a] factor that, by itself, may be entirely neutral and innocent, can, when viewed in combination with other circumstances, raise a legitimate suspicion in the mind of an experienced officer.” Third, the reasonable suspicion standard carries limitations; it “ ‘does not allow [a] law enforcement official to simply assert that innocent conduct was suspicious to him or her.’ ” Rather, the officer must explain how the observed conduct, when viewed in the context of all of the other circumstances known to the officer, was indicative of criminal activity.

As this Court observed previously, we shall not “ ‘rubber stamp’ conduct simply because the officer believed he had the right to engage in it.” In other words, there must be an “articulated logic to which this Court can defer.” 408 Md. at 507-09 , 970 A.2d at 903-04 (internal citations omitted). We have explored the level of particularization needed to justify a Terry stop when based on officer and public safety on a number of occasions, most notably in Quince v. State, 319 Md. 430 , 572 A.2d 1086 (1990); Derricott v. State, 327 Md. 582 , 611 A.2d 592 (1992); State v. Smith, 345 Md. 460 , 693 A.2d 749 (1997); Dashiell v. State, 374 Md. 85 , 821 A.2d 372 (2003); Ransome v. State, 373 Md. 99 , 816 A.2d 901 (2003); Cotton v. State, 386 Md. 249 , 872 A.2d 87 (2005); Williamson v. State, 398 Md. 489 , 921 A.2d 221 (2007); and Longshore v. State, 399 Md. 486 , 924 A.2d 1129 (2007). In Quince v. State, a police officer responded to a call over the radio that an armed black man, accompanied by a black female, had been seen in “the lower dining room” at Towson State University. The manager of the dining hall had reported that the man with the gun seen “wandering about the dining hall” was a former employee who had picked up his last pay ²⁹⁹ check.

Co-workers of the employee indicated that he “always carried a firearm.” The officer, thereafter, spotted Quince, who matched the description of the armed man, standing with a black female at a bus stop. After confirming that Quince met the description received over the police radio, the officer approached Quince and asked if he had a gun, to which Quince responded in the negative. A pat-down of Quince, however, revealed a .357 magnum pistol in his waistband. We noted the Supreme Court’s emphasis on public safety as it related to a Terry stop, ... the Supreme Court has made it clear that strong concerns for public safety and for effective crime prevention and detection clearly justify the application of Terry principles where there exists reasonable suspicion of ongoing or imminent criminal activity. 319 Md. at 434 , 572 A.2d at 1088 , and concluded that the officer had reasonable suspicion that Quince was unlawfully carrying a weapon, based on the information provided by the dining hall manager; the report of a man with a gun in a public place also raised concerns for public safety: The need for urgent action was apparent.

A report of a man with a gun in any public place is a serious matter. The additional information that the subject was a former employee, present to pick up his final check, and was “wandering about the dining hall,” did nothing to assuage legitimate concerns. Id. at 435 , 572 A.2d at 1088 . Clearly, we determined, the officer possessed a reasonable suspicion that Quince was armed: The record reflects that the information was conveyed to the police in such a manner that the fact that former employees had reported that Quince “always” carries a gun was reasonably understood by the police to be supplemental to and in confirmation of the initial report that Quince had a gun in the dining hall.

Officer Garland was emphatic that the initial dispatch to him was that a man with a gun was in ³⁰⁰ the lower dining room, and in a later transmission he was warned that former co-employees were saying that this man “always carried a firearm.” He testified: I followed my instructions of the dispatcher. The first call I received was that the defendant was armed, was a man with a gun, that was my first response. All other information that came over was just more substantial, more to make sure that I would protect myself. Id. at 436-37 , 572 A.2d at 1089 .

In Derricott v. State, 327 Md. 582 , 611 A.2d 592 (1992), Corporal Thomas of the Maryland State Police observed, through his stationary radar operation, a brown sports car driving 89 miles per hour on Interstate 270. Corporal Thomas pursued the car, which he pulled over into the highway median strip without incident. The driver, later identified as Derricott, complied with Corporal Thomas’s instruction to furnish his permit and registration. Derricott did so without hesitation or nervousness.

Corporal Thomas, who stood beside the driver’s door, testified that he noticed several indicia of a “drug courier” profile. Corporal Thomas’s check of the permit and registration indicated both were valid, the car had not been reported stolen and no warrants had been issued against Derricott. Corporal Thomas, however, requested a back-up officer and “drug dog” for the purpose of conducting a “sniff.” When the back-up officer arrived, Corporal Thomas ordered Derricott, who had been sitting in the car and had not exhibited any suspicious behavior, to get out of the car, after which he conducted a pat-down search of Derricott for weapons; no weapons were found. Corporal Thomas then approached the open driver’s door of the car and looked inside whereupon he observed a cellophane bag containing smaller glassine bags containing a substance he thought was cocaine.

Derricott was, thereafter, convicted of possession of a dangerous substance ■with the intent to distribute and the Court of Special Appeals affirmed. ³⁰¹ We reversed Derricott’s conviction, noting that, “It is only when the circumstances also support the articulable suspicion that the person detained is armed and dangerous that the frisk of outer garments and the limited search of a passenger compartment may be authorized.” 327 Md. at 588 , 611 A.2d at 595 . Evaluating the