Collins v. State

WILNER, Judge. Following a trial in the Circuit Court for Talbot County, which he chose not to attend, petitioner, Michael Collins, was convicted of possession with intent to distribute cocaine and hindering a police officer in the performance of his duties. With two prior felony convictions under the Controlled Dangerous Substance laws, Collins was sentenced as a recidivist offender to 25 years without parole for the drug violation and was given a concurrent sentence of one day for the hindering. After that judgment was affirmed by the Court of Special Appeals, we granted certiorari to consider whether (1) there existed probable cause for petitioner’s arrest and the search that was conducted pursuant to that arrest; (2) there was sufficient evidence to sustain the charge of hindering; and (3) petitioner was properly tried in absentia. 1 We shall affirm.

BACKGROUND Between 10:20 and 10:25 p.m. on January 19, 1999, the Easton Police department was alerted to an armed robbery of a High’s convenience store. Sheriff’s Deputy Scott Kakabar was the first to arrive on the scene. Upon exiting his patrol car, he looked around and, seeing no one, entered the store and conversed briefly with the clerk. Detective Shayne ³⁶³ McKinney of the Easton Police Department then arrived and obtained a description from the clerk.

The clerk described the robber as an African-American male, approximately 5 feet 8 inches tall, weighing about 160 pounds, and wearing a black “nubbie” hat and a long-sleeved gray shirt or sweatshirt with a black stripe or stripes. 2 The clerk reported that the robber said that he was armed, and that he had “just left” on foot. Detective McKinney promptly broadcast that description to other members of the Easton Police Department. Officer John Jones heard about the broadcast and drove to the area near the store. About eight to twelve minutes after the broadcast, he saw Collins in the parking lot of a Burger King store located across the six-to-eight lane U.S. Route 50 and about 200 yards from the High’s store, walking away from the direction of the High’s store.

Collins, who was somewhat larger than the person described in the broadcast — six feet tall and 180 pounds — was wearing a black coat, a gray sweatshirt, and a black nubbie. Jones said that, as he entered the Burger King parking lot, Collins saw his patrol car and “quickly walked to [a] payphone to get on the phone as if he was going to make a call.” Jones added that, when he first saw Collins, he was not walking toward the phone. Officer Jones drove to the payphone, exited his car, identified himself, and conducted a field interview, in the course of which he obtained Collins’s name, address, and date of birth. While obtaining this information, Jones learned from a radio dispatch that the robber fled the store with $200.

Jones asked Collins how much money he had, to which Collins responded by pulling out a twenty dollar bill and stating that was all he had. Jones informed Collins that he matched the description of a robbery suspect who was reportedly in possession of two hundred dollars, and he asked if Collins had more than twenty dollars, to which Collins replied in the negative. ³⁶⁴ Jones then asked Collins if he could check, whereupon Collins “fled.” Although Jones intended to hold Collins until the clerk could be brought to the scene to determine whether Collins was, in fact, the robber, he never advised Collins of that intent. Nor, to that point, had he used any force or show of force, as Collins had been entirely cooperative. When Collins ran, Officer Jones, joined by two other officers who had just arrived at the parking lot, pursued, shouting for Collins to stop.

After what he described as a “pretty lengthy foot chase,” Jones was able to grab Collins and force him to the ground. Collins continued to resist, however, refusing to bring his hands out from under his waist. Aware that the robber was reportedly armed, Jones and the other officers struggled to free Collins’s hands, finally using pepper spray. Not until other officers arrived were they able to place handcuffs on Collins.

One of those officers found a vial or bag of crack cocaine in Collins’s possession. There was no evidence that Collins was the robber, and he was never charged with that offense. He was, however, charged by criminal information with possession of cocaine, possession with intent to distribute that substance, and obstructing and hindering a police officer. Collins responded with a motion to suppress all objects or items seized from his person, all statements made by him, and all in-court and out-of-court identifications of him.

The gravamen of the motion seemed to be that, at the time Collins fled, the police had no reasonable ground to detain him, and that he had a right to leave. The court denied the motion. It concluded that, based on the description of the robber, the initial stop was appropriate and that the suspicion was heightened into probable cause when Collins ran. A jury trial was set for September 2,1999.

When it became evident that Collins, who was free on bond, was not present in the courtroom that day, defense counsel informed the court that her office’s last contact with him was two days earlier, that he had failed to appear for an appointment the day before that contact, that Collins knew the trial date, and that he had ³⁶⁵ inquired about a continuance because his daughter was facing surgery. Counsel said that she told him that, unless he brought her a letter from the hospital, a continuance was not feasible and “that he had to be here.” In an effort to locate Collins, the court instructed officers and sheriffs deputies to search for him in the circuit court building, the district court building, and at his home. While that was being done, the court proceeded with jury selection. After the jury had been selected, sworn, and sent to the jury room, the court was informed that Collins was still not present.

Counsel advised the court that a sheriff had gone to the last two known addresses of Mr. Collins and had spoken with his mother, who attempted to locate him, that counsel had confirmed with her office that Collins had not called, and that she had called the hospital and the last two places of his employment, all with no success. She said that she had no explanation for her client’s failure to appear. When she informed the court that Collins had a daughter who was severely handicapped and was set to undergo surgery at Kennedy Krieger Institute sometime during the month, the court took a recess so that counsel could call that institution in an effort to locate her client. After the recess, counsel informed the court that the daughter was not at Kennedy Krieger.

She added that her office had spoken with the mother of the child, who confirmed (1) that the child was in school that day, and (2) that Collins was aware of the trial date because they had discussed the case several days earlier. Counsel paged Collins with her office number, to no avail. Notwithstanding all of this, counsel asked for a two-week continuance, which the court denied. The judge stated that, in addition to counsel’s efforts, his office had called the local hospital and ascertained that Collins was not in the emergency room and had not been admitted as a patient.

The judge noted that, when Collins appeared for a pretrial hearing on August 6, he was informed that trial would be on September 2. The court concluded that it had followed the directives of this Court in Walker v. State, 338 Md. 253 , 658 A.2d 239 (1995) and found that Collins was aware of the trial date and had ³⁶⁶ voluntarily chosen to absent himself from the trial. It denied the motion for continuance, noting that it would not be proper to keep the jury together for two weeks in the hope that Collins might appear, especially as their service as jurors would likely end before then. At counsel’s request, the court informed the jury, prior to opening statements, that Collins had chosen not to appear for trial.

Counsel thanked the court and said “that the Court has bent over backwards to accommodate our efforts to locate him. The Court has bent over backwards, metaphorically, to accommodate all of our requests from this side of the trial table as well as sua sponte efforts to locate Mr. Collins to proceed today.” When Collins appeared for sentencing — nearly two years later — he offered no explanation for his absence from trial. In pleading for a sentence permitting parole, he said that he had a daughter who was totally dependent on him and a father who was afflicted with cancer, but he did not indicate that either of those circumstances caused or necessitated his absence from trial. DISCUSSION Validity of the Arrest Collins urges that the cocaine seized from his person was inadmissible in evidence because it was taken in violation of the Fourth Amendment.

That is so, he says, because his arrest was unlawful. The arrest was unlawful, in his view, because it was effected without probable cause. In presenting this argument, Collins maintains that (1) Officer Jones had no reasonable articulable suspicion that he was the robber, and therefore no basis upon which to stop and detain him; (2) in order to avoid the prospect of an unlawful search of his person by Officer Jones, he was entitled to flee and, because his flight was justified, it cannot be considered in assessing probable cause; and (3) accordingly, there was no lawful basis for the arrest. We agree that the issue must be examined in a sequential sense, beginning with the initial accosting of Collins by Officer ³⁶⁷ Jones.

The Supreme Court first dealt, directly, with encounters of this kind in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), in which, among other things, the Court concluded that the governmental interest in crime prevention and detection justified the recognition “that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.” Id. at 22 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906-07 . Terry and its immediate progeny involved investigatory stops where the police suspected the person of either being about to commit a crime, as in Terry , or in the course of committing a crime, which explains the Court’s stressing of prevention and detection as the important governmental interest. In United States v. Hensley, 469 U.S. 221 , 105 S.Ct. 675 , 83 L.Ed.2d 604 (1985), the Court first considered the application of Terry to the accosting of an individual believed to have been involved in a completed crime. The balance of factors in that situation was somewhat different, in that a stop to investigate a completed crime does not promote the interest of crime prevention and detection and may not present the same kind of exigent circumstances as an effort to avert an imminent or ongoing crime.

Nonetheless, the Court made clear that the police “are not automatically shorn of authority to stop a suspect in the absence of probable cause merely because the criminal has completed his crime and escaped from the scene.” Id. at 228, 105 S.Ct. at 680 , 83 L.Ed.2d at 611 . Rather, the ability of the police, even in the absence of probable cause, to stop a person suspected of involvement in a past crime, ask questions, or check identification strengthens the strong governmental interest in solving crimes and bringing offenders to justice. Thus, the Court concluded: “Restraining police action until after probable cause is obtained would not only hinder the investigation, but might also enable the suspect to flee in the interim and to remain at large. Particularly in the context of felonies or crimes involving a threat to public safety, it is in the public interest ³⁶⁸ that the crime be solved and the suspect detained as promptly as possible.

The law enforcement interests at stake in these circumstances outweigh the individual’s interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes.” Id. at 229 , 105 S.Ct. at 680 , 83 L.Ed.2d at 612 . Although declining to determine whether Terry stops are permissible to investigate all past crimes, the Court held that it was enough to say that “if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.” Id. A Terry stop allows police to “ ‘investigate the circumstances that provoke suspicion.’ ” United States v. Brignoni-Ponce, 422 U.S. 873, 881 , 95 S.Ct. 2574, 2580 , 45 L.Ed.2d 607, 617 (1975). They do this by asking the “detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” Berkemer v. McCarty, 468 U.S. 420, 439 , 104 S.Ct. 3138, 3150 , 82 L.Ed.2d 317, 334 (1984).

See also Nathan v. State, 370 Md. 648, 660 , 805 A.2d 1086, 1093 (2002) (“Reasonable suspicion of criminal activity warrants a temporary seizure for questioning limited to the purpose of the stop”). The detainee is not obligated to respond, however, and, “unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released.” Berkemer, 468 U.S. at 439-40 , 104 S.Ct. at 3150 , 82 L.Ed.2d at 334 . In determining whether an officer was justified in conducting a Terry stop, courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744, 750 , 151 L.Ed.2d 740, 749 (2002) (citing United States v. Cortez, 449 U.S. 411, 417-18 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621, 629 (1981)). See also United States v. ³⁶⁹ Sokolow, 490 U.S. 1, 8 , 109 S.Ct. 1581, 1585 , 104 L.Ed.2d 1, 10 (1989); Graham v. State, 825 Md. 398 , 408, 601 A.2d 131, 136 (1992).

In Stokes v. State, 362 Md. 407 , 765 A.2d 612 (2001), this Court said that “there is no litmus test to define the ‘reasonable suspicion’ standard ..., it has been defined as nothing more than ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity,’ ... and as a common sense, nontechnical conception that considers factual and practical aspects of daily life and how reasonable and prudent people act.” 362 Md. at 415 , 765 A.2d at 616 (citations omitted). Also in Stokes, 362 Md. at 420-21 , 765 A.2d at 619 , as we had earlier in Cartnail v. State, 359 Md. 272, 289 , 753 A.2d 519, 528 (2000), we examined the six factors set forth by Professor LaFave as appropriate considerations in determining what constitutes reasonable suspicion: “(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.” 4 Wayne R. LaFave, Search and Seizure § 9.4(g), at 195 (3d ed. 1996 & 2003 Supp.). Citing Stokes, Cartnail, and the LaFave factors, Collins stresses the disparity between his actual height and weight and that reported by the clerk, as well as the fact that the clerk reported the robber wearing a gray shirt with black striping, whereas he was wearing a gray sweatshirt under a black coat, without any striping, and he argues that Officer Jones did not possess a reasonable articulable suspicion that the petitioner was the robber, but was merely acting on an “inchoate hunch.” ³⁷⁰ That argument focuses only on the first of the several factors noted by LaFave, and is, in any event, much too myopic. Both Professor LaFave and the courts have recognized that descriptions by victims may be imprecise as to height and weight and that robbers often shed or change their clothes to foil detection.

LaFave posits that “investigating officers must be allowed to take account of the possibility that some of the descriptive factors supplied by victims or witnesses may be in error” and that “[w]hat must be taken into account is the strength of those points of comparison which do match up and whether the nature of the descriptive factors which do not match is such that an error as to them is not improbable.” 4 Wayne R. LaFave, Search and Seizure § 9.4(g) at 201-02 (3d ed.1996). In light not only of the other points of agreement with respect to this first factor but of the other factors as well, the disparities urged by Collins are inconsequential. Collins was seen shortly after the robbery in the vicinity of and walking away from the store. There did not appear to be anyone else around, at least no one close to matching the description of the robber.

The clerk said that the robber had left on foot. Collins acted peculiarly when he spotted the police car, suddenly changing direction and heading for a telephone booth. Officer Jones could well infer, as he apparently did, that the sudden change in direction was intended to create a plausible reason for Collins being on the deserted lot late on a winter night — to use the telephone. He was an African-American male wearing a “nubbie” and gray and black clothing.

It was a January night, and, with winter clothing, a disparity in an estimate of weight would not be unusual. Stokes and Cartnail are both distinguishable. In Stokes , the officer, around 9:30 p.m., heard a report of a robbery that had just occurred. The lookout contained no description of height, weight, method of escape, or any get-away vehicle, but simply described a black male wearing a dark top.

About 30 minutes later, the officer saw a black man, wearing a black leather jacket, drive into a parking lot just around the corner from the scene of the robbery at a high rate of speed, park ³⁷¹ diagonally across lined parking spaces, and get out of his car. The officer stopped the man, patted him down, and felt a bulge, which turned out to be a controlled substance. Holding the frisk to be unlawful, we noted not only the very general description of the robber but the improbability of the robber (especially with a car) remaining in the immediate vicinity 30 minutes after the robbery. Cartnail, too, was a much different case.

The police there were told to be on the lookout for three black male robbery suspects, who had fled in an unknown direction in a gold or tan Mazda. About an hour and fifteen minutes after police received this information, and in close proximity to the robbery site, a patrol officer stopped Cartnail, a black male who was driving a gold Nissan and was accompanied by one black male passenger. Cartnail was arrested and charged for driving on a suspended license. We held that the arresting officer did not possess the reasonable articulable suspicion needed to stop Cartnail.

Id. at 296, 753 A.2d at 532 . In reaching that conclusion, we noted that the only factors in the police description that matched Cartnail were his gender, race, and “arguably the color of [his] car.” Id. at 293 , 753 A.2d at 531 . Factors such as the car manufacturer and number of suspects, the Court said, “were too tenuously corroborated, or not corroborated at all, by [Cartnail’s] circumstances.” Id. Another factor considered by the Court was the area where Cartnail was stopped, because it was near two major highways and three other major roadways.

In one hour and fifteen minutes, the Court said, “the suspects could have remained in the City of Frederick or just as easily fled in the intervening time to Frederick County or even other urban centers such as Hagerstown, Baltimore, Washington, D.C., Annapolis, or rural areas in Maryland, Virginia, West Virginia, or Pennsylvania.” Id. at 295 , 753 A.2d at 531-32 . Unlike the descriptions in Stokes and Cartnail , the description of the robber in the present case was much more specific, including height, weight, type of clothing, and method of ³⁷² escape. Moreover, the range of flight for the robber was limited: Collins was spotted, on foot, within about fifteen minutes after the robbery, about 200 yards away, across one major highway. Unlike Cartnail, Collins behaved in a way that aroused the officer’s suspicions.

Officer Jones was entirely justified in stopping Collins and asking questions designed either to confirm or dispel his reasonable suspicion that Collins might be the person who had just robbed the High’s store. That brings us to the second component — Collins’s flight. He fled when Officer Jones, in response to Collins’s assertion that all he had was $20, asked “do you mind if I were to check?” There is nothing in the record to indicate that Officer Jones had touched Collins in any way, that he was preparing to touch Collins, or that he had actually commenced or had begun to commence a search. His weapon was holstered; the conversation to that point had been civil and unremarkable; there had been no threats, and, although at some point Jones had been joined on the parking lot by two other officers, no other show of force.

Jones asked a question, to which Collins could have responded in the negative. What Jones would have done had Collins simply said “no,” is not even a matter of conjecture. At the suppression hearing, Jones was asked by defense counsel whether he intended to put his hands on Collins, and Jones responded “[n]ot without his consent. I asked him.” No evidence to the contrary was ever produced, and the court obviously credited Jones’s response.

Collins nonetheless treats the question as a “demand that he submit to a search of his person” — a demand that he regards as unconstitutional and that he had a right to refuse by bolting. Collins completely mischaracterizes the situation at that point. Although he had a right to refuse Jones’s request, Jones was fully justified under Terry in making the request. A person temporarily detained in a Terry stop may validly consent to a search of his person, papers, or effects, see Florida v. Royer, 460 U.S. 491, 501 , 103 S.Ct. 1319, 1326 , 75 ³⁷³ L.Ed.2d 229, 238-39 (1983) and cf. Miles v. State, 365 Md. 488, 530 , 781 A.2d 787, 811 (2001) (“a person in custody may still give valid consent to a search”), and that presupposes that it is permissible for an officer to seek such consent.

Indeed, in Berkemer v. McCarty, supra, 468 U.S. at 439 , 104 S.Ct. at 3150 , 82 L.Ed.2d at 334 , the Supreme Court expressly noted that one of the purposes of a Terry stop is to “try to obtain information confirming or dispelling the officer’s suspicions.” The suggestion by Collins either that the request to search was inappropriate or that Officer Jones was about to conduct a search