Cox v. State

GREENE, J. In this case, we must determine whether Artavius Donnell Cox (“Petitioner”) was entitled to have suppressed, as evidence at his trial, a quantity of marijuana that the police found on the ground near him, after an arguably illegal stop. The drugs seized in this case were recovered after the police obtained information that there existed an outstanding warrant for Petitioner’s arrest. We are asked to review two issues. First, whether a police encounter, in which a uniformed officer approached Petitioner on the street claiming that he “loosely fit” the description of the perpetrator of a recent string of robberies, asked Petitioner for identification, and ran a check on his identification, constituted an illegal stop in violation of the Fourth Amendment of the United States Constitution.

In addition, whether a police officer’s subsequent discovery of an outstanding arrest warrant represented an intervening circumstance, 1 such that if the stop were illegal, the arrest on the warrant attenuated the taint of the illegal stop. We need not address the first issue because that question is not dispositive to our analysis of whether Petitioner’s motion to suppress should be granted or denied. Assuming arguendo, that the police encounter constituted an illegal stop, we ²⁰⁴ deem it more appropriate to determine the ultimate question: whether it was proper for the trial court to grant Petitioner’s motion to suppress the evidence. Although the State did not specifically contend, at the suppression hearing, that Petitioner’s arrest constituted an intervening circumstance sufficient to attenuate the taint of the stop, the issue and the State’s contention on appeal that the arrest pursuant to a warrant was lawful is, nonetheless, preserved for appellate review.

We shall hold that the police officer’s discovery of an outstanding warrant for Petitioner’s arrest and Petitioner’s arrest pursuant thereto represents an intervening circumstance sufficient to attenuate the taint of what appears to be an illegal stop. Accordingly, we shall affirm the judgment of the Court of Special Appeals and hold that the Circuit Court erred in granting Petitioner’s motion to suppress the evidence. FACTUAL BACKGROUND On April 6, 2005, Sergeant Jeff Bryant was patrolling the Lancaster neighborhood in Waldorf, Maryland, driving a marked police car and wearing a police uniform, because there had been a series of robberies, the last of which had occurred on the previous day. The victim of that robbery had described the perpetrators as “two teen-age black males.” At approximately 11:05 a.m., Sergeant Bryant noticed Petitioner and a man, later identified as Mr. Martin, walking towards him, on the sidewalk, adjacent to Lancaster Circle.

Sergeant Bryant testified that the men appeared to be avoiding him. The men then left the sidewalk and walked onto another street. Sergeant Bryant was not sure whether the men saw him before changing their route. The Sergeant advised another officer that he intended to stop the men.

Sergeant Bryant circled in his car, met with a second officer at a specified interception point, and then stopped Petitioner and Martin. Two other officers appeared “a couple minutes later.” Sergeant Bryant got out of his vehicle, identified himself, and approached the men. He “asked the gentlemen for identification, explained to [them] that [the police] were ²⁰⁵ having a problem with robberies of the citizens of the area and that the [ ] two gentlemen loosely fit the description of those suspects.” Both Petitioner and Martin provided their Virginia identification cards to Sergeant Bryant. While remaining with the men, Sergeant Bryant “ran that information through the agency radio asking for a local MILES and NCIC check of wanted status.... ” Sergeant Bryant further testified, at the suppression hearing, that while checking Petitioner’s identification, Petitioner was not free to leave but Sergeant Bryant did not know if he would have chased Petitioner if Petitioner had run away.

After about two minutes, Sergeant Bryant received a code “Sam Roberts,” which meant that he should secure his radio (so that the men could not hear it) because at least one of the individuals about whom he had inquired had an outstanding warrant. In response, Sergeant Bryant told both men to sit on the ground with their hands on their heads and awaited confirmation as to which man had the outstanding warrant. Soon thereafter, Sergeant Bryant received confirmation that it was Petitioner who had an open warrant for failing to appear in court on drug charges. The Sergeant then placed Petitioner in handcuffs.

One of the other officers on the scene, Officer Gotschall, then noticed a plastic baggie of marijuana lying on the ground. Sergeant Bryant testified that the marijuana was not on the ground before he asked Petitioner and Martin to sit down and place their hands on their heads. On May 2, 2005, the State charged Petitioner with various drug-related offenses, including possession of marijuana and possession of a controlled dangerous substance with intent to distribute. On May 11, 2005, Petitioner filed a motion to suppress the marijuana on the grounds that it was unlawfully obtained.

The Circuit Court for Charles County heard testimony and argument on August 12, 2005. At the hearing, the State argued that Petitioner was arrested pursuant to an outstanding warrant and cited Gibson v. State, 138 Md.App. 399 , 771 A.2d 536 (2001), a case in which the intermediate appellate ²⁰⁶ court explained the fruit of the poisonous tree doctrine and also explained the three ways in which to dissipate the taint. The State did not use the words “attenuation,” “taint” or “intervening cause” in its argument. The Circuit Court granted the motion to suppress on September 8, 2005 because it found that the encounter between Petitioner and Sergeant Bryant constituted a stop, and that the Sergeant did not have “an objective manifestation that the person stopped [wa]s or [wa]s about to be engaged in criminal activity....

There [wa]s no indication that they were possessing or about to be engaged in marijuana activity or CDS activity.” The State appealed to the Court of Special Appeals, arguing that (1) Petitioner was not illegally detained, and that (2) even if he was, the evidence should still not be suppressed because the arrest warrant constituted an intervening circumstance that attenuated the illegality of the detention. Petitioner argued that the State failed to preserve for appellate review the latter argument. In an unreported opinion, filed on March 29, 2006, the intermediate appellate court reversed the judgment of the Circuit Court. That court found that the stop of Petitioner was actually a mere accosting because it was both “consensual and voluntary.” The intermediate appellate court agreed with Petitioner, as to the second point, because it perceived that the State argued only two points at the trial level: that the encounter was consensual and that Petitioner’s identity was not suppressible.

The court determined that neither point preserved an argument based on the attenuation doctrine. As a result, the Court of Special Appeals determined that the marijuana should not have been suppressed, and, because the police encounter was consensual, the Fourth Amendment was not implicated. Petitioner filed a petition for writ of certiorari 2 in this Court ²⁰⁷ and the State filed a conditional cross-petition. 3 We granted both petitions. Cox v. State, 393 Md. 477 , 903 A.2d 416 (2006).

DISCUSSION A. The Legality of the Police Encounter The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures. It states: 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

Because of this constitutional protection, police officers must have, at a minimum, reasonable, articulable suspicion that a person is involved with, or has committed, criminal activity before they can lawfully seize that individual. Ferris v. State, 355 Md. 356, 374-75 , 735 A.2d 491, 500-01 (1999). Officers may, however, question an individual, absent reasonable, articulable suspicion, if the encounter is consensual and voluntary. Id.

The Fourth Amendment is therefore not implicated “simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 , 111 S.Ct. 2382, 2386 , 115 L.Ed.2d 389, 398 (1991). Likewise, police officers ²⁰⁸ do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is -willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. Stanberry v. State, 343 Md. 720, 742 , 684 A.2d 823, 834 (1996) (quoting Florida v. Royer, 460 U.S. 491, 497 , 103 S.Ct. 1319, 1324 , 75 L.Ed.2d 229, 236 (1983)).

Whether “a particular encounter constitutes a seizure, or whether the encounter was simply a ‘consensual’ non-constitutional event is whether a reasonable person would have felt free to leave.” Ferris, 355 Md. at 375 , 735 A.2d at 501 . “Although the inquiry is a highly fact-specific one, courts have identified certain factors as probative of whether a reasonable person would have felt free to leave.” Ferris, 355 Md. at 377 , 735 A.2d at 502 . They include: 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 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. Id. This Court has used a “totality of the circumstances approach” when evaluating these factors to make its ultimate determination of whether a reasonable person would have felt free to leave.

See, e.g., id. Petitioner argues that, based upon the above-mentioned factors, he was the subject of a seizure prior to the time that the officers received the code “Sam Roberts” alerting them ²⁰⁹ that Petitioner had a warrant outstanding for his arrest. Petitioner argues that the stop was unconstitutional because it was not supported by reasonable, articulable suspicion. In evaluating the factors for support of the legality of the stop, Petitioner argues that he was stopped by four officers, at least one of whom was in uniform, that the officers asked him for identification, that the record fails to indicate that any of the officers ever told him that he was free to leave, that Sergeant Bryant admitted at trial that Petitioner was not free to leave, and that Sergeant Bryant explained to Petitioner that he loosely fit the description of the perpetrator of a recent robbery that the officer was investigating.

Petitioner asserts that no reasonable person in Petitioner’s position would have felt free to leave. The State argues that, prior to the discovery of the outstanding warrant, the encounter constituted merely an accosting, and not an illegal stop. The State cites several cases for the proposition that an officer may ask an individual for things like identification so long as he does not use physical force or restraint. In evaluating the Ferris factors, the State posits that the encounter occurred at 11:05 in the morning, in a residential area, and that nothing indicates that Petitioner was moved to another area.

In addition, the police never told Petitioner that he was not free to leave. Sergeant Bryant also told Petitioner about the other robberies and told Petitioner that he only “loosely” matched a description. Lastly, the officer did not walk away with Petitioner’s identification and never told Petitioner that he was under arrest, never touched Petitioner, never handcuffed him, never drew his gun, and never used the word “stop.” We need not reach the merits of these arguments because our decision in this case is not dependent on the outcome of Petitioner’s contention that the stop was illegal. We reach this result because the discovery of the outstanding warrant and arrest pursuant thereto constituted an intervening circumstance that attenuated the taint of the arguably illegal stop.

We assume arguendo, as we did in Myers v. State, 395 Md. 261 , 909 A.2d 1048 (2006), that Sergeant Bryant, in this case, ²¹⁰ had neither probable cause nor reasonable articulable suspicion to stop Petitioner. B. The State’s Preservation for Appellate Review of the Intervening Cause Issue We now examine whether the State preserved for appellate review its intervening circumstance argument. Petitioner contends that because the State failed to argue to the motions court that the arrest constituted an intervening circumstance, the State failed to preserve that argument for appellate review. Petitioner explains that the prosecutor put forth only two arguments to the motions court: that the stop was consensual and that Petitioner’s identity is not subject to exclusion, even if the stop was unlawful.

To support this latter argument, the prosecutor cited, and relied upon, Gibson v. State, 138 Md.App. 399 , 771 A.2d 536 (2001), an intermediate appellate court decision in which that court concluded, inter alia, that an individual has no expectation of privacy in his or her identity. Petitioner then explains that, in the intermediate appellate court, the State abandoned the identity argument and replaced it with the contention that an arrest, pursuant to an outstanding warrant, was an intervening circumstance that dissipated any taint flowing from the officer’s illegal stop of Petitioner. Petitioner asserts that the State’s intervening circumstance argument “differs dramatically” from the initial argument advanced at the trial level, such that this Court should hold, as did the Court of Special Appeals, that the intervening circumstance argument was not preserved for appellate review. The State counters arguing that, although the prosecutor never specifically mentioned the words “dissipate” or “attenuate” to the motions court, the argument was preserved by mention of the outstanding arrest warrant and reference to Gibson , because that case explains the fruit of the poisonous tree doctrine and the three theories of “unpoisoning” the fruit; attenuation and dissipation of taint are fruit of the poisonous ²¹¹ tree concepts.

The State asserts that by citing Gibson , “the underlying doctrine of unpoisoning the fruit of the alleged illegal stop was before the motions court” and, therefore, the Court of Special Appeals erred by holding otherwise. We reject Petitioner’s argument and the conclusion of the Court of Special Appeals, as to this point, and hold that the intervening cause or circumstance issue is properly before us. It is well settled that an arrest is constitutionally valid where the arresting officer acted in good faith and obtained a warrant based upon probable cause. Chimel v. California, 395 U.S. 752, 754 , 89 S.Ct. 2034, 2035 , 23 L.Ed.2d 685, 688-89 (1969) (establishing standards for searches incident to a lawful arrest).

The burden of production and persuasion is on the party who would rebut the presumptive validity of the warrant. Rawlings v. Kentucky, 448 U.S. 98, 104 , 100 S.Ct. 2556, 2561 , 65 L.Ed.2d 633, 641 (1980) (noting that “Petitioner ... bears the burden of proving that the search ... was illegal”); Duncan and Smith v. State, 27 Md.App. 302, 315-16 , 340 A.2d 722, 731 (1975) (stating generally that the defendant has the burden of going forward with the evidence at a suppression hearing, and “ ‘[t]he burden of persuasion remains throughout upon the one who at the outset has asserted the affirmative of the issue’ ”) (citations omitted). The issue before us is a question of law, and we review questions of law de novo. State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439, 444 (2003) (noting that on appellate review of a suppression motion, we undertake an independent constitutional review of the record and apply the law to the facts and circumstances of the case).

In the instant case, the State contended at the suppression hearing that Petitioner was arrested pursuant to a warrant. For certain, the burden was on Petitioner to prove at that hearing that his arrest was unlawful. In that regard, Petitioner argued that the stop was unconstitutional and that the subsequent arrest and seizure of evidence were the “fruits of the poisonous tree.” In response, the State did not use the words “intervening circumstance or cause.” Its basic premise, however, was the same at the suppression hearing and on ²¹² appeal—that Petitioner was arrested pursuant to an arrest warrant; the burden was on the defense to show that the arrest warrant was invalid. In addition, the State relied on Gibson, 138 Md.App. 399 , 771 A.2d 536 , which involved an explanation of the fruit of the poisonous tree doctrine and the applicable process that is employed to dissipate or attenuate the taint of the primary illegality.

We hold that the issue as to the legality of the arrest was plainly preserved, for appellate review, even though the State did not use the “magic words,” “dissipate” or “attenuate,” to explain why “the initial encounter [did] not matter”—because of the intervening event, i.e., the discovery of an outstanding warrant and an arrest pursuant thereto. Thus, we are satisfied that the issue was put forth at the trial level and the contention that there was an intervening circumstance is properly before us. 4 C. Suppression of the Evidence-An Application of Myers v. State Because the intervening cause argument is properly before us, we now examine whether the police discovery of the arrest warrant and arrest of Petitioner pursuant to that warrant ²¹³ constituted an intervening cause that dissipates the taint of the arguably illegal stop. Petitioner argues that even if the State’s intervening cause argument was preserved, the trial court nonetheless correctly suppressed the evidence recovered after Petitioner was illegally stopped. Petitioner cites Ferguson v. State, 301 Md. 542, 483 A.2d 1255 (1984), in which this Court examined the attenuation doctrine and ultimately adopted the multi-factor analysis articulated by the Supreme Court in Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975).

Petitioner explains that this Court, by adopting the Supreme Court’s Broum analysis, examines three factors to determine whether evidence obtained after an illegal arrest or stop has been purged of the taint of the illegality. The first factor is “the temporal proximity of the illegality and the evidence.” See Ferguson, 301 Md. at 549 , 483 A.2d at 1258 . Petitioner next explains that the second factor to be weighed is the presence of an intervening event. See id.

Lastly, Petitioner posits that the third factor is “the purpose and flagrancy of the official misconduct.” See Ferguson, 301 Md. at 549 , 483 A.2d at 1258 . Based on these three factors, Petitioner contends that the officer’s discovery of the marijuana after Petitioner’s “illegal detention” was not so attenuated such that it would dissipate the taint of the illegal stop. As to the first factor, Petitioner asserts that the discovery of the marijuana and the illegal stop were contemporaneous and that this Court, in Ferguson , stated that a lapse of twenty minutes weighed in favor of suppression. Ferguson, 301 Md. at 550 , 483 A.2d at 1259 .

Next, Petitioner states that the arrest was not an intervening circumstance based on the Seventh Circuit’s analysis in United States v. Ienco, 182 F.3d 517 (7th Cir.1999). 5 By analogy to lenco, Petitioner argues ²¹⁴ that “it is evident that the contraband was left on the ground before, and not after, [Petitioner] was arrested on the valid warrant” because Petitioner was seated while illegally detained and stood up to be arrested. Petitioner contends, therefore, that under lenco, this Court should find that the marijuana should be