Crosby v. State

HARRELL, Judge. In this case, Petitioner, Garry Dennis Crosby, Jr., questions the denial, by the Circuit Court for Harford County, of his motion to suppress evidence. Crosby contends that the tangible evidence against him was seized unlawfully when he was detained by deputy sheriffs in violation of the Fourth Amendment’s guarantee against unreasonable search and seizure. Because we hold that Crosby’s detention was not supported by reasonable suspicion, as required by Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), we reverse the judgment of conviction by the Circuit Court.

I. The relevant facts 1 unfolded in the early morning hours of 16 August 2007. Harford County Deputy Sheriff Gregory Young testified that he was on patrol in an unmarked car in Edgewood, Maryland, cruising in the general area where a homicide occurred five days earlier during daylight hours. There were also reports, on the day after the homicide, of shots fired into a residence located in the same general area. According to Young, as a member of the department’s Community Action Response Team (“CART”), he was assigned specially to this particular area of Edgewood because it was designated as a “hot spot.” 2 At approximately 12:30 a.m., he ⁴⁹⁶ observed a gold-colored Cadillac maneuvering in and out of parking spaces in the parking lot of an apartment complex on Windstream Way.

Believing the car’s movements to be suspicious, he drove towards it. As his cruiser passed the Cadillac (“driver’s side door to driver’s side door”), Deputy Young observed the Cadillac’s driver “slumped down” in the driver’s seat, giving him the impression that the driver sought to “avoid identification.” 3 He immediately ran the Cadillac’s tags, which revealed that the car was registered to a seventy year old woman and a forty-six year old man sharing the same address .in Bel Air, Maryland. The records check did not reveal a stolen car report. Deputy Young lost sight of the Cadillac, but, still having misgivings about the car’s slouching occupant or occupants, 4 he broadcast a description of the car to other officers in the vicinity.

Within minutes, he received a call from another deputy informing him that the car was at a Texaco gas station at the corner of Route 40 and Tree Top Drive, approximately one quarter of a mile from Deputy Young’s then current location. He proceeded there, where he parked at an adjacent bowling alley and covertly observed the Cadillac’s driver pumping gasoline into the car. When finished, the driver got back into the car and drove off of the gas station lot. Once on the road, the driver signaled a left turn onto Pulaski Highway towards Baltimore; however, before actually executing a left turn, he stopped signaling left and signaled a right turn towards Aberdeen.

He turned right. Interpreting the driver’s change of turn signals as another indicator of suspicious activity, Deputy Young continued following the Cadillac from “a couple hundred yards” back, until ⁴⁹⁷ the driver parked the car in front of a residence on Pinefield Court. He described the car’s route in the following manner: The vehicle made several right turns, one was off Route 40 onto Edgewood Road, continued on Edgewood Road to Route 24, where the vehicle made another right-hand turn, which would have been southbound on Route 24, traveled to the intersection of Route 24 and Hanson Road, where the vehicle made a right-hand turn on Hanson Road going west toward Baltimore, to orient it. I stayed behind the vehicle at a distance just kind of observing the activity.

The vehicle made a signal for a right-hand turn onto Wood-bridge Center Way, which is generally back towards the direction where I first observed the vehicle. The vehicle did not make that right-hand turn, it continued through the intersection, made the next right-hand turn, which was on Pinefield Way, and it made a left-hand turn onto Pinefield Court and stopped in front of a house . .. and sat there. Deputy Young stopped his vehicle about twenty feet behind the Cadillac and called for back-up. According to him, an additional patrol car arrived “a few seconds” later.

At that time, he exited his unmarked cruiser and approached the Cadillac. 5 He informed the driver that he was “concerned about his [the driver’s] activities,” and asked the driver for his license and registration. According to the deputy, the driver appeared “a little shook up, seemed a little agitated.” Deputy Young requested identification from the sole passenger in the car. Both complied with the requests and told the deputy that they came to the Pinefield Court address to pick up a music CD from a friend. 6 Deputy Young returned to his vehicle with the licenses and registration. ⁴⁹⁸ While he was running' warrant and license checks, which revealed the driver to be Garry Dennis Crosby and the passenger to be D’Andre Antonio Feaster, a K9 unit arrived at the scene. Deputy Young asked the K9 handler to have his dog conduct a scan of the Cadillac for controlled dangerous substances.

Crosby and Feaster were ordered out of the car before the scan. One of the officers at the scene informed them that he intended to pat them down. Crosby refused, demanding to know what he and Feaster were suspected of doing wrong. An officer then directed Crosby to lift up his shirt so that the officer could inspect Crosby’s waistband.

Crosby complied, revealing nothing of interest to the officer, and sat back down on the ground to await the completion of the K9 scan. At some point, a dispatcher informed Deputy Young that there were no active warrants on Crosby or Feaster and that both had valid licenses. The deputy, however, held the licenses and registration while the dog continued its scan of the Cadillac. 7 The dog eventually gave a positive alert for the presence of narcotics in the car, prompting Deputy Young and other officers to conduct a search of the vehicle. 8 Their search did not yield any contraband. Young then asked Crosby whether there was any contraband in the car, to which Crosby replied that there was.

The officers searched the car a second time, again to no avail. After the second fruitless search of the car, Deputy Young began searching Crosby’s person. 9 Crosby stated that he had a gun in his pocket. The deputy recovered from Crosby’s ⁴⁹⁹ pocket a loaded handgun, as well as loose ammunition. Crosby was placed under arrest and subsequently charged in the District Court of Maryland with wearing, carrying, and transporting a handgun on his person and wearing, carrying, and knowingly transporting a handgun in a vehicle. 10 In the District Court, sitting in Harford County, Crosby moved to suppress the handgun and ammunition.

The court denied the motion, and Crosby pleaded guilty to wearing, carrying, and transporting a handgun on his person. The charge of wearing, carrying, and knowingly transporting a handgun in a vehicle was placed on the stet docket. The District Court sentenced Crosby to three years imprisonment, with all but six months suspended. Crosby noted a timely appeal to the Circuit Court for Haiford County. 11 There, he again moved to suppress the handgun and ammunition recovered by Deputy Young, claiming that his detention by Deputy Young was not premised on a ⁵⁰⁰ reasonable suspicion, as required by the Fourth Amendment of the U.S. Constitution.

At the suppression hearing in the Circuit Court, Deputy Young articulated in the following manner why he decided to make contact with the occupants of the Cadillac: The fact that it being a high-crime area, the pulling in and out of the parking pads, that we’d had just recently [received reports of] shots being fired into a residence, I wasn’t sure what was taking place. After I originally lost sight of the vehicle and put the broadcast out and a description, I was informed by Sergeant Shrader that the vehicle had been driving on Brookside Drive and the streets off of Brookside Drive where the recent homicide had just occurred. That kind of spiked my suspicion a little bit more as to why this vehicle was driving through the streets seemingly without a purpose. Adding that information to what I had observed, and then going to the gas station, which was not suspicious in itself going to the gas station, but unsure of making the left turn and then making a right turn onto Pulaski Highway, and then they had made a big loop, almost a big loop, where they could have made a left-hand turn and been just as quick to where they ended up, to where the vehicle ended up, so putting that all together I kind of felt that was a little suspicious and that’s why I made contact with the vehicle.

Crosby and Feaster both testified at the suppression hearing. Feaster asserted that Crosby did not duck down in his seat when the vehicles passed, as characterized by Deputy Young. According to Feaster, “that’s how people drive, people drive with they seat back. That’s not slumping down when you already slumped down.” 12 Feaster acknowledged that, ⁵⁰¹ although Young’s cruiser was unmarked, he immediately recognized it as a law enforcement vehicle when the deputy drove past them on Windstream Way.

When asked by the prosecutor on cross-examination whether he and Crosby “both would have recognized [Deputy Young] to be a police officer,” Feast-er replied affirmatively. Crosby testified that, by the time Deputy Young took his license and registration, there were seven police vehicles at the scene. He averred that one of the officer’s ordered him and Feaster out of the vehicle at almost the same time that they gave their licenses to Young. Crosby and Feaster, who are step-brothers, attested that the Cadillac was owned by a friend of Feaster’s uncle and that they had permission to borrow it.

They maintained that they went to the house on Pinefield Court (where they were seized by Deputy Young) in order to pick up a music CD from a friend who lived there. In denying the motion to suppress, the Circuit Court observed: [T]he issue is articulable suspicion, and the officer was able to articulate what made him suspicious. He did not claim that he thought he had the person who tired shots or the person who had committed the homicide. His testimony was that they were focused on this area because there had been a homicide five days before, and that a day later there had been shots fired, so, you know, in an area like Edge- ⁵⁰² wood, when somebody gets killed, gets more attention, so police attention is focused there.

It’s 12:30 a.m., and that’s a factor as well. The car is pulling in and out several times of a parking space. That draws attention. It may be innocent, it may not be, but it draws attention.

Then the vehicle passes the officer and, according to the defense evidence, the occupants in the vehicle knew it was the police,[ 13 ] and the driver slumps down, giving the impression to the police officer that he does not want me to have a clear view of himself. Then there’s the aimless driving around, giving signals, changing them. Again that could be innocent, but ... Ultimately the vehicle stops and has made, in effect, a circle, and the officer at this point says all of these factors taken together caused me to believe there was criminal activity afoot, and he approaches, asks for identification, and runs those licenses, and while he’s in the process of doing that, he testified repeatedly he’s in his car taking care of processing that information, only partially observed what Deputy Ger-res was doing, when the K-9 officer came up and a brief scan of the vehicle brought a positive alert, and then there was probable cause.

This is really more in the nature of an accosting than a traffic stop.[ 14 ] There’s no contention that he made a traffic ⁵⁰³ stop. The vehicle, it is undisputed, stopped not because of the police, but for whatever reasons that the driver decided to stop where he did. He said it was to get music. I believe that Deputy Young has sufficiently articulated the basis for his suspicion and that the totality of the circumstances gave rise to a reasonable suspicion that criminal activity was afoot, therefore justifying the accosting of the occupants of the vehicle to do a brief investigation.

Also the fact that the vehicle, and I don’t remember if I mentioned this or not, but the fact that the vehicle is registered in Bel Air, which is a totally different community from Edgewood, so that again, the vehicle being not in Bel Air, but in a high-crime area at 32:30 in the morning, is just another factor or reason for suspicion. So for all those reasons the motion to suppress will be denied. (first ellipses in original). Crosby was convicted in the Circuit Court (upon an agreed statement of facts/not guilty plea) of wearing, carrying, and transporting a handgun on his person in violation of Maryland Code (2002 Repl.Vol., 2008 Cum.Supp.), Criminal Law Article, § 4-203(a)(l)(i).

He was sentenced to three years imprisonment, with all but time served suspended, as well as three years of probation. Crosby noted an appeal to the Court of Special Appeals; however, because the Circuit Court was exercising its appellate jurisdiction when it rendered judgment in this case, the Court of Special Appeals did not have jurisdiction to consider his further direct appeal. 15 ’ Accordingly, treating the ⁵⁰⁴ appeal as a petition for a writ of certiorari, the Court of Special Appeals transferred the case to us. Crosby filed a Supplemental Petition for Writ of Certiorari, challenging the denial of his’ motion to suppress. We granted the petition to determine whether Crosby’s detention by Deputy Young was justified by reasonable suspicion. 16 Crosby v. State, 406 Md. 192 , 957 A.2d 999 (2008).

For the reasons that follow, we reverse the judgment of the Circuit Court.

II

When reviewing the disposition of a motion to suppress evidence alleged to have been seized in contravention of the Fourth Amendment to the U.S. Constitution, we view the evidence adduced at the suppression hearing, and the inferences fairly deductible therefrom, in the light most favorable to the party that prevailed on the motion. State v. Williams, 401 Md. 676, 678 , 934 A.2d 38, 40 (2007); Lewis v. State, 398 Md. 349, 358 , 920 A.2d 1080, 1085 (2007). In so doing, “[w]e extend great deference to the fact finding of the suppression court and accept the facts as found by that court unless clearly ⁵⁰⁵ erroneous.” Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086, 1093 (2002) (quoting Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420, 429 (2001)). Nevertheless, in resolving the ultimate question of whether the detention and attendant search of an individual’s person or property violates the Fourth Amendment, we “make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.” Williams, 401 Md. at 678 , 934 A.2d at 40 ; see also Nathan, 370 Md. at 659 , 805 A.2d at 1093 (“We review the legal questions de novo and based upon the evidence presented at the suppression hearing and the applicable law, we then make our own constitutional appraisal.”).

Our review ordinarily is limited to the record of the suppression hearing. Lewis, 398 Md. at 358 , 920 A.2d at 1085 ; Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519, 524 (2000).

III

The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures by the government, including seizures that involve only a brief investigative detention. 17 Nathan, 370 Md. at 659 , 805 A.2d at 1093 ; Stokes v. State, 362 Md. 407, 414 , 765 A.2d 612, 616 (2001). The default rule requires that a seizure of a person by a law enforcement officer must be supported by probable cause, and, absent a showing of probable cause, the seizure violates the Fourth Amendment. Nathan, 370 Md. at 659-60 , 805 A.2d at 1093 . In Terry, swpra, however, the Supreme Court recognized that a law enforcement officer may conduct a brief investigative “stop” of an individual if the officer has a reasonable suspicion that criminal activity is afoot. 392 U.S. at 17 , ⁵⁰⁶ 88 S.Ct. at 1878 , 20 L.Ed.2d at 903 .

Although such encounters with law enforcement are indeed seizures as contemplated by the Fourth Amendment, the Court reasoned that the limited nature of a brief investigative stop does not demand a standard as stringent as probable cause. Id. at 392 U.S. at 16-22 , 88 S.Ct. at 1877-80 , 20 L.Ed.2d at 903-06 . Accordingly, pursuant to Terry and its progeny, “a police officer who has reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime may detain that person briefly in order to investigate the circumstances that provoked suspicion.” Nathan, 370 Md. at 660 , 805 A.2d at 1093 . We explained the limits of a brief investigative detention of this nature (a Terry stop) in the following manner: A Terry stop allows police to “investigate the circumstances that provoke suspicion.” 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.” 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 be released.” Collins v. State, 376 Md. 359, 368 , 829 A.2d 992, 997 (2003) (internal citations omitted).

A Terry stop may yield probable cause, allowing the investigating officer to elevate the encounter to an arrest or to conduct a more extensive search of the detained individual. See Terry, 392 U.S. at 10 , 88 S.Ct. at 1874 , 20 L.Ed.2d at 899 . In the present case, the parties do not dispute that the encounter between Crosby and Deputy Young began as a brief investigative detention, which Deputy Young could justify only upon a reasonable suspicion that Crosby was engaged in criminal activity. The State maintains that Crosby’s detention was justified under the reasonable suspicion standard.

That lawful encounter, the State argues, yielded probable cause to search Crosby and the Cadillac when the drug sniffing dog alerted to the presence of narcotics. Accordingly, ⁵⁰⁷ so the State’s argument goes, the handgun and ammunition should not be suppressed. Crosby contends otherwise, asserting that the initial stop did not satisi'y the relevant constitutional standard of reasonable suspicion. According to Crosby, the handgun and ammunition seized pursuant to the search of his person are fruits of the unlawful initial detention.

We therefore begin (and end) our analysis by deciding whether Deputy Young had a reasonable suspicion that criminal activity was afoot when he seized Crosby. There is no standardized test governing what constitutes reasonable suspicion. Bost v. State, 406 Md. 341, 356 , 958 A.2d 356, 365 (2008); Cartnail, 359 Md. at 286 , 753 A.2d at 527 . “[I]t has been defined as nothing more than a particularized and objective basis for suspecting the particular person stopped of criminal activity....” Stokes, 362 Md. at 415 , 765 A.2d at 616 (quoting United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621, 629 (1981)); see also Bost, 406 Md. at 356 , 958 A.2d at 365 . Nevertheless, a rough sketch of its contours is possible.

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.’ ” Bost, 406 Md. at 356 , 958 A.2d at 365 (quoting Stokes, 362 Md. at 415 , 765 A.2d at 616 ). 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.’ ” Terry, 392 U.S. at 27 , 88 S.Ct. at 1883 , 20 L.Ed.2d at 909 ; see also Cartnail, 359 Md. at 287 , 753 A.2d at 527 . Second, a court’s determination of whether a law enforcement officer acted with reasonable suspicion must be based on the totality of the circumstances. Bost, 406 Md. at 356 , 958 A.2d at 365 ; Collins, 376 Md. at 368 , 829 A.2d at 998 .

Thus, “the court must ... not parse out each individual circumstance for separate consideration.” Ransome v. State, 373 Md. 99, 104 , 816 A.2d 901, 904 (2003). As recently articulated by the federal Court of Appeals for the Fourth ⁵⁰⁸ Circuit, “context matters: actions that may appear innocuous at a certain time or in a certain place may very well serve as a harbinger of criminal activity under different circumstances.” United States v. Branch, 537 F.3d 328, 336 (2008); see also United States v. Arvizu, 534 U.S. 266, 276 , 122 S.Ct. 744, 752 , 151 L.Ed.2d 740, 751 (2002) (commenting that certain behavior exhibited by driver might be unremarkable on “a busy San Francisco Highway,” but more significant in “a remote portion of rural southeastern Arizona”). In making its assessment, the court should give due deference to the training and experience of the law enforcement officer who engaged the stop at issue. Ransome, 373 Md. at 104-05 , 816 A.2d at 904 .

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.’ ” Arvizu, 534 U.S. at 273 , 122 S.Ct. at 750 , 151 L.Ed.2d at 749 (quoting Cortez, 449 U.S. at 418 , 101 S.Ct. at 695 , 66 L.Ed.2d at 629 ). 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.” Ransome, 373 Md. at 105 , 816 A.2d at 904 . 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.’ ” Bost, 406 Md. at 357 , 958 A.2d at 365 (quoting Ferris v. State, 355 Md. 356, 391 , 735 A.2d 491, 510 (1999)). 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.

See id.; Derricott v. State, 327 Md. 582, 591 , 611 A.2d 592, 597 (1992); see also Wayne R. Lafave et al., Search & Seizure § 3.8(d) (Thompson/West 3d ed. 2007) (“The officer, based upon his training and experience, is allowed to make ‘inferences and deductions that might well elude an untrained person,’ but if his actions are later challenged he must be able to explain those inferences and deductions so as to show that there was a ⁵⁰⁹ ‘a