Dashiell v. State

JAMES R. EYLER, Judge. The Circuit Court for Wicomico County convicted Rashida C. Dashiell, appellant, of two counts of possession of cocaine with intent to distribute, possession of cocaine, and possession of marijuana. The court denied appellant’s motion to suppress the drugs discovered on her person during the execution of a search warrant. Appellant contends the court erred because the police violated her Fourth Amendment right by conducting a frisk or pat-down absent articulable suspicion that she was armed and dangerous.

Background The Wicomico County Narcotics Task Force conducted a foui’-month narcotics investigation of Brewington Holton Bivens. On January 11, 2001, the police submitted an application for a search and seizure warrant. The application alleged that Bivens was concealing controlled dangerous substances (CDS) at 907 Booth Street, Apartment # 1 (Booth Street), and 1113 Parsons Road, Apartment #A (Parsons Road), in Wi-comico County. Based on a finding that probable cause existed, the court issued a no-knock warrant to search Booth Street, Parsons Road and Bivens, and seize any CDS.

On January 25, 2001, at approximately 9:00 p.m., the police executed the Booth Street search warrant. Appellant, her two children, and Angela Bower were the only persons present. Appellant was located in the living room. The police entry ¹⁴² team, in the following sequence, rammed the front door to gain entrance, handcuffed appellant and Ms. Bower, secured the apartment, and conducted “pat-downs” for weapons.

Once the apartment was secure, members of the police task force entered to conduct the search for CDS. During the pat-down of appellant, an officer felt a plastic bag believed to contain cocaine, but did not remove it. Having been told about the plastic bag, Corporal Michael Kravitz, a member of the task force but not the entry team, approached appellant and stated “one of the State’s team members stated that you had something on you.” Appellant responded, “yes, the dope.” Corporal Kravitz could also see the plastic bag hanging out of appellant’s front pocket. Corporal Kravitz then removed the bag which contained cocaine.

Appellant was placed under arrest. A subsequent search of appellant revealed another plastic bag containing crack cocaine and marijuana. The search of the apartment uncovered one bag of marijuana found underneath a sofa cushion in the living room. Appellant was transferred to the police station.

During processing, appellant disclosed that Booth Street was her residence. Appellant was charged with possession with intent to distribute the CDS found on her person and inside the apartment. Appellant filed a motion to suppress the CDS discovered on her person, alleging that the pat-down was illegal. At the hearing on the motion to suppress, Corporal Kravitz testified that based on police policy, when executing a search warrant, all persons are secured and patted-down for weapons.

The court denied appellant’s motion, finding: I don’t think those terms [“pat-down” and “search”] can be used interchangeably. I agree [the police] can’t go in there and search and had they not just patted [appellant] down for weapons, if they had searched [appellant], if they had pulled that out of [appellant’s] pocket, that would have been wrong. The Court believes that when the officers pursuant to a search warrant enter the premises, they do have the right to secure the people while they search the premises, and ¹⁴³ where they are entering pursuant to a search warrant on probable cause that drugs are being — that there is drug trafficking occurring within the premises to permit them to secure these individuals while the search pursuant to a warrant was being conducted without giving them the [concurrent] right to pat down for weapons would be pure folly. If you can secure them, certainly think you can determine that they do have no weapons to injure those persons in the premises, so I am going to rule that the officers did have the right to pat down.

Once they patted down, another officer determined that or talked to her and she said it was the dope in her pocket and they could see the plastic bag sticking out of her pocket, I believe at that point they had probable cause to seize that property. Discussion When a motion to suppress has been denied, an appellate court shall consider the facts in the light most favorable to the State, the prevailing party. See Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001); Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000); Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22 (1990). Our review is limited to the facts presented at the time of the suppression hearing.

See Wengert v. State, 364 Md. 76, 80 , 771 A.2d 389 (2001); Buie v. State, 320 Md. 696, 699 , 580 A.2d 167 (1990); Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987). Because appellant has alleged a violation of her Fourth Amendment right, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts. See Jones v. State, 343 Md. 448, 457 , 682 A.2d 248 (1996); Aguilar v. State, 88 Md.App. 276, 282 , 594 A.2d 1167 (1991). The protections of the Fourth Amendment against unreasonable searches and seizures are applicable to the States through the Fourteenth Amendment. 1 The exclusion ¹⁴⁴ ary rule provides that evidence discovered in contravention of the Fourth Amendment is inadmissible.

See Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). In Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), the Supreme Court held that, under certain circumstances, police officers can conduct a stop and frisk of a criminal suspect. A suspect may be stopped or detained when there are specific facts producing rational inferences that criminal activity may be afoot. Terry, 392 U.S. at 30 , 88 S.Ct. 1868 .

Similarly, if articulable facts support a reasonable suspicion that the suspect poses a danger, the officer may conduct a limited frisk or pat-down. Id. at 27 , 88 S.Ct. 1868 . The measure of reasonableness for a stop and frisk is often defined as “suspicion,” “reasonable suspicion,” or “reason to believe,” Payne v. State, 65 Md.App. 566, 569 , 501 A.2d 484 (1985), and is less demanding than probable cause. See United States v. Sokolow, 490 U.S. 1, 7 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989).

At a minimum, reasonable suspicion must be based on more than an inchoate and unparticularized suspicion or hunch. See Terry, 392 U.S. at 27 , 88 S.Ct. 1868 ; Anderson v. State, 282 Md. 701, 702 , 387 A.2d 281 (1978). The fundamental test for determining reasonableness is the balancing of the need for governmental intrusion against the nature and quality of the personal invasion. See Terry, 392 U.S. at 21 , 88 S.Ct. 1868 ; In re David S., 367 Md. 523, 532-33 , 789 A.2d 607 (2002).

A stop is a separate intrusion from a frisk. See Payne v. State, 65 Md.App. 566, 569-70 , 501 A.2d 484 (1985). “Although a reasonable ‘stop’ is a necessary predecessor to a reasonable ‘frisk,’ a reasonable ‘frisk’ does not inevitably follow in the wake of every reasonable ‘stop.’ ” Gibbs v. State, 18 Md.App. 230, 238-39 , 306 A.2d 587 (1973). A frisk requires independent justification, see Alfred v. State, 61 Md.App. 647, 664 , 487 A.2d 1228 (1985), yet sometimes the same underlying facts that justify a stop may also justify a frisk. See Quince v. State, 319 Md. 430 , 572 A.2d 1086 (1990) (reasonable suspicion of handgun violation); Simpler v. State, 318 Md. 311, 318-19 , ¹⁴⁵ 568 A.2d 22 (1990) (citing 3 Wayne R. LaFave, Search and Seizure, § 9.4(a), at 505-06 (1987)) (reasonable suspicion of a violent crime).

Even when a frisk is justified, it may be invalid because the police unreasonably exceeded the permissible scope of a frisk. 2 See Aguilar v. State, 88 Md.App. 276 , 594 A.2d 1167 (1991). In Terry , the frisk was limited to a pat-down of the suspect’s outer clothing. Terry, 392 U.S. at 30 , 88 S.Ct. 1868 . In subsequent cases, the permissible scope of a frisk was broadened under certain circumstances.

See In re David S., 367 Md. 523, 533-34 , 789 A.2d 607 (2002). The scope of a frisk may not exceed the bounds of what is minimally necessary to ensure safety, see State v. Smith, 345 Md. 460, 465-66 , 693 A.2d 749 (1997), and is designed exclusively for detecting offensive weapons. See Alfred v. State, 61 Md.App. 647, 669 , 487 A.2d 1228 (1985). It is well settled that a person’s mere proximity to a criminal suspect does not automatically give rise to articulable suspicion or probable cause necessary to conduct a frisk or more extensive search of that person.

See Sibron v. New York, 392 U.S. 40, 62-63 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968); In re Appeal No. 113, 23 Md.App. 255, 260-61 , 326 A.2d 754 (1974). 3 The Supreme Court applied this rationale in Ybarra v. Illinois, 444 U.S. 85, 91 , 100 S.Ct. 338 , 62 L.Ed.2d 238 (1979) (“[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”). The Court held that the police could not automatically frisk all patrons of the ¹⁴⁶ Auroi'a Tap Room absent articulable suspicion that the persons were armed or dangerous when executing a search warrant based on probable cause that drugs were being sold there. Id. at 93-94 , 100 S.Ct. 338 . Two years after Ybarra, the Supreme Court held that when executing a search warrant, the police have the authority to detain occupants of the premises.

Michigan v. Summers, 452 U.S. 692 , 101 S.Ct. 2587 , 69 L.Ed.2d 340 (1981). The factors justifying detention include the nature of the “articulable facts” and the interest in minimizing the risk of harm to police. Summers, 452 U.S. at 702 , 101 S.Ct. 2587 . Although the Summers Court did not address police frisks, the execution of a search warrant was of prime importance in assessing the reasonableness of the police intrusion.

Id. at 701 , 101 S.Ct. 2587 . The Court recognized that “detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” Id. at 703 , 101 S.Ct. 2587 . The existence of a search warrant justified detention because of the nexus between the residence where criminal activity was suspected and the occupants found therein, id. at 703-04 , 101 S.Ct. 2587 , and diminished the likelihood that police would contravene the Fourth Amendment and use detention to gather information. Id. at 701-02 , 101 S.Ct. 2587 .

Ensuring the safety of police officers who confront criminal suspects is an important state interest. See, e.g., Maryland v. Wilson, 519 U.S. 408 , 117 S.Ct. 882 , 137 L.Ed.2d 41 (1997); Michigan v. Long, 463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983); Pennsylvania v. Mimms, 434 U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977); Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972). Chief Justice Warren discussed officer safety during a stop and frisk as follows: [T]here is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnec ¹⁴⁷ essary risks in the performance of their duties.

American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives. Terry, 392 U.S. at 23 , 88 S.Ct. 1868 (emphasis added). The goal of conducting a frisk is to protect the police and bystanders from harm.

See State v. Smith, 345 Md. 460, 465 , 693 A.2d 749 (1997). “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances ivould be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27 , 88 S.Ct. 1868 (emphasis added). The touchstone of the Fourth Amendment is reasonableness. See Florida v. Jimeno, 500 U.S. 248, 250 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991). The actual motivations or subjective beliefs of police officers do not determine reasonableness.

See Cartnail v. State, 359 Md. 272, 289 , 753 A.2d 519 (2000). Rather, an objective standard is applied. See Ohio v. Robinette, 519 U.S. 33, 39 , 117 S.Ct. 417 , 136 L.Ed.2d 347 (1996). 4 To decide whether a reasonably prudent person in the officer’s position would be warranted in believing his or her safety or that of others were in danger, we examine the totality of the circumstances, see Derricott v. State, 327 Md. 582, 588 , 611 A.2d 592 (1992), including the modes or patterns of operations of certain kinds of lawbreakers, information in police reports, see Stokes v. State, 362 Md. 407, 416 , 765 A.2d ¹⁴⁸ 612 (2001)(citing United States v. Cortez, 449 U.S. 411, 418 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981)), any rational inferences that police officers are entitled to draw based on their training and experience, see Terry, 392 U.S. at 27 , 88 S.Ct. 1868 , and any other facts or evidence contained in the record at the time of the suppression hearing. See Brooks v. State, 320 Md. 516 , 578 A.2d 783 (1990).

We recognize that there is no litmus test to define the “reasonable suspicion” standard. See Stokes, 362 Md. at 415 , 765 A.2d 612 . 5 Appellant does not contest the right of the police to detain her while executing the Booth Street search warrant. See Michigan v. Summers, 452 U.S. 692 , 101 S.Ct. 2587 , 69 L.Ed.2d 340 (1981); Hippler v. State, 83 Md.App. 325 , 574 A.2d 348 (1990). 6 Appellant contends, however, that the police cannot justify a policy of conducting an automatic pat-down of every person on the premises that is named in the search warrant when executing the warrant. We agree.

See Ybarra, 444 U.S. at 93-94 , 100 S.Ct. 338 . 7 The constitutionality of a ¹⁴⁹ pat-down depends on the particular facts of each case. See Terry, 392 U.S. at 30 , 88 S.Ct. 1868 ; State v. Smith, 345 Md. 460, 468 , 693 A.2d 749 (1997); State v. Wilson, 279 Md. 189, 201 , 367 A.2d 1223 (1977). The facts must be viewed collectively and may be sufficient to meet the reasonable suspicion standard even though a particular fact, standing alone, may appear “innocent” and deserving of “little weight.” United States v. Arvizu, 534 U.S. 266 , 122 S.Ct. 744, 750-51 , 151 L.Ed.2d 740 (2002) (reversing the Ninth Circuit’s finding that seven factors considered individually carried little or no weight and remaining factors were insufficient to justify Terry stop because a “divide-and-conquer” analysis of reasonable suspicion was improper). Looking objectively at the facts known to the police in the