Dashiell v. State

CATHELL, J. Rashida C. Dashiell, petitioner, seeks review of a judgment of the Maryland Court of Special Appeals affirming a trial judge’s dismissal of petitioner’s motion to suppress evidence as the fruit of an alleged illegal frisk. The suppression hearing was held on May 29, 2001, before the Honorable D. William Simpson of the Circuit Court for Wicomico County. Judge Simpson denied the motion to suppress, finding that the officers had the right to pat-down petitioner because they had the right to secure the premises during a search pursuant to a warrant. Judge Simpson stated: “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 where they are entering pursuant to a search and seizure 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 covenant right to pat down for weapons would be pure folly.

If you can secure them, I 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 [petitioner] and ⁸⁹ 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, and I am going to deny your motion to suppress.” [Alteration added.] Petitioner waived her right to a jury trial. On July 25, 2001, petitioner was tried and convicted in the Circuit Court for Wicomico County on several counts, including two counts of possession of cocaine with intent to distribute, possession of cocaine and possession of marijuana. Judge Simpson sentenced petitioner to five years of incarceration, with all but eighteen months suspended.

Petitioner filed an appeal to the Court of Special Appeals. On March 5, 2002, the Court of Special Appeals affirmed the trial court’s rulings. Dashiell v. State, 148 Md.App. 134 , 792 A.2d 1185 (2002). The Court of Special Appeals held that a Wicomico County Task Force’s policy mandating an automatic pat-down of every person located within a premises named in a search warrant was not justified.

The intermediate appellate court, however, further held that the totality of the facts in this case justified the pat-down, when it said: “[Booking objectively at the facts known to the police in the case before us, we hold that a reasonably prudent officer would be warranted in believing that his or her safety or that of others was in danger when executing a ‘no-knock’ search warrant at Booth Street.” 1 Id. at 149, 792 A.2d at 1193 (alteration added). Petitioner then filed a timely Petition for Writ of Certiorari to this Court. Along with an answer to that petition, respon ⁹⁰ dent, the State of Maryland, filed a Conditional Cross-Petition, to which petitioner replied. On June 20, 2002, this Court granted both petitions.

Dashiell v. State, 369 Md. 570 , 801 A.2d 1031 (2002). In her brief, petitioner presents one question for our review: “Does a police officer have the authority to detain and ‘pat-down’ every individual present in a home during the execution of a ‘no-knock’ search warrant?” Petitioner argues that the police violated her Fourth Amendment rights when they frisked her for weapons absent particularized reasonable articulable suspicion that she was, in fact, armed and/or dangerous. Respondent presents this Court with two questions: “1. Did the police have the authority to detain and frisk every individual present at the scene where a narcotics search warrant was being executed? “2.

Would the evidence in this case inevitably have been discovered pursuant to the search warrant, the validity of which was never challenged?” We hold that the mere issuance of a ‘no-knock’ warrant does not, per se, rise to the level of articulable suspicion needed for an officer to conduct a Terry frisk for weapons. But, we also hold that when specific information enumerating factors suggesting a possibility of weapons being present on the person or persons who might be in the premises and/or in the place to be searched is included within the affidavit to obtain a search warrant and the warrant issues without any limitations as to the officers’ authority to frisk subjects for weapons, the police may frisk individuals found therein for weapons in order to ensure the safety of the officers. Where particularized and reliable information sufficient to cause a judge to issue a search warrant also states a reasonable belief that weapons may be located within the premises to be searched or on the person or persons anticipated to be present therein, the officers executing such a search have sufficient reasonable articulable suspicion to frisk persons inside that premises. As this was the case here, petitioner’s motion to suppress was ⁹¹ properly denied.

As we do not find the frisk to be in violation of petitioner’s Fourth Amendment rights, we need not directly resolve the question of inevitable discovery contained within respondent’s Conditional Cross-Petition. I. Facts Petitioner’s charges stem from a January 25, 2001 search of a private residence conducted pursuant to a search warrant. The Wicomico Couxity Task Force (hereinafter, Task Force) conducted a four-month undercover investigation of Brewing-ton Holton Bivens. On January 11, 2001, the Task Force applied for a search and seizure warrant to search Bivens and the x'esidences located at “907, Apartment # 1, Booth Street” (hereinafter, Booth Street) and “1118, Apartment #A, Parsons Road” (hereinafter, Parsons Road), both residences in which the police alleged Bivens was concealing controlled dangerous substances (CDS).

The application for the seax-ch warrant included information obtained from several confidential informants and concerned citizens, as well as officers’ observations during police surveillance of the residences and Bivens himself. The pertinent facts included that the Booth Street apartment was within the general area of an open air drag market and was being used as a stash house in Bivens’ drug trafficking operations. This conclusion was supported by witness accounts, including police officer observations of heavy vehicle and pedestrian traffic with individuals only staying brief periods of time, which the Task Force attested were significant indicators of drug trafficking. In addition, confidential informants divulged that large quantities of controlled dangerous substances were seen at the Booth Street apartment and on Bivens’ person.

Facts asserted in the application indicated that Bivens personally engaged in drug ti’ansactions with many of the frequent visitors to Booth Stx*eet. The Task Force also knew that Bivens had been previously charged with drug-related and violent offenses and had been involved in a high-speed police chase after a routine traffic stop. A “concerned source of information,” named “D” in the affidavit, reported, pursuant to ⁹² “D’s” own personal knowledge, Bivens’ drug-related activities and that “D” had “seen several guns inside [Booth Street] and had observed Brewington Bivens with a handgun.” (alteration added). Judge Donald C. Davis then issued the warrant finding probable cause that criminal activity was being conducted at the Booth Street house.

The police executed the Booth Street search warrant on January 25, 2001. Bivens was not present during the execution of the warrant; rather petitioner, petitioner’s two children and Angela Bower were the only people located in the Booth Street residence at that time. The police entered the Booth Street residence at approximately 9:00 p.m. by ramming open the front door. After the entry team entered the apartment, Corporal Michael Kravecz* a member of the Task Force, testified that “everyone in the residence was handcuffed and secured and put on the ground while the team searched the residence for other subjects in the house.

Once everyone was secured, they went back and then patted down all the individuals in the house for weapons.” After the adults in the residence were frisked, the member of the entry team who conducted the frisk of petitioner informed Corporal Kravecz that petitioner had a plastic bag, which the officer suspected to be crack cocaine, in her front pants pocket. The officer had not removed the plastic bag from petitioner’s pocket. Corporal Kravecz testified that he approached petitioner and stated, “one of the State team’s members stated that you had something on you,” to which she replied, “yes, the dope.” At this time, Corporal Kravecz observed a plastic bag hanging out of her right front pants pocket. He then removed the plastic bag and petitioner was placed under arrest. 2 During the subsequent search of petitioner-incident to her arrest, additional controlled dangerous ⁹³ substances, including crack cocaine and marijuana, were found on her person.

At that time, a simultaneous search of the residence was being conducted, in which the police recovered marijuana underneath a sofa cushion in the living room. Later, during her booking procedure, petitioner gave the Booth Street residence as her home address.

II

Discussion A. Standard of Review The standard of review of motions to suppress has recently been summarized by this Court in the case of State v. Collins, 367 Md. 700, 706-07 , 790 A.2d 660, 663-64 (2002), when we said: “Our review of a Circuit Court’s denial of a motion to suppress evidence under the Fourth Amendment is limited, ordinarily, to information contained in the record of the suppression hearing and not the record of the trial. See Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491, 497 (1999); In re Tariq A-R-Y, 347 Md. 484, 488, 701 A.2d 691, 693 (1997); Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22, 22 (1990); Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749, 755 (1987). When there is a denial of a motion to suppress, we are further limited to considering facts in the light most favorable to the State as the prevailing party on the motion. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990); Simpler, 318 Md. at 312 , 568 A.2d at 22 .

In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to the weighing and determining first-level facts. Lancaster v. State, 86 Md.App. 74, 95 , 585 A.2d 274, 284 (1991); Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356, 358 (1990). When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that his findings are clearly erroneous. McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430, 435 (1992); Riddick, 319 Md. at 183 , 571 A.2d at 1240 .

Even so, as to the ultimate conclusion of whether an action taken was proper, we must make our own inde ⁹⁴ pendent constitutional appraisal by reviewing the law and applying it to the facts of the case. Riddick, 319 Md. at 183 , 571 A.2d at 1240 ; Munafo v. State, 105 Md.App. 662, 669 , 660 A.2d 1068,1071 (1995).” In the case sub judice, as petitioner does not question whether the factual findings of the hearing judge were clearly erroneous, we need only look to the purely legal issue of whether the officer’s pat-down frisk of petitioner was in violation of petitioner’s Fourth Amendment rights. We hold that such a frisk, under the facts of this case, did not violate petitioner’s Fourth Amendment rights. We hold that sufficient reasonable suspicion exists for an officer to conduct a Terry frisk of occupants located within a premises subject to a search warrant when reliable articulable facts indicating that weapons might be located therein, or on the persons contemplated to be present in the premises, are specifically enumerated by the affiant in the search warrant application and that warrant is issued without the imposition of any limitations as to the officers’ authority to frisk for weapons.

B. The Frisk The Fourth Amendment of the United States Constitution, in its guarantee to protect individuals from unreasonable government searches and seizures, states: “The right of 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.” These guaranteed Fourth Amendment protections are applicable to the State of Maryland through the Fourteenth Amendment of the United States Constitution. See Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684, 1691 , 6 L.Ed.2d 1081, 1090 (1961); Owens v. State, 322 Md. 616, 622 , 589 A.2d 59, 61 , cert. denied, 502 U.S. 973 , 112 S.Ct. 452 , 116 L.Ed.2d 470 (1991). ⁹⁵ The case sub judice involves a rather narrow issue within the breadth of Fourth Amendment jurisprudence. The essential question is whether the Fourth Amendment prohibits an officer from conducting a limited protective frisk 3 for weapons on persons located within a residence being searched pursuant to a valid search warrant where those persons were not named in the warrant, the house was being used in a drug trafficking operation and, based upon reliable information, weapons were believed to be located in the house and/or on the persons named in the warrant. The doctrine of protective frisks and pat-downs of individuals without a warrant is governed by the United States Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and its progeny.

In Terry , the Supreme Court, in creating an exception to the Fourth Amendment requirement of probable cause whereby officers are able to take certain steps to ensure their safety while investigating crime by frisking individuals for weapons, said: ⁹⁶ “Certainly it would be unreasonable to require that police officers take unnecessary 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. “In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Terry, 392 U.S. at 23-24 , 88 S.Ct. at 1881 , 20 L.Ed.2d at 907-08 (footnote omitted).

In footnote 21 of the Terry opinion, accompanying the above quoted text, the Supreme Court stated: “The easy availability of firearms to potential criminals in this country is well known and has provoked much debate. Whatever the merits of gun-control proposals, this fact is relevant to an assessment of the need for some form of self-protective search power.” Id. at 23-24 n. 21, 88 S.Ct. at 1881 n. 21, 20 L.Ed.2d at 907 -08 n. 21 (citation omitted). In discussing the standard to which an officer’s ability to assess whether a protective frisk of an individual for weapons is warranted, the Supreme Court further stated: “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, ⁹⁷ where he has reason to believe that he is dealing with an aimed 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.

And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his 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 (citations omitted)(emphasis added). The objective reasonable suspicion standard is considerably less than the preponderance or probable cause standards. United States v. Sokolow, 490 U.S. 1, 7 , 109 S.Ct. 1581, 1585 , 104 L.Ed.2d 1, 10 (1989). While absolute certainty is not required, a mere hunch or unparticularized suspicion will not suffice.

Terry, 392 U.S. at 27 , 88 S.Ct. at 1883 , 20 L.Ed.2d at 909 . This Court has said that reasonable suspicion “is a common sense, nontechnical conception that considers factual and practical aspects of daily life and how reasonable and prudent people act.” Cartnail v. State, 359 Md. 272, 286 , 753 A.2d 519, 527 (2000). Determinations of whether a particularized reasonable suspicion exists should be analyzed under the totality of the circumstances. Sokolow, 490 U.S. at 8 , 109 S.Ct. at 1585 , 104 L.Ed.2d at 10 ; Derricott v. State, 327 Md. 582, 588 , 611 A.2d 592, 595-96 (1992).

Shortly after it issued the Terry mandate, the Supreme Court, using Terry’s objective standard, validated an officer’s use of such a protective frisk for weapons where the officer’s reasonable suspicion to conduct a Terry frisk was not based on the officer’s personal observation, but on that of an informant. Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972). The Supreme Court, in Adams , said: “Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability.... But in some situations — for example, ⁹⁸ when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime — the subtleties of the hearsay rule should not thwart an appropriate police response. “While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a car in a high-crime area at 2:15 in the morning, Sgt.

Connolly had ample reason to fear for his safety.” Id. at 147-48 , 92 S.Ct. at 1924 , 32 L.Ed.2d at 617-18 . In this case, Corporal Kravecz’s affidavit in support of the application for the search warrant of the house at Booth Street and the one at Parsons Road and of Bivens’ person, relied on numerous accounts of concerned citizens, informants and police officer observations. Corporal Kravecz was armed with information that a drug operation was being conducted at Booth Street from informants who were known to provide reliable information. These accounts were corroborated by officer observations of specific indicia illustrating a substantial likelihood of drug trafficking activity at Booth Street, as evidenced by heavy foot and vehicle traffic staying at the residence for short periods of time, complaints from neighborhood citizens regarding drug trafficking at that residence and witnesses’ personal observations of controlled dangerous substances and weapons on the person of Bivens and in the Booth Street residence.

The Task Force and entry team, from their experience, their knowledge of the relationship between guns and drugs, their knowledge of Bivens’ violent past and witnesses’ observations of weapons located inside the house, had considerable evidence from reliable sources that a drug trafficking operation was being conducted at Booth Street and, under the totality of these circumstances, had significant reasons to fear for their safety and the safety of others during the execution of the Booth Street search warrant. Petitioner argues, regardless of the valid search warrant issued to search Booth Street and the Task Force’s ⁹⁹ knowledge of drug trafficking being conducted out of the premises, that, even while weapons were alleged to be within the premises and on Bivens’ person, the entry team member who frisked her had no particularized suspicion that she, herself, was armed and dangerous. In support of this proposition, petitioner relies on the Supreme Court case of Ybarra v. Illinois, 444 U.S. 85 , 100 S.Ct. 338 , 62 L.Ed.2d 238 (1979). Under the facts here present, however, Ybarra is not applicable because the totality of the circumstances here present would lead a reasonable officer to fear for his safety.

The Supreme Court, in Ybarra , was mindful of individuals’ Fourth Amendment guarantees when that Court held that the mere presence of an individual at the place being searched pursuant to a valid search warrant does not automatically justify a search. Id. at 91 , 100 S.Ct. at 342 , 62 L.Ed.2d at 245 . In Ybarra , the police obtained a search warrant to search the Aurora Tap Tavern and its employee bartender, Greg, for controlled dangerous substances after an informant gave the police specific information that the bartender was engaged in the sale of narcotics. The police executed the search warrant during the afternoon and announced their purpose to the patrons of the tavern.

The officers then conducted a Terry frisk for weapons on the 9 to 13 patrons. The officer frisking Ybarra felt a cigarette pack with object inside it, but did not remove it. The officer later returned and frisked Ybarra again, reached inside Ybarra’s pants pocket and took the cigarette pack. Petitioner argues that Ybarra is “a case strikingly similar to the instant case” and later supports her argument by quoting from Ybarra , including the following language: “But 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.

Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another ¹⁰⁰ or to search or seize the premises where the person may happen to be.” Ybarra, 444 U.S. at 91 , 100 S.Ct. at 342 , 62 L.Ed.2d at 245 (citation omitted)(emphasis added). This language, however, is in reference to whether the search of Ybarra was justified under a probable cause standard, not one of reasonable suspicion. In this case, the State does not contend that the entry team initially had probable cause to search petitioner; the only initial justification for a frisk was that the officers reasonably feared for their safety.

The Ybarra Court, however, went on to define the limits of the Terry frisk exception when, in the absence of probable cause to search Ybarra, the Court rejected the argument that Ybarra’s frisk was supported by reasonable suspicion. The Court stated: “The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons. Adams v. Williams, 407 U.S. 143, 146 , 92 S.Ct. 1921, 1923 , 32 L.Ed.2d 612 ; Terry v. Ohio, supra, 392 U.S., at 21-24, 27 , 88 S.Ct., at 1879-1881, 1883 . When the police entered the Aurora Tap Tavern on March 1, 1976, the lighting was sufficient for them to observe the customers.

Upon seeing Ybarra, they neither recognized him as a person with a criminal history nor had any particular reason to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson later testified, Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening.... In short, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous. “The Terry case created an exception to the requirement of probable cause, an exception whose ‘narrow scope’ this Court ‘has been careful to maintain.’ Under that doctrine a law enforcement officer, for his own protection and safety, ¹⁰¹ may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or indeed, any search whatever for anything but weapons.

The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.” Id. at 93-94 , 100 S.Ct. at 343 , 62 L.Ed.2d at 246-47 (citation omitted)(footnotes omitted)(emphasis added). The facts purporting to justily a weapons frisk based on peril to the officers in Ybarra , pale in comparison to those in the instant case. While the Supreme Court stated that the police did not have “any particular reason to believe that [Ybarra] might be inclined to assault them,” because Ybarra was a random patron in a public business not acting in a suspicious manner, the officer who frisked petitioner in the case sub judice did have a reasonable belief that petitioner could have been armed and dangerous based on several particularized facts contained in the application for the search warrant. First, the Task Force had voluminous evidence of drug trafficking activities at Booth Street reasonably suggesting that the numerous visitors to Booth Street, and thus its occupants at the time of the warrant’s execution, were involved in the drug trade.

Weapons and guns are widely known to be used in narcotics trafficking 4 and, in this case, ¹⁰² the police had particularized knowledge that “several guns” were located within the Booth Street premises. Another important difference is that Ybarra, a patron in a bar, was searched in a public business, while petitioner was frisked inside a private residence in which she lived. 5 We also believe this distinction to be of additional significance. The relationship between a patron of a bar and the bar’s employee’s illegal drug trafficking is, generally, more tenuous than an individual’s relationship to the activities being conducted inside the private home in which they live. The police in Ybarra had no indication that Ybarra or any other patron was involved with the bartender’s heroin operation.

As the Aurora Tap Tavern was open for business at the time of the warrant’s execution, the likelihood that individuals with no knowledge or participation in the bartender’s heroin trade were present was extremely high. In contrast, the execution of the Booth Street warrant occurred at 9:00 p.m. at a private residence. Presumably, all occupants of the home at that time were invited guests or residents, not random visitors whose identities were unknown to the residents. As such, the likelihood that those occupants knew of the drug trafficking operation occurring out of that household, especially in light of the police surveillance and numerous witnesses observing the heavy traffic in and out of that residence, was high.

Officers normally have an additional reason to be wary of possible dangers when executing a search warrant in a private ¹⁰³ residence because an individual within a private residence is usually more familiar and comfortable in those surroundings, which puts the officers at a serious disadvantage. See Maryland v. Buie, 494 U.S. 325 , 110 S.Ct. 1093 , 108 L.Ed.2d 276 (1990). In the context of an in-home arrest, the Buie Court stated: “The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter.... Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” Id. at 333 , 110 S.Ct. at 1098 , 108 L.Ed.2d at 285 .

In fact, an officer may not normally know where weapons may be hidden in a private home, while the occupant may easily ambush the officer by concealing potential dangerous weapons within arm’s reach. Also, the occupants or residents are likely to react adversely to the police entrance into their home. Police surveillance and witness accounts of the heavy traffic at Booth Street at all hours of the day