Dennis v. State

BELL, Judge. This case presents the issue of whether a passenger in a vehicle whose driver has been stopped by police for a traffic violation may be convicted of disorderly conduct and battery when, rather than heeding the police command to remain in the vehicle, he walks away from the scene, and subsequently resists police attempts at detention. The Circuit Court for Somerset County found the petitioner, Brace Lamont Dennis, guilty of disorderly conduct and battery and sentenced him to two concurrent terms of imprisonment of 45 days. 1 The Court of Special Appeals affirmed the judgments in an unreported opinion. For the reasons discussed below, we shall reverse.

I. Officer Wayne Foskey, of the Princess Anne Police Department, testified in the Circuit Court for Somerset County that on November 27, 1993 he saw a vehicle drive through a red traffic signal. Intending to make a traffic stop, Officer Foskey and his partner pursued the vehicle, while flashing the emergency lights on the police ear. The driver of the pursued vehicle ignored the lights and increased his speed. Officer Foskey then shined a flashlight into the vehicle and told the driver to pull over.

The driver ignored this command as well and again increased his speed. Eventually, the driver pulled the veliiele into a driveway in a residential neighborhood ¹⁹⁹ where five or six persons were congregated. At that point, the police, then assisted by a third officer, Trooper Bettina Collins, ended the chase. Once the vehicle stopped, both the driver and the petitioner attempted to exit the vehicle, according to Trooper Collins’s testimony.

When the petitioner opened the passenger side door, Officer Foskey “yelled for him to shut the car door and stay in the vehicle.” Instead, the petitioner stepped out of the vehicle. He ignored Officer Foskey’s command to get back into the vehicle and began walking away without uttering a word. Officer Foskey yelled for the petitioner to stop, but he continued to walk away. Trooper Collins testified that while the petitioner and the driver were attempting to exit the vehicle, “[t]here were several subjects in the yard at that time who were also yelling at us and saying things to Dennis and the other subject.” Confronted with the petitioner’s continued resistance to his commands, Officer Foskey proceeded to “[take the petitioner] to the ground.” The petitioner struck Officer Foskey in the ribs with his elbow and began fighting with him.

After spraying the petitioner twice with pepper mace, Officer Foskey finally got him back in the car. The petitioner was tried for, inter alia, disorderly conduct and battery. 2 Finding the petitioner guilty, the trial judge stated: Gentlemen, considering the totality of the circumstances, the fact that there was a high speed chase, albeit after perhaps running a red light, I think the officer’s actions were not unreasonable at all. I think, all Mr. Dennis had to do was stop, stay where he was, let the officer identify him and ensure that there were no problems with the officer’s safety, and we wouldn’t have been in court. That didn’t happen.

I think that with the fact that there were other people in the area at that location, according to Trooper Collins, who began yelling and shouting at the officers, that ²⁰⁰ by refusing the [sic] comply with the officer’s commands to stay within the car, and when he got out of the car, to get down, I think he violated Article 27, Section 123. He was charged with the correct section by refusing the lawful order of a police officer, the refusal of which could have threatened the public peace. Likewise, as to Count # 1, I think there was an unlawful touching. I think the officer was justified in doing what he did when he physically restrained Mr. Dennis, the defendant, from leaving the area.

It all could have been avoided if Mr. Dennis had complied with the officer’s command, which was not unreasonable. I’m convinced beyond a reasonable doubt that Mr. Dennis is guilty of Count # 1, Battery, and Count # 2, Disorderly Conduct.

II

In examining the petitioner’s disorderly conduct conviction, we must first consider the nature of the crime itself. Disorderly conduct is addressed in Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 123, and provides, in pertinent part: A person may not act in a disorderly manner to the disturbance of the public peace, upon any public street, highway, alley, park or parking lot, in any city, town, or county in this State, or at any place of public worship, or public resort or amusement in any city, town or county in this State, or in any store during business hours, or in any elevator, lobby or corridor of any office building or apartment house having more than three separate dwelling units, or in any public building in any city, town or county of this State. In Drews v. State, 224 Md. 186 , 167 A.2d 341 (1961), vacated on other grounds and remanded, 378 U.S. 547 , 84 S.Ct. 1900 , 12 L.Ed.2d 1032 (1964), judgments reinstated and reaffirmed, 236 Md. 349 , 204 A.2d 64 (1964), appeal dismissed and cert. denied, 381 U.S. 421 , 85 S.Ct. 1576 , 14 L.Ed.2d 693 (1965), this Court stated that [t]he gist of the crime of disorderly conduct under Sec. 123 of Art. 27, as it was in the cases of common law predecessor ²⁰¹ crimes, is the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area. 3 Underhill, Criminal Evidence, Sec. 850 (5th Ed.), adopts as one definition of the crime the statement that it is conduct ‘of such a nature as to affect the peace and quiet of persons who may witness the same and who may be disturbed or provoked to resentment thereby.’ Also, it has been held that failure to obey a policeman’s command to move on when not to do so may endanger the public peace, amounts to disorderly conduct. Id. at 192, 167 A.2d at 343-44 .

Thus, while not explicitly stated in the statute, this Court has found there to be a “police command” aspect of disorderly conduct. To be guilty of disorderly conduct on this basis, however, there must be a sufficient nexus between the police command and the probability of disorderly conduct. These commands cannot be “ ‘purely arbitrary and ... not calculated in any way to promote the public order.’ ” Id. at 193 , 167 A.2d at 344 (quoting People v. Galpern, 259 N.Y. 279 , 181 N.E. 572, 574 (1932)). See also Harris v. State, 237 Md. 299, 303 , 206 A.2d 254, 256 (1965) (holding that “[a] failure to obey a reasonable and lawful request by a police officer fairly made to prevent a disturbance to the public peace constitutes disorderly conduct.”).

Our prohibition of arbitrary police commands is consistent with the Supreme Court’s holding in Shuttlesworth v. City of Birmingham, 382 U.S. 87 , 86 S.Ct. 211 , 15 L.Ed.2d 176 (1965). In that case, the Court struck down a city ordinance that made it “ ‘unlawful for any person to stand or loiter upon any street or sidewalk ... after having been requested by any police officer to move on.’ ” Id. at 90 , 86 S.Ct. at 213 , 15 L.Ed.2d at 179 (quoting § 1142 of the Birmingham General City Code). The Court stated that citizens should not be governed “ ‘by the moment-to-moment opinions of a policeman on his beat[,]’ ” but rather by clearly defined laws. Id.

(quoting Cox v. Louisiana, 379 U.S. 536, 579 , 85 S.Ct. 466 , 469, 13 L.Ed.2d 487, 501 (1965)). The Court further stated that law based on “[i]nstinct with its ever-present potential for arbitrarily suppressing First Amendment liberties ... bears ²⁰² the hallmark of a police state.” Id. at 90-91, 86 S.Ct. at 213 , 15 L.Ed.2d at 179 (footnote omitted). A brief review of some of the instances in which Art. 27, § 123 violations premised on the refusal to comply with police commands have been found are instructive, by way of comparison with the case sub judice, to show that Maryland case law demands more affirmative conduct by a defendant than occurred in this case before disobeying a police order will be deemed a breach of the peace. For example, in Hallengren v. State, 14 Md.App. 43 , 286 A.2d 213 (1972), the defendant was among a crowd of people engaged in riotous behavior.

While the police attempted to disperse the crowd, the defendant exhorted the crowd “to resist and kill the police.” Id. 45-46 , 286 A.2d at 215 . In Luthardt v. State, 6 Md.App. 251 , 251 A.2d 40 (1969), the defendant encouraged a crowd to burn down the home of an African American family. The police ordered the defendant to desist from his conduct and when he failed to do so he was arrested. Id. at 253-55 , 251 A.2d at 42-43 .

In Bacheller v. State, 3 Md.App. 626 , 240 A.2d 623 (1968), rev’d on other grounds, 397 U.S. 564 , 90 S.Ct. 1312 , 25 L.Ed.2d 570 (1970), the defendants, Vietnam War demonstrators, entered a United States recruiting station and demanded that their anti-war posters be displayed. After being physically ejected from the building, they began blocking the sidewalk, attracting a crowd of onlookers, including some individuals who reacted in a hostile manner to the demonstrators. The demonstrators were ordered by the police to move on and after failing to do so were arrested. Id. at 630-31 , 240 A.2d at 625-26 .

See also Sharpe v. State, 231 Md. 401, 403 , 190 A.2d 628, 630-31 , cert. denied, 375 U.S. 946 , 84 S.Ct. 350 , 11 L.Ed.2d 275 (1963). In addressing the disorderly conduct conviction, the State contends that the refusal of the petitioner to stay in the vehicle once it was stopped, coupled with the refusal to comply with Officer Foskey’s subsequent commands, constituted disorderly conduct. The State argues, in that regard, that “Drews and Harris instruct that a conviction for disorderly ²⁰³ conduct will lie whenever a person disobeys a lawful police command to stay—or go—when such a command is designed to avoid a breach of the peace.” That argument proves unavailing in the instant case because the testimony lacks the evidentiary foundation on which to base the petitioner’s conviction. As noted earlier, Trooper Collins testified that the persons gathered in the yard where the driver’s vehicle was stopped were yelling at the police and saying things to the driver and the petitioner.

We find it highly significant, however, that the State has proffered no evidence as to the genesis of the yelling, what was being said, even whether the persons were reacting in favor of the petitioner or the police. In sum, the circumstances described by the State in no way lend themselves to the notion that the petitioner’s conduct created any real danger of a breach of the peace. As we see it, the quantum of evidence necessary to sustain a disorderly conduct conviction under Art. 27 § 123 is much greater than the State offered, or suggests, in this case.

III

A. As part of its effort to justify Officer Foskey’s actions in seizing the petitioner, the State cites Barnhard v. State, 325 Md. 602 , 602 A.2d 701 (1992), for the proposition that “ ‘[ w]here a crime may have been committed and a suspect or important witness is about to disappear, it seems irrational to deprive the officer of the opportunity to “freeze” the situation for a short time, so that he may make inquiry and arrive at a considered judgment about further action to be taken.’ ” Id. at 615 , 602 A.2d at 708 (quoting Watkins v. State, 288 Md. 597, 605 , 420 A.2d 270 (1980) (quoting, in turn, ALI, A Model Code of Pre-Arraignment Procedure § 110.2 (Commentary 1975))) (emphasis added). Barnhard , however, may be distinguished from the instant case. In Barnhard , police officers testified that, when responding to a stabbing incident, they encountered the defendant who volunteered to show the police where the knife used in the stabbing had been discarded. 325 Md. at 605 , 602 A.2d at 703 . On that basis, they considered the ²⁰⁴ defendant to be a “material witness,” and, thus, sought to detain him.

Id. at 605-06 , 602 A.2d at 703 . In the instant case, by contrast, there is neither testimony nor evidence in the record indicating that the police considered the petitioner either an “important witness” to the criminal conduct of the driver or a suspect in the case. In fact, as will be discussed infra, the basis for the petitioner’s detention had nothing to do with either such status. Therefore, the record does not reveal that it was necessary to “freeze” the situation.

B. The State concedes the petitioner’s right to resist an unlawful arrest in this case; however, it argues that Officer Foskey was effectuating a stop pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). Accepting the State’s premise equating “lawfulness” with a stop that does not violate the Fourth Amendment under Terry , the petitioner counters that his seizure violated Terry . Thus, the issue framed by the parties concerns the scope and application of Terry . To be sure, Officer Foskey’s tackling of the petitioner amounted to a “seizure.” See Terry 392 U.S. at 16 , 88 S.Ct. at 1877 , 20 L.Ed.2d at 903 (“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”).

The question in this case then becomes whether the seizure was legal. Our analysis in this area is guided by the contours of the Fourth Amendment. Under Terry , it is permissible for a police officer to “stop” a person briefly if the officer has a reasonable, articulable suspicion that criminal activity is afoot. The reasonableness of such an intrusion, however, “is to be assessed against an objective standard—whether ‘the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.’ ” Anderson v. State, 282 Md. 701, 705 , 387 A.2d 281, 283 (1978) (quoting Terry, 392 U.S. at 21-22 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906 ). ²⁰⁵ A Terry stop is an investigatory stop.

It is justified on the basis of the general interest in “effective crime prevention and detection.” Terry, 392 U.S. at 22 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906 . The rationale underlying a Terry stop is that, when the circumstances are appropriate, a police officer may stop a person “for purposes of investigating possibly 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 907 . Whether appropriate circumstances exist depend upon “the facts and circumstances ... detailed before the trial judge ...” and whether a reasonably prudent person would have concluded that, under those circumstances, a detention for further investigation was justified. Id. at 28 , 88 S.Ct. at 1883 , 20 L.Ed.2d at 910 .

Because the purpose of the stop is investigatory and must be justified by the facts and circumstances detailed to the court, it follows that the police officer must intend that the stop be investigatory and the stop, in fact, must be for that purpose. In a traffic situation, the police officer’s recitation of the facts leading up to the stop of an automobile ordinarily will suffice to supply probable cause for arrest, in the case of an offense for which arrest is appropriate, or for a stop in the case of other offenses. This circumstance is so because it is the action of the driver of the automobile that is at issue. The presence of a passenger in the car does not change the analysis.

The actions of the driver are not automatically, or even necessarily, attributable to the passenger, however. Whether the passenger is subject to arrest or stop will depend upon the facts and circumstances as they relate to the passenger. Thus, as in this case, the officers’ articulation of the circumstances surrounding the stop of the automobile revealed that they had probable cause to arrest the driver for fleeing and eluding. In the absence of additional information focusing on the passenger’s actions, that articulation did not provide probable cause to believe that his passenger was also engaged in that fleeing and eluding.

The question, therefore, is whether there was a basis to further investigate the passenger’s ²⁰⁶