Derricott v. State

McAULIFFE, Judge. This case, although involving an initial traffic stop that was concededly valid, ultimately turns on the question of whether the officers who thereafter conducted a limited weapons search of the defendant’s vehicle had a reasonable suspicion supported by articulable facts that the defendant was engaged in criminal activity, and that the defendant was armed and dangerous. The trial judge and the Court of Special Appeals found that the facts supported those suspicions. We do not.

I. Before trial in the Circuit Court for Montgomery County, Derricott moved to suppress evidence of cocaine found in the passenger compartment of his automobile on the ground that the search violated his Fourth Amendment right to be free from unreasonable searches and seizures. The facts surrounding the search and seizure were presented by Corporal Michael Thomas of the Maryland State Police, the only witness to testify at the suppression hearing. Corporal Thomas testified that at approximately 6:53 p.m. on 3 June 1988, he was performing a stationary radar operation on Interstate 270 in Bethesda, Maryland, when he observed a northbound brown sports car enter his radar beam at 89 miles per hour in a 55 miles per hour zone. The trooper pursued the speeding vehicle and pulled it over without incident a short distance later.

Darone A. Derricott, the driver of the vehicle, stopped in a normal fashion on the median shoulder of the highway, and Corporal Thomas parked approximately 20 feet behind him. Corporal Thomas informed Derricott why he had been stopped, and requested his permit and registration card. Derricott produced these documents without hesitation or nervousness. ⁵⁸⁵ As Corporal Thomas stood beside the driver’s door of Derricott’s vehicle, several facts were apparent to him. He saw that Derrieott was a young, black male wearing a blue sweatsuit, gold chains, and a thick, gold ring monogrammed with the word “Pooh.” Derricott’s vehicle was a 1985 Nissan 300ZX, a sports ear.

On the dashboard of the Nissan, Corporal Thomas observed a “beeper”—an electronic paging device. On the passenger seat were papers that appeared to have telephone numbers written on them. Corporal Thomas testified that a number of these facts matched characteristics listed on a local drug courier profile previously distributed by the narcotics section of the State police. Specifically, he said the drug courier profile included the following characteristics which he believed were present in this case: 1) young, black males wearing expensive jewelry; 2) driving expensive cars, usually sports cars; 3) carrying beepers; and 4) in possession of telephone numbers.

After obtaining Derricott’s permit and registration card, Corporal Thomas returned to his cruiser. By radio, he requested a check of Derricott’s permit and registration card. He was informed by his dispatcher that both were valid, that the vehicle was not stolen, and that Derrieott was not the subject of any arrest warrants. Derricott’s registration card revealed that he co-owned the vehicle with another person whom Corporal Thomas believed to be a relative of Derricott’s.

The vehicle bore temporary Maryland tags, signifying recent acquisition. Corporal Thomas testified that although the routine checks produced no incriminating information and he observed nothing unusual about the conduct or demeanor of Derrieott, he requested a back-up officer to respond to the scene and he also requested a “drug dog” for the purpose of conducting a “sniff search” of Derrieott or his vehicle for the presence of illicit drugs. Corporal Thomas took these actions, he said, because Derrieott and his vehicle matched certain characteristics of the drug courier profile of which he had been made aware. ⁵⁸⁶ Approximately five minutes after the initial stop, Trooper Kathy Hunter arrived as a back-up officer. Corporal Thomas informed Trooper Hunter that he thought Derricott might be a drug courier.

He then approached Derricott and ordered him to exit his vehicle so that he could be checked for weapons. Up to this time, Derricott had remained seated in his vehicle, and according to Corporal Thomas, had not exhibited any suspicious behavior; Upon Corporal Thomas’ orders, Derricott exited his vehicle, and, as directed, stood between his vehicle and the police cruiser. Corporal Thomas then conducted a pat-down search of Derricott’s outer clothing and concluded that he was not armed. According to Corporal Thomas, Derricott did not appear to be under the influence of any substance, and did not smell of alcohol or of any other drug.

The officer testified that Derricott was very calm and acted coherently. After searching Derricott, Corporal Thomas approached the driver’s side door of Derricott’s vehicle, which had remained open. Corporal Thomas leaned inside the car and looked around, ostensibly to search for weapons. Between the driver’s seat and the center console, Corporal Thomas saw a cellophane bag containing smaller glassine bags of what appeared to be cocaine.

He seized the bag, and Derricott was placed under arrest for possession of a controlled dangerous substance. On these facts, and after argument of counsel, Judge J. James McKenna denied the defendant’s motion to suppress. The defendant thereafter waived his right to a jury trial and proceeded to trial before Judge McKenna on an agreed statement of facts. Judge McKenna found him guilty of possessing a controlled dangerous substance with the intent to distribute, and of speeding.

Derricott appealed and the Court of Special Appeals affirmed. Derricott v. State, 84 Md.App. 192 , 578 A.2d 791 (1990). We granted Derricott’s petition for a writ of certiorari to consider whether the ⁵⁸⁷ search which produced the cocaine was reasonable under the Fourth Amendment.

II

To support the warrantless search of the passenger compartment of Derricott’s automobile and the seizure of the drugs, the State offers a single justification: that this was a reasonable “frisk” of the defendant and his automobile under the limited “stop and frisk” exception of 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 held that the police can stop and briefly detain a person for purposes of investigation if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. Additionally, the Court held that if the articulable facts also support an objectively reasonable suspicion that the person with whom the officer is dealing is armed and dangerous, the officer may conduct a carefully limited search of the outer clothing of such person in an attempt to discover weapons which might be used to assault the officer. Id. at 30 , 88 S.Ct. at 1884 .

In Michigan v. Long, 463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983), the Court explained that a Terry-type search for weapons may, under some circumstances, extend to the passenger compartment of a vehicle in which the detained person is seated or from which that person has alighted. [T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. Id. at 1049 , 103 S.Ct. at 3481 , quoting in part from Terry, supra, 392 U.S. at 21 , 88 S.Ct. at 1880 (footnote omitted). ⁵⁸⁸ Unlike the right which follows a custodial arrest of a driver, see New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), the right to conduct a limited search of the passenger compartment of a vehicle for weapons does not automatically arise when the circumstances justify a Terry stop. It is only when the circumstances also support the articulable suspicion that the person detained is armed and dangerous that the frisk of outer garments and the limited search of a passenger compartment may be authorized. Michigan v. Long, supra, 463 U.S. at 1049 -50 n. 14, 103 S.Ct. at 3481 n. 14. “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 (footnote omitted), cert. denied, 269 Md. 759 (1973).

See also Simpler v. State, 318 Md. 311, 319 , 568 A.2d 22 (1990). We are thus required to evaluate the totality of the circumstances to decide whether a reasonably prudent person in the officer’s position would be warranted in believing that his safety or that of others was in danger. Terry, supra, 392 U.S. at 27 , 88 S.Ct. at 1883 . See also United States v. Sokolow, 490 U.S. 1 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989).

Due weight must be given “not to [an officer’s] 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.” Terry, supra, 392 U.S. at 27 , 88 S.Ct. at 1883 ; Quince v. State, 319 Md. 430, 433 , 572 A.2d 1086 (1990). By Corporal Thomas’ own testimony, the only facts which contributed to his decision to search Derricott and his vehicle were those that corresponded to the drug courier profile. No other behavior aroused Corporal Thomas’ suspicion; nothing else suggested to the trooper that he was engaged in more than a routine traffic stop. We note that the elements relied on by the officer do not acquire any special legal significance merely because they ⁵⁸⁹ comprise a “drug courier profile.” See Sokolow, supra, 490 U.S. at 10 , 109 S.Ct. at 1587 .

While it is true that “a trained law enforcement agent may be ‘able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer,’ ” such as “the characteristics of persons engaged in ... illegal practices,” United States v. Mendenhall, 446 U.S. 544, 563 , 100 S.Ct. 1870, 1882 , 64 L.Ed.2d 497 (1980) (citation omitted), the officer must still be able to articulate why the elements of the profile lead to a reasonable suspicion that the person detained is armed and dangerous. Sokolow, supra, 490 U.S. at 9-10 , 109 S.Ct. at 1586-87 . It is the evidentiary significance of what actually occurred that provides the basis for reasonable suspicion. Indeed, a profile alone may “describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures” if a mere match to such a profile were deemed sufficient suspicion to justify a search or seizure.

Reid v. Georgia, 448 U.S. 438, 441 , 100 S.Ct. 2752, 2754 , 65 L.Ed.2d 890 (1980). Derricott argues that the characteristics of the local drug courier profile that were similar to his circumstances do not establish reasonable suspicion that