Epps v. State

MOYLAN, J. May the State (or in this case the trial court) switch Fourth Amendment theories after a suppression hearing has been, in all but the formal filing of its ruling, wrapped up? Theoretically, if all conditions are favorable, it is possible, but it is an unusual procedure that is generally frowned upon. We frown upon it here. ⁶⁹¹ Round One The appellant, Terry Keith Epps, Jr., was convicted by a Harford County jury on June 27, 2006, of the possession of cocaine with the intent to distribute and with the possession of marijuana. In initially appealing those convictions, the appellant’s only contention was that a pretrial suppression hearing had erroneously failed to rule that the drugs had been seized from him in violation of the Fourth Amendment.

That suppression hearing had taken place on May 3, 2006. The appellant had been a passenger in a car subjected to a traffic stop, for traveling at 60 miles per hour in a 50-mile-per-hour zone, on April 20, 2005. The car had been driven by the appellant’s brother, Stephon David Epps, who was also charged with driving on an expired license and with failing to produce a registration card for the vehicle. The evidence consisted of the testimony of 1) Deputy Sheriff Jeffrey Gerres, who made the initial traffic stop and then centered his attention primarily on the driver, Stephon Epps; and 2) Deputy Sheriff Javier Moro, who responded to the scene almost immediately as a back-up officer and who then directed his attention primarily to the appellant, who was a front-seat passenger.

The appellant was ultimately asked to lift his shirt and, as he did, Deputy Moro observed “a small, clear plastic baggie to be protruding from the top of his pants.” The appellant was still seated in the car as this took place. The deputies recovered the baggie and it, in turn, was found to contain both a small bag of marijuana and 13 small bags of cocaine. The Fourth Amendment issue was, as it still is, how the initial traffic confrontation proceeded to the point of the appellant’s lifting his shirt. As the evidence was fully developed and then argued before the suppression hearing judge, the doctrinal road not taken was the one mapped out by Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

It would have required the State to establish, en route, 1) reasonable articulable suspicion for the initial stop of the appellant, 2) compliance with the scope ⁶⁹² limitations of a Terry stop, 3) reasonable articulable suspicion that the appellant might be armed, and 4) compliance with the scope limitations of a Terry frisk. Although some of the testimony of the two deputies might have had, allusively, some bearing on one or more of those four requirements, the State eschewed any reliance on that constitutional theory and sought, instead, to establish that the appellant’s lifting of his shirt was a voluntary consensual act, free of any constitutional barnacles, an act done in a context wherein the Fourth Amendment did not even apply. That doctrinal route was followed by the suppression hearing judge, as he denied the appellant’s motion: I find there was a valid traffic stop for speeding, that Deputy Moro arrived as a back-up officer. He observed conduct on the part of the defendant causing concern about weapons.

That conduct is undisputed. It was also observed by Deputy Gerres. Deputy Moro asked the defendant if he had weapons, and the defendant said no. I don’t think there’s anything wrong with that question in the context of the situation.

I find that he asked the defendant if he would lift his shirt. The defendant voluntarily complied with that. The baggie was seen. So I find that there’s no illegal search.

Therefore, the motion to suppress mil be denied. (Emphasis supplied). Following the denial of his motion to suppress, the appellant was -tried by a jury and convicted. On his first appeal to this Court, he contended, inter alia, that his motion to suppress had been erroneously denied.

First Appeal to This Court This Court filed its unpublished opinion in the case of Epps v. State, No. 2342, September Term, 2006, on March 19, 2008 (“Epps I”). We reversed the suppression ruling. We remanded “the case to the circuit court for the limited purpose of determining whether the evidence seized as a result of the search should have been suppressed in light of’ Brendlin v. ⁶⁹³ California, 551 U.S. 249 , 127 S.Ct. 2400 , 168 L.Ed.2d 132 (2007). The only Fourth Amendment issue before this Court was, just as the only issue decided by the suppression hearing had been, whether the appellant’s lifting of his shirt was an act of voluntary consent.

In assessing the voluntariness of consent, the legal status of the person ostensibly giving such consent is a critical factor for the judge to consider. Is the individual totally free of any official restraint, as in a true mere accosting situation, so that the Fourth Amendment is completely inapplicable? Or is he subject to some official restraint (a Terry stop or an arrest)? If the latter, is it a reasonable and constitutional restraint or an unreasonable and unconstitutional one?

All other conditions being precisely the same, the constitutional status of the consenter can well be dispositive of the voluntariness of the consent. This Court spoke of the significance of the status factor in the voluntariness equation in Graham v. State, 146 Md.App. 327, 350-51 , 807 A.2d 75 (2002): A critical factor bearing on voluntariness is the legal status of the appellant as of the moment the consent was requested and ostensibly given. If the appellant either 1) was not subject to any Fourth Amendment detention of his person or 2) was subject to lawful detention, the voluntariness standard of Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), would apply. Florida v. Royer, 460 U.S. 491, 502 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983).

If, on the other hand, the appellant was being subjected to unlawful restraint, the ostensible consent would be the tainted fruit of that Fourth Amendment violation. United States v. Mendenhall, 446 U.S. 544, 558 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980) (“Because the search of the respondent’s person was not preceded by an impermissible seizure of her person, it cannot be contended that her apparent consent to the subsequent search was infected by an unlawful detention.”); United States v. Watson, 423 U.S. 411 , 96 S.Ct. 820 , 46 L.Ed.2d 598 (1976); Ferris v. State, 355 Md. 356, 373-84 , 735 A.2d 491 (1999). The ⁶⁹⁴ circumstances surrounding and preceding the ostensible granting of consent, therefore, loom large in our analysis. (Emphasis supplied).

Chief Judge Krauser’s opinion for the Court in Epps I operated on the assumption that the suppression hearing judge had deemed the appellant to be free of any Fourth Amendment restraint and involved, therefore, in nothing more than a mere accosting. See Swift v. State, 393 Md. 139 , 899 A.2d 867 (2006). Judge Krauser quoted from the ruling of the hearing judge in that regard: [The] Maryland Court of Appeals says [appellant was] free to get out of that car and go. We presume that everybody but the courts should know all the laws.

My recollection is the citizen is presumed to know all of the law. (Emphasis supplied). The Epps I opinion then drew a sharp distinction between 1) the appellant’s position that he had been seized within the contemplation of the Fourth Amendment and 2) the State’s position that the encounter did not even involve the Fourth Amendment. [A]ppellant contends that the circuit court erred in denying appellant’s motion to suppress because appellant was subject to Fourth Amendment seizure at the time that he complied with Deputy Morn’s “request” that he lift his shirt, rendering his compliance involuntary. In response, the State argues that appellant voluntarily complied with Deputy Moro’s request, and that the encounter was a “consensual non-constitutional event. ” (Emphasis supplied).

In addressing that distinction, Epps I quoted with approval from Perkins v. State, 83 Md.App. 341 345 , 574 A.2d 356 (1990), where this Court had earlier stated: In assessing voluntariness, it is necessary to be alert not only to heavy-handed and overtly coercive investigative techniques but also to “subtly coercive police questions” and to “the possibly vulnerable subjective state of the person who consented. ” ⁶⁹⁵ (Emphasis supplied). Whether the person being confronted by the police is or is not at that moment seized within the contemplation of the Fourth Amendment is a significant factor bearing on “the possibly vulnerable subjective state” of that person and on the consequential quality of any ostensible consent. 1 Between the suppression hearing of May 3, 2006, and our opinion in Epps I filed on March 19, 2008, the significant intervening event had been the promulgation by the Supreme Court of Brendlin v. California on June 18, 2007. That opinion was the catalyst for our decision in Epps I. Brendlin held squarely that when the police effect a traffic stop, a passenger in the stopped vehicle has been subjected to a Fourth Amendment seizure of the person just as surely as has the driver. See also Arizona v. Johnson, 555 U.S.-, 129 S.Ct. 781 , 172 L.Ed.2d 694 (2009).

Brendlin , therefore, clari ⁶⁹⁶ fied the constitutional status of the appellant in this case as of the moment he was requested (or directed) to lift his shirt. He had, indeed, been seized within the contemplation of the Fourth Amendment. He had not been merely accosted. Our opinion made it clear that the suppression hearing judge had originally determined to the contrary, to wit, that the appellant had not been subjected to any Fourth Amendment restraint as of the moment when the request was made.

At the suppression hearing, the circuit court, in considering whether appellant had, as a passenger in the vehicle, been seized by Deputies Gerres and Moro when he purportedly complied with Deputy Moro’s request, stated that the “Maryland Court of Appeals says [appellantj’s free to get out of that car and go,” and that “the citizen is presumed to know all of the law....” The court therefore did not consider the stopping of the vehicle in which appellant was a passenger and his consequential detention when it subsequently found that his consent to the search was voluntary and denied his motion to suppress. (Emphasis supplied). Judge Krauser emphatically stated that Brendlin v. California thus rendered that conclusion erroneous. But at that time, the circuit court did not have the benefit of the June 18, 2007, Supreme Court decision in Brendlin v. California, [ 551 U.S. 249 ] 127 S.Ct. 2400, 2405 [ 168 L.Ed.2d 132 ] (2007), which states that “a traffic stop subjects a passenger, as well as the driver, to Fourth Amendment seizure. ” (Emphasis supplied).

Accordingly, this case was remanded to the circuit court so that it could reconsider its ruling on the voluntariness of the ostensible consent, with the new factor in that analysis being that the appellant had, indeed, been seized within the contemplation of the Fourth Amendment when the police request for him to lift his shirt was made. Because appellant was a passenger in a vehicle that was stopped by Sheriffs deputies, he was, under Brendlin seized under the Fourth Amendment at that time. Consequently, ⁶⁹⁷ the court was in error when, in deciding whether appellant’s subsequent compliance with Deputy Moro’s request was voluntary, it discounted as a factor the Sheriffs’ stopping the vehicle in which appellant was traveling. We shall therefore remand this case to the circuit court without affirmance or reversal of the judgment appealed from so that its decision on appellant’s motion to suppress may be reconsidered in light of Brendlin.

In so ruling, we are not suggesting that the trial court reach any particular result. (Emphasis supplied). That altered status had a possible bearing on the voluntariness of the appellant’s response. The Second Suppression Hearing The suppression hearing on remand was held on January 21, 2009.

The judge announced that his task was “to reconsider my finding in light of the Supreme Court decision” in Brendlin v. California. All hands acquiesced as he stated, “I would assume I’m to use the record of the prior hearing” and “It’s purely a legal application of the law to that record.” He restated the earlier ruling that was then back on the table for reconsideration, “I made a finding ... that the defendant consented to raise his shirt, and so the question is whether or not that Supreme Court decision would cause me to take a different view of that issue of consent.” (Emphasis supplied). At that point, defense counsel seemed more alert to the possible advantage of circumscribing the proceedings than anyone else. He sensed the danger of suddenly shifting theories of justification and sought to preclude it. [DEFENSE COUNSEL]: Correct.

And just on consent. THE COURT: Right. [DEFENSE COUNSEL]: Okay. THE COURT: I take it we’re all on the same wavelength? [DEFENSE COUNSEL]: Yes, correct, Your Honor. (Emphasis supplied).

Just a moment earlier, defense counsel had underscored his understanding that the subject matter of the remand hearing ⁶⁹⁸ was to be tightly pinned down to the issue of voluntary consent. THE COURT: Okay, and so all we have today is argument? MR. DeSIMONE: Yes.

And just to clarify our understanding, our reading of the Court of Special Appeals is this is limited solely to the issue of consent, solely to the issue of consent for the search. THE COURT: Yeah, I made a finding. (Emphasis supplied). The hearing then proceeded in full accord with that general understanding of its purpose and scope.

Primary arguments and rebuttal arguments by both defense counsel and the prosecution all confined themselves to the issue of the voluntariness of the ostensible consent and to that issue alone. The hearing concluded with the court’s announcing that it would give the matter due consideration. A Significant Shifting of Gears When the court’s five-page Memorandum Opinion was filed on April 15, 2009, however, it did not deal with the voluntariness of the appellant’s consensual lifting of his shirt. The ruling was framed exclusively in terms of a totally different and unargued issue.

The court’s rationale had switched dramatically to stop-and-frisk law pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). Under that theory, justification for the stop was easy. There was also no problem with respect to the scope of the stop: Applying the holding of Brendlin to the subject case, Defendant Epps was seized at the time he had contact with the deputy sheriffs. No issue has been raised by the Defendant as to the validity of the stop and we concluded that the driver was stopped for speeding after his speed was checked by radar and that the stop was lawful.

(Emphasis supplied). The focus then turned to whether there had been justification for a Terry frisk, to wit, whether there had been a ⁶⁹⁹ reasonable articulable suspicion that the appellant might be armed. [W]e next turn to the issue of whether the Deputy Moro had reasonable suspicion to believe that Defendant might have a weapon concealed on his person. (Emphasis supplied). The court found that there was justification for a Terry frisk.

Both Deputy Geres and Deputy Moro described the movements that they observed Defendant making when they approached the vehicle and initiated contact with the occupants. Deputy Geres articulated on the witness stand that he thought Epps might have a weapon that he was concealing in the groin area. (Emphasis supplied). In terms of initiating a frisk, the court concluded: At that point, based on his and Deputy Gerres’s observations, we believe either officer had the right to order Epps out of the car and pat him down for a weapon.

(Emphasis supplied). The court then, of necessity, got creative in dealing with the permitted scope of the ensuing frisk. It reasoned that the lifting of the shirt was less intrusive than would have been a pat-down and that that characteristic satisfied the demands of the scope limitation. However, we do not believe that such a pat down would be the only recourse. ...

We believe that where the officers have focused on a particular part of the body where a weapon might be in the process of being secreted, it is less intrusive to ask the person to lift their shirt so that the area in question can be viewed than it is to get them out of the vehicle, have them spread their legs, put their hands on the roof or hood of the car and be subjected to a body pat down. Here, the area of concern was identified and an instruction to lift the shirt was less than intrusive than a body pat down. In Terry a pat down was used and on the facts of the case that was reasonable. Here, there was no need for ⁷⁰⁰ a full pat down because the area of concern was identified based on the observations of the officers.

(Emphasis supplied). We will defer for the moment any discussion, on the merits, of the scope of that Terry frisk, as we consider first the threshold question of the shift itself in the theory on which suppression was to be decided. Protesting the Switch of Constitutional Contexts Aggrieved at the unannounced shift in constitutional context, the appellant, not unexpectedly, cries, “Foul!” He protests that he was declared the loser of a game he was, in net effect, never invited to play. The first suppression hearing, the first appeal to this Court, and then the suppression hearing on remand had all focused on establishing the evidentiary predicate for and arguing the controlling caselaw on the issue of voluntary consent, initially in an apparent accosting situation beyond the pale of the Fourth Amendment and then, in the wake of Brendlin v. California, within the context of Fourth Amendment restraint.

In no event, the appellant insists, was he ever asked, expressly or implicitly, to argue the law of Terry v. Ohio. There was no occasion to argue, for instance, 1) that there was no adequate justification for a Terry frisk or 2) that the order to lift his shirt exceeded the permitted scope of a Terry frisk. The appellant, in effect, protests that the rules were changed after the game had been fully played and all that remained to be done was the posting of the final result on the scoreboard. Arguing for more than is necessary for him to prevail on this appeal, however, the appellant further insists that the deadline for introducing a new Fourth Amendment theory into the deliberations was by the end of the first suppression hearing of May 3, 2006.

He would tightly limit, by legal fiat, the second suppression hearing to a reargument of what would have been appropriate argument at the end of the first suppression hearing, save only for the addition of Brendlin v. California to the discussional mix. We do not agree that the ⁷⁰¹ second suppression hearing was so rigidly circumscribed, for that would be rank gamesmanship. On remand, the issue was still the broad question of whether the search of the appellant was reasonable within the contemplation of the Fourth Amendment. The only limitation on considering a new Fourth Amendment theory of justification was that of fairness to the parties, making certain that they had full opportunity to present testimony bearing on the new theory and then to argue the merits of that theory.

The State could properly have indicated that it intended to argue stop-and-frisk law at the hearing on remand. It did not, however, do so. The court, before or during the hearing, could have asked the parties to address Terry v. Ohio. It did not, however, do so.

Even at the eleventh hour, after the second hearing had adjourned but before the ruling was announced, we do not believe that the court would have been precluded from reconvening the hearing and requesting the parties to argue (and perhaps to present additional testimony with respect to) an additional Fourth Amendment theory. It did not, however, do so. Doctrinal flexibility is to be desired, so long as it does not work unfairness on the parties to the debate. In net effect, the second suppression hearing was as tightly limited as the appellant wished it to be, but only because that was the way that events played out and not because of any preordained procedural dictate.

Controlling the Agenda At the other end of the continuum, the State insists that the appellant was free to raise and argue any Fourth Amendment theory he wished and that it was he himself who failed, at his peril, to go beyond the consent issue. That, however, is not true. The State ignores the allocation of the burden of proof. In this case, it was the State that dictated the agenda and the appellant’s only duty was to respond to the propositions actually advanced by the State.

As the proponent of the motion to suppress the physical evidence, it was, of course, the appellant who bore the initial burdens of both production and persuasion. It was the appel ⁷⁰² lant who, per his motion, chose the Fourth Amendment as the field on which to do battle. It was the appellant, moreover, who had then to show that he enjoyed a Fourth Amendment coverage in the first instance and that a search and/or seizure occurred in ostensible violation of that protection. In Herbert v. State, 136 Md.App. 458, 481-82 , 766 A.2d 190 (2001), this Court clearly laid out this allocation of the initial burden.

As a general rule, the moving party on any proposition, civil or criminal, has both the burden of production and the burden of persuasion. It is the moving party who attempts tó persuade a judge somehow to alter the status quo. In a criminal trial, the status quo — the norm — is that evidence of a defendant’s guilt that is relevant, material, and competent will be admitted. It is the defendant who seeks to alter that status quo — who seeks a departure from that norm — when he seeks to exclude relevant, material, and competent evidence of guilt in order to serve some extrinsic purpose, such as deferring the police from future unreasonable searches and seizures.

Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). To the moving party is allocated the burden of making the case for such an alteration of the status quo — for such a departure from the norm. (Emphasis supplied). See also Duncan and Smith v. State, 27 Md.App. 302, 304-05 , 340 A.2d 722 (1975); Graham v. State, 146 Md.App. 327, 346-47 , 807 A.2d 75 (2002).

At that initial stage of a suppression hearing, it is the State that enjoys the luxury of not having to do anything. It may respond to the defense if it chooses to do so, but it is under no such obligation. Herbert v. State, 136 Md.App. at 484 , 766 A.2d 190 , went on to explain: The State, though it may choose to react to such an effort, is not required to do anything. It does not automatically assume any risk of non-production or of non-persuasion.

It is entitled to be an interested but completely passive party to such a proceeding. It is the defendant who must ⁷⁰³ make a case for the suppression of evidence. The State is 'not required to make a case for the non-suppression of evidence. If a judge should convene a suppression hearing and if both parties should rest without saying a word, the State would win that nothing-to-nothing tie.

More precisely stated, the defendant would lose the nothing-to~nothing tie. Duncan and Smith v. State, 27 Md.App. at 317 , 340 A.2d 722 . (Emphasis supplied). Once the hearing on such a motion progresses into the merits of the Fourth Amendment, however, there is a possibility that the allocation of the burdens may shift.

Should it develop that the search in issue was pursuant to a judicially issued warrant, on the one hand, the burdens will remain firmly fixed on the defendant to show that the search was unreasonable. Duncan and Smith v. State, 27 Md.App. at 304-05 , 340 A.2d 722 , made the point: When the police execute a search under authority of a facially adequate warrant, it is presumptively good and, the burden is upon the defendant to establish its invalidity. Where the evidence is inconclusive in this regard, the State wins. United States v. Ventresca, 380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964); Alderman v. United States, supra [ 394 U.S. 165 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1969) ]; Hignut v. State, 17 Md.App. 399, 408-410 , 303 A.2d 173 .

(Emphasis supplied). The Burden Shifted to the State Once it is established, however, as it was in this case, that the search in issue was warrantless, a tectonic shift occurs in the allocation of the burdens. The respective roles of the State and of the defense are procedurally and dramatically reversed. Herbert v. State, 136 Md.App. at 485 , 766 A.2d 190 , discussed the shifting of allocation. ⁷⁰⁴ Although the initial burden of production (of going forward) is always on the defendant, there are circumstances with respect to the Fourth Amendment merits which, if established, may trigger an evidentiary presumption that operates to shift the burdens of both production and persuasion.

The very possibility of such a shift is a direct consequence of the Supreme Court’s strong preference for searches and seizures pursuant to judicially approved warrants over warrantless searches and seizures. (Emphasis supplied). Where, as in this case, the search in issue was warrant-less, the burden of justifying such a warrantless search shifts to the State. Duncan and Smith explained: Where, ... the defendant establishes initially that the police proceeded warrantlessly, the burden shifts to the State to establish that strong justification existed for proceeding under one of the “jealously and carefully drawn” exceptions to the warrant requirement.

Where the evidence is inconclusive in this regard, the defendant wins. 27 Md.App. at 305 , 340 A.2d 722 (emphasis supplied). Graham v. State, 146 Md.App. at 349 , 807 A.2d 75 , was emphatic in this regard: When the State’s investigation, for whatever reason, follows the disfavored warrantless route, on the other hand, the procedural ball ends up in the State’s court. The State assumes the burden of overcoming the presumption of invalidity by demonstrating, by however many steps are necessary, that the warrantless search satisfied one of the firmly established exceptions to the warrant requirement. In such a posture, it is the State that loses the tie.

(Emphasis supplied). If at the suppression hearing in this case neither the State nor the appellant had said a word, the State would have lost because it would have failed to satisfy its allocated burden of overcoming the presumptive invalidity of the warrantless search of the appellant. The evidence would have been suppressed. There was no burden on the appellant to say or to ⁷⁰⁵ do anything.

The State sought, however, in the words of Graham v. State, to show that “the warrantless search satisfied one of the firmly established exceptions to the warrant requirement.” It is not enough that some of the evidence might arguably have alluded to a variety of Fourth Amendment theories. In justifying a presumptively invalid warrant-less search, it is for the State to “call the suit.” It could have advanced, in the alternative, more than one theory, but did not. The State chose to go with voluntary consent alone. The appellant responded in kind, arguing that the ostensible consent was not voluntary.

Under no circumstance would it have been appropriate, and certainly not necessary, for the appellant to raise in a vacuum and then attempt to refute any or all of a wide variety of other possible theories of justification that were not raised either by the