Freeman v. State

Freddy Freeman v. State, No. 2150 of the 2019 Term, Opinion by Moylan, J. HEADNOTE: DISTRIBUTION OF NARCOTICS – SUPPRESSION HEARING – THE CONTENTIONS – PROBABLE CAUSE AS A TOTALITY OF THE CIRCUMSTANCES – A FACET: PLACE AS AN ASPECT OF PROBABLE CAUSE – THE SIGNIFICANCE OF PLACE AND TIME IN THIS CASE – “THIS SPIRIT, DUMB TO US, WILL SPEAK TO HIM” – THE WELL-TRAINED EYES OF THE BEHOLDERS IN THIS CASE – WHAT THE EYES OF THE BEHOLDERS BEHELD – TWO FACETS: NEITHER FOOD NOR DRINK NOR MEANINGFUL SOCIAL CONTACT – ANOTHER TWO FACETS: POSITION NEAR THE BATHROOM PLUS VIGILANT SURVEILLANCE AND COUNTERSURVEILLANCE – ANOTHER FACET: THE SECRET HANDSHAKE AS THE MODALITY OF DISTRIBUTION – ANOTHER FACET: A VENDOR IMPLIES A VENDEE – ARREST OF JOSHUA WYATT – ARREST OF THE APPELLANT – ISSUE BEFORE JUDGE STORM: PROBABLE CAUSE – THE BURDEN OF PERSUASION IS LESS THAN A PREPONDERENCE OF THE EVIDENCE – IF IT LOOKS LIKE A DUCK AND WALKS LIKE A DUCK AND QUACKS LIKE A DUCK – A CHOICE OF INFERENCES: SELLING DRUGS OR WAITING FOR GODOT – THAT VERSION OF THE EVIDENCE MOST FAVORABLE TO THE STATE – E PLURIBUS UNUM – CONCLUSION Circuit Court for Montgomery County Case No. 135700C REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2150 September Term, 2019 _____________________________________ FREDDY FREEMAN V. STATE OF MARYLAND Fader, C.J., Zic, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Moylan, J. _____________________________________ Pursuant to Maryland Uniform Electronic Legal Materials Act Filed: January 28, 2021 (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2021-01-28 13:23-05:00 Suzanne C. Johnson, Clerk In State v. Johnson, 458 Md. 519, 534 , 183 A.3d 119 (2018), Chief Judge Barbera spoke of “[t]he obligation to review a probable cause determination in light of the totality of the circumstances.” (Emphasis supplied.) In Maryland v. Pringle, 540 U.S. 366, 371 , 124 S. Ct. 795 , 157 L.Ed.2d 769 (2003), Chief Justice Rehnquist addressed the same “totality”: The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. (Emphasis supplied.) This appeal provides a textbook example of how the caselaw on that “totality of the circumstances” measurement, Maryland and national, applies to the specific question of whether probable cause exists to believe that a suspect is engaging in the crime of distributing contraband narcotic drugs.

As the word “totality” implies, the phenomenon is multi-faceted. This appeal invites us to examine closely seven or eight of the most prominent of those facets. One such facet is the place where and time when the arguably suspicious behavior occurs. A major facet is the training and experience of the investigative eye through which the behavior is observed and evaluated and focuses on what that behavior might reveal to such a trained eye that might not be revealed to the untrained observer.

The most dominant facet is, of course, the suspicious behavior itself. There is then the standard of review that the suppression hearing court will apply initially to the issue of probable cause. There is finally the standard of review by which the appellate court will assess the assessment of the suppression hearing court. As a pedagogical exercise, we will examine closely, circumstance by circumstance, each entry into the ultimate totality of circumstances.

With that empirical data then before us, we will attempt to frame a working hypothesis or to pose a permitted inference to explain the totality. The Case Before Us The appellant, Freddy Freeman, was convicted in the Circuit Court for Montgomery County by Judge James A. Bonifant, sitting without a jury, of 1) the distribution of cocaine and 2) the possession of cocaine with the intent to distribute it. At a pre-trial suppression hearing before Judge Harry C. Storm, the appellant sought to suppress the narcotic drugs found on his person by the police on the ground that they had been unconstitutionally seized as an incident of his unlawful arrest. His specific claim was that there was no probable cause to support the warrantless arrest.

After appellant was convicted, this appeal timely followed. The Contentions On appeal, the appellant raises two ostensible contentions: 1) Judge Storm erroneously denied his motion to suppress the physical evidence because of his erroneous ruling that there was probable cause to support the warrantless arrest; and 2) The evidence at trial was legally insufficient to support the guilty verdict. The first contention is squarely before us and we will deal with it at length. In referring to the contentions generally, we used the adjective “ostensible” deliberately because the second contention is no more than ostensible.

(“Contingent” might have been a better adjective.) The appellant therein does not challenge the sufficiency of the trial 2 evidence as an absolute. He claims only, contingently, that if he were to prevail on his first contention, the remaining evidence would not be sufficient to support his conviction. If the appellant does not prevail on his first contention, however, his second contention will be moot. Accordingly, we will only address it if the appellant prevails on his first contention.

It is the first contention, therefore, that is now before us, and it may turn out to be the only contention before us. Probable Cause As A Totality Of The Circumstances An appropriate place to begin will be with a brief look at probable cause generally. Because it is the critical fulcrum on which Fourth Amendment reasonableness hinges, the Supreme Court caselaw is the indisputable touchstone. Brinegar v. United States, 338 U.S. 160, 175 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949) has long been the classic definition: In dealing with probable cause, however, as the very name implies, we deal with probabilities.

These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. And this means less than evidence which would justify condemnation or conviction, as Marshall, C.J., said for the Court more than a century ago in Locke v. United States.

Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where the facts and circumstances within their (the officers’) knowledge and of which they had reasonable trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. (Emphasis supplied.) 3 In Ornelas v. United States, 517 U.S. 690, 695-96 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996), the Supreme Court eschewed any effort to define probable cause too tightly or rigidly: Articulating precisely what “reasonable suspicion” and “probable cause” mean is not possible. They are commonsense, nontechnical conceptions that deal with “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” As such, the standards are “not readily, or even usefully, reduced to a neat set of legal rules.” We have described…probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found. (Emphasis supplied.) The Maryland Court of Appeals has similarly described the phenomenon of probable cause in State v. Johnson, 458 Md. 519, 535 , 183 A.3d 119 (2018): Probable cause “exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Probable cause is “a fluid concept incapable of precise definition or quantification into percentages because it deals with probabilities and depends largely on the totality of the circumstances.” (Emphasis supplied.) In Jackson v. State, 81 Md. App. 687, 692 , 569 A.2d 712 (1990), Judge Alpert wrote for this Court: Probable cause exists where the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

A Facet: Place As An Aspect Of Probable Cause As we narrow our focus from probable cause generally to probable cause specifically to believe that the suspect is engaging in the distribution of narcotic drugs, a 4 critical facet will be the place where and/or the time when the suspected distribution occurs. In Illinois v. Wardlow, 528 U.S. 119, 124 , 120 S.Ct. 673 , 145 L.Ed.2d 570 (2000), Chief Justice Rehnquist wrote for the Supreme Court in stressing the significance of place as a contributing factor to the totality of suspicion: An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among the relevant contextual considerations in a Terry analysis.

(Emphasis supplied.) And see Adams v. Williams, 407 U.S. 143, 144, 147-48 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972). The evidentiary precept we are here examining was tersely stated by Judge Hollander for this Court in Williams v. State, 188 Md. App. 78, 92 , 981 A.2d 46 (2009): [T]he geographic location of an incident is relevant to the determination of probable cause. In Crosby v. State, 408 Md. 490, 508 , 970 A.2d 894 (2009), (quoting from United States v. Branch, 537 F.3d 328, 336 (2008)), the Court of Appeals cited with approval the United States Court of Appeals for the Fourth Circuit: As recently articulated by the Fourth Circuit, “context matters: actions that may appear innocuous at a certain time or in a certain place may very well serve as a harbinger of criminal activity under different circumstances.” In making its assessment, the court should give due deference to the training and experience of the law enforcement officer who engaged the stop as issue. (Emphasis supplied.) Indeed, context matters. 5 In Allen v. State, 85 Md. App. 657, 667-68 , 584 A.2d 1279 , cert. denied, 323 Md. 1 , 590 A.2d 158 (1991), this Court referred to the same geographic criterion for assessing probable cause: Although not dispositive in and of itself, the fact that the Homewood and Biddle area was well known to the officers as notorious for its drug activities, shootings, and homicides is a factor that may be considered in the totality of the circumstances.

(Emphasis supplied.) See also Jackson v. State, 81 Md. App. 687, 693 , 569 A.2d. 712 (1990) (“The area itself, which was known as a high crime area, further supports the determination that probable cause existed.”); Timms v. State, 83 Md. App. 12, 23 , 573 A.2d 397 (1990) (“Here, in addition to the early morning hour, the police also knew the nature of the area and the fact that B&E calls were a frequent occurrence.”); United States v. Green, 670 F.2d 1148, 1152 (D.C.Cir.1981) (recognizing that the geographical area is valid consideration in probable cause determinations); Commonwealth v. Kennedy, 426 Mass. 703 , 690 N.E.2d 436 , 438-39 & n. 2 (1998) (finding probable cause for arrest based on observations and experience of police officer who saw exchange of small object from waistband for money, furtive movements of participants, in high crime area). An analogy to the familiar world of baseball may help to make undeniably clear the significance of both where and when suspicious behavior takes place to the probable cause equation. Posit a suspected conspiracy between the third base coach for the Baltimore Orioles and certain unnamed base runners in a plot to steal third base. The conspirators have developed a sophisticated code whereby the criminal meeting of the minds need never be expressed in words, oral or written, but only communicated by seemingly innocuous physical actions or gestures.

For the coach to scratch his right ear sets the plan to steal third 6 base into immediate action. The ordinary layman, even one watching intently every aspect of the game, would not be able to detect it. The investigators, as inevitably happens, have, however, broken the conspirators’ code. Even so, time and place are still vitally important.

An observation of the coach scratching his right ear at Oriole Park in the bottom of the fourth inning will have a significance for the trained eye that the same scratching of the same right ear would completely lack if the coach were standing in line at the bank on the following morning. Time and place are significant aspects of probable cause. A tell-tale factor in Setting A may be completely innocuous in Setting B. If, on the other hand, we were dealing with a plot to rob the bank instead of a plot to steal third base, the innocuous setting might turn more sinister. The Significance Of Place And Time In This Case The entire probable cause scenario in this case took place on the evening of April 16, 2019 in the Cordell Avenue area of Bethesda, Maryland.

The time was between 10:30 P.M. and 12:15 A.M. The two experienced police officers (of whom more anon) described the Cordell Avenue area as a high crime area known for the distribution of narcotic drugs. Officer Michael Schmidt testified: Cordell Avenue, which is, which is right downtown, has a lot of bars and restaurants on there, where we’ve been getting information on certain restaurants or bars that you can go into and readily have cocaine available. (Emphasis supplied.) The Cordell Avenue area drug distribution activity centered on four bars, all in the same block and all on the same side of the street. Officer Schmidt went on: 7 Q And have you received names through your investigations of arrestees and/or informants as to what bars your focus may want to be on?

A Yeah. There’s specific ones, Harp & Fiddle, Smoke BBQ, MOMO’s Chicken, and Brickside, which are all coincidentally on the same side of the block with each other. (Emphasis supplied.) The activity of the appellant that evening occurred in two of those bars – MOMO’s Chicken and Harp & Fiddle. The observation of him by the two undercover officers began at about 10:15 P.M. and lasted for approximately two and one-half hours.

Officer Schmidt described the appellant as moving from one bar to the other: Q So during your surveillance of this individual, did you assume a position at any location? A Yeah. So the, the defendant would go back and forth between MOMO’s Chicken and Harp & Fiddle, which are within – they’re on the same block, within walking distance of each other. So he left MOMO’s at one point and walked into Harp & Fiddle and was only there for a short amount of time.

So myself and another officer just basically posted up inside of Harp & Fiddle at that point with the hopes that he might come back at some point. (Emphasis supplied.) It was at approximately 12:15 A.M., shortly after the arrest of an apparent customer of the appellant as he walked out of the Harp & Fiddle, that the appellant was arrested sitting at the bar in the Harp & Fiddle. Out of the appellant’s left front pants pocket the police retrieved $793 in cash. A strip search at the station house produced from the appellant’s groin area 27 small baggies of what was later determined to be cocaine.

This brief description of the place and time of the appellant’s warrantless arrest is but a single tessera of what will be the larger mosaic of probable cause. It does, however, 8 set the geographic scene. In making his ruling on probable cause at the suppression hearing, Judge Storm expressly found that this specific aspect or facet of probable cause was present as part of a larger totality: Officer Schmidt testified to drug trafficking – well, actually both officers testified to drug trafficking in the Bethesda area and the Cordell Avenue corridor and in the restaurants in that, on that street, and that has been identified as a, a drug trafficking area. (Emphasis supplied.) “This Spirit, Dumb To Us, Will Speak To Him” 1 Just as beauty is artistically in the eye of the beholder, probable cause is investigatively in the eye of the trained beholder.

The eye of the beholder is a critical facet of probable cause. In Ornelas v. United States, 517 U.S. 690, 700 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996), the Supreme Court stressed the importance of the investigator’s training and experience to the probable cause equation: [O]ur cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists. To a layman the sort of loose panel below the back seat armrest in the automobile involved in this case may suggest only wear and tear, but to Officer Luedke, who had searched roughly 2,000 cars for narcotics, it suggested that drugs may be secreted inside the panel. An appeals court should give due weight to a trial court’s finding that the officer was credible and the inference was reasonable.

(Emphasis supplied.) In United States v. Cortez, 449 U.S. 411, 418 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981), Chief Justice Burger wrote for the Supreme Court in pointing out that “those versed in the 1 Shakespeare, Hamlet, Act 1, Scene 1. Upon the rampart at Elsinore. 9 field of law enforcement” can attest to inculpatory facts “that might well elude an untrained person.” [A] trained officer draws inferences and makes deductions – inferences and deductions that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same – and so are law enforcement officers.

Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. (Emphasis supplied.) See also United States v. Arvizu, 534 U.S. 266, 277 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002) (“Having considered the totality of the circumstances and given due weight to the factual inferences drawn by the law enforcement officer,” the Supreme Court affirmed the convictions.) (Emphasis supplied.) The first-level facts that are observed do not constitute, in their own right, some immutable monolith that either is or is not probable cause. That is because the totality of the circumstances includes not simply the thing beheld, as a video camera might record it. It also includes, as a significant factor in and of itself, the training and the expertise of the beholder in being able to understand and to appreciate the significance of what is beheld.

It is a two-step process. It includes not only the visual phenomenon of seeing something but also, significantly, the intellectual phenomenon of understanding what has been seen. The eye of the beholder implicates the brain of the beholder. To return to our analogy about the third-base coach and the larcenous base runners, the defense attorney might vociferously protest, “Your Honor, that is outrageous.

All my client did was to touch his 10 ear.” The State, however, may respond, “Oh no, that is not all he did. He signaled to the runner to steal third base.” Beholding means more than simply seeing. In recognizing both the pertinence and the weight properly afforded to the specialized training and the years of experience that go into the investigative eye of the professional beholder, Maryland has faithfully echoed the Supreme Court. Judge Wilner wrote for the Court of Appeals in Ransome v. State, 373 Md. 99, 111 , 816 A.2d 901 (2003), in recognizing the value of this special interpretive skill: We understand that conduct that would seem innocent to an average layperson may properly be regarded as suspicious by a trained or experienced officer, but if the officer seeks to justify a Fourth Amendment intrusion based on that conduct, the officer ordinarily must offer some explanation of why he or she regarded the conduct as suspicious; otherwise, there is no ability to review the officer’s action.

(Emphasis supplied.) In Crosby v. State, 408 Md. 490, 508 , 970 A.2d 894 (2009), 2 the Court of Appeals similarly pointed out: 2 In analyzing the logical relevance of various facets of this multi-faceted thing called probable cause, the fact that some of the cases cited dealt with “reasonable suspicion” pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) rather than with probable cause directly is of no consequence. Both reasonable suspicion and probable cause move in the same direction along the same continuum of mounting suspicion. The only difference between them is quantitative. They share their relevance to the mounting suspicion, in either amount.

The court’s reliance on the special training and experience of the trained investigators is a common denominator when dealing with either reasonable suspicion or probable cause. In Ornelas v. United States, 517 U.S. 690, 696 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996), the Supreme Court noted the absolute similarity of the inculpatory characteristics being looked for in assessing both reasonable suspicion and probable cause. The only difference is quantitative. “The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an 11 In making its assessment, the court should give due deference to the training and experience of the law enforcement officer who engaged the stop at issue. Such deference allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.

(Emphasis supplied.) In Williams v. State, 188 Md. App. 78, 92 , 981 A.2d 46 (2009), Judge Hollander wrote for this Court: Notably, experience and special knowledge of police officers may be considered in determining probable cause. Indeed, considerable credit can be given to the expertise of law enforcement officers in conducting investigations into illegal drug activity. Accordingly, as the court below recognized, Detective Green’s training and experience in street level distribution of illegal drugs were relevant to the court’s determination of whether Green had probable cause to believe that the hand-to-hand transaction he observed was evidence of the commission of a crime. (Emphasis supplied.) See also Longshore v. State, 399 Md. 486, 534 , 924 A.2d 1129 (2007); Birchead v. State, 317 Md. 691, 703 , 566 A.2d 488 (1989).

The Well-Trained Eyes Of The Beholders In This Case Actually, there were two beholders in this case. Officer Neal Bumgarner and Officer Michael Schmidt were both members of the Montgomery County Police Special Assignment Team who were, along with six other members of the team, assigned to surveil the appellant in the Cordell Avenue corridor on April 16, 2019. It was Officer Bumgarner who conducted most of the surveillance inside MOMO’s restaurant. He had been a member of the Montgomery County Police Department for 12 objectively reasonable police officer, amount to reasonable suspicion or probable cause.” (Emphasis supplied.) 12 years and a member of the Special Assignment Team for eight years.

He described his training with respect to street-level drug transactions and drug distribution: A In 2007 I went through the police academy at which point I was, had a 40- hour block of basic drug identification class as far as identifying drugs. After that, in 2010 I went to a training class put on by our narcotics section that focuses, focused on drug interdiction as well as hiding places and storage locations on vehicles. Then in 2015 I attended the MAGLOCLEN Narcotics Investigators Conference, which was a 40-hour weeklong conference, and then again in 2018 I attended that same conference again. Q And what did that training include with regards to illegal drug activity and/or drug distribution at the street level?

A It included drug identification, tactics on how to investigate drug transactions, specific indicators and markers for drug activity and drug transactions. (Emphasis supplied.) While Officer Bumgarner was stationed at MOMO’s on the night of April 16, Officer Schmidt was stationed at the Harp & Fiddle. He had been with the Montgomery County Police Department for 14 years and with the Special Assignment Team for five years. Officer Schmidt estimated that he had been involved in arrests for drug transactions in thousands of cases: Q And how many arrests would you indicate you have been involved in that involve CDS distribution and CDS drug transactions?

A I would say thousands. I can’t put a number on it, but it’s a lot. Q And with regards to those bars and that area specifically, what is your primary focus? A Just looking for drug deals that happen inside of bars or right outside of bars or restaurants, depending on what the establishment is.

(Emphasis supplied.) 13 Officer Bumgarner and Officer Schmidt were the only witnesses to testify at the suppression hearing. The appellant did not testify nor did he offer any witness or other evidence. Judge Storm found specifically, “I do find both Officer Schmidt and Bumgarner to be credible.” He further found, with respect to their special training and expertise, “Here we have two highly trained officers who testified. They’re trained to recognize drug transactions in general, including hand-to-hand drug transactions in particular.” For defense counsel to protest, therefore, that the appellant was observed in nothing but innocent and innocuous behavior is a stretch.

That may be the way his behavior would have appeared to an untrained John Q. Public, but John Q. Public was not investigating this case. The question that Judge Storm had to answer was not whether there would have been probable cause in the eye of an untrained layman, but whether there was probable cause in the eyes of Officer Schmidt and Officer Bumgarner. Those trained narcotics investigators observed the appellant engaging in what they recognized to be the unlawful distribution of narcotic drugs. They explained to Judge Storm in detail, moreover, their basis for that belief.

Underworld behavior can be elaborately encoded for the obvious purpose of avoiding disclosure. The job of the trained investigator is to penetrate that underworld and to learn to decode the behavior that has been encoded. In this ongoing cold war between offense and defense, both the tactics of the criminal and the counter-tactics of the criminal investigator become increasingly skilled and sophisticated. As the behavior described in this opinion vividly illustrates, communication is encrypted in the underworld in a secret 14 language of camouflaged behavior.

Criminal encryption, however, is inevitably followed by investigative decryption. The trained investigator has the further obligation to make known to the suppression hearing judge not only the surface meaning of the disguised communication but the actual meaning of the decrypted communication. The investigator, of course, also needs to explain to the judge the basis for his ability to decrypt. What The Eyes Of The Beholders Beheld An important facet of probable cause in this case was the behavior of the appellant in the hours immediately preceding his arrest.

As we turn our focus on it, it is critically important to remember that the story must never be divorced from the storyteller. From precisely the same predicate facts, two different storytellers can, quite legitimately, tell two different stories. Whereas the untrained eye can see only a third-base coach scratching his ear, the trained and veteran observer sees him signaling the runner to steal third base. This is not idle conjecture on his part.

He has seen it hundreds of times before. Our two witnesses in this case were trained and veteran observers, and we must look, as Judge Storm chose to look, at the appellant’s behavior through their eyes. During the late evening of April 16, 2019, first under the eye of Officer Bumgarner at MOMO’s and then under the eye of Officer Schmidt at the Harp & Fiddle, the appellant, albeit not directly observed to engage in the sale of narcotics, exhibited many of the tell- tale characteristics of a drug dealer. Those characteristics might not even have registered with an untutored layman.

They spoke volumes, however, to Officer Bumgarner and Officer Schmidt. The ultimate issue, of course, is whether they had probable cause, and not whether someone less highly trained would have had probable cause. The issue is not what 15 “a lantern aloft in the belfry arch of the North Church tower” would have meant to anyone else but what it meant to Paul Revere. A. Two Facets: Neither Food Nor Drink Nor Meaningful Social Contact Officer Bumgarner picked up the surveillance of the appellant at approximately 10 P.M. in MOMO’s.

The appellant was sitting alone at the bar: The defendant was in MOMO’s, sitting with his back to the front door, and he was leaning right up against the exterior wall of the building. He didn’t have any alcoholic drinks, no food in front of him at the time, and he was just looking at his phone. (Emphasis supplied.) The appellant was at MOMO’s from approximately 10 P.M. to approximately 12:15 A.M., except for a quick trip to the Harp & Fiddle followed by an almost immediate return to MOMO’s. At about 12:15 A.M., however, the appellant moved his operation (whatever it was) to the Harp & Fiddle.

Officer Schmidt picked up the surveillance at that point. Once again, the appellant did not partake of anything to eat or anything to drink. Nor did he engage in any meaningful social contact with anyone. Officer Schmidt testified: Q And at any point at the Harp & Fiddle, did the defendant sit at the bar and drink – buy any drinks or food, to your knowledge?

A The time I was there, witnessing the, the CDS transaction, there was nothing bought, no food, no drink. Q And was anyone physically with him at all, like sitting with him and chatting with him? A No. No, ma’am. (Emphasis supplied.) 16 There is nothing overtly criminal, of course, about sitting at a bar, even for several hours, without eating or drinking anything.

It may be strange, but it is not criminal. There is nothing overtly criminal about not engaging in conversation with anyone at the bar or in not joining a group of acquaintances at a nearby table. To the trained eye, however, it may be a tell-tale characteristic of someone who is engaged in criminal behavior. Officer Bumgarner explained that a drug dealer will typically not socialize, when on duty, with other patrons: Q And with that, based on your knowledge, training and experience, would a drug dealer who’s sitting in a bar, ready to sell drugs, be sitting with a bunch of people like you would at a bar, drinking – A So typically, yeah – Q – and eating and all of that?

A – typically, a drug dealer who is in a bar will, if they’re specifically there to deal drugs and – they are there to just deal drugs. They are not there to converse with other people. They are there to focus on their business. They’re there to partake in just the, the dealings of their drug transactions and not there to enjoy the social aspect of the bar.

Q So will they be there with a group of people? A Typically not. Q Will they be there with even one additional person, just sitting at a bar? A Sometimes they will, they’ll be by themselves.

More often than not they’ll be there by themselves. They’ll keep their socialization to a minimum with other people so that way they can focus on what they’re doing. (Emphasis supplied.) Officer Bumgarner went on to explain that a drug dealer, in a bar to sell drugs, will typically not be eating or drinking: 17 Q Do you find that they will be drinking alcohol? A More times not because of the fact that they need their wherewithal to be able to count their money and to be able to conduct their drug transaction or their discreet hand-to-hands without being interrupted with the alcohol.

Q And would you find that they are eating food and having meals in a bar or restaurant in the normal course? A Sometimes they will be eating food, but again, they, you know, are focused on what they’re doing, at their task at hand if they’re a, you know, successful drug dealer. Q And would it, would you – would it draw your attention if somebody is alone sitting at a bar and not drinking and not eating? A Absolutely.

(Emphasis supplied.) It obviously meant something to Officer Bumgarner. B. Another Two Facets: Position Near The Bathroom