Graham v. State

MOYLAN, Judge. Although the transcript of the suppression hearing, which is all we are going to look at on this appeal, is, from the formality of the introductions to the rendition of the judge’s ruling, a bare forty pages in length, and although the testimony of a single police officer, which is all we are going to evaluate (and, indeed, all that we, if properly disciplined, are ³³⁷ entitled to evaluate), is confined within seventeen of those pages, the appeal presents us with a bountiful smorgasbord of closely intertwined Fourth Amendment issues. Involved are such items as 1) determining the proper factual context for appellate review of a suppression ruling; 2) the allocation of the burden of proof with respect to the reasonableness of a warrantless search or seizure; 3) a mere accosting versus an unconstitutional seizure of the person as the context for evaluating a question of subsequent consent; 4) the true Fourth Amendment significance of a “frisk” or pat-down; 5) the required justification for a Terry-frisk; 6) the dubious notion of a consensual pat-down; 7) the “fruit of the poisonous tree” doctrine'; 8) the attenuation of taint; 9) both the voluntariness and the scope of an ostensibly consensual automobile search; and 10), perhaps most significantly, the pro’s and con’s of “the field interview” as a constitutional term of art. Out of this series of interdependent Fourth Amendment sub-analyses, there emerges with unmistakable clarity a picture of a police procedure that is, at least as employed in this case, a wolf in sheep’s clothing.

The innocuous surface trappings are all those of a mere accosting, something long sanctioned by the Supreme Court as an everyday occurrence that does not even catch the eye of the Fourth Amendment. The underlying reality, however, is a borderline investigative procedure whereby the police seek to enjoy the full Fourth Amendment benefits of both a Terry-stop and a Terry-frisk without paying the attendant Fourth Amendment dues. Contributing to the camouflaging process is the linguistic recasting of an accosting into something called the “field interview.” Behind that reassuring mask, however, frequently lurks what is, in actuality, a stop-and-frisk. A stop-and-frisk by any other name is still a stop-and-frisk.

The Present Case The appellant, Robert Graham, was convicted in a non-jury trial in the Circuit Court for Baltimore City of the possession of cocaine with the intent to distribute it. His single appellate ³³⁸ contention is that the trial judge erroneously failed to grant his pretrial motion to suppress the fruits of an unconstitutional search and seizure. Selecting the Appropriate Appellate Story Line Before launching into a statement of background facts, it behooves us to make a conscious decision as to what sort of a drift we want those facts to take. At the very least, we probably have a choice of factual narratives that are 1) State-biased, 2) defense-biased, or 3) neutral.

Contrary to the instinctive assumption, “neutral” may be, for most appellate purposes, the least desirable choice. An explanatory observation would seem to be in order. A perennial problem for appellate lawyers and appellate judges alike is that of constructing an appropriate version of the facts of a case. The subtle problem is that, except for a case that has proceeded on an agreed statement of facts, there is no version of the facts that is necessarily appropriate for all purposes.

As with the classic Japanese film “Rashamen,” there are almost always widely varying accounts of what happened out there on the street or out there in the forest, and one version is not to be preferred over another until we know the purpose for which the selection must be made. Which version should be pulled from the shelf on a particular occasion depends on what we are going to use it for. In a criminal case, there are almost always no less than three versions of what happened. Subject only to the limitation that there must be some minimal support by way of admissible evidence, there is 1) an extreme version most favorable to the defendant; 2) an extreme version most favorable to the State; and 3) at some intermediate point between those two extremes, a more likely version of what probably really happened.

Ironically, that third version — the attempt to approximate ultimate truth — is, generally if not universally speaking, not appropriate grist for the appellate mill. It is the subject matter of persuasion, as a matter of fact, and not of produc ³³⁹ tion, as a matter of law. It is the exclusive province of the fact finders, a province wherein appellate courts do not enter, but only patrol the borders. It is the broad playing field whereon the resolution of factual questions may take unpredictable bounces and where appellate referees do not presume to second-guess those bounces.

It is the arena where the fact finders are free to assess credibilities, to weigh evidence, and to feel and to sense what likely happened, as a matter of fact. Jones v. State, 343 Md. 448, 465 , 682 A.2d 248 (1996). It was of this more reasonable and more tempered, but sometimes immaterial, version of the facts that we spoke in Moosavi v. State, 118 Md.App. 683, 692 , 703 A.2d 1302 (1998), reversed on other grounds, Moosavi v. State, 355 Md. 651 , 736 A.2d 285 (1999): This hypothetical version of how we would probably have viewed the evidence and of how the trial judge apparently viewed the evidence, of course, has no appellate significance. It is, after all, a neutral or intermediate version of the evidence.

As such, it might have interest for an historian but not for an appellate court. It is only the two most slanted versions of the evidence that have operative legal significance for purpose of appellate review. (Emphasis supplied). Appellate concern is, rather, with the two extreme versions — not with the playing field but with the respective end zones, where forfeitures are declared as a matter of law.

It is here that even best-case scenarios are sometimes deemed so inadequate, in terms of naked production, as to be disqualified, as a matter of law, from entry onto the fact-finding playing field. That monitoring of legal sufficiency is the only proper function of the legal referees with respect to fact-finding. Sometimes, depending of course upon the issue, the appellate court and the trial court alike are enjoined to take that extreme version of the facts most slanted in favor of the defendant. Of such a version we also spoke in Moosavi, 118 Md.App. at 692 , 703 A.2d 1302 : ³⁴⁰ Had the questions in issue been such things as whether the defendant had generated a genuine jury issue, to wit, a prima facie case, with respect to, e.g., entrapment, self-defense, or mitigation or whether there had been enough evidence to support a defense-requested jury instruction, the appellate court and the trial judge alike would then have looked to that extreme version of the facts most slanted in favor of the defendant.

See, e.g., Sparks v. State, 91 Md.App. 35, 43-44 , 603 A.2d 1258 (1992). When a trial judge grants a motion to suppress and the State appeals, it is the extreme version of the facts slanted in favor of the defendant that provides the context for appellate analysis. The opposite extreme is that which is tilted as far as possible in favor of the State. Although in Fraidin v. State, 85 Md.App. 231, 241 , 583 A.2d 1065 (1991), we were discussing the standard by which to assess the legal sufficiency of the State’s evidence, what we there said about the slant that must be placed on the facts is pertinent to any occasion when an appellate court must employ that version of the facts most favorable to the State.

The appellant’s brief and especially his reply brief are almost strident in their outrage at the State’s brief for putting a decidedly pro-prosecutorial “spin” or “twist” on evidence which was hotly disputed and subject to arguably diametric interpretations. On the issue of legal sufficiency, however, both the state and the appellant are enjoined to apply just such a “spin.” The slant is required as a matter of law. Of all possible versions of events that would be permitted a fact finder, it is, of course, the most partial one permitted by logic and law which we adopt when assessing the legal sufficiency of the State’s ease. Fact finding impartiality has nothing to do with measuring a prima facie case.

(Emphasis supplied). Such a narrative tilt is mandatory when reviewing the denial of a motion to suppress. ³⁴¹ Reviewing a trial judge’s decision either to grant or to deny a motion to suppress evidence, we are required to accept, as presumptively true, that version of the evidence, and all inferences that can reasonably be squeezed therefrom, most favorable to the prevailing party. The leading summary of what is properly before a reviewing court on an issue concerning pretrial suppression was made by Judge Karwacki in In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691 (1997): In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing and do not consider the evidence admitted at trial. Gamble v. State, 318 Md. 120, 125 , 567 A.2d 95, 98 (1989); Herod v. State, 311 Md. 288, 290 , 534 A.2d 362, 363 (1987); Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749, 755 (1987).

Even within that limited universe of the suppression hearing, we are yet further restricted in that we may consider only that version of the evidence most favorable to the prevailing party. Judge Karwacki explained: We are further limited to considering only that evidence and the inferences therefrom that are most favorable to the prevailing party on the motion, in this instance the State. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990); see also Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22, 22 (1990). Id.

See also Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999). In this case, the motion to suppress was denied, and the prevailing party is the State. That standard is the one to which appellate review pays lip service. Unfortunately, it is sometimes more honored in the breach than in the observance.

When affirming the trial judge, on the one hand, it is easy to follow the prescribed appellate drill. The narrative tilt supports the court’s conclusion. In reversing a trial judge, on the other hand, we sometimes let slip into an opinion other “takes” on the evidence that are more supportive of the opinion’s bottom line. There is tension between appellate discipline and appellate desire.

The goal, however, nonetheless remains to forego any ³⁴² opinion as to what really happened and to be able instead, depending on the particular issue on the table at the moment, to shift back and forth from one version of the facts to a diametrically different version with Vulcan dispassion. Two witnesses testified at the suppression hearing in this case. Officer Talley testified for the State. The appellant called Daniel Crowder, who had witnessed the entire encounter from across the street.

The two versions of the encounter were so variant as if to have been from different planets. The trial judge gave no credit to Daniel Crowder’s account. Nor shall we. We shall treat his testimony as utterly non-existent and make no mention of its content.

Indeed, although Officer Talley, between direct examination and cross-examination, lapsed into minor discrepancies, we shall accept that version most supportive of the State’s position. See Reynolds v. State, 130 Md.App. 304 , 319 n. 3, 746 A.2d 422 (1999). Even after giving the State the full benefit of this decided slant, — assuming full credibility of the State’s witness, assuming maximum weight given to the State’s evidence, utterly discounting the defense witness, and drawing every permitted inference in favor of the State — we nonetheless hold that the State’s position cannot be sustained. The facts that we accept for purposes of this analysis, however, are those advanced by the State.

A Series of Rapidly Unfolding Events At some unspecified time on October 25, 2000, Officer David Talley of the Western District of the Baltimore City Police Department drove to the 500 block of Carrollton Avenue, where he encountered the appellant, with ultimately incriminating consequences. A. An Anonymous Telephone Tip Officer Talley went to Carrollton Avenue in response to an anonymous telephone tip that a black male was selling controlled dangerous substances in that block. The tip gave a physical description of the alleged seller and further indicated ³⁴³ that he would be leaning on a gray Ford automobile. When Officer Talley arrived on the scene, he observed the appellant, who fit the description and who was leaning on a gray Ford automobile.

The appellant protests that the anonymous tip did not contain sufficient indicia of reliability to justify a Terry-stop of the appellant. Although the appellant’s position is fully supported by the Supreme Court decision of Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375 , 146 L.Ed.2d 254 (2000), the contention is moot. The State does not claim that the telephone tip and its essentially innocuous corroboration established a predicate for any Fourth Amendment intrusion. The State treats the subsequent encounter between Officer Talley and the appellant as a mere accosting, something beneath the radar of the Fourth Amendment.

Why Officer Talley went to the 500 block of Carrollton Avenue and why he talked to the appellant is a matter of utter immateriality to our analysis. B. The Accosting and the Pat-Down Initially, Officer Talley engaged in what the Supreme Court would characterize as a mere accosting of the appellant or, as the officer characterized it, a “field interview” of the appellant. Almost immediately after accosting the appellant, Officer Talley patted him down for weapons. The significance of that pat-down will be analyzed in some detail later in this opinion.

For immediate narrative purposes, it is enough to point out that, in the course of the pat-down, Officer Talley detected no weapons, but did detect a set of keys. Q ... Once you saw him leaning on the grey Ford, what did you do? A I pulled my vehicle up to exit the vehicle to conduct the field interview, since the description did fit him.

Q And when you conducted the field interview, did he give you his name? A Yes, I think he did. Yes, ma’am. Q And then what happened after you asked for his name? ³⁴⁴ A I just asked him a couple of questions.

I never seen him around there and I was new to that post. So, he gave me the information. I asked him can I search him just for weapons. I didn’t go in his pockets.

I didn’t go into his coat or nothing like that. I just checked him. Q So you did a pat down for weapons? A Yes, ma’am.

Q And then what happened? A He didn’t have no weapons on him, so I finished talking to him. I asked him whose vehicle it was. He said it was some guy’s up the street.

So I asked him why was he leaning on it. And he was like, he was just leaning, just chilling, just hanging out. (Emphasis supplied) C. The Car Search The immediately ensuing conversation did not concern the gray Ford as such but the keys that had been discovered, in the course of the pat-down, in the appellant’s pocket. Officer Talley asked whose keys they were; the appellant acknowledged that they were his.

Officer Talley asked if they would fit the vehicle; the appellant replied that they would not. Officer Talley asked if he might try the keys on the vehicle; the appellant agreed that he might try. Officer Talley opened the car door and discovered “a large amount of money on the floorboard.” Q And did there come a time when you asked him for the keys to the car? A Yes.

I asked him, the keys in his pocket. I asked him whose keys, I mean, when I asked him whose keys in his pocket, he said they mine. I said do they fit the vehicle. ' He was like no, they don’t fit the vehicle. Q And once he said they don’t fit the vehicle, what did you do?

AI asked him do you mind if I try. He was like sure, go ahead, they’re not going to fit. So that’s when he hands me ³⁴⁵ the keys out his pocket. I told him to have a seat on the steps, and I opened the door on the driver’s right side.

Q On the driver’s side of the car? A The driver’s side. Q And, just getting to the point here, once you did that— AI seen— Q You saw money in the car? A A large amount of money on the floorboard.

(Emphasis supplied). D. The Search of the Trunk and the Arrest of the Appellant After Officer Talley discovered the “large amount of money” lying “on the floorboard” of the gray Ford, he proceeded to search the entire car. Using the appellant’s key, he opened the trunk. Inside a gym bag lying in the trunk, the officer found sixty-seven vials of what turned out to be cocaine.

At that point, the appellant jumped up and attempted to run away. He was caught and immediately arrested. Q And then what did you do? A I continued to check the vehicle.

That’s when I went to the trunk. I checked that. And when I opened the trunk it was, I think it was a Charley Rudo locker room bag in there. I picked the bag up and I seen the drugs.

That’s when he took off running. The Narrow Focus of Our Inquiry Our focus on this appeal is narrow. Just as we were unconcerned with whatever it was that brought Office Talley into contact with the appellant on October 25, 2000, we are similarly unconcerned with everything that happened after Officer Talley spotted the large amount of money on the floorboard. If that observation was constitutionally flawed, everything that followed from it was tainted. ³⁴⁶ If, on the other hand, that observation was reasonable, the officer had probable cause for a warrantless Carroll-Doctrine search of the entire automobile, including both the trunk and the gym bag in the trunk.

Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); Wyoming v. Houghton, 526 U.S. 295 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999). At that point, whether the appellant was subject to a Fourth Amendment detention or was free to leave was no longer material. Whether the search of the trunk and the search of the gym bag were consensual or non-consensual was equally immaterial. Our exclusive concern is with the events that transpired in the several minutes beginning with Officer Talley’s pat-down of the appellant and ending with Officer Talley’s opening of the driver’s door and looking into the gray Ford.

The State’s Burden to Rebut The Presumption of an Unreasonable Search At the threshold, the State now claims that the appellant is raising four or five challenges to the warrantless search of the appellant’s automobile and that most of those challenges, not having been expressly argued below, have not been preserved for appellate review. The State misperceives the single, but embracive, issue that was indisputably raised and is indisputably before us. The automobile search that produced the evidence that was the subject of the suppression motion was warrantless. There was, to be sure, an initial burden on the appellant to challenge the evidence and to go forward in offering support for that challenge.

In Herbert v. State, 136 Md.App. 458, 481-82 , 766 A.2d 190 (2001), this Court explained that 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 to persuade a judge somehow to alter the status quo. ³⁴⁷ 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 deterring 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. Once it was established, however, that the search in issue was warrantless, the burden shifted to the State to justify the warrantless search. If there were three or four indispensable links in that chain of justification, it was the State’s burden to forge each of those necessary links, regardless of whether the appellant was expressly pointing to a particular link. It was of just such a chain of justification that this Court spoke in Alfred v. State, 61 Md.App. 647, 652 , 487 A.2d 1228 (1985): The seizure of these two items of stolen jewelry hangs by a chain of justification consisting of five separate links, no one of which is more than modestly adequate and several of which are structurally flawed to the constitutional breaking point.

To support its ultimate burden, the State must establish the sustaining adequacy of each of five propositions. With respect to 1) the quantitative burden of persuasion at a suppression hearing and 2) the shifting allocation of both the burden of production and the burden of persuasion, this Court clearly described those procedural incidents in Duncan and Smith v. State, 27 Md.App. 302, 304 , 340 A.2d 722 (1975): We are not here concerned with the question of what is the appropriate burden of proof at a suppression hearing once a justiciable issue is properly before the hearing judge. It was settled by Lego v. Twomey, 404 U.S. 477 , 92 S.Ct. 619 , 30 L.Ed.2d 618 (1972), that that burden is a preponder- ³⁴⁸ anee of the evidence. Nor are we concerned with the allocation of the burden of going forward with the evidence on the merits of a search and seizure question.

It is clear that that burden shifts, depending on the presence or absence of a search warrant. (Emphasis supplied). Herbert v. State also commented, 136 Md.App. at 485 , 766 A.2d 190 , on this shifting of the burdens of proof: 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). The shifting allocation of both burdens of proof reflects the strong preference of the Supreme Court for search warrants over warrantless searches. By way of “putting its money where its mouth is,” the Supreme Court has backed up that preference by identifying, in those respective postures, the winner and the loser of the tie. When the search is with a warrant, there is a heavy burden on the defendant to rebut the presumption of the search’s validity.

If the evidence is equivocal, the defendant, having failed to carry that burden, loses. In Duncan and Smith, 27 Md.App. at 304-05 , 340 A.2d 722 , we further explained: 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 ³⁴⁹ States, supra; Hignut v. State, 17 Md.App. 399, 408-410 , 303 A.2d 173 .

(Emphasis supplied). See also Jones v. State, 139 Md.App. 212, 225-26 , 775 A.2d 421 (2001); Cherry v. State, 86 Md.App. 234, 240 , 586 A.2d 70 (1991). 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. Again, Duncan and Smith, 27 Md.App. at 305 , 340 A.2d 722 , was clear: Where, on the other hand, 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. Jones v. United States, 357 U.S. 493, 499 , 78 S.Ct. 1253 , 2 L.Ed.2d 1514, 1519 (1958). Where the evidence is inconclusive in this regard, the defendant wins.

Coolidge v. New Hampshire, 403 U.S. 443, 454-55 , 91 S.Ct. 2022 , 29 L.Ed.2d 564, 576 (1971); Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576, 585 (1967); United States v. Jeffers, 342 U.S. 48, 51 , 72 S.Ct. 93 , 96 L.Ed. 59 , 64 (1951); McDonald v. United States, 335 U.S. 451, 456 , 69 S.Ct. 191 , 93 L.Ed. 153 (1948). (Emphasis supplied). Herbert v. State, 136 Md.App. at 486 , 766 A.2d 190 , explained this procedural phenomenon of shifting incentives and disincentives: Over the course of decades, the Supreme Court has not been content to deliver to American prosecutors and American police a schoolmarmish civics lesson or lecture on investigative restraint. It has, in an exercise of shrewd practicality, provided prosecutors and police with significant ³⁵⁰ incentives for searching and seizing via the favored or preferred modality, to wit, with judicially issued warrants.

Conversely, it has strewn the field with at times vexing disincentives for operating in the disfavored or non-preferred modality, to wit, warrantlessly. By way of refuting the State’s claim of non-preservation in this case, all the appellant had to do was to get the ball into the State’s court. That he did. The burden of justifying the warrantless search was on the State.

Our Ultimate Concern Our ultimate concern is the constitutional propriety of the police search of the appellant’s gray Ford automobile. That search was not authorized by a judicially issued search and seizure warrant. For it to have been constitutional, therefore, it must have qualified under one of the firmly established exceptions to the warrant requirement. It is undisputed that it was not a CarroZZ-Doctrine automobile search based on probable cause to believe that contraband or other evidence of crime was to be found in the car.

If the search were to be deemed reasonable, it would have to have been predicated on the appellant’s having voluntarily consented to it. The suppression hearing judge ruled that there had been such voluntary consent. Although we accept as the first-level facts in this case that version of them most favorable to the State’s position — what the officer did, what the officer asked, what the appellant responded — such ultimate questions as 1) the voluntariness of the ostensible consent and 2), even if voluntary, the actual scope of that consent are second-level, conclusory, constitutional facts with respect to which we must make our own de novo determinations. 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 stan ³⁵¹ dard 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 circumstances surrounding and preceding the ostensible granting of consent, therefore, loom large in our analysis. The Burden of Proof With Respect to Consent The allocation of the burden of proof with respect to a consensual search is clear. The Supreme Court spelled it out unequivocally in Bumper v. North Carolina, 391 U.S. 543, 548 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 (1968): When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. See also United States v. Mendenhall, 446 U.S. 544, 557 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980); Schneckloth v. Bustamonte, 412 U.S. at 222 , 93 S.Ct. 2041 ; Doering v. State, 313 Md. 384, 401-02 , 545 A.2d 1281 (1988); Whitman v. State, 25 Md.App. 428, 435-40 , 336 A.2d 515 (1975).

Schneckloth was also clear that consent searches must not be approved without “the most careful scrutiny.” “The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without ³⁵² the most careful scrutiny would sanction the possibility of official coercion.” 412 U.S. at 229 , 93 S.Ct. 2041 . Because the facts available to us concerning precisely what the request for consent consisted of and precisely what the appellant’s response was are painfully skimpy, it is doubly important for us to keep' this allocation of the burden of proof in the forefront of our minds. Even if we could know everything that happened, the problem appears to be that not much happened.

The “most careful scrutiny” may not be possible. It may be, therefore, the allocation of the burden of proof to which we of necessity must turn to settle a case of otherwise irresolvable doubt. If for our de novo determination, the first-level facts do not yield an unambiguous conclusion, is it then the case that it was the State’s burden to prove a voluntary consent or was it the appellant’s burden to prove the absence of a voluntary consent? It was, of course, the former, and a nothing-to-nothing tie on this .question (or a tie at any other level) must go to the appellant.

The Encounter Began As a Mere Accosting By way of our de novo determination, we are satisfied that the encounter between Officer Talley and the appellant began as a mere accosting. Spotting the appellant “leaning on the gray Ford,” Officer Talley pulled his vehicle to a stop and got out. He asked the appellant his name and the appellant gave it. The merely conversational phase of the encounter that followed was brief and, thus far, uneventful.

Q And then what happened after you asked for his name? A I just asked him a couple of questions. I never seen him around there and I was new to that post. So, he gave me the information.

With respect to that brief prelude, the observation's of Judge Raker in Ferris v. State, 355 Md. 356, 374-75 , 735 A.2d 491 (1999), are reassuringly controlling: ³⁵³ Mere police questioning does not constitute a seizure. This is so even if the police lack any suspicion, reasonable or otherwise, that an individual has committed a crime or is involved in criminal activity, because the Fourth Amendment simply does not apply. If the engagement between the Petitioner and the officer was merely a “consensual encounter,” no privacy interests were invaded and thus the FouHh Amendment is not implicated. Even when the officers have no basis for suspecting criminal involvement, they may generally ask questions of an individual “so long as the police do not convey a message that compliance with their request is required.” (Emphasis supplied).

As of that point in the encounter, the Fourth Amendment was not involved. A Frisk or Pat Down Is a Fourth Amendment Intrusion With the very next question, however, the climate of the encounter took a dramatic turn, as did the attention of the Fourth Amendment. A ... I asked him can I search him just for weapons.

I didn’t go in his pockets. I didn’t go into his coat or nothing like that. I just checked him. Q So you did a pat down for weapons?

A Yes, ma’am. The State, as if skating on thin ice, glides blithely over that sudden change in the constitutional weather. In appellate brief and in oral argument, it seeks to dismiss the frisk as a passing triviality, stressing that it “did not go into [the appellant’s] pockets and did not go into his coat.” No proper Terry-ivisk, of course, ever does go into coats or pockets, but Terry-frisks nonetheless come most definitely under the careful scrutiny of the Fourth Amendment. A Terry-frisk is not, like a mere accosting, something beyond the pale of Fourth Amendment notice.

Labeling it, moreover, a “pat-down” instead of a “frisk” does not shield it from Fourth Amendment review; the two words refer to precisely the same conduct. Indeed, the frisk in Terry v. ³⁵⁴ Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), the very frisk that gave birth to this now extensive body of Fourth Amendment law was no more intensive than the frisk so trivialized by the State in this case: Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade Katz’ person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon.

Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find. (Emphasis supplied). That frisk, limited though it may have been, started a revolution.

In the Terry case itself, the initial tack taken by the State of Ohio was similarly to trivialize both the stop and the frisk as insignificant phenomena below the radar screen of the Fourth Amendment. The major premise of the Terry opinion, however, was that the Fourth Amendment was sensitively alert: There is some suggestion in the use of such terms as “stop” and “frisk” that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a “search” or “seizure” within the meaning of the Constitution. We emphatically reject this notion. 392 U.S. at 16 , 88 S.Ct. 1868 (emphasis supplied). The Supreme Court could not have been more emphatic about the seriousness of even a limited frisk or pat-down for weapons: [I]t is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an ³⁵⁵ attempt to find weapons is not a “search. ” Moreover, it is simply fantastic to urge that such a procedure “performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ ” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. 392 U.S. at 16-17 , 88 S.Ct. 1868 (emphasis supplied).

In its effort to justify the initial frisk or pat-down in this case, the State has shifted doctrinal gears. 1 At the suppression hearing, it argued that the pat-down was a reasonable police prerogative as a natural incident of a field interview. On appeal, it has abandoned that line of reasoning and now argues that the appellant voluntarily consented to the frisk. Deferring for a moment our analysis of Fourth Amendment justification, either by way of reasonable suspicion under Terry or by way of voluntary consent, our first working premise is that what was involved was a Fourth Amendment seizure of the appellant’s person. To whatever extent, therefore, voluntary consent may arguably save the day for the State, it will have to do so as a firmly rooted exception to the warrant requirement, thereby satisfying the Fourth Amendment, and not as an exempting circumstance, taking the frisk out from under Fourth Amendment scrutiny.

It will have to qualify as an instance of the Fourth Amendment Satisfied and not an instance of the Fourth Amendment Inapplicable. As to the status of the frisk or pat-down as a seizure of the person and a search of the person, Terry v. Ohio left no room for doubt: ³⁵⁶ [Tjhere can be no question, then, that Officer McFadden “seized” petitioner and subjected him to a “search” when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner’s personal security as he did. 392 U.S. at 19 , 88 S.Ct. 1868 (emphasis supplied). The Seizure of the Appellant’s Person As our analysis moves forward, we may now largely lay aside the term of art “frisk” or “pat-down.” That action, by whatever name, did not produce any directly incriminating evidence.

For purposes of further analysis, what matters is that the frisk or pat-down, as we have previously discussed, constituted a seizure of the appellant’s person. It is in that capacity that it is now analytically pertinent. “Seizure of the person,” therefore, is the thing on which we shall now be focusing. Our initial concern will be with whether the seizure of the appellant’s person was constitutional or unconstitutional. If unconstitutional, our concern will then be 1) whether it, as an antecedent Fourth Amendment violation, tainted the ostensible consent to the automobile search that followed; or 2) whether the primary taint was so attenuated that it had no meaningful cause-and-effect relationship to the consent that followed it.

Was the consent the fruit of a poisonous tree? Two Constitutional Species And a Third Mutant Strain Because the seizure of the appellant’s person was warrant-less, there were only two ways, under the circumstances of this case, in which it could possibly have been constitutionally justified. The first possibility would have been for it to have been a good Terry-frisk, following a Terry-stop, based on reasonable suspicion to believe that the person stopped was armed and dangerous. The second constitutional candidate for justification is the strained but theoretically conceivable possibility that the appellant voluntarily consented to the seizure of his person in the form of the frisk. ³⁵⁷ Intertwined with our analysis of these two well recognized constitutional possibilities, however, is the necessity that we also take a close look at a recently appearing doctrinal mutation.

The State, or at least the police procedure in this case, seems to be advancing, somewhat haltingly, the non-constitutional and ill-defined notion that hovering between a mere accosting, on the one hand, and a Terry-stop-and-frisk, on the other, there has somehow evolved an intermediate level or stage called a “field interview,” pursuant to which the police interviewer enjoys greater prerogatives than would otherwise be available in the course of a mere accosting. The very name “field interview” seems to confer a certain legitimacy and tone of authority. It is frankly the recent appearance of this doctrinal mutant or rogue strain that most concerns us in this case. The Frisk Was Not Reasonable Pursuant to Terry v. Ohio We turn our attention first to the possibility of a good Terry-frisk.

This particular seizure of the appellant’s person failed to qualify under Terry v. Ohio for several independent reasons. In the first place, the State concedes that there was no reasonable basis for either a Terry-stop or a Terry-frisk. In its appellee’s brief, the State foregoes any reliance on Terry . Quite frankly, the State agrees that Officer Talley did not have reasonable, articulable suspicion at that point in the chain of events to detain and frisk Graham,.

Rather, the above evidence establishes that it was a consensual encounter at that juncture, and that Graham was not, in fact, seized. (Emphasis supplied). At the suppression hearing, the State made no argument based on Terry , and the judge made no finding of justification based on Terry . With respect to the effect of such a concession, moreover, our observation in Reynolds v. State, 130 Md.App. 304, 314 , 746 A.2d 422 (1999), is very pertinent: ³⁵⁸ [T]he State’s concession that no basis exists to justify a Terry stop and our concurrence, upon our independent constitutional appraisal, in the legal efficacy of that concession relieves appellant of the task of responding to. or countering any argument that there was any legal basis for the detention of appellant other than that it was consensual.

(Emphasis supplied). A. No Articulated Suspicion That the Appellant Was Armed Quite aside from that concession, Officer Talley never uttered a syllable that would support a Terry-frisk. Even if the telephone report and its modest corroboration could, arguen-do, be considered some justification for- a Terry-stop, the justification for a Terry-frisk is a totally different matter, based on totally different considerations. In Gibbs v. State, 18 Md.App. 230 , 306 A.2d 587 (1973), this Court engaged in a thorough-going analysis of the then recently promulgated stop-and-frisk law.

As to the difference between the two phenomena and the different interests they serve, we observed: It is furthermore clear that the policeman must be able to articulate specific facts justifying both the “stop” and, quite independently, the “frisk. ” The latter does not follow inexorably from the former. Terry points out very emphatically that different governmental interests are involved in “stops,” on the one hand, and “frisks,” on the other hand. 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.” 18 Md.App. at 238-39 , 306 A.2d 587 (emphasis supplied). The respective interests served by stops and by frisks are distinct.

The stop is crime-related. What is, therefore, required is reasonable suspicion that a crime has occurred, is then occurring, or is about to occur. The frisk, by contrast, is concerned only with officer safety. What is, therefore, required is reasonable suspicion that the person stopped is ³⁵⁹ armed and dangerous.

Terry v. Ohio, 392 U.S. at 23 , 88 S.Ct. 1868 , pointed out the need for that independent justification: “The crux of this case, however, is not the propriety of Officer McFadden’s taking steps to investigate petitioner’s suspicious behavior, but rather, whether there was justification for McFadden’s invasion of Terry’s personal security by searching him for weapons in the course of that investigation.” We spoke to the same distinct interest and distinct justification in Gibbs v. State, 18 Md.App. at 241 , 306 A.2d 587 : Even after a reasonable “stop” has been made, the governmental interest which permits the further intrusion of a limited search — a “frisk” — of the person is not the prevention or the detection of crime, but rather the protection of the officer making the “stop. ” This interest was delineated in Terry , at 392 U.S. 23 -254, 88 S.Ct. 1868 : “We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him ...” (Emphasis supplied). Alfred v. State, 61 Md.App. 647, 664 , 487 A.2d 1228 (1985), also observed: Even if the stop had been legitimate, that would not imply the legitimacy of the frisk. As a distinct intrusion, the frisk requires its own independent justification. B. No Articulation of the Purpose of or Predicate for a Frisk One of the key requirements of reasonable suspicion, for either a stop or a frisk, is not only that it be present but that it be actually articulated.

For a good frisk, it is not enough that in the abstract facts have been developed that might, objectively, permit some officer somewhere to conclude that the suspect or stopee was armed and dangerous. It is required that the frisking officer actually articulate the factors ³⁶⁰ that lead to his reasonable suspicion that a frisk was necessary for his own protection. Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968), was the companion case to Terry v. Ohio. In Sibron an officer had stopped a suspected narcotics dealer.

When the suspect made a sudden move into his jacket pocket, the officer moved simultaneously toward the same pocket and recovered contraband. Although the facts, objectively, might have been enough to support a frisk for weapons, the fatal flaw was that the officer never testified that self-protection was his purpose. The Supreme Court observed in this regard: The possibility that Sibron, who never, so far as appears from the record, offered any resistance, might have posed a danger to Patrolman Martin’s safety was never even discussed as a potential justification for the search. The only mention of weapons by the officer in his entire testimony came in response to a leading question by Sibron’s counsel, when Martin stated that he “thought he [Sibron] might have been” reaching for a gun.

Even so, Patrolman Martin did not accept this suggestion by the opposition regarding the reason for his action; the discussion continued upon the plain premise that he had been looking for narcotics all the time. 392 U.S. at 46 n. 4, 88 S.Ct. 1889 (emphasis supplied). In holding, that the officer had failed to articulate the only rationale that will legitimate a frisk, the Supreme Court stated: In the case of the self-protective search for weapons, [the officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Patrolman Martin’s testimony reveals no such facts. The suspect’s mere act of talking with a number of known narcotics addicts over an eight-hour period no more gives rise to reasonable fear of life or limb on the part of the police officer than it justifies an arrest for committing a crime.

Nor did Patrolman Martin urge that when Sibron ³⁶¹ put his hand in his pocket, he feared that he was going for a weapon and acted in self-defense. 392 U.S. at 64, 88 S.Ct. 1889 (emphasis supplied). In Gibbs v. State, 18 Md.App. at 242-43 , 306 A.2d 587 , this Court characterized the Sibron holding: Contrasting with the situation in Terry is that in Sibron. The officer, in that case, never testified that he feared that Sibron was armed or that he acted to protect himself from danger. The Supreme Court stressed that the officer “never at any time put forth the notion that he acted to protect himself.” The Court pointed out that a reasonable “frisk” does not follow inevitably in the wake of every reasonable “stop,” but requires specific justification.

(Emphasis supplied). The same failure of the frisking officer to articulate a reasonable suspicion and a self-protective purpose within the contemplation of the frisk rationale was fatal in the Gibbs case itself. Officer Stewart never testified that he feared that the appellant might be armed or that he acted out of self-protection. Although only reasonable suspicion and not probable cause is required to justify a “frisk,” in the case at bar no predicate at all was established, whatever its quantitative measure. 18 Md.App. at 244 , 306 A.2d 587 (emphasis supplied).

A similar failure of the officer to articulate his purpose and the basis of his suspicion invalidated the frisk in Alfred v. State, 61 Md.App. at 665 , 487 A.2d 1228 : If in the present case the police had any reason to suspect that the appellant and Alexander were armed, they failed utterly to articulate those reasons. They provided no independent justification for the frisk at all. (Emphasis supplied). In Whitehead v. State, 116 Md.App. 497, 508 , 698 A.2d 1115 (1997), the same failure of the officer to articulate a self- ³⁶² protective purpose was fatal to the reasonableness of the frisk.

As Judge Sonner observed: In this case, Trooper Donovan, unlike Officer McFadden [in Terry v. Ohio], did not articulate that he wished to conduct a search to protect himself, as authorized by Terry and the cases in Maryland following it. ... There was absolutely no evidence suggesting that the driver or passenger possessed weapons and, therefore, Trooper Donovan needed to search to protect himself. Terry and its progeny are not applicable to the present situation. We find that the search was unconstitutional.

C: The Absence of an Antecedent Terry-Stop From the beginning in 1968, the Supreme Court made it clear that there is a necessity principle behind permitting the police to execute a frisk on a predicate less substantial than probable cause. When a police officer’s duty requires that he stop and interrogate potentially dangerous individuals suspected of engaging in crime, he must be permitted, when there is reasonable suspicion of danger, to act for his own self-protection. A Terry-frisk, therefore, may, frequently but not always, follow a Terry-stop. The corollary is that a reasonable Terry-stop is a condition precedent to a reasonable Terry-frisk.

Simpler v. State, 318 Md. 311, 319 , 568 A.2d 22 (1990); Gibbs v. State, 18 Md.App. at 238-39 , 306 A.2d 587 . It was the concurring opinion of Justice Harlan in Terry v. Ohio that most articulately explained the necessity of an antecedent Terry-stop. [IJf the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence.

That right must be more than the liberty (again, possessed by every citizen) to ³⁶³ address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner’s protection. I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime. 392 U.S. at 32-33, 88 S.Ct. 1868 (concurring opinion of Harlan, J.) (emphasis supplied). 4 Wayne R. LaFave, Search and Seizure (3d ed.1996), pp. 247 — 49, states the same constitutional principle: [A] fii.sk for self-protection cannot be undertaken when the officer has unnecessarily put himself in a position of danger by not avoiding the individual in question. This means that in the absence of some legitimate basis for the officer being in immediate proximity to the person, a degree of suspicion that the person is armed which would suffice to justify a frisk if there were that basis will not alone justify such a search. For example, if a policeman sees a suspicious bulge which possibly could be a gun in the pocket of a pedestrian who is not engaged in any suspicious conduct, the officer may not approach him and conduct a frisk.

And this is so even though the bulge would support a frisk had there been a prior lawful stop. Likewise, if an officer, lacking the quantum of suspicion required by Terry to make a forcible stop, instead conducts a non-seizure field interrogation, he may not frisk the person interrogated upon suspicion he is armed; in such a case the officer may protect himself by not engaging in the confrontation. (Emphasis supplied). In this case, of course, there was no antecedent Terry-stop.

There was a mere accosting. Even had there been no concession by the State in this case, the frisk of the appellant could not have been constitutionally justified as a Terry-frisk because 1) the facts would not have added up to reasonable suspicion that the appellant was armed, 2) Officer Talley did not articulate any basis for frisking the appellant for his own ³⁶⁴ self-protection, and 3) there was no antecedent Terry-stop creating a possible necessity for a Terry-frisk. Calling a Mere Accosting a “Field Interview” Does Not Enhance Its Constitutional Status We deliberately belabor our analysis of the constitutional requirements for a good Terry-frisk to drive home the point that the same kind of frisk, in the complete absence of the prescribed Terry requirements, could not conceivably be deemed legitimate as an automatic incident of a so-called “field interview.” At the suppression hearing, the State never argued nor sought to prove that the initial frisk was consensual. In argument, the prosecutor, in a mere passing phrase, glossed over the frisk as if it were a routine incident of a field interview. [W]hen the officer arrived he testified that Mr. Graham was not intoxicated, that he was in clear hold of his faculties, and that during the course of this field interview, after the officer checked him for weapons, the officer asked him if the keys in his pocket, or if this was his car.

(Emphasis supplied). The trial judge also gave no thought to consent but, rather, treated the frisk as an automatic police prerogative when conducting a field interview. I find the credible testimony to be that of Officer Talley, that he received a call about a person matching the defendant’s description and not Mr. Griggs’ description selling drugs. That because the tip was so raw that it didn’t give him probable cause to arrest anybody that he field interviewed the defendant, essentially for future reference.

Because if he kept getting calls and he kept coming back, at some point it was going to amount to probable cause and he wanted to know who he was dealing with. ³⁶⁵ And so, he basically had the right to do the limited pat down for the gun. (Emphasis supplied). The testimony of Officer Talley, moreover, indicated that the pat-down was just part of his routine procedure in conducting a field interview. Q [By Defense Counsel] Now, I just want to get the chronology of this correct.

You walked up to Mr. Graham— A Right. Q —because you got this call over the radio. A Exactly. Q And you conducted a field interview.

A Yes, ma’am. Q And then you patted him down. You didn’t find any weapons. Is that correct?

A Okay. Q Is that correct? A I patted him