Green v. State

HOLLANDER, J. Richard Brandon Green, appellant, was stopped for speeding in Queen Anne’s County. In a search of Green’s car at the scene, police found marijuana and cocaine. As a result, appellant was charged with narcotics violations. Green moved to suppress the fruits of the warrantless search but, after an evidentiary hearing, the court denied the motion, finding that the search was consensual.

On March 15, 2001, Green tendered a plea of not guilty in the Circuit Court for Queen Anne’s County, and proceeded by way of an agreed statement of facts. Thereafter, he was convicted of possession of marijuana with intent to distribute and possession of cocaine, for which the court sentenced him to consecutive terms of four years and two years, respectively. ³⁶⁶ On appeal, appellant poses a single question: “Did the trial court err in denying [his] motion to suppress the cocaine and marijuana found in his car?” That question requires us to focus on whether the lawful traffic stop ripened into an illegal detention or, instead, a consensual encounter in which appellant voluntarily consented to the vehicle search. SUPPRESSION HEARING FACTS The court held a suppression hearing on September 28, 2000. The following evidence was adduced at the hearing.

Deputy Mark Meil of the Queen Anne’s County Sheriffs Office testified that, on the evening of March 26, 2000, he was working stationary radar near Route 302 and Dixon Tavern Road in Queen Anne’s County. At around 7:30 p.m., he clocked a black 1999 Mercury traveling westbound on Route 302 at 65 m.p.h.; the zone had a posted speed limit of 50 m.p.h. Accordingly, the deputy activated his emergency equipment and executed a stop of the car. Upon exiting his vehicle, the deputy approached the driver’s side of the Mercury.

Appellant, who was sitting in the driver’s seat, was the sole occupant of that vehicle. The deputy told appellant that he had stopped him for speeding. In response to the deputy’s request, appellant produced his license and vehicle registration. Appellant also responded to an inquiry from the deputy by stating that he had two points on his license.

The deputy returned to his cruiser and ran a check of appellant’s license and registration, and “a criminal check for any caution codes for officers’ safety.” Shortly thereafter, the deputy learned that appellant’s license was valid, the vehicle was registered to Green, appellant' had several points on his license, and there were no outstanding warrants for Green’s arrest. The deputy testified that he decided to issue a warning citation to appellant, which he wrote while in the cruiser. As the deputy walked towards appellant’s car, he was advised, via police radio, that appellant had “prior caution codes for armed and dangerous and ... drugs.” Nevertheless, Meil advised Green that he was issuing a warning citation ³⁶⁷ to him for speeding. Moreover, Meil said that he returned appellant’s license and registration at that time, and also gave him the warning.

Additionally, Meil asserted that he “advised [appellant] that he was free to go.... ” In view of Green’s “past history,” however, Meil immediately asked appellant whether he would “mind answering a few questions before he [left] the scene.... ” According to the deputy, appellant responded, “ ‘Sure.’ ” Appellant does not dispute that he said “sure” in response to the deputy’s request. While appellant was seated behind the steering wheel, with the keys in the ignition, the deputy asked appellant whether he had any guns, drugs, or alcohol in the car. Appellant responded, “No.” Meil testified that he then made another request of appellant; he asked Green “if he would consent to a search of his person and vehicle.... ” According to Meil, appellant replied, ‘Sure. Go ahead.’ ” Appellant disputes that comment.

After Green consented to the searches of person and vehicle, the deputy asked appellant to exit the vehicle “for officer safety given [appellant’s] past criminal history of armed and dangerous, not knowing whether there might be a hand gun in the vehicle.” Moreover, after appellant gave his consent, the officer called for back-up, for the purpose of “watch[ing] the Defendant while [Meil] searched the vehicle.” The deputy explained that he made the request for back-up for “officer safety,” because he could not watch Green while also searching the car. When asked what the officer was “worried” about, Meil answered: “Given the area and location, it was extremely dark out, [appellant] was much larger than I was, his past criminal history of violence with hand guns, I didn’t feel good about that at all.” The deputy did not tell appellant that, if he consented to a search, he would have to wait for the arrival of a back-up unit. When appellant exited his car, Deputy Meil frisked appellant and searched his pockets, but found nothing noteworthy. The deputy then “visually” looked in the “open areas” of the car at that time, but did not observe anything significant. ³⁶⁸ Deputy Meil did not conduct a full scale search of the car at that time.

Instead, he and appellant waited about fifteen minutes for the arrival of the back-up unit; only then did Meil conduct a thorough vehicle search. According to Meil, appellant “was free to go at any time.” Meil acknowledged, however, that although he told appellant he was free to go at the time he returned appellant’s documents, he never informed appellant that he could refuse to consent to the frisk or the vehicle search. Moreover, Meil never informed appellant that he could leave if he did not want to continue to wait for the arrival of the back-up unit. Deputy Meil maintained, however, that appellant never said that he wanted to leave, nor did appellant indicate that he changed his mind about allowing Deputy Meil to search his car.

Meil acknowledged that appellant “was cooperative the whole time,” stating: “I never had a problem with him.” Moreover, Meil conceded that appellant never tried to escape during the encounter, he never threatened Meil in any way during the stop, and he never made any “furtive movements” suggestive' of an effort to hide contraband or retrieve a weapon. In short, the deputy did not identify anything about appellant’s conduct or behavior that amounted to reasonable, articulable suspicion to continue the detention. While Meil and Green waited'for back-up, Meil learned from appellant that appellant had been convicted of armed robbery about fifteen years earlier. Corporal Riggleman testified that, at about 7:45 p.m. on March 26, 2000, he was advised to respond-to the scene.

He recalled that it took him about 15 to 20 minutes to reach the location. When asked if he was at the scene “to make sure [that] appellant didn’t leave,” Riggleman answered,' “Correct.” Upon the arrival of Corporal Riggleman, Deputy Meil searched appellant’s car while the corporal watched appellant. The search began at about 8:04 p.m. During the search, the deputy’s attention was drawn to the center console by the faint odor of marijuana.

The deputy opened the console and found a black zipper bag containing two bags of a green leafy ³⁶⁹ substance. The zipper bag also contained 110 bags of various colors and sizes; they contained a white rock like substance of suspected cocaine. Appellant was then arrested. Appellant also testified at the hearing.

Much of his testimony was consistent with the State’s evidence or was never disputed by the State. On the night in question, appellant was driving on Route 302 in his 1999 Mercury Sable when he was stopped for speeding by Meil. He produced his license and registration, which Meil took back to his cruiser. Appellant claimed that the deputy did not give him his license or registration when the deputy returned to appellant’s car.

But, appellant agreed that Deputy Meil asked him if he would answer a few questions, and appellant said, “Sure.” Deputy Meil then asked whether appellant had any guns, drugs, or alcohol in his car, and appellant replied that he did not. The deputy also inquired about appellant’s criminal record, and then asked Green to submit to the search of his car. Appellant claimed that he refused to consent to a search. At that point, according to Green, Deputy Meil told him, “You have to step out of the vehicle, sir,” and appellant complied.

In his testimony, Green explained that he complied because he did not believe that he had a choice. Appellant acknowledged, however, that after he was' ordered out of his car, he never told Meil that he wanted to leave. Meil proceeded to frisk appellant. The deputy also emptied appellant’s pockets.

Then, using a flashlight, the officer looked inside Green’s vehicle, while appellant was required to stand with his hands on the trunk of the car. As the officer peered into the car, appellant asked the deputy if he wanted appellant to open the trunk. Appellant testified: [The deputy] had me stand with my hands on the trunk of my car and he went in my car. He took his flashlight.

He looked under the passenger, the driver’s side of the seat first. Then he got out, closed that door and went around to the passenger’s side and looked under that seat. So, at that point, I said, “Well, do you want me to open the trunk for ³⁷⁰ you?” He said, “No. You just stand right there like that.” I said, “Okay.” So, at that point, he said, “Well, I’m going to call for back up.” I said, “Why I got to go through all of this for for just a traffic stop?” He said, “Because of your criminal record.” According to appellant, upon Corporal Riggleman’s arrival, Riggleman spoke with Meil and then put his hand on appellant’s arm, while asking appellant to come back to the car with him. Appellant testified that neither officer ever advised him that he could refuse to consent to the search or that he was free to leave.

After Meil searched the car, appellant was arrested. Appellant claimed that Deputy Meil did not return his license and registration to him until appellant “was on [his] way to the magistrate’s office after all this paper work and stuff was done.” Green reiterated that, while at the scene, he did not believe he was free to leave, nor did the officer tell him that he could go. In argument, the prosecutor said: “Consent was given. It was never withdrawn.

The search was valid.” The prosecutor also said: “The question here is very simple: Was the encounter after the license, registration and ticket was given back to the Defendant consensual in nature[?].” Further, the State asserted: “So, the issue is, if Your Honor believes consent was given and that’s totally a question of credibility, if you believe that consent was given, the second issue and those are the only two issues is: Was it ever withdrawn and the answer is, there are no facts to support that it was withdrawn .... ” The prosecutor also sought to distinguish Ferris v. State, 355 Md. 356 , 735 A.2d 491 (1999), arguing: ... Ferns talked about a number of factors. The first one, the two most important: Was he told he was free to leave? The officer tells you he told him he was free to leave.

The second factor, the most important is: Removal of the Defendant from the vehicle. Here, consent was given while the Defendant’s in the vehicle. He’s got all his items back. The Defendant is in the driver’s seat with the ability to take ³⁷¹ off at the point when consent is asked.

Very, very different from Ferris . There isn’t any passengers, there’s no separation from the passengers. He doesn’t get him out of the car at all until after consent is given. At the time when consent is given there’s only one officer.

Again, he’s told he’s free to go and he clearly could have at that point. It’s not the officer’s problem and the cases are clear. The officer has no responsibility to tell him that he has a right to refuse. It’s a factor to be considered whether a reasonable person would believe they are free to go but, he has no responsibility to do that____ Once the consent is given, then the question is, the only question is, was it ever withdrawn?

The prosecutor continued: By [appellant’s] own testimony ... he says ... do you want me to open the trunk. He never says, hey, I want to leave. He never says, give me back, even if you believe his testimony, give me back my license and registration. I want to go.

I’m tired of waiting. There’s none of that.... [I]t’s not the Court’s fault, the State’s fault, Deputy Meil’s fault that the Defendant didn’t say, I want to go. Had he, Deputy Meil testified that had he said it, he would have let him go. The point is, and Your Honor is faced with this situation all the time, which is, why, why would this person have given, granted consent? ...

You hear it all the time and the answer is it happens all the time. People, for whatever reason, think that the officer is bluffing. Who know[s]? The point is, it happens all the time.

The defense attorney countered that appellant never consented to the search. He said: [0]nce ... the initial reason for the traffic stop is satisfied ... the officer is actually under a duty to let, to expedicially [sic] issue the citation and allow the defendant to leave the scene. Now, the State’s version is, well we had consent. And so, I believe that consent is a major part of this issue because what happens is is that Mr. Green is asked out of the vehicle.

He’s searched and all under the pretext that Mr. Green has given his consent to 1. be asked questions ³⁷² and 2. to have his vehicle searched, all of which he denies and I think that if you believe his testimony or not, I think that ends it. Alternatively, the defense lawyer argued that, even if the court did not credit Green’s testimony, the search was still illegal. He stated, in part: If you don’t believe. Mr. Green’s denial of ... the consent to [search] the vehicle, I believe that still another seizure of Mr. Green occurs.

Regardless of whether or not you believe this initial consent occurs and this is what I, kind of the main part of the thrust of my argument is this. Once the officer has Mr. Green get out of the vehicle, pats him down, does the search, looks in the vehicle which he admitted, which he testified that he did. He looked in the vehicle, looked under the seats and then came back. Once he tells [M]r.

Green, I’m going to call for back up ... I believe that’s when the second seizure occurs and therefore, Mr. Green is not free to leave. And what you need to look at are the totality of the circumstances concerning that.... After outlining the similarities between the underlying case and Ferns, the defense attorney continued: The problem that occurs is when they have to wait the fifteen to twenty minutes for Corporal Riggleman to arrive.

And in fact, it was a long period to wait because even Deputy Meil testified that he had to call and check on the status of the back up unit that was supposed to come ... to the scene.... I believe that the search occurred when the deputy looked in the vehicle---- I believe that another seizure then occurs when he says, no, you have to stay here. We’re going to wait for my back up unit. And Your Honor, I think you can ... infer ... that a reasonable person is not going to feel that they are able to leave the scene when an officer has made them get out of the car, patted them down, searched the contents of their vehicle, told them that they are calling for a back up unit....

I don’t believe that a reasonable person could infer that whether or not you believe Mr. Green was given the citation and the license ... ³⁷³ I don’t think that the Court can make a finding that a reasonable person felt that they could get back in that vehicle, stop the search and leave the scene. They are waiting for another officer____ Corporal Riggleman said, “My job was to make sure that----,” and you heard that testimony and that’s unrebutted. Corporal Riggleman was there to make sure Mr. Green didn’t leave. [E]ven if you believe that the consent was given, my argument is this, is that he was seized again once the officer makes him stay and wait for the trooper to arrive on the scene. There’s a seizure.

He’s not free to go. There was no ... reasonable articulable suspicion to believe that any type of criminal activity was afoot at that time and therefore, the seizure was unreasonable and therefore the search is invalid and I’m going to ask you to suppress the search.... Thereafter, the court orally denied the suppression motion. We quote almost the entire opinion, not only for what it says, but also for what it omits: The interesting question in this case as in so many other[s] is one involving which version one is going to believe because until one has the facts, it’s very difficult to try to figure out the law that’s going to apply especially in this very slippery area.

Things are pretty close together up to a point but then the officer says that he returned the license and registration together with the warning and told the Defendant that the could leave. [T]hen [the deputy] asked if he could ask [appellant] if he could ask him some questions and the Defendant indicated that he could, these questions that were prompted by what was said to the officer over his official police channel and that being that the Defendant was dangerous and that he had some connection with controlled dangerous substances. Now, the Defendant categorically denies this and has a story which almost at every turn establishes a scenario in which the search would have been illegal.... The situation where drugs or any ³⁷⁴ contraband is found after a consent search to the rational person is wholly irrational and almost impels one on the basis of logic to conclude that there could not have possibly been a consent search. That is to say, if a person obviously knew that the things were there, why would they give them consent.

Anyone who has had any contact with the criminal law knows that that’s one of the great unanswered questions .... But, I do know that this kind of consent is given. I also know that one has to deal with it very, very carefully because there’s still the situation that there was not real consent or that the consent was in some way coerced either not directly or circumstantially. In this case, the one telling feature as I started to say is that as the Defendant is running through his narrative rather glibely [sic], he candidly indicates that he ... invited ... unasked, the police to search the trunk of the car.

Now, if he were in a hostile situation, and he had not consented in the first place, if he was, as he said, mildly irate but mildly concerned because he couldn’t understand why the search was taking place after he had said, as he says, for a minor traffic stop, why in heaven’s name would he have done that? The only real answer to that is that he did not because he had agreed to the search in the first place. That conclusion is reinforced in my mind when I see the Defendant who, as the officer pointed out in his testimony, is physically very prepossessing and was significantly larger in both height and build than the, the police officer. Moreover, he is not, as his testimony indicated, a bashful type.... [I]t’s impossible for me to believe that the situation could have occurred as [Green says] it did and at the same time he offered to use the trunk.

So therefore, I’m compelled to conclude and I find as a fact that consent was actually given. That being the case, the State’s Attorney is correct that if there was some reason for the Defendant, that consent was given, it was never withdrawn. And again, one little shard of information, it came right from the Defendant, at the end or near the end of this entire (inaudible) when logically, the way he was telling it, the police were almost finished or ³⁷⁵ finished, he suggests prolonging it, if nothing else, by inviting them to search the trunk. He, I think, was quite aware that he could leave.

He didn’t seem to be terribly threatened by the situation and he seemed to be very interested in assisting the police in what they were doing. Posturing it may have been but it nevertheless occurred and he admits it occurred. So therefore, I do not think that there was any illegal search in this case and the motion is denied. DISCUSSION I. Appellant contends that the court erred in denying his motion to suppress the drugs found in his car.

His argument is essentially twofold. First, citing Ferris, 355 Md. 356 , 735 A.2d 491 , and Charity v. State, 132 Md.App. 598 , 753 A.2d 556 , cert. denied, 360 Md. 487 , 759 A.2d 231 (2000), appellant contends that the search was invalid because it occurred during an unlawful, non-consensual second seizure, in violation of the Fourth Amendment, and therefore any consent was involuntary. In his view, “his purported ‘consent’ as found by the [suppression court] was not made freely under the circumstances.” Second, appellant argues that, even if his initial consent to search was valid, it was rendered invalid because of the delay in effecting the search; he characterizes the delay as “undue,” and maintains that the search exceeded the scope of any consent. In support of his temporal contention, appellant refers us to a 1982 Delaware case.

See Gray v. State, 441 A.2d 209, 220 (Del.1982). Appellant also notes that “[t]he court never reached this issue in its opinion except to say that consent ‘was never withdrawn.’ ” The State responds that “Green[’s] second encounter with the police was voluntary” because the traffic stop had ended and appellant was not “seized” when the deputy asked him to consent to the search. In the State’s view, “Green’s consent to search was valid because: (1) it was given during a consensual encounter and (2) Green did not withdraw that consent.” ³⁷⁶ Although the State concedes that it had the burden to prove, by a preponderance of the evidence, that appellant voluntarily consented to the search, it contends that it was not obligated to show that appellant had actual knowledge of the right to withhold consent to search. The State shoulders the ultimate burden of proving that evidence seized without a warrant should not be suppressed.

See State v. Bell, 334 Md. 178, 191 , 638 A.2d 107 (1994). Our review of the trial court’s ruling with respect to a suppression motion “ordinarily is limited to information contained in the record of the suppression hearing.” Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000); seo Ferris, 355 Md. at 368 , 735 A.2d 491 ;. State v. Fernon, 133 Md.App. 41, 43 , 754 A.2d 463 (2000). We review the evidence in the light most favorable to the prevailing party.

Riddick v. State, 319 Md. 180, 183 , 571 A.2d, 1239 (1990); Charity, 132 Md.App. at 606 , 753 A.2d 556 (“Our ruling will be. based exclusively on the [prevailing party’s] most favorable version of the events.”). Moreover, “[w]hen conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that those findings were clearly.erroneous.” Charity, 132 Md.App. at 606 , 753 A.2d 556 ; see Ferris, 355 Md. at 368 , 735 A.2d 491 ; Femon, 133 Md.App. at 44 , 754 A.2d 463 . In our review, we also give due regard to the motion judge’s opportunity to assess the credibility of .the witnesses. McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430 (1992); Fernon, 133 Md. App. at 43 , 754 A.2d 463 .

Nonetheless, we must make our own independent constitutional appraisal as to second level findings, such as whether a search was lawful or a defendant voluntarily consented to a police entry. Ornelas v. United States, 517 U.S. 690, 697 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996); Cartnail, 359 Md. at 282-83 , 753 A.2d 519 ; Turner v. State, 133 Md.App. 192, 203 , 754 A.2d 1074 (2000); Fernon, 133 Md.App. at 44 , 754 A.2d 463 ; Charity, 132 Md.App. at 607-09 , 753 A.2d 556 . We accomplish' this by reviewing the law and applying it to the first-level facts found by the suppression judge. In re Tariq ³⁷⁷ A-R-Y, 347 Md. 484, 488-89 , 701 A.2d 691 (1997), cert. denied, 522 U.S. 1140, 118 S.Ct. 1105 , 140 L.Ed.2d 158 (1998); Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Howard v. State, 112 Md.App. 148, 156 , 684 A.2d 491 (1996), cert. denied, 344 Md. 718 , 690 A.2d 524 (1997).

Similarly, we must independently assess whether the proper scope of a traffic stop was exceeded, so as to require an independent justification “for the roadside proceedings that followed.” Charity, 132 Md.App. at 608 , 753 A.2d 556 . As Judge Moylan noted for the Court in Charity , whether there was one stop or two is a “conclusory or constitutional fact with respect to which the reviewing court must make its own independent, de novo determination.” Id. at 609 , 753 A.2d 556 ; see Whitehead v. State, 116 Md.App. 497, 505-06 , 698 A.2d 1115 , cert. denied, 348 Md. 207 , 703 A.2d 148 (1997); Munafo v. State, 105 Md.App. 662, 672 , 660 A.2d 1068 (1995). Appellant complains, inter alia, that the court below did not consider the factors identified in Ferris, 355 Md. 356 , 735 A.2d 491 , as to consent. He argues that the circuit court’s “failure to do more than find that Appellant ‘consented’ to the search requires that its decision to deny Appellant’s motion to suppress be reversed.” Because this Court must make its own independent, constitutional appraisal by reviewing the law and applying it to the facts of the case, Jones v. State, 343 Md. 448, 457 , 682 A.2d 248 (1996), we agree with the State that the failure of the suppression court to discuss the factors identified in Ferris does not necessarily compel a reversal.

II

The Fourth Amendment protects against unreasonable searches and seizures. United States v. Mendenhall, 446 U.S. 544, 551 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980). A traffic stop involving a motorist is a detention that implicates the Fourth Amendment. See United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985); Rowe v. State, 363 Md. 424, 432 , 769 A.2d 879 (2001); Ferris, 355 Md. at 369 , 735 A.2d 491 ; Edwards v. State, 143 Md.App. 155, 164 , 792 A.2d 1197 (2002).

If the police have probable cause or reason ³⁷⁸ able suspicion that a driver has committed a traffic violation, ordinarily a stop of the driver does not violate the Constitution. See Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). But, the detention of a person during a traffic stop “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983) (plurality opinion); see Ferris, 355 Md. at 369 , 735 A.2d 491 . As we noted, appellant argues that he was subjected to a prolonged, illegal second detention.

In contrast, the State claims that the traffic stop came to an end and a second encounter began, consensual in character. During the second encounter, according to the State, appellant was not seized and he voluntarily consented to the search. A seizure can occur by means of physical force or by a “show of authority,” coupled with submission to that authority. California v. Hodari D., 499 U.S. 621, 628 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991); Ferris, 355 Md. at 375 , 735 A.2d 491 .

The “show of authority” test is an objective one, measured by whether the officer’s words and actions would have conveyed to a reasonable person that his or her freedom of movement was being restricted. Hodari D., 499 U.S. at 628 , 111 S.Ct. 1547 . The “reasonable person test ... is objective and ‘presupposes an innocent person.’ ” United States v. Drayton, — U.S.-,-, 122 S.Ct. 2105, 2111 , 153 L.Ed.2d 242 (2002) (citation omitted). The test to determine whether a particular encounter constituted a seizure or, instead, a consensual occurrence, generally turns on whether a reasonable person would have felt free to “decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991); see INS v. Delgado, 466 U.S. 210, 215 , 104 S.Ct. 1758 , 80 L.Ed.2d 247 (1984); Mendenhall, 446 U.S. at 554 , 100 S.Ct. 1870 ; Ferris, 355 Md. at 375 , 735 A.2d 491 .

In Florida v. Jimeno, 500 U.S. 248, 251 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991), the Supreme Court ³⁷⁹ said: “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” See Turner, 133 Md.App. at 214-15 , 754 A.2d 1074 (finding no implied consent where police did not request permission to enter but simply walked through open door). To determine whether a reasonable person would have felt free to terminate an encounter in a particular situation, “a court must apply the totality-of-the-circumstances approach, with no single factor dictating whether a seizure has occurred.” Ferris, 355 Md. at 376 , 735 A.2d 491 ; see Drayton, - U.S. at-, 122 S.Ct. 2105, 2111 , (“The proper inquiry necessitates a consideration of ‘all the circumstances surrounding the encounter.’ ”) (citation omitted); Bostick, 501 U.S. at 437 , 111 S.Ct. 2382 ; Mendenhall, 446 U.S. at 554 , 100 S.Ct. 1870 . However, there is no “litmus-paper test for distinguishing a consensual encounter from a seizure.... ” Royer, 460 U.S. at 506, 103 S.Ct. 1319 . Indeed, the test is “necessarily imprecise,” because it considers police conduct as a whole, in light of the particular “setting in which the conduct occurs.” Michigan v. Chesternut, 486 U.S. 567, 573 , 108 S.Ct. 1975 , 100 L.Ed.2d 565 (1988).

Given the varied interactions between police officers and members of the public, resolution of each case is ultimately dependent on its underlying facts. Bostick, 501 U.S. at 436-37 , 111 S.Ct. 2382 ; Charity, 132 Md.App. at 617 , 753 A.2d 556 .

III

This case is one of many involving a vehicle search that follows a lawful, routine traffic stop. Such cases often present “difficult analytical questions for courts... . ” Commonwealth v. Strickler, 563 Pa. 47 , 757 A.2d 884, 890 (2000). In our analysis, we are guided by Ferris, 355 Md. at 356 , 735 A.2d 491 . Like Ferris , this case does not invoke a pretextual “Whren” stop.

See Whren, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 . Rather, as in Ferris , this matter originated with ³⁸⁰ a routine traffic stop for speeding. Unlike in Ferris , however, the State does not assert that the detention was prolonged based on a reasonable suspicion of wrongdoing that became evident during the traffic stop. Instead, the State maintains only that, at the relevant time, appellant was not seized and he voluntarily consented to the search of his car.

In Ferris , a trooper was operating a stationary radar gun at about 1:00 a.m. on Interstate 70 in Washington County, when he clocked the defendant’s car traveling 92 m.p.h. in a 65 m.p.h. zone. The trooper activated his emergency equipment, stopped the car, exited the cruiser, and approached the defendant, who occupied the driver’s seat; a passenger sat in the front passenger seat. The trooper asked the defendant, whose eyes were bloodshot, for his license and registration, which the defendant provided. Then, the trooper returned to his vehicle and verified that the defendant’s papers were valid.

As the trooper was writing a speeding ticket, he noticed that the driver and the passenger were moving around and frequently looking over their shoulders at him. About this time, a second police car arrived. The trooper spoke to the second officer, who also noticed the two men moving around in their seats. The trooper then approached the driver’s side door of the car while the second officer approached the passenger side.

Although the trooper gave the defendant the citation and returned his license and registration, he did not advise the defendant that he was free to leave. Instead, he asked the defendant if “he would mind stepping to the back of his vehicle to answer a couple of questions.” Ferris, 355 Md. at 363 , 735 A.2d 491 . The defendant “stated he didn’t mind.” Id. While the second officer watched the passenger, the trooper began asking the defendant questions about drug use.

During the questioning, the defendant admitted that his passenger possessed a small amount of marijuana. The passenger handed the bag to the trooper. In a subsequent search of the car, a larger bag of marijuana was discovered. ³⁸¹ The trial court denied the suppression motion, stating, inter alia, that the defendant answered the questions “without intimidation, voluntarily....” Id. at 366 , 735 A.2d 491 . On certiorari to the Court of Appeals, Ferris argued that what began as a lawful traffic stop developed into an illegal second stop once the purpose of the traffic stop was completed.

The State countered, inter alia, that the stop was a “consensual encounter that did not implicate the Fourth Amendment” or, alternatively, that any seizure was justified. Ferris, 355 Md. at 368 , 735 A.2d 491 . The Court concluded that “the traffic stop essentially came to an end upon the trooper’s delivery of the citation, and return of the driver’s license and registration,” when the officer “completed all his duties pertaining to the traffic stop itself.” Id. at 373 , 735 A.2d 491 . Therefore, the Court determined that the continued detention amounted to a second stop.

It reasoned, at 355 Md. at 372 , 735 A.2d 491 : [t]he officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention. See Royer, 460 U.S. at 500 , 103 S.Ct. at 1325-26 . Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot.

United States v. Sandoval, 29 F.3d 537, 540 (10th Cir.1994). Consequently, the Court proceeded to address the “more difficult question” of whether the officer’s questioning of Ferris after his documents were returned and the citation was issued amounted to a detention or seizure under the Fourth Amendment or, instead, “a ‘consensual encounter...Id. at 373, 735 A.2d 491. It defined a “consensual encounter” as the “voluntary cooperation of a private citizen in response to non- ³⁸² coercive questioning by a law enforcement official. Because an individual is free to leave at any time during such an encounter, he is not ‘seized’ within the meaning of the [Fjourth [AJmendment.” Ferris, 355 Md. at 373 n. 4, 735 A.2d 491 .

Moreover, the Court acknowledged that “[m]ere police questioning does not constitute a seizure.” Id. at 374 , 735 A.2d 491 . Nevertheless, the Court agreed with Ferris that what occurred after the completion of the traffic stop constituted a seizure, not a consensual encounter. Id. at 374 , 735 A.2d 491 . The Court reiterated that the “test to determine whether a particular encounter constitutes a seizure, or whether the encounter was simply a ‘consensual’ non-constitutional event is whether a reasonable person would have felt free to leave.” Id. at 375 , 735 A.2d 491 .

The Court focused on “ ‘whether a reasonable person would feel free to decline the officers’