Hardy v. State

³⁴⁸ HOLLANDER, Judge. On October 6, 1997, Christopher Leon Hardy, appellant, entered a plea of not guilty to various drug charges, pursuant to an agreed statement of facts. Thereafter, the Circuit Court for Prince George’s County found him guilty of possession with the intent to distribute a controlled dangerous substance, in violation of Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 286(f)(1)(iii). After appellant was sentenced to a mandatory term of five years of incarceration, he noted this appeal.

He presents one question for our review, which we have rephrased: Did the motion court err in denying appellant’s motion to suppress physical evidence based on an unlawful vehicle stop that was made in response to an anonymous tip? As we answer this question in the affirmative, we shall reverse the conviction. FACTUAL SUMMARY On March 27, 1997, appellant was arrested when police officers recovered 227 grams of crack cocaine from his person during a felony traffic stop. Hardy was subsequently charged with possession with the intent to distribute a controlled dangerous substance, in violation of Code, Article 27, §§ 286(a)(1) and 286(f)(1)(iii), and with simple possession, in violation of Art. 27, § 287(a).

The court held an evidentiary hearing with respect to appellant’s motion to suppress. At the hearing, Officer Brandon Sprague of the Prince George’s County Police Department testified on behalf of the State. According to Sprague, at approximately 12:33 p.m. on March 27, 1997, the police received information from an anonymous caller that “a burgundy Honda was traveling eastbound on East-West Highway and the occupants were believed to have weapons and drugs in the car.” This information was then broadcast to police officers in the area. Upon receiving the information, Officer Sprague proceeded to the area around East>-West Highway and Belcrest Road, where he observed a burgundy Honda ³⁴⁹ Accord with Virginia temporary license plates, matching the description of the vehicle “put out over the radio.” 1 A patrol car from the Riverdale Police Department was following the suspect automobile.

Officer Sprague further testified that the police stopped the vehicle in a public parking lot near Belcrest and Toledo Road in Hyattsville, Maryland. A K-9 Unit also responded to the scene. The occupants were ordered by police to exit the vehicle. Using a bull-horn and with their guns drawn, the police instructed the occupants to walk backwards toward the police cruisers.

The police then handcuffed the occupants and patted them for weapons. 2 Officer Sprague testified concerning the pat-down of appellant by Corporal Randall S. Matthews. He stated: [Corporal Matthews] patted him down in the groin area, and he could feel something in his pants. I can’t describe what he could feel, and you could also hear like a plastic bag sounds in his groin, and Corporal Matthews investigated further, and opened his pants, and pulled a large bag of crack cocaine, suspected crack cocaine, from his groin area. Thereafter, the court engaged in the following colloquy with Officer Sprague: THE COURT: You get an anonymous call, and tell me what the call said. [OFFICER SPRAGUE]: It went out that the burgundy Honda left the Bladensburg area, traveling towards East-West Highway, going to Bellcrest [sic], or Toledo Terrace, and Riverdale [police] intercepted them approximately a little over half-way there, and Riverdale [police] followed them.

THE COURT: I want to know what information you received that necessitated you to stop the vehicle. ³⁵⁰ [OFFICER SPRAGUE]: That there was a burgundy Honda, and the occupants were to have guns and drugs in the car. Corporal Randall S. Matthews, assigned to the K-9 Unit of the Prince George’s County Police Department, Special Operations Division, also testified for the State. He said that a radio dispatch had been broadcast concerning three “subjects alleged to be armed and in possession of a quantity of narcotics.” Although Corporal Matthews thought that the broadcast included “a description of the vehicle,” he did not testify as to the description. Corporal Matthews also explained that the suspects were in a vehicle that was “supposed to be coming from the area of Capital Plaza towards Toledo Plaza, so [he] tried to get in the middle, basically, between those two spots, and see if [he] could spot the car.” As he was approaching Toledo Terrace, Corporal Matthews recounted that he learned from a police broadcast that the vehicle had been spotted by Riverdale police and was pulling into a parking lot off Toledo Terrace.

At that point, Corporal Matthews “got on the radio and requested that [the police] not approach the car until [he] got there and [he] could take [his] K-9 partner out.” Upon his arrival at the scene, Corporal Matthews observed three people exiting the suspect vehicle. He frisked the three occupants, in order to determine whether they were carrying any weapons. During the patdown of the first occupant, Corporal Matthews was told that appellant had drugs on his possession. In frisking appellant, Corporal Matthews felt a hard object in appellant’s groin area, which he thought was narcotics.

The following testimony is pertinent: [THE STATE]: And once you patted down the defendant, what happened? [CORPORAL MATTHEWS]: As I was patting him down I reached up into the crotch area and felt a hard object in his crotch area. [THE STATE]: Based on your training and experience, what did you believe that hard object to be? ³⁵¹ [CORPORAL MATTHEWS]: It was my experience, based on what I had been told, and by the shape and weight, it was probably narcotics. [THE STATE]: And once you felt that object, what did you do next? [CORPORAL MATTHEWS]: I asked the subject what was in his pants. He didn’t say anything. I then retrieved the item from the front of his pants. [THE STATE]: And what did you believe the item that you retrieved from his pants to be? [CORPORAL MATTHEWS]: Crack cocaine. After handing the suspected narcotics to another police officer, Corporal Matthews took his police dog and conducted a search of the Honda.

This search did not yield any additional narcotics or any weapons. Thereafter, the court questioned Corporal Matthews. The following exchange is relevant: THE COURT: You saw the bulk in his pants? [CORPORAL MATTHEWS]: Saw the bulge. THE COURT: You felt the bulge? [CORPORAL MATTHEWS]: Yes, sir.

THE COURT: And you asked him what it was? [CORPORAL MATTHEWS]: Yes, sir. THE COURT: And as a result of his not responding, you searched him? [CORPORAL MATTHEWS]: Yes, sir. THE COURT: And you thought it was a weapon or cocaine? [CORPORAL MATTHEWS]: I thought from what I had been told that it was cocaine. THE COURT: Who told you it was? [CORPORAL MATTHEWS]: The first person that came out of the car that I patted down.

He told me he had the cocaine in his underwear. Appellant did not present any evidence at the hearing. At the close of the evidence, the State argued that the police had ³⁵² a right to stop the car and detain its occupants to determine the accuracy of the anonymous tip. The defense argued that appellant was under arrest when he was subjected to a felony stop and that the arrest was not supported by probable cause.

Appellant also asserted that the tip contained insufficient detail to justify the stop. Indeed, Hardy contended that the information from the anonymous source was inadequate to justify even a Terry 3 stop of the vehicle and its occupants. The trial court acknowledged that it was “concerned of what right [the police] had to stop that car.” Because the court thought the matter constituted a “close case,” it took appellant’s motion to suppress “under advisement.” Subsequently, by order dated October 3, 1997, the court denied appellant’s motion to suppress. The order provided, in part: In the case at hand the police officers had a tip describing the vehicle, the direction it was going and the number of occupants (3).

Relying on their personal experiences, the officers were aware that weapons are usually associated with drug activity, the officers explained that they drew their guns and ordered the occupants out of the vehicle and conducted a “frisk” of the defendant. The length of detention was relatively brief, there was no arrest at that time but a forcible detention. Police then observed a “bulge” in defendant’s trousers which was properly seized pursuant to an appropriate “pat down.” Here, the combination of the description of the vehicle leaving the Bladensburg area, travelling towards East-West Highway, going to Belcrest or Toledo Terrace was sufficient under the totality of the circumstances to justify the investigatory stop. Therefore, balancing the facts the officers relied upon to make the stop against the defendant’s right to be free from any arbitrary intrusions by the State, this Court finds that ³⁵³ the officer’s suspicion was reasonable and the stop was justified, albeit a [“jclose case.” (Citations omitted).

DISCUSSION Appellant asserts that the trial court erred in denying his motion to suppress. He claims that the tip from the anonymous informant was too vague and uncertain to establish a particularized and objective basis for suspecting that appellant was armed and dangerous or engaged in criminal activity. In particular, he suggests that the anonymous tip indicated only that the vehicle was proceeding “from one general area to another very public area,” and was not sufficient to constitute a statement of predictive behavior. Appellant also posits that the anonymous tip did not contain any information regarding the license plate, model, or year of the vehicle.

Further, he asserts that the tip did not include information about the age, race, or gender of the vehicle’s occupants, nor was any information provided describing the occupants’ clothing. The State counters that “[t]he record from the suppression hearing established that, under the totality of the circumstances, the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of Hardy’s car.” According to the State, the tip was adequate because it “contained a range of details” and information that “demonstrated an ability to predict Hardy’s future behavior in that it provided his destination as well as his origin.” The State also notes that the Honda was “intercepted” about “halfway there,” and the police stopped the vehicle only after they “verified the prediction” as to its route. Therefore, the State asserts that this vehicle was lawfully stopped, and the court correctly denied the suppression motion. Preliminarily, we observe that our review of a denial of a motion to suppress is ordinarily confined to the record of the suppression hearing itself.

Lee v. State, 311 Md. 642, 648 , 537 A.2d 235 (1988); Trusty v. State, 308 Md. 658, 670-72 , 521 A.2d 749 (1987); Flores v. State, 120 Md.App. 171, 178 , 706 ³⁵⁴ A.2d 628, 631 (1998); Wynn v. State, 117 Md.App. 133, 165 , 699 A.2d 512 , cert. granted, 348 Md. 207 , 703 A.2d 149 (1997); Gantt v. State, 109 Md.App. 590, 594 , 675 A.2d 581 (1996); Matthews v. State, 106 Md.App. 725, 732 , 666 A.2d 912 (1995), cert. denied, 341 Md. 648 , 672 A.2d 623 (1996); Aiken v. State, 101 Md.App. 557, 563 , 647 A.2d 1229 (1994), cert. denied, 337 Md. 89 , 651 A.2d 854 (1995). When reviewing evidence presented at a suppression hearing, we extend great deference to the fact-finding of the trial court. Perkins v. State, 83 Md. App. 341, 346 , 574 A.2d 356 (1990). Moreover, we must consider only those facts that are “most favorable to the State as the prevailing party on the motion.” Matthews, 106 Md. App. at 732 , 666 A.2d 912 .

Nevertheless, in order to determine if a constitutional right has been violated, we must make our own independent appraisal of the record concerning the law and its application to the facts of the case. Carroll v. State, 335 Md. 723, 736 , 646 A.2d 376 (1994); McMillian v. State, 325 Md. 272, 285 , 600 A.2d 430 (1992); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Gantt, 109 Md.App. at 595 , 675 A.2d 581 . The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures, and is applicable to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684, 1691 , 6 L.Ed.2d 1081 (1961).

See also Maryland Const., Declaration of Rights, Art. 26. The linchpin of the Fourth Amendment is reasonableness. McMillian, 325 Md. at 281 , 600 A.2d 430 (citing Florida v. Jimeno, 500 U.S. 248, 250 , 111 S.Ct. 1801, 1803 , 114 L.Ed.2d 297 (1991)). “Reasonableness is determined by balancing ‘the intrusion on the individual’s Fourth Amendment interests against [the] promotion of legitimate governmental interests.’ ” Id. (Quoting Maryland v. Buie, 494 U.S. 325, 331 , 110 S.Ct. 1093, 1096 , 108 L.Ed.2d 276 (1990)).

An automobile stop is “subject to the constitutional imperative” of reasonableness. Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769, 1772 , 135 L.Ed.2d 89 (1996). ³⁵⁵ Warrantless searches, seizures, and arrests are per se unreasonable, subject only to a few well established exceptions. Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967). What has become known as the “Terry stop and frisk” is one of the limited exceptions to the warrant requirement.

Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). In Terry, 392 U.S. 1 , 88 S.Ct. 1868 , and the companion case of Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968), the Supreme Court ruled that police officers may stop persons when they have “specific and articulable facts which, taken together with rational inferences from those facts,” create reasonable suspicion that the person has been or is about to engage in criminal activity. Terry, 392 U.S. at 21 , 88 S.Ct. at 1879 ; see Aiken, 101 Md.App. at 567 , 647 A.2d 1229 . In Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972), the Supreme Court explained: A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

Id. at 146 , 92 S.Ct. at 1923 (citing Terry, 392 U.S. at 21-22 , 88 S.Ct. at 1879-80 ). The Supreme Court further said in Terry : [Wjhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Terry, 392 U.S. at 30 , 88 S.Ct. at 1884-85 (emphasis added). The purpose of a Terry stop, then, is investigative — to verify or to dispel the officer’s suspicion surrounding ³⁵⁶ the suspect.

Terry, 392 U.S. at 22-23, 30 , 88 S.Ct. at 1880-81, 1884 . When an officer has a “reasonable suspicion supported by articulable facts that criminal activity may be afoot,” the officer may ordinarily detain an individual for a brief period of time. Derricott v. State, 327 Md. 582, 587 , 611 A.2d 592 (1992); see Munafo v. State, 105 Md.App. 662, 670 , 660 A.2d 1068 (1995); see also Ornelas v. United States, 517 U.S. 690, 696 , 116 S.Ct. 1657, 1661 , 134 L.Ed.2d 911 (1996) (describing reasonable suspicion as “ ‘a particularized and objective basis’ for suspecting the person stopped of criminal activity’ ”). But the stop must be “ ‘justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.’ ” Aiken, 101 Md.App. at 567 , 647 A.2d 1229 (quoting U.S. v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621 (1981)).

The brief detention and limited intrusion permitted under the Terry exception are not deemed unreasonable when weighed against the governmental interests served. These include effective crime prevention and detection and the safety of the police officer and others nearby. Terry, 392 U.S. at 16-27 , 88 S.Ct. at 1877-83 ; State v. Wilson, 279 Md. 189, 199 , 367 A.2d 1223 (1977); Weedon v. State, 82 Md.App. 692, 696 , 573 A.2d 92 (1990). The difficulty often arises in pinpointing exactly what is meant by the term “articulable