Harrod v. State

DEBORAH S. EYLER, Judge. On the evening of January 27, 2007, two Montgomery County police officers, working off-duty as private security for the Majestic Movie Theater in Silver Spring, but dressed in their standard police uniforms, were approached by a male patron who told them that a man in the concession line who appeared to be intoxicated had threatened him with a knife. ⁹⁴ He pointed out a man, later identified as Darryl K. Harrod, the appellant, as the person who had threatened him. The officers responded by escorting the appellant from the line and placing him against a nearby pillar, where they frisked him for weapons. When one of the officers reached into the appellant’s pocket to retrieve what he believed was a folding knife, he discovered a large plastic baggie containing crack-cocaine.

The item the officer thought was a knife in fact was a cigarette lighter. The appellant was first tried in the Circuit Court for Montgomery County on August 28 and 29, 2007, on charges of second-degree assault and possession with intent to distribute a controlled dangerous substance. He was acquitted of the assault charge, but the jury was unable to reach a verdict on the possession with intent to distribute charge, resulting in a mistrial as to that count. In a retrial on March 4 and 5, 2008, the appellant was convicted of the possession with intent to distribute charge.

The appellant presents the following questions on appeal, which we have reordered as: I. Did the trial court err in failing to grant [his] suppression motion because the search violated the Fourth Amendment?

II

Did the trial court err in admitting the prior testimony of Officer [Pete] Duggan and the chemist Susan Cohen from the first trial?

III

Did the trial court err in admitting the chemist report [on the narcotics recovered from his person]? For the reasons stated below, we shall affirm the judgment. For ease of discussion, we shall summarize the pertinent facts and proceedings issue by issue. DISCUSSION I. The Suppression Hearing Prior to trial, the appellant moved to suppress the narcotics discovered in his possession as the product of an illegal search ⁹⁵ and seizure.

The suppression hearing took place on August 27, 2007, the day before the start of the first trial. The two Montgomery County police officers who performed the search, Sergeant Detective Paul Liquorie and Patrol Officer Omar Tortolero, testified on behalf of the State. Joan Burriss, a friend of the appellant who had accompanied him to the theater on the evening in question, appeared on behalf of the defense. The officers testified that they were standing in the general patron area of the theater, when they were approached by a “Mr. Felice Arias,” 1 who claimed he had bumped into someone in the concession line, and that the person had “pulled out a knife” and “tr[ied] to pick ... a fight.” According to the officers, Arias told them the person smelled of alcohol and that he had threatened to “put [Arias] to sleep.” The officers did not witness anything that corroborated Arias’s story, but Sergeant Liquorie found it “very unusual for someone just to come up out of the blue and tell you that someone ... got into a fight with them.” Arias did not specify when the incident had occurred, but Sergeant Liquorie’s impression was that it “had just happened.” Sergeant Liquorie requested that Arias identify the person who had threatened him, and Arias pointed to the appellant.

Arias then left the scene. He did not describe the knife, and none of his statements were recorded by the officers. 2 The officers approached the appellant and asked him to walk to a large pillar approximately ten steps from the concession line. Sergeant Liquorie directed the appellant to the pillar by placing his hand on the appellant’s arm. Both officers noticed that the appellant’s eyes were bloodshot, and that his breath and body smelled of alcohol.

The appellant was ordered by Sergeant Liquorie to place his hands on the ⁹⁶ pillar and stand in a frisk position. 3 Sergeant Liquorie then patted down the appellant while Officer Tortolero stood in a back-up role, watching the appellant’s hands to ensure he did not reach for a weapon. When Sergeant Liquorie reached the appellant’s left front pants pocket, he “felt an object at the bottom of the pocket that [he] believed could possibly be a folded knife.” When he put his hand in the pocket to retrieve the object he thought was a knife, he discovered on top of the suspected knife “a large baggie holding several other smaller red baggies which [he] immediately identified as crack cocaine.” The sergeant also discovered that the suspected knife was actually a “Bic like style cigarette lighter.” He explained that he mistook the lighter as a folding-style pocket knife because the appellant was wearing heavy sweat pants that made it “hard to manipulate anything through the exterior.” After the lighter and baggie of narcotics were seized, the officers handcuffed the appellant and escorted him outside the movie theater. There, Officer Pete Duggan, an on-duty Montgomery County Police Officer, took the appellant and the items of evidence into custody. As noted, Joan Burriss testified for the defense.

She stated that, before the encounter with the police officers, she was standing next to the appellant in the concession line and that a “fair-skinned” African-American male who was also standing in line was blocking them from moving forward. Both Burriss and the appellant said “excuse me” to prompt the individual to move. The individual “just stood there.” Eventually, the man told them to “go ahead” and walked out of the line. At that point, she and the appellant were approached by the officers.

The officers did not speak with Burriss before or after escorting the appellant to the pillar. According to Burriss, the officers took a fighter, a pack of cigarettes, and a cell phone from the appellant’s pockets. She claimed she had not ⁹⁷ seen the appellant drink any alcohol that evening, nor could she smell alcohol on his breath or person. At the conclusion of the hearing, the motion court denied the appellant’s motion.

The court found that the officers had conducted a Terry 4 stop and frisk for a weapon and “nothing more.” Although the court was “disturb[ed]” by the level of force used by the officers to remove the appellant from the line and place him against the pillar, it found that the officers had stayed within “the scope and purpose of a Terry stop” in their conduct, and that the narcotics were discovered by mere inadvertence when Sergeant Liquorie retrieved what he thought was a weapon from the appellant’s pants pocket. The circumstances recounted by the court as justifying the Terry stop and frisk included the large crowd in the lobby area where the incident occurred (Sergeant Liquorie testified that the theater could “have easily a couple hundred people in [the lobby] area getting concessions and waiting”); the “highly unusual” report and identification of the appellant by Arias; the fact that the appellant smelled of alcohol, which corroborated Arias’s report that the aggressor was intoxicated; and that the Bic-style lighter could have been a folded knife that, when opened, would “become[ ] a weapon” that could be used “to threaten somebody.” Standard of Review When reviewing a decision on a motion to suppress evidence, we must view the evidence presented at the suppression hearing in a light most favorable to the party prevailing on the motion. Crosby v. State, 408 Md. 490, 504 , 970 A.2d 894 (2009). We defer to the motion court’s factual findings, rejecting them only if clearly erroneous.

Id. at 504-05 , 970 A.2d 894 . We make an independent legal determination, however, as to whether the challenged search violated the Fourth Amendment. Id. at 505 , 970 A.2d 894 . Our review is limited to the record produced at the suppression hearing.

Id. ⁹⁸ The Propriety of the Search Under the Fourth Amendment The appellant advances three alternative arguments as to why the search violated his Fourth Amendment rights and the narcotics evidence therefore should have been suppressed. First, the actions of the officers in escorting him to the pillar and frisking him amounted to an arrest unsupported by probable cause. Second, even if the encounter was not an arrest but merely was a Terry stop, neither the Terry stop nor the frisk was supported by a reasonable articulable suspicion that criminal activity was afoot or that the appellant was armed. Finally, even if the Terry frisk was supported by a reasonable articulable suspicion of weapons possession, it exceeded the scope allowed by the Fourth Amendment.

The State responds that the appellant failed to preserve the argument that he was unlawfully arrested; that, even if preserved, the officers’ actions did not constitute an arrest, but rather a permissible Terry stop and frisk for weapons supported by the tip from a “citizen-informant”; and that the search was within the scope of a Terry frisk because “the officer felt a hard object that he [reasonably] thought might be a knife,” and discovered the narcotics while acting “properly [to] remove[ ] it.” The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” When a search violates the Fourth Amendment, “the usual remedy is to suppress any of the resulting ... evidence.” Myers v. State, 395 Md. 261, 282 , 909 A.2d 1048 (2006) (citing Wong Sun v. United States, 371 U.S. 471, 485-86 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963)). The Court of Appeals has described the two “tiers” of interaction between police and citizens that are regulated by the Fourth Amendment as follows: ⁹⁹ “The most intrusive encounter, an arrest, requires probable cause to believe that a person has committed or is committing a crime. The second category, the investigatory stop or detention, known commonly as a Terry stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop and briefly detain an individual.... ” Bailey v. State, 412 Md. 349, 363 , 987 A.2d 72 (2010) (quoting Swift v. State, 393 Md. 139, 150 , 899 A.2d 867 (2006)) (alterations in original). The Court further has explained that consensual encounters do not trigger the Fourth Amendment at all: “The least intrusive police-citizen contact, a consensual encounter, ... involves no restraint of liberty and elicits an individual’s voluntary cooperation with non-coercive police contact.

A consensual encounter need not be supported by any suspicion and because an individual is free to leave at any time during such an encounter, the Fourth Amendment is not implicated; thus, an individual is not considered to have been ‘seized’ within the meaning of the Fourth Amendment.” Bailey at 363-64, 987 A.2d 72 (quoting Swift, 393 Md. at 151 , 899 A.2d 867 ) (alterations in original). Although the police officers in this case were working as private security guards during the search in question, they were nonetheless acting under color of state authority, and therefore were subject to the Fourth Amendment. As we explained in In re Albert S., 106 Md.App. 376, 394-95 , 664 A.2d 476 (1995), which likewise involved a challenge to a search performed by an off-duty Montgomery County police officer working as a private security guard: A police officer on active duty has legal authority to take certain actions toward and make certain demands of private citizens. Each citizen, in turn, is protected when accosted by a police officer by certain constitutional rights.

Thus, we believe it imperative that a private security guard, who by ¹⁰⁰ the use of his or her police vehicle[ 5 ] and by the duties he or she undertakes to perform, has shifted his or her role and thereby acts as an agent for the State, must be mindful of his or her obligation to confer on those who come within the ambit of his or her law enforcement responsibilities all of the rights to which a citizen dealing with a police officer on active duty would be entitled. Stated otherwise, such an officer must be mindful that, when he or she acts under color of law while off-duty, he or she is subject to the Fourth Amendment and cannot circumvent the constitutional limitations on his or her conduct. Thus, whether the appearance of police authority is created by the use of a marked patrol car, or, as in this case, the donning of an official police uniform, such a display will subject the officer’s conduct to Fourth Amendment scrutiny. See id. at 391 , 664 A.2d 476 (citing eases in which off-duty police officers wearing uniforms or displaying badges were deemed state actors).

In the case at bar, there is no dispute that the encounter in question was nonconsensual, and therefore was subject to the Fourth Amendment. Thus, the officers’ actions constituted either an arrest or an investigatory detention/Tern/ stop. However classified, because the search and seizure were not carried out pursuant to a warrant, the State bore the burden of proving Fourth Amendment satisfaction. Bailey, supra, 412 Md. at 366 , 987 A.2d 72 (citing Paulino v. State, 399 Md. 341, 348 , 924 A.2d 308 (2007)).

An arrest is composed of four elements: “ ‘(1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person; and (4) which is understood by the person arrested.’ ” Id. at 370 , 987 A.2d 72 (quoting Bouldin v. State, 276 Md. 511, 515-16 , 350 A.2d 130 (1976)). The weight given to an officer’s subjective intent, as revealed (at least in part) by his testimony at the ¹⁰¹ suppression hearing, will depend upon his objective conduct. When an officer’s intent is plainly demonstrated by his objective conduct, a court need not give significant weight to his or her subjective intent. Id.

(citing Belote v. State, 411 Md. 104, 117 , 981 A.2d 1247 (2009)). The defining feature of an arrest is the detention or restraint of an individual through the use of force, or by the individual’s submission to authority. See California v. Hodari D., 499 U.S. 621, 626 , 111 S.Ct. 1547 , 118 L.Ed.2d 690 (1991) (“An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority.”) (emphasis in original); Longshore v. State, 399 Md. 486, 502 , 924 A.2d 1129 (2007) (“[Gjenerally, a display of force by a police officer, such as putting a person in handcuffs, is considered an arrest.”); Bouldin, supra, 276 Md. at 515-16 , 350 A.2d 130 (“It is generally recognized that an arrest is the taking, seizing, or detaining of the person of another (1) by touching or putting hands on him; (2) or by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested.”). To be reasonable and therefore valid under the Fourth Amendment, a warrantless arrest must be supported by probable cause.

Probable cause “exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.” Longshore, 399 Md. at 501 , 924 A.2d 1129 (internal quotation marks omitted) (citations omitted). In Terry v. Ohio, supra, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 , the Supreme Court recognized that some circumstances may necessitate a police response even when the probable cause necessary to effectuate an arrest is lacking. Specifically, the Court reasoned: there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer [and bystanders], where he has reason to ¹⁰² believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

Id. at 27, 88 S.Ct. 1868 . The Court circumscribed the scope of such a search in accordance with its limited purpose: “The sole justification of the [Terry'] search ... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Id. at 29 , 88 S.Ct. 1868 . In addition, the Court noted that the reasonableness vel non of the officer’s action must be judged by looking “not to his inchoate and 'unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. at 27 , 88 S.Ct. 1868 . This reasonable suspicion standard is less demanding than probable cause, requiring only “some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” Longshore, 399 Md. at 507 , 924 A.2d 1129 (citations omitted).

See also United States v. Sokolow, 490 U.S. 1, 7-8 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989) (stating that “the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause” and that the existence of a “reasonable suspicion” must be judged by “ ‘the totality of the circumstances — the whole picture.’ ” (quoting United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981))). As is evident from the Court of Appeals’s recent discussion in Bailey , the core standards governing a Terry frisk remain unchanged: The purpose of a protective Terry frisk is “not to discover evidence, but rather to protect the police officer and bystanders from harm.” Pat-down frisks are proper when the ¹⁰³ officer “has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” The officer has reason to believe that an individual is armed and dangerous if a reasonably prudent person, under the circumstances, would have felt that he was in danger, based on reasonable inferences from particularized facts in light of the officer’s experience. Bailey, 412 Md. at 366-67 , 987 A.2d 72 (quoting Longshore, 399 Md. at 508-09 , 924 A.2d 1129 ) (internal citations omitted). Although the use of force is generally the hallmark of an arrest, in some instances a Terry stop will justify the use of force without elevating the encounter to an arrest.

See Bailey, 412 Md. at 372 n. 8, 987 A.2d 72 (stating that “even if the officers’ physical actions are equivalent to an arrest, the show of force is not considered to be an arrest if the actions were justified by officer safety,” and citing cases in which force was applied to effectuate a limited Terry stop). Indeed, as the motion court in this case observed, “the permissible scope of a Terry stop has expanded in the past few decades” to allow police officers to use, during an investigative detention, “measures of force such as placing handcuffs on suspects, placing the suspect in the back of police cruisers, drawing weapons, and other forms of force typically [associated with] an arrest.” Longshore, 399 Md. at 509 , 924 A.2d 1129 (citing United States v. Tilmon, 19 F.3d 1221, 1224-25 (7th Cir. 1994)). Nevertheless, “Maryland has recognized very limited instances in which a show of force, such as placing a suspect in handcuffs, is not an arrest.” Id. The circumstances in which Maryland appellate courts have allowed arrest-level force during a Terry stop include (1) to protect the officer(s) and/or bystanders, and (2) to prevent a suspect’s flight.

Id. (citing, respectively, In re David S., 367 Md. 523 , 789 A.2d 607 (2002), and Trott v. State, 138 Md.App. 89 , 770 A.2d 1045 (2001)). Even under these scenarios, there is no bright line marking the point at which a Terry stop and frisk rises to the level of an arrest. Longshore, 399 Md. at 509 , 924 A.2d 1129 . ¹⁰⁴ Each case must be evaluated on its facts, accounting for the totality of the circumstances.

Id. at 515-16 , 924 A.2d 1129 . Relevant considerations in addition to the application of force include, but are not limited to, the “length of detention^] the investigative activities during ■ the detention [including its scope][;] and whether the suspect was removed to a detention or interrogation area.” Id. Before applying these standards to the circumstances in this case, we first must address the State’s preservation argument. The question whether, when the officers removed the appellant from the concession line and placed him against the pillar in a frisk position, they effectuated an arrest, plainly was raised in and decided by the motion court, and hence was preserved for review.

See Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any [non-jurisdictional] issue unless it plainly appears by the record to have been raised in or decided by the trial court....”). As the appellant notes in his reply brief, defense counsel argued that the officers could not “make an arrest based on anything less than probable cause. And in this instance what they did was ... immediately ... [take] him out of line involuntar[ily] ... [and] put him up against a wall.” Defense counsel later added that the officers “were actually conducting a full-scale police action against [the appellant] as if they had probable cause.” The prosecutor also understood that the appellant was arguing that he was arrested, responding “this was not an arrest, this was not a detention. This was just a Terry stop.” The motion court in turn addressed the issue at the outset of its ruling, stating that the use of force in removing the appellant from the line was “irrelevant legally ... because [the incident] [was] only ... a Terry stop.” Thus, the appellant’s argument that he was unlawfully arrested is properly before this Court.

The appellant stakes his claim of unlawful arrest on the fact that the officers forcibly removed him from the concession line and placed him against the pillar. Indeed, the motion judge found that the officers “grabb[ed] [the appellant] by both arms, or one arm, and escort[ed] him over to [the] ¹⁰⁵ pillar ... and seareh[ed] him.” The motion judge commented that he was “surprised” and “disturb[ed]” by this level of force, and questioned why the officers did not first question the appellant about the accusation that he had threatened someone with a knife. According to the appellant, arrests have been found “in cases where the police used much less force against potentially more dangerous individuals than in [his] case.” Specifically, he cites Morton v. State, 284 Md. 526 , 397 A.2d 1385 (1979), and Grier v. State, 351 Md. 241 , 718 A.2d 211 (1998). In Morton , the defendant was stopped and frisked by a police officer acting on a tip that Morton had participated in an armed robbery the day before.

The officer found no incriminating evidence and told Morton he was free to leave. Morton nevertheless remained under police observation. A short time later, the police received information that Morton “ ‘may have been wanted,’ ” prompting them to surround a recreation center they had seen Morton enter. 284 Md. at 528 , 397 A.2d 1385 . The officer who had earlier frisked Morton confronted him inside the recreation center, told him “ ‘that he may have been wanted for something,’ ” and escorted him outside where he was placed in a patrol car containing another officer.

Id. The officer then returned to the recreation center to search for a jacket and plastic bag that had been in Morton’s possession during their first encounter. When the officer found and searched the bag, he discovered a handgun and narcotics inside. The Court of Appeals concluded that the defendant had been arrested when he was removed from the recreation center and placed under guard in the patrol car, and that the arrest was illegal because, at the time, the officer possessed only “unparticularized information giving rise to a suspicion that [Morton] was guilty of an unspecified crime.” Id. at 530-31 , 397 A.2d 1385 .

In Grier , two patrolling officers observed Grier in a struggle with another man. As they turned their car around and approached the scene, the struggle ceased and Grier began walking away. When the officers reached the other person they found him “hysterical,” and noticed he had a deep cut on ¹⁰⁶ his hand. 351 Md. at 245 , 718 A.2d 211 . That person toid them that Grier had attacked him and stolen his backpack (there was no mention of a weapon).

The officers pursued Grier down an alley where they noticed him throw something on a porch. When Grier emerged from the alley, an officer “ ‘put him on the ground and took ... him into custody.’ ” Id. The Court concluded that there was no evidence of an initial investigatory detention; instead, Grier was arrested the moment the officer “ ‘got’ ” him. (The issue in that case was not the lawfulness of the arrest, or whether an arrest took place, but whether there was admissible evidence of pre-arrest silence.) The appellant’s attempt to compare his case with Morton and Grier fails because he is viewing the use of force in isolation, without accounting for the surrounding circumstances in each case.

As the appellant himself acknowledges, and as noted above, Maryland caselaw has recognized two circumstances in which officers may use arrest-force during a Terry stop without effectuating an arrest; one such circumstance being the Terry frisk of a suspect who officers reasonably believe is armed and dangerous, and therefore poses a threat to their safety. See In re David S., supra, 367 Md. 523 , 789 A.2d 607 . In In re David S., an officer observed the juvenile defendant, David S., walking with a suspected drag dealer. The pair stopped in front of an abandoned, boarded up building, with a “no trespassing” sign posted in front.

David S. walked to the back of the building while his companion stayed in front and scanned the surroundings. When David S. returned, the officer observed him stuff an object the officer believed was a handgun into the waistband of his pants. As David S. and his companion walked away, they were stopped by four officers. With guns drawn, the officers ordered the pair to lie on the ground and then placed them in handcuffs.

The officer who had observed what he thought was a handgun then rolled David S. over and touched his waistband. Feeling a hard object, the officer pulled up David S.’s tucked-in shirt and saw a black object protruding from his pants. The officer grabbed ¹⁰⁷ the object and discovered it was a black plastic bag containing both a handgun and cocaine. The Court of Appeals held that the evidence recovered from the black plastic bag was not the product of an arrest.

The Court concluded that the officer’s observations, which included a potential burglary and the brandishing of what looked like a handgun, were sufficient to give him a reasonable, articulable suspicion that criminal activity was afoot, and to perform a Terry stop of the suspects. Addressing the use of force, the Court noted that by drawing their weapons and handcuffing the suspects, the officers did not per se elevate the encounter to an arrest requiring probable cause. The Court explained that, in deciding whether there had been an arrest, it was required to examine the “totality of the circumstances” and assess the reasonableness of the officers’ response, “ ‘balancing] the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.’” Id. at 536, 789 A.2d 607 (quoting Lee v. State, 311 Md. 642, 661 , 537 A.2d 235 (1988)). Applying these principles, the Court concluded that the officers’ “ ‘hard take down’ ” of David S. was “a legitimate Terry stop, not tantamount to an arrest,” and that the officers’ conduct, though a “severe ... intrusion,” was “not unreasonable because the officers reasonably could have suspected that [he] posed a threat to their safety.” Id. at 539-40, 789 A.2d 607 (quoting Lee, 311 Md. 642 , 537 A.2d 235 ).

Similarly, in Lee, supra, 311 Md. 642 , 537 A.2d 235 , police were on the look-out for two suspects involved in a robbery and shooting. They received a call from an unknown informant advising them that he had heard the suspects boasting about a robbery. The informant further said that the suspects were headed to an outdoor recreation area containing tennis and basketball courts so they could buy drugs, and would have with them a small blue bag containing a handgun. The unknown informant also gave a detailed description of the clothing the suspects would be wearing. ¹⁰⁸ When police arrived on the scene, they observed the suspects among a group of people shooting baskets.

Both suspects were dressed exactly as the informant had described, and, after several minutes of observation, the defendant was seen carrying the gym bag, which he hung on a fence near the basketball court. 6 Six officers converged on the scene with weapons drawn and ordered the entire group of five people, including the suspects, to lie on the ground. All five men were patted down, and the bag was searched and found to contain a gun. The Court held that the “hard take down” performed by police — charging across the courts with weapons drawn and ordering the individuals to the ground — was an investigatory detention supported by a reasonable, articulable suspicion that criminal activity was afoot; it was not an arrest requiring probable cause. The Court reasoned that the information supplied by the informant combined with the corroborating observations by the officers furnished the reasonable suspicion necessary to support a Terry stop.

As to the use of force, the Court explained: By ordering all of the basketball players to the ground through a show of firearms, the police not only made it more difficult for [the suspects] to reach for the bag [which was much closer to them than it was to the police] but also put the three bystanders in that position which would be safest, relatively speaking, if [the suspects] began shooting. Id. at 666-67, 587 A.2d 235 . Accordingly, the Court held that the “very brief, though forceful, detention of the [suspects] was constitutionally justified by reasonable suspicion under the circumstances.” 7 Id. at 667, 537 A.2d 235 . ¹⁰⁹ The common denominator in David S. and Lee is that the officers possessed a reasonable articulable suspicion that the suspects were armed and dangerous, and posed a threat to their safety and the safety of bystanders. Thus, the use of force ordinarily associated with an arrest was justifiable during the execution of the Terry stop.

In Morton and Grier , the cases relied upon by the appellant, the officers had no specific information that the suspects were armed or posed a threat to the officers’ safety at the time they were detained. Thus, the application of force under the circumstances in those cases elevated the encounter to an arrest. 8 In the case at bar, the officers were approached by a movie theater patron who identified himself and told the officers that, while he was standing in line to purchase concessions, someone in the line who he believed was intoxicated had threatened him with a knife. The patron then pointed to the appellant as the person who had threatened him. When the officers approached the appellant, they smelled the odor of alcohol, which partially corroborated the patron’s report.

The appellant was not in an isolated location where he posed no threat to bystanders; he was instead standing in a line of people at a crowded movie theater. Thus, when the officers approached the appellant, it was reasonable for them to believe that he might try to threaten them with a knife, and that he posed a threat not only to their own safety but also to the safety of the many bystanders in close proximity. Accordingly, the circumstances in the case sub judice more closely resemble those in David S. and Lee than those in Morton and Grier . We agree with the motion court that the officers did ¹¹⁰ not effectuate an arrest of the appellant when they moved him out of the concession line and placed him against the pillar.

As noted above, the appellant asserts that, even if a Terry stop and frisk was justified under the circumstances, the scope of the intrusion (as judged by the level of force applied) exceeded what was warranted. The appellant supports this argument by noting the motion judge’s misgivings about the amount of force used, and his suggestion that the officers could have first questioned the appellant before escorting him to the pillar. As the Supreme Court has cautioned, however, when engaging in Fourth Amendment analysis, judges must focus on the reasonableness of police action under the circumstances rather than on their own “Monday-morning” quarterback evaluations: A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But the fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable.

The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it. United States v. Sharpe, 470 U.S. 675, 686-87 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985) (citations omitted) (quotation marks omitted). Here, the motion judge properly put aside his personal feelings and objectively assessed the officers’ conduct based on all the circumstances. We agree with his conclusion that, under the circumstances in this case, the officers had reasonable, articulable suspicion to perform a Terry stop of the appellant, and the amount of force applied by the officers in doing so was constitutionally justified.

Before turning to the appellant’s assertion that the officers’ search went beyond the scope of a permissible Terry frisk, we shall address his argument that the report by the “anonymous” informant was insufficient to provide the officers ¹¹¹ a reasonable articulable suspicion for a Terry stop. The appellant claims that the information given by the “unknown tipster” lacked the necessary “indicia of reliability” because it was uncorroborated by the officers’ observations, and was potentially the work of a “mischief maker.” This argument, however, is based on an incorrect factual predicate. The movie theater patron who reported the appellant to the officers was not an anonymous tipster; he was the victim of an assault who personally reported the incident to the officers and supplied his name, Carlos Feliz-Arias. Although Arias did not appear in court at the suppression hearing, he was subpoenaed as a witness and was repeatedly referred to by name at the hearing (including by defense counsel).

His failure to appear, and the fact that the officers did not record his name in a report or take a written statement from him, did not render him “anonymous.” Thus, we shall not apply the law governing anonymous tips to the report given to the officers in this case. See, e.g., Florida, v. J.L., 529 U.S. 266, 274 , 120 S.Ct. 1375 , 146 L.Ed.2d 254 (2000) (holding that an anonymous tip must have sufficient “indicia of reliability” to justify a stop and frisk). Indeed, the Supreme Court in J.L. distinguished the anonymous informant from one “whose reputation can be assessed and who can be held responsible if her [or his] allegations turn out to be fabricated.” Id. at 270, 120 S.Ct. 1375 . By personally reporting the incident to the officers and giving them his name, Arias was exposing himself to potential liability for making a false report. 9 Moreover, the officers’ face-to-face interaction with Arias allowed them to assess his demeanor, and evaluate whether he was a potential “mischief maker.” See also Cross v. State, 165 Md.App. 164, 187 , 884 A.2d 1236 (2005).

Thus, we conclude that Arias’s report and identification gave the officers a “particularized and objective basis for suspecting criminal activity,” Longshore, supra, 399 Md. at ¹¹² 507, 924 A.2d 1129 , by the appellant sufficient to support a Terry stop. Finally, we turn to the appellant’s argument that, even if the officers had a reasonable suspicion to perform a Terry stop and to frisk him for weapons, the search of his pocket exceeded the permissible scope of a Terry frisk. As noted, “[t]he sole justification of [a Terry frisk] is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry, supra, 392 U.S. at 29 , 88 S.Ct. 1868 . A Terry frisk ordinarily is limited to a pat-down of the outer clothing.

The frisk may extend beyond that point if circumstances warrant more intrusive measures: “The reasonableness of a Terry stop and frisk ... must be assessed on a case-by-case basis. In any event, the proper balance between the sometimes competing interests of the police officer and the individual requires that the police officer employ the least intrusive means of .discovering and neutralizing any concealed weapons. While a pat-down of the outer surface of a suspect’s clothing is typically the least intrusive method, a more intrusive frisk may be warranted in the appropriate circumstance.” McDowell v. State, 407 Md. 327, 340 , 965 A.2d 877 (2009) (quoting State v. Smith, 345 Md. 460, 468 , 693 A.2d 749 (1997)) (alteration in original). When an officer employs a more intrusive search method, he must be able to “explain why it was necessary to conduct [the more intrusive] search or ... demonstrate] ... that a pat-down would not have revealed the presence or absence of a weapon.” Id. at 341, 965 A.2d 877 .

One circumstance that may justify a more intrusive search is when the initial pat-down reveals a potential weapon. Smith, supra, 345 Md. at 469 , 693 A.2d 749 (“Where the pat-down reveals a hard object that the police officer reasonably believes may be a weapon, the officer may further intrude ¹¹³ upon the individual to the extent necessary to seize the suspected weapon.” (citing Terry, 392 U.S. at 30-31 , 88 S.Ct. 1868 )). See also Aguilar v. State, 88 Md.App. 276, 287 , 594 A.2d 1167 (1991) (“[I]f the pat-down reveals a hard object which could be a weapon, a further search is allowed.”). In Smith , an officer responded to a dispatch report that a group of people were firing weapons and selling drugs.

When the officer arrived on the scene, he noticed the defendant, Smith, tuck what the officer believed was a handgun into the waistband of his pants as the group dispersed. The officer detained Smith and performed a Terry frisk for weapons. After feeling nothing that suggested Smith was armed, the officer proceeded to “double-check[ ]” his pat-down by asking Smith to pull his shirt back to reveal the waistband area. 345 Md. at 463 , 693 A.2d 749 . When Smith complied, a bag of cocaine fell to the ground.

The Court of Appeals affirmed this Court’s holding that the officer exceeded the permissible scope of a protective frisk when he ordered the suspect to untuck his shirt. The Court noted that the officer’s failure to detect anything in the initial pat-down was “crucial to [its] decision,” because, “[u]pon feeling nothing in patting down Smith, [the officer] no longer had the same suspicion that Smith was armed and dangerous, and thus had no legal basis for escalating his search.” Id. at 469-71 , 693 A.2d 749 ; accord Aguilar, supra, 88 Md.App. at 287 , 594 A.2d 1167 . In Aguilar, we summarized additional limitations on a police officer’s right to extend a search beyond the initial pat-down: If an officer pats a person’s clothing and feels only a soft object, a further search is not allowed. Anderson v. State, 78 Md.App. 471, 487 , 553 A.2d 1296 (1989).

Where the patdown discloses a hard object, but the officer can determine from the shape of the object that the object is not a weapon, a further search is not allowed. Alfred v. State, 61 Md.App. 647 , 487 A.2d 1228 (1985).... Finally, we pointed out in Anderson v. State, supra, that an officer may not, without first conducting a pat-down, reach into a suspect’s ¹¹⁴ pocket and remove hard objects simply because the officer has a reasonable basis to believe that the suspect is armed. 88 Md.App. at 285-86 , 594 A.2d 1167 . When, however, an officer feels a hard object he reasonably believes is a weapon, he may extend the search beyond the outer portion of the clothing even if he is not certain the object is a weapon.

As the Court of Appeals explained in In re David S., supra, 367 Md. at 541-42 , 789 A.2d 607 : [The officer] testified that, after touching the area for a second or two, he believed it was more likely that [the defendant] was carrying a gun than drugs or the proceeds of a burglary. [The officer] said “it was a solid object, there was no softness to it, or anything, it was just very hard.” [The defendant] contends that [the officer] could not lift his shirt because the officer was not certain whether he was carrying a gun. Terry does not require a police officer to be certain that a suspect is armed in order to conduct a frisk for weapons. All that is required is a reasonable suspicion that the person is armed and dangerous.... ^ ^ ^ Smith [and other cases where an initial pat-down that revealed nothing that might have been used as a weapon against the police officer] [are] distinguishable.... Here, based on [the officer’s] observations, there was a substantial possibility that [the defendant] was armed and dangerous.

After frisking [the defendant] and feeling a hard object that may have been a handgun, [the officer] had even more reason to believe [the defendant] was carrying a gun. Given that [the officer] felt what he believed might have been a gun, a belief consistent with what he had seen earlier, [he] was not precluded from lifting [the