In re Albert S.

DAVIS, Judge. This is an appeal from a judgment of the District Court for Montgomery County, sitting as a juvenile court, in which appellant Albert S. was found to be delinquent. Following an adjudicatory hearing, the court concluded that appellant committed four offenses: assault, resisting arrest, malicious destruction of property, and possession of alcohol by a minor. Appellant presents three questions for our review: I. Did the trial court err in refusing to suppress the fruits of an illegal stop, illegal detention, illegal frisk and illegal arrest?

II

Did the trial court err in finding appellant guilty of assault and resisting arrest?

III

Did the trial court err in finding appellant guilty of malicious destruction of property? FACTS Officer Michael Price of the Montgomery County Police testified to the following facts. During his off-duty hours, Officer Price worked part-time in the security offices of Great Hope Homes, an enclosed community of rental townhomes. The community’s property management company hires off-duty police officers because the complex is considered “one of the county’s open air drug markets” and non-residents tend to congregate on the property.

No trespassing signs are posted at the entrance to the complex. When security personnel observe someone who does not appear to be a resident, they are required to “[m]ake an inquiry about their whereabouts, you know, where they were headed, check it against the list of people we were provided with ... and basically provide our ³⁸² presence there.” Prior to the events at issue here, Officer Price had worked at the complex for three months and knew many of the residents. In the early morning hours of November 22, 1993, Officer Price was working security at the complex. Although not in uniform, he drove a marked police cruiser and carried his badge, his service revolver, and a police radio with open access to police channels.

At approximately 12:30 a.m., the officer observed a car that he did not recognize attempting to leave the complex at a lawful rate of speed. The car was driven by Theresa Phillips. Appellant Albert S., who was seventeen years old at the time, rode in the passenger’s seat. Officer Price stopped the car and asked Phillips for her driver’s license.

As Phillips looked through her purse, the officer saw Albert trying to conceal something under the front seat. Officer Price asked Albert what he was doing, and appellant responded in a “belligerent” manner. The officer walked to the passenger’s side of the car and opened the door. Officer Price again asked Albert what he was hiding and Albert replied, “none of your fucking business, she’s got her license on the other side.” Officer Price then ordered Albert out of the car.

After Albert complied with that request, the officer observed an open can of “Red Bull” malt liquor beer on the floor. Officer Price suspected that Albert was under the age of majority and asked for his identification. When Albert refused, the officer told him to put his hands on the car. Officer Price then decided to conduct a pat-down search because Albert “had a coat on, and ... that’s just something that I do.

It’s a safety issue for me.” The officer felt two bulges in Albert’s jacket, and asked Albert what they were. Albert replied, “you know what it is.” Officer Price then reached into the pockets of Albert’s jacket and removed two additional cans of beer. Officer Price placed Albert under arrest and Albert resisted by locking his hands in an “isometric” position. After the officer placed a handcuff on one of Albert’s wrists, Albert ³⁸³ made a “fake motion” as if he was going to hit the officer.

In response, Officer Price struck Albert. While holding onto the handcuffs, Officer Price “grabbed” the police radio and called for help. Albert pushed up against the officer and the two men became entangled in the microphone cord. When Albert pulled away, the cord was stretched beyond its limits and the microphone “popped” off the cord.

Officer J. Carr responded to the call for backup and helped Officer Price drag Albert to a cage car. Albert attempted to kick the officers but did not make contact. When asked to describe Albert’s demeanor, Officer Carr stated that he “appeared to be extremely intoxicated and combative and uncooperative .... [H]e was, you know, basically out of control.” While being transported to the police station, Albert repeatedly slammed his head against the door of the cage car. A third officer, Corporal Edward Caldwell, was present when Albert was processed at the police station.

Corporal Caldwell testified that Albert was handcuffed to a table, and that he repeatedly struck both wrists very forcefully against an iron bolt on the table. Albert seemed to be having mood swings, and would alternate between laughing and crying. All three officers noticed a strong odor of alcohol, and opined that Albert was intoxicated. A sobriety test was not performed.

Angela Talley, a resident of Great Hope Homes, testified on appellant’s behalf. WTien asked about her relationship to Albert, Ms. Talley stated that she had known Albert since he was eight or nine years old and “you could say he’s like my grandson.” At the time of the incident, Albert was living with Ms. Talley in a townhome shared by her four children, her three grandchildren, and her boyfriend. Wfiien Ms. Talley arrived at the scene, Albert was in handcuffs and his feet apparently were tied. Police were dragging him across the street by his arms.

Ms. Talley asked if she could speak with Albert, but Officer Price denied her request. Following an adjudicatory hearing, the judge found that ³⁸⁴ appellant committed the offenses detailed above. 1 After finding appellant to be delinquent, the judge placed appellant on probation and ordered him to perform four hundred hours of community service. The judge also ordered that appellant refrain from using drugs and alcohol and that he participate in a drug/alcohol education program. This appeal followed.

LEGAL ANALYSIS I Appellant first contends that the trial court erred when it refused to suppress the fruits of an illegal stop, illegal detention, illegal frisk, and illegal arrest. During the adjudicatory hearing, appellant moved to suppress the physical evidence seized by Officer Price, including the open can of beer seized from the car and the two cans seized from appellant’s jacket. Appellant also moved to suppress certain testimony by Officers Price, Carr, and Caldwell, each of whom testified that appellant appeared to be intoxicated. We conclude that the initial stop was unlawful, and that the evidence at issúe must be suppressed as the fruits of that Fourth Amendment violation.

Consequently, we need not consider whether Officer Price acted unlawfully when he ordered appellant out of the car and conducted a pat-down search. For reasons set forth in part II, infra, we also conclude that the arrest was unlawful. As a threshold matter, we reject the State’s assertion that appellant “had no standing to complain about either the stop of the automobile or the seizure from him.” The Supreme Court’s frait-of-the-poisonous-tree doctrine bars the use of physical, tangible evidence “obtained either during or as a direct result of an unlawful invasion.” Ott v. State, 325 Md. 206, 225 , 600 A.2d 111 (1992), cert. denied, — U.S. —, 113 S.Ct. 295 , 121 L.Ed.2d 219 (1992) (quoting Wong Sun v. United States, 371 U.S. 471, 485 , 83 S.Ct. 407, 416 , 9 L.Ed.2d ³⁸⁵ 441 (1963)). Professors LaFave and Israel have noted that a passenger in a car does have standing to object to police conduct which intrudes upon his Fourth Amendment protection against unreasonable seizure of his person.

If either the stopping of the car or the passenger’s removal from it are unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those constitutional violations and to have suppressed any evidence found in the car which is their fruit. 1 Wayne R. LaFave and Jerald H. Israel, 1 Criminal Procedure § 9.1(d), at 726 (1984). See, e.g., United States v. Durant, 730 F.2d 1180, 1182 (8th Cir.), cert. denied, 469 U.S. 843 , 105 S.Ct. 149 , 83 L.Ed.2d 87 (1984) (holding that a passenger in a vehicle may move to suppress evidence uncovered as a direct result of an unlawful stop). In Ott, 325 Md. at 219-23 , 600 A.2d 111 , police officers arrested the petitioner in the mistaken belief that there was an outstanding warrant for his arrest, and the Court of Appeals held that the arrest was unlawful. During a search incident to that arrest, police recovered three bags of cocaine from the glove compartment of the car that Ott was driving.

Id. at 209-11 , 600 A.2d 111 . Notwithstanding the fact that Ott did not own the vehicle, the Court held that Ott had standing to challenge the search. The Court explained that “but for petitioner’s arrest, the police would have had neither the occasion nor, presumably, any cause to conduct a search of the car....” Id. at 224 , 600 A.2d 111 . A similar analysis applies to the case at hand.

Appellant was detained when Officer Price stopped the car in which he was riding. At the time of the stop, the officer merely suspected that the occupants of the car might be trespassing. The sole justification for the search of the car was appellant’s alleged attempt to conceal something under the seat. Even if we assume, for the sake of argument, that Officer Price had the reasonable suspicion necessary to conduct a search, the facts that gave rise to such a suspicion were obtained by ³⁸⁶ detaining appellant.

Accordingly, appellant has standing to challenge both the legality of the initial stop and any evidence thereby obtained, including the open can of beer recovered from the car. The Fourth Amendment to the United States Constitution guarantees the right of individuals to be secure against unreasonable searches and seizures. It applies to actions undertaken by the State, Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), but generally does not apply to the actions of private individuals. United States v. Jacobsen, 466 U.S. 109, 113 , 104 S.Ct. 1652, 1656 , 80 L.Ed.2d 85 (1984); Burdeau v. McDowell, 256 U.S. 465, 475 , 41 S.Ct. 574, 576 , 65 L.Ed. 1048 (1921).

In Waters v. State, 320 Md. 52, 58-59 , 575 A.2d 1244 , cert. denied, 498 U.S. 989 , 111 S.Ct. 529 , 112 L.Ed.2d 539 (1990), the Court of Appeals held that the Fourth Amendment did not apply to a search and seizure undertaken by a private security guard. The Court noted that security guards, in general, do not act with arrest or other police powers. “Without governmental powers, security guards are acting as private citizens when protecting property, and their private status is not altered because their interest in protecting property coincides with the public’s interest in preventing crime generally.” Id., 320 Md. at 59 , 575 A.2d 1244 . Relying on Waters , the State vigorously contends that State action was not involved in the present case because Officer Price was acting within the scope of his private duties as a security guard. The security guard in Waters , however, was not an off-duty police officer.

Although the issue is one of first impression in Maryland, the courts of other states have consistently held that the Fourth Amendment must be applied to the conduct of an off-duty police officer whenever the officer “steps outside [the] sphere of legitimate private action.” Commonwealth v. Leone, 386 Mass. 329 , 435 N.E.2d 1036, 1041 (1982). Whether State action exists in a given case “is not measured by the primary occupation of the actor, but by the capacity in which he [or she] acts at the time in question.” State v. Woods, 790 S.W.2d 253, 257 (Mo.Ct.App.1990) (quoting ³⁸⁷ State v. Pearson, 15 Or.App. 1 , 514 P.2d 884, 886 (1973)) (emphasis added). See also State v. Castillo, 108 Idaho 205 , 697 P.2d 1219 (Ct.App.1985); State v. Ludvik, 40 Wash.App. 257 , 698 P.2d 1064 (1985). In Ex parte Kennedy, 486 So.2d 493 (Ala.1986), an off-duty police officer employed as an exterminator removed a leaf from a plant in a home where he was working.

The officer suspected that the plant was marijuana, and his suspicions were confirmed by laboratory analysis. The Alabama Supreme Court concluded that Officer Corley stepped out of his exterminator role and became a government agent when he examined the plants, took a leaf for verification, and memorized the name on Kennedy’s mail for identification purposes. According to Corley’s own testimony, he used the knowledge and skill acquired from his police training and experience to spot the marijuana. Id. at 495 .

Consequently, the court held that the officer’s conduct was governed by Fourth Amendment standards. Id. at 496 . In Woods, 790 S.W.2d 253 , an off-duty sheriffs deputy was employed as a caretaker for property owned by the defendant. In the course of his duties as caretaker, the deputy entered a cabin, wherein he observed a marijuana cigarette in plain view and detected the odor of burnt marijuana.

Thereafter, he conducted a search of the cabin and found additional marijuana in a chest of drawers. Although the deputy’s initial entry was lawful, the Missouri Court of Appeals observed that he “proceeded beyond his duties as a watchman or caretaker by searching areas he was not otherwise authorized to enter.” The court concluded that the deputy was acting in his capacity as a law enforcement officer, and held that his search of the cabin was subject to the restrictions of the Fourth Amendment. Id. at 259 . Compare State v. Walker, 236 Neb. 155 , 459 N.W.2d 527 (1990) (the Fourth Amendment does not apply when an off-duty police officer acted within his lawful authority as a landlord); Castillo, 697 P.2d 1219 (an off-duty police ³⁸⁸ officer who inadvertently discovered marijuana in a letter addressed to his brother-in-law was not acting as a government official when he opened the envelope); People v. Wachter, 58 Cal.App.3d 911 , 130 Cal.Rptr. 279 (1976) (an off-duty deputy sheriff who discovered marijuana while visiting a farm with a friend was not acting in his capacity as a law enforcement officer); Pearson, 514 P.2d 884 (the Fourth Amendment does not apply where a police reserve officer discovered marijuana in a car during the course of his employment as an auto mechanic).

Although we have never addressed the precise issue presented here, we have applied a similar analysis in other settings. In Leach v. Penn-Mar Merchants Ass’n, 18 Md.App. 603 , 308 A.2d 446 , cert. denied, 269 Md. 761 (1973), an automobile accident occurred in the parking lot of a shopping center where an off-duty police officer was working as a private security guard. A witness who interfered with the officer’s attempt to write an accident report and summons was subsequently arrested on charges of obstructing justice by interfering with a police officer. The witness brought a civil suit against the officer, in which he asserted claims for assault, battery, false imprisonment, and unlawful arrest.

Because a private security guard is without authority to issue a summons, we held that the officer was engaged in a police department function rather than the business of his part-time employer. Id., 18 Md.App. at 610 , 308 A.2d 446 . In Lodowski v. State, 302 Md. 691 , 490 A.2d 1228 (1985), vacated on other grounds, 475 U.S. 1078 , 106 S.Ct. 1452 , 89 L.Ed.2d 711 (1986), the Court of Appeals applied a similar analysis to a case where the defendant was sentenced to death for the murder of an off-duty Prince George’s County police officer. At the time of his death, the officer was working as a private security guard.

The propriety of the death sentence turned on whether the officer was “murdered while in the performance of his duties.” See Md.Ann.Code art. 27, § 413(d)(1) (1992 RepLVol., Supp.1994). Relying on a provision of the Prince George’s County Code pertaining to the ³⁸⁹ duties of police officers, 2 the Court held that the officer was not acting in the performance of his official duties unless a matter requiring police action had come to his attention prior to the moment of his death. Lodowski, 302 Md. at 729-33 , 490 A.2d 1228 . The Court concluded: The State agrees that “the question of whether a law enforcement officer was acting ‘in the performance of his duties’ is a factual determination.... ” And we agree with the State that such determination is “not settled by either the fact that the officer is off duty or has undertaken private employment to supplement his income.” Rather the question is to be decided on the particular facts of each case.

Id. at 732 , 490 A.2d 1228 . See also Sawyer v. Humphries, 322 Md. 247, 259 , 587 A.2d 467 (1991) (“Even though a police officer may be said to be ‘on duty’ all of the time, cases regularly hold that a police officer acts outside the scope of his employment when he acts for his own personal reasons and not in furtherance of his employer’s law enforcement function.”). In the case at hand, the court asked Officer Carr about the status of off-duty Montgomery County officers who work as private security guards, and the following exchange took place: COURT: Okay, now are those officers, by your understanding, are they allowed to arrest and do all the normal functions as they would as though they’re on duty? OFFICER CARR: It’s my understanding that they have police powers, but I guess that it’s just department policy ³⁹⁰ that another on duty officer would come and handle an arrest situation.

Unlike the situation in Lodowski, 302 Md. at 731-32 , 490 A.2d 1228 , the Montgomery County Code does not contain a provision stating that officers have a duty to take proper police action “in any matter coming to their attention requiring such action.” The record before us does not include pertinent police department regulations or other evidence regarding the legal duties of a Montgomery County police officer. Notwithstanding the testimony of Officer Carr, the juvenile court broadly found that Officer Price was acting in a private capacity. The judge stated: He was doing his job, it was a normal check. It was on a private road, in a private community, hired by a private community to [do] a job that reflected a public purpose.

And a private purpose. The judge did not expressly make a factual finding as to whether Officer Price was acting in a public or private capacity at the critical moments. Nonetheless, we think the testimony offered at trial supports but a single conclusion—at the time of the initial stop, Officer Price was acting as an agent of the landowner, in his private capacity as a security guard. 3 As Officer Price explained, his duties as a security guard required him to make inquiries of persons who entered the property to determine whether those persons were trespassing. The sole purpose of the initial stop was to make such an inquiry.

The fact that Officer Price was acting in a private capacity, however, is not dispositive of the Fourth Amendment issue. As we noted earlier, the officer was driving a marked police cruiser at the time of the events in question. Because the officer was acting under color of police authority, the Fourth Amendment must be applied to his actions. ³⁹¹ The Supreme Court of Minnesota reached a similar conclusion in State v. Filipi, 297 N.W.2d 275 (Minn.1980). The defendant in that case was arrested on drug-related charges by Minneapolis police officers acting outside their jurisdiction.

Thereafter, police searched the defendant’s car and removed a duffle bag containing a large brick of marijuana. Despite the fact that the officers were not within their jurisdiction, the court concluded that the arrest was lawful because the officers had made a valid citizen’s arrest. Id. at 278 . Nonetheless, the court held that the search of the car was prohibited by the Fourth Amendment.

The court