In Re David S.

RAKER, Judge. This case involves a stop and frisk, governed by the teachings of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and its progeny. We granted the State’s Petition for Writ of Certiorari to determine whether cocaine taken from the person of David S. was seized in violation of the Fourth Amendment of the United States Constitution. In making this determination, we must decide whether the police had a reasonable basis to believe that David S. was armed, ⁵²⁸ and, if they did, whether the seizure of David S. was tantamount to an arrest requiring probable cause.

On April 28, 1999, the State’s Attorney for Montgomery County filed a delinquency petition in the District Court of Maryland, Juvenile Division, alleging that David S., respondent, was delinquent in that he possessed a controlled dangerous substance with the intent to distribute. David S. filed a motion to suppress the drugs seized by the police. Following a hearing on the motion, the District Court found the search lawful and denied the motion to suppress. The parties then proceeded before the court on a “not guilty/agreed upon statement of facts.” The court adjudged David S. to have committed a delinquent act within the meaning of Maryland Code § 3 — 801(j) of the Courts and Judicial Proceedings Article (1957, 1998 RepLVol., 2001 Supp.), and placed him on probation.

David S. noted a timely appeal to the Court of Special Appeals. The intermediate appellate court reversed the judgment. In re David S., 135 Md.App. 363 , 762 A.2d 970 (2000). Before that court, David S. argued that the police stop, frisk, and ultimate search and seizure of the contents of the black plastic bag seized from his waistband violated the Fourth Amendment and, thus, the trial court should have suppressed the fruits of the search.

The court held that, although reasonable suspicion existed to justify a stop and frisk of David S,. under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 , “[t]o order him to the ground and place him in handcuffs, however, required probable cause, which the officer failed to demonstrate.” In re David S., 135 Md.App. at 369 , 762 A.2d at 973 . The court further held that the officer’s conduct in lifting up David S.’s shirt to expose a black bag and exploring the contents of the bag exceeded the “strictly circumscribed” search permitted as a protective frisk by Terry. Id. at 369-70, 762 A.2d at 973 . The State’s Petition for Writ of Certiorari presents the following question: whether the Court of Special Appeals erred in concluding that the cocaine found on the person of respondent had been seized in violation of the Fourth Amend ⁵²⁹ ment.

See In re David S., 363 Md. 205 , 768 A.2d 54 (2001). We also granted respondent’s conditional cross-petition, which presented two questions: (1) Did the courts below err in concluding that the police had a reasonable basis to believe that respondent was armed; and (2) did the trial judge err in refusing to allow defense counsel to establish at the suppression hearing that the officer knew the object he grabbed was not a handgun as soon as he touched it. Id. I. We review the motion to suppress based upon the record of the suppression hearing, giving all favorable inferences to the State.

See Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420, 429 (2001). 1 We review findings of fact under the clearly erroneous standard, but review under a de novo standard whether, under those facts, there was reasonable suspicion to make a warrantless search. Stokes v. State, 362 Md. 407, 413-14 , 765 A.2d 612, 615 (2001); Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491, 497 (1999). We make our “own independent constitutional appraisal, by reviewing the law and applying it to the peculiar facts of the particular case.” Jones v. State, 343 Md. 448, 457 , 682 A.2d 248, 253 (1996). On the evening of March 30, 1999, Cpl.

Rich Segalman, a twelve-year veteran of the Rockville City Police Department, participated in surveillance of a house on Moore Drive. Police believed the site was an open air drug market. At about 8:00 p.m., Cpl. Segalman saw Pedro Hall, a person he believed to be a drug dealer, engage in what appeared to be a drug transaction.

Cpl. Segalman radioed to other officers, who began to close in, but someone or something caused Hall to run inside the home and the other people present to disperse. Soon after, the police focused their attention on a different home located on Ashley Avenue. At about 8:30 p.m., Cpl.

Segalman observed Hall and David S. walking up Ashley Avenue. The two individuals stopped in ⁵³⁰ front of an abandoned transformer building, which had been boarded up for several months. A “no trespassing” sign was nailed to a tree about five feet from the building. David S. walked behind the building, while Hall crouched down in front of the building and looked around.

A few minutes later, David S. came out from behind the building, showed an object to Hall, and then stuffed the object into the front waistband of his trousers. Cpl. Segalman, who was standing about twenty feet from Hall and David S., testified that, based on his extensive experiences with drug arrests and training in narcotics, he believed David S. had placed a handgun in his waistband. When Hall and David S. began to walk toward Moore Drive, Cpl.

Segalman radioed Officer Malko, who stopped the two individuals. Cpl. Segalman and his partner, Officer Bortillo, then arrived at the scene of the stop. Hall and David S. were standing when Cpl.

Segalman arrived. Cpl. Segalman and Officer Bortillo forced Hall and David S. to lay on their stomachs on the ground and then placed handcuffs on them. In addition to the above named officers, Officer Peale was also present.

The officers drew their guns on the suspects. According to the officers, Hall and David S. were very cooperative and did not struggle. Cpl. Segalman then rolled David S. over onto his back, touched the area of his waistband, and felt a hard object.

Believing the object was a gun, Cpl. Segalman pulled out David S.’s tucked-in shirt and observed a black object protruding from his waistband. He then grabbed the object, removed it from David S.’s waistband, noted that it was wrapped in a black plastic bag, opened the bag, and found cocaine. 2 II. It is the State’s position that the stop and frisk of David S. was lawful.

The State, as petitioner, argues that the Court of ⁵³¹ Special Appeals misconstrued the facts and misapplied settled Fourth Amendment law in ruling that the search of David S. was unlawful. The State maintains that the stop was reasonable and that the permissible scope of a Terry stop and frisk was not exceeded by the officer effecting a hard or forceful take down and handcuffing David S. In conclusion, the State asserts that the officer did not exceed the permissible scope of a Terry frisk when he took the hard object from David S.’s waistband. In response, David S. argues that the Court of Special Appeals correctly held that “to order him to the ground and place him in handcuffs ... required probable cause, which [the police officers] failed to demonstrate.” In re David S., 135 Md.App. at 369 , 762 A.2d at 973 . Therefore, the absence of probable cause requires suppression of the evidence seized.

He also argues that the Court of Special Appeals and the trial court erred in holding that the police had reasonable suspicion to justify an investigative stop and frisk. In his cross-petition, David S. argues that the trial court erroneously restricted his examination of Cpl. Segalman, thereby denying him the opportunity to establish that the officer exceeded the scope of a Terry frisk. At the outset, it is important to note that the only question before this Court is whether the conduct of the police officers violated the Fourth Amendment of the United States Constitution.

No issue of State law has been presented to us, nor has any State authority been cited as grounds to grant the suppression motion. Before this Court, as well as the lower courts, David S. argued only “that the stop, frisk, and ultimate search and seizure of the contents of the black plastic bag violated the Fourth Amendment and, thus, any fruits of the unconstitutional search inust be suppressed.” In re David S., 135 Md.App. at 366 , 762 A.2d at 971 .

III

The Fourth Amendment, applicable to the States through the Fourteenth Amendment, provides that “the right ⁵³² of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... ” U.S. Const, amend.

XIV

The Fourth Amendment is not, however, a guarantee against all searches and seizures, but only those that are unreasonable. United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568, 1573 , 84 L.Ed.2d 605 (1985). Over thirty years ago, in Terry v. Ohio, the Supreme Court held that a police officer may stop and briefly detain a person for investigative purposes if the officer has reasonable suspicion, supported by articulable facts, that criminal activity “may be afoot.” Terry, 392 U.S. at 30 , 88 S.Ct. at 1884 , 20 L.Ed.2d 889 ; see also Quince v. State, 319 Md. 430 , 572 A.2d 1086 (1990). Reasonable suspicion is a less demanding stan dard than probable cause.

United States v. Sokolow, 490 U.S. 1, 7 , 109 S.Ct. 1581, 1585 , 104 L.Ed.2d 1 (1989). In Stokes v. Maryland, 362 Md. 407 , 765 A.2d 612 (2001), we observed that reasonable suspicion has been defined by the Supreme Court as follows: “While there is no litmus test to define the ‘reasonable suspicion’ standard, see Ornelas v. United States, 517 U.S. 690, 695 , 116 S.Ct. 1657, 1661 , 134 L.Ed.2d 911, 918 (1996) (noting that it is impossible to articulate, with precision, what ‘reasonable suspicion’ means), it has been defined as nothing more than ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity,’ United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621, 629 (1981); see also Ornelas, 517 U.S. at 695-96 , 116 S.Ct. at 1661 , 134 L.Ed.2d at 918 , and as a common sense, nontechnical conception that considers factual and practical aspects of daily life and how reasonable and prudent people act. See Ornelas, 517 U.S. at 695 , 116 S.Ct. at 1661 , 134 L.Ed.2d at 918 .” Id. at 415, 765 A.2d at 616 . In evaluating the reasonableness of a Terry stop, the Supreme Court adopted a dual inquiry: ⁵³³ “Whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20 , 88 S.Ct. at 1879 , 20 L.Ed.2d 889 .

The Court has since stated that the test requires balancing “the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.” United States v. Hensley, 469 U.S. 221, 228 , 105 S.Ct. 675, 680 , 83 L.Ed.2d 604 (1985). In addition to the authority to stop and briefly detain a person, the Supreme Court identified circumstances permitting police officers to pat-down the subject of a Terry stop: “[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he 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 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. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, 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.” Terry, 392 U.S. at 27 , 88 S.Ct. at 1883 , 20 L.Ed.2d 889 (citations omitted).

This limited search, known in common parlance as a frisk, “is not to discover evidence, but rather to protect the police officer and bystanders from harm.” State v. Smith, 345 Md. 460, 465 , 693 A.2d 749, 751 (1997). In the three decades following the Supreme Court’s decision in Terry , the permissible scope of a Terry stop has been expanded. The United States Court of Appeals for the Seventh Circuit discussed the increasing intrusiveness of Terry stops as follows: ⁵³⁴ “The last decade has witnessed a multifaceted expansion of Terry , including the trend granting officers greater latitude in using force in order to neutralize potentially dangerous suspects during an investigatory detention. For better or for worse, the trend has led to the permitting of the use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.” U.S. v. Tilmon, 19 F.3d 1221, 1224-25 (7th Cir.1994) (citations and internal quotation marks omitted).

See Aguilar v. State, 88 Md.App. 276, 284 , 594 A.2d 1167, 1171 (1991) (noting that “[t]he scope allowed for a Terry search has been expanded”). Despite changes in the contours of the Terry doctrine, it is important to recognize that there are no per se rules or bright lines to determine when an investigatory stop and frisk becomes an arrest and is elevated to the point that probable cause is required. See Sharpe, 470 U.S. at 685 , 105 S.Ct. at 1575 , 84 L.Ed.2d 605 (noting that “[m]uch as a ‘bright line’ rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria”). In Terry , the Court observed that limitations on Terry stops and frisks must be developed in the concrete factual circumstances of individual cases.

Terry, 392 U.S. at 29 , 88 S.Ct. at 1884 , 20 L.Ed.2d 889 . See State v. Smith, 345 Md. at 468 , 693 A.2d at 753 (noting that the reasonableness of a Terry stop and frisk must be “assessed on a case-by-case basis”). A. Validity of the Investigatory Stop We agree with the Court of Special Appeals that the officers had reasonable suspicion to make an investigatory stop of respondent. The officer witnessed conduct that led him to suspect Hall and respondent of burglarizing, or attempting to burglarize, the abandoned transformer budding.

He observed Hall and respondent approach the abandoned, boarded-up building, and saw Hall crouch down in front of the building while respondent went to the rear of the building. ⁵³⁵ The officer then observed respondent come back around to the front and show something to Hall. According to the officer, Hall appeared to serve as a lookout while respondent went behind the building. These facts demonstrate that the officer had a reasonable, articulable belief, amounting to reasonable suspicion, that criminal activity was afoot. This justified a Terry stop of respondent.

B. Validity of the Manner of the Investigatory Stop In determining whether an investigatory stop is in actuality an arrest requiring probable cause, courts consider the “totality of the circumstances.” See Ferris v. State, 355 Md. 356, 375 , 735 A.2d 491, 501 (1999); United States v. Patterson, 648 F.2d 625, 632 (9th Cir.1981). Under the totality of circumstances, no one factor is dispositive. See Ferris v. State, 355 Md. at 376 , 735 A.2d at 501 . For example, a police officer’s pointing a gun at a suspect does not necessarily convert an investigatory stop into an arrest.

See, e.g., United States v. Alvarez, 899 F.2d 833, 838-39 (9th Cir.1990) (holding that defendant was not under arrest when officers approached his vehicle with guns drawn and ordered him out of the car); United States v. Taylor, 716 F.2d 701, 708-709 (9th Cir.1983) (holding that the encounter was an investigatory stop and not an arrest when police approached suspects with drawn guns after having been warned that the suspects were dangerous). Likewise, an investigatory stop is not elevated automatically into an arrest because the officers handcuffed the suspect. See, e.g., United States v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir.1982), cert. denied, 459 U.S. 1211 , 103 S.Ct. 1206 , 75 L.Ed.2d 447 (1983) (finding that, under the circumstances, placing suspect in handcuffs was justified when police believed another suspect was close by and at large). In short, an investigatory stop will not be transformed into an arrest when the officers take “reasonable measures to neutralize the risk of physical harm and to determine whether the person in question is armed.” Alvarez, 899 F.2d at 838 . ⁵³⁶ In Alvarez , the Court of Appeals for the Ninth Circuit considered whether an investigatory stop was escalated to an arrést requiring probable cause when the defendant was forced to exit his car at gunpoint.

Id. at 838 . The court said: “The Supreme Court has permitted limited intrusions on a suspect’s liberty during a Terry stop to protect the officer’s safety; a police officer may take reasonable measures to neutralize the risk of physical harm and to determine whether the person in question is armed. In this circuit it has been held that ‘the use of force does not convert the [investigatory] stop into an arrest if it occurs under circumstances justifying fears of personal safety.’ ” Id. (citations omitted).

In Lee v. State, 311 Md. 642 , 537 A.2d 235 (1988), this Court considered whether a forceful Terry stop was an unconstitutional seizure. Id. at 661, 537 A.2d at 244 . The police conducted what is sometimes referred to as a “hard take down.” They ordered the suspects to lie on the ground and pointed weapons at them. We noted that the test, one of reasonableness, “balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.” Id.

(citing United States v. Hensley, 469 U.S. at 228 , 105 S.Ct. at 680 , 83 L.Ed.2d 604 ). We held that although the “nature of the subject intrusion was substantial, the brief but forceful detention of the suspects was constitutionally justified by reasonable suspicion under the circumstances.” Lee, 311 Md. at 667 , 537 A.2d at 247 . In weighing the intrusion on the suspects’ liberty against the governmental interest in effective crime detection and prevention, we reasoned as follows: “The determinative element in the balancing process here is that the police reasonably suspected that Lee and Hall were armed and dangerous. On one side of the scales the nature of the subject intrusion was substantial.

Petitioners were ordered to lie ⁵³⁷ on the ground and weapons, including shotguns, were pointed at them. On the other side of the scale is the governmental interest in effective crime detection and crime prevention. Petitioners not only were suspected of an earlier robbery and attempted murder but also of then carrying a concealed weapon. This is buttressed by the State’s interest in protecting the safety of the officers and the other persons on the