In re Jeremy P.

DAVIS, J. The Circuit Court for Prince George’s County, sitting as a juvenile court, found that Jeremy P., appellant, was “involved” in carrying a handgun, possessing a regulated firearm and ammunition under the age of twenty-one, and obliterating the identification number of that firearm. 1 Appellant challenges that judgment, arguing that the juvenile court erred in denying his motion to suppress physical evidence and a statement to police, because the evidence was obtained as the result of an unconstitutional Terry 2 stop. We agree and therefore reverse the judgment. FACTS AND LEGAL PROCEEDINGS Appellant moved to suppress a handgun, ammunition, and written statement recovered after a Terry stop that occurred in the early morning hours of June 6, 2009. Detective William Lee of the Prince George’s County Police Department, an eight-year veteran assigned to the Prince George’s County Gang Unit, testified that, at approximately 1:00 a.m., he was on plainclothes patrol in an unmarked vehicle in the 6100 block of 58th Avenue in Riverdale.

They were “doing a saturation of the area due to recent gang taggings in the area and armed ⁴ robberies in the area.” A “tagging is when a gang or a crew places their name on a fence or wall or sign. It could be the ground, a car, to tell other gangs or other people in the area that that’s their area.” Detective Lee had recently made gang-related arrests in that block and that area, including arrests for assaults and robberies. The detective spotted appellant, who was then seventeen years old, and a companion as they exited a McDonald’s parking lot on foot. Detective Lee proceeded to park his vehicle on 58th Avenue and watched them from across the road, at a “fairly close” distance.

When the prosecutor asked the detective to describe what happened next, the following ensued: [Prosecutor]: As you were moving your vehicle—from the time you were moving your vehicle to the time you stopped your vehicle, did you maintain sight of the [appellant]? [Det. Lee]: Yes, I did. Q: And what if anything did you notice the [appellant] doing? A: He kept playing around with his waistband area.

We call that a high risk area. And he kept making firm movements in his waistband area. Q: Can you— Permission to have the witness stand up? The Court: Sure. [Prosecutor]: Can you just come out and stand right here and show the Court exactly what actions you witnessed the [appellant] making?

(Witness leaves the stand.) [Det. Lee]: He would have been adjusting hisself. He had a shirt on. He would have been adjusting hisself from the front area, you know, fixing (indiscernible) the shirt.

The Court: All right. (Witness returns to the stand.) [Prosecutor]: What if anything appeared (indiscernible)? [Defense Counsel]: Objection, Your Honor. ⁵ The Court: What was the question again? [Prosecutor]: What if any significance (indiscernible)? [Defense Counsel]: The significance would call for some type of legal conclusion. He can testify as to his observations, but significance is up to the Court regarding the legal conclusions to be drawn from the evidence. The Court: I’ll make the legal conclusion, but I’m going to let him answer the question.

The objection’s overruled. Go ahead. [Det. Lee]: It would be indicative of somebody constantly carrying a weapon on them. That’s what we call the high risk area....

Q: And the actions you witnessed the Respondent making, how frequent were they? A: He was standing there for maybe—just maybe a minute or two. He did it maybe two or three times before they crossed the street. Q: But there was a time that he crossed—did he cross the street?

A: Yes, ma’am. Q: What if anything did he do after he crossed the street? A: Started walking down 50th Avenue. I actually backed off a little bit.

I was trying to get my partner to respond over to me so we could do a stop together. I didn’t want to get him—I didn’t know where he was heading, so I wanted to get him to stop. I had to do another stop prior to my partner getting there.... Q: What if anything did you do after you saw the [appellant] making the motions toward his waistband?---- A: Like I said, I just called for my partner to respond to the area because I knew we were going to do a stop.

Q: And ... who did you call? A: Detective Sorano. Q: Okay. And after you called for Detective Sorano, what if anything did you then do next? ⁶ A: I watched him a little bit further until he started to cross the street, and then I backed off a little bit further down 58th____I got out of my vehicle and waited for him and his partner to get a little bit closer before I did the stop.

Q: What if anything did you do after you got out of your vehicle? A: Then I approached him and his friend, his partners, and told them to have a seat on the ground. And again I was waiting for my partner to come, but I decided to go ahead and start patting them down just in case there was a gun on him.... I identified myself, Prince George’s County Police.

I’m familiar with Mr. [PJ, but I’m not familiar with his friends____ Q: You were familiar with Mr. [P.]. Have you had prior contact with Mr. [P.]? A: Yes, ma’am____Just I think the first one would have been—I think he was arrested by the Sheriffs Department at a high school for coming on the school property.... Q: What if any prior contact have you specifically had with Mr. [P.]?

A: Just a few stop—you know, stop and talk, and then we make conversation with him in the street. We were looking for a friend of his where we engaged in conversation with him before we arrested another friend of his.... Q: Why’d you start conducting a pat-down? ... A: Again with him making the movements to the waistband and fiddling around once I stopped him, I figured I better get him to stand up and start doing the pat-down for my safety____ Q: How exactly did you conduct the pat-down?

A: It really didn’t get that far. Once I—he had recently sat down once I did the stop. Once I told him he needed to stand up and come over to my car, when he stood up, the gun was actually—he was sitting on top of the gun. I guess it had fell out of the waistband area.... ⁷ Q: Once you saw the gun, what if anything did you then do?

A: I handcuffed him, then I continued the pat-down and recovered some bullets in his pants pocket. (Emphasis added.) Appellant was taken to the police station, where he waived his right to counsel, talked to Detective Lee and made a written statement about where he got the weapon. The weapon was “[a]n 8 caliber revolver” with its serial number covered by “tape that’s on the grip[.]” Test-firing established that the gun was operable. The ammunition was “three ball rounds[.]” On cross-examination, Detective Lee testified that appellant acknowledged his possession of the weapon and “told him [t]hat he had gotten it from an uncle.” Lee admitted that, although he had previously stopped appellant “several times” and “patted him down on other occasions,” no weapon had been recovered and appellant had never been arrested for possessing a weapon.

When defense counsel then indicated that he intended to call appellant as a witness, the juvenile court continued the adjudicatory hearing until the following week. When the case was called on that date, however, appellant did not testify. Instead, in support of appellant’s motion to suppress, defense counsel argued that Detective Lee’s testimony about “furtive movements in the waistband area” in “a high crime area” was insufficient to establish a reasonable suspicion that criminal activity was afoot. Counsel asserted that the same behavior “also can be construed as someone pulling up their pants” and pointed out that Detective Lee admitted that his prior searches of appellant had not yielded a weapon.

Citing Ransome v. State, 373 Md. 99 , 816 A.2d 901 (2003), counsel argued that, “if we’re going to permit the stop that happened here, ... it basically is saying that you can’t walk down the street and pull up your pants.” ⁸ The, prosecutor countered that Detective Lee was “looking at” appellant’s behavior “through the lens of a law enforcement officer who’s familiar with how weapons are carried,” who had prior contacts with appellant, who had made arrests in that high crime area, and who was on patrol that night “to see if anything [was] happening.” According to the State, “as a result of [Lee’s] prior training and experience ... as to how the weapons that are unholstered are carried,” he reasonably believed “that the motions he saw were characteristic of a gun being carried in an unholstered manner.” Agreeing with the State, the juvenile court denied appellant’s motion to suppress and explained its ruling as follows: The police are called to an area of the county where they reported the gang tagging , graffiti sprayed on public areas. There were a number of assaults, a number of robberies, and the police department decided to deploy extra personnel in the area. While in the area, Detective William Lee, ID Number 2629, observed the Respondent in this case exiting the McDonalds’ in the area. He notices him playing with his waistband.

He further states he made furtive movements, furtive movements in the sense of the case law that suggested it was indicative of him wearing a weapon. Eventually he was stopped. He was asked to take a seat. A partner was called to assist Detective Lee, at which point he notices the gun in the waistband.

I think for those reasons, the motion to suppress should be denied, and it is. (Emphasis added.) DISCUSSION Appellant renews his argument that Detective Lee’s testimony did not establish the reasonable suspicion necessary to justify a Terry stop. As the Court of Appeals has explained, the landmark Terry decision recognized that a law enforcement officer may conduct a brief investigative “stop” of an individual if the officer has a reasonable suspicion that criminal activity is afoot. Although such encounters with law enforcement are indeed ⁹ seizures as contemplated by the Fourth Amendment, the [Supreme] Court reasoned that the limited nature of a brief investigative stop does not demand a standard as stringent as probable cause.

Accordingly, pursuant to Terry and its progeny, “a police officer who has reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime may detain that person briefly in order to investigate the circumstances that provoked suspicion.” Crosby v. State, 408 Md. 490, 505-06 , 970 A.2d 894 (2009) (citations omitted). Our task in reviewing the denial of a motion to suppress evidence alleged to have been recovered as the result of a constitutionally unjustified Terry stop is to view the evidence adduced at the suppression hearing, and the inferences fairly deductible therefrom, in the light most favorable to the party that prevailed on the motion. In so doing, “[w]e extend great deference to the fact finding of the suppression court and accept the facts as found by that court unless clearly erroneous.” Nevertheless, in resolving the ultimate question of whether the detention and attendant search of an individual’s person or property violates the Fourth Amendment, we “make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.” Our review ordinarily is limited to the record of the suppression hearing. Id at 504-05, 970 A.2d 894 (citations omitted).

Appellant argues that Ransome v. State, 373 Md. 99 , 816 A.2d 901 (2003), is the “Maryland case most closely on point[.]” In that case, a patrol officer suspected a large bulge in Ransome’s pocket might be a weapon. At the suppression hearing, Officer Moro testified that the area was a high-crime one, which is why he and his fellow officers were assigned to patrol it. He also recounted that petitioner stopped and looked at the car as it approached, and that, as Moro questioned petitioner, he ceased making eye contact and “his voice was getting real ¹⁰ nervous.” At one point, he stated that his decision to conduct the frisk was “based upon what I’m seeing with the bulge in his pocket and the way the defendant’s mannerism, the way he’s talking to me.” ... In response to questions from the court, Officer Moro stated that his decision to stop and frisk petitioner was based solely on his observation of the bulge in petitioner’s pocket and his immediate conclusion from that bulge that petitioner may be armed.

Id. at 105-06 , 816 A.2d 901 . The Court of Appeals held that the unexplained bulge in Ransome’s pocket did not establish a reasonable suspicion that he was involved in criminal activity. See id. at 107-08 , 816 A.2d 901 . The Court “accept[ed] ... that a noticeable bulge in a man’s waist area may well reasonably indicate that the man is armed,” that typically “men do not stuff bulky objects into the waist areas of their trousers and then walk, stand, or drive around in that condition,” and that “those who go armed do often carry handguns in that fashion.” Id. at 107 , 816 A.2d 901 .

Nevertheless, the Court pointed out that, “as most men do not carry purses, they, of necessity, carry innocent personal objects in their pants pockets—wallets, money clips, keys, change, credit cards, cell phones, cigarettes, and the like— objects that, given the immutable law of physics that matter occupies space, will create some sort of bulge.” Id. at 107-08 , 816 A.2d 901 . For that reason, the mere presence of “any large bulge in any man’s pocket” does not justify a Terry stop. See id. at 108 , 816 A.2d 901 . A contrary conclusion, the Court reasoned, “would allow the police to stop and frisk virtually every man they encounter.” Id.

Although the Court recognized that “[tjhere have been ... many cases in which a bulge in a man’s clothing, along with other circumstances, has justified” a Terry stop and frisk, id., in Ransome’s case, there was nothing about his appearance or behavior that reasonably could be considered as indication that he was involved in criminal activity. See id. at 109-10 , 816 A.2d 901 . The officer’s claim that he considered Ran-some’s nervous behavior to be suspicious was not supported by any “articulable” facts as to why he believed Ransome might ¹¹ be involved in criminal activity. See id. at 109-10 , 816 A.2d 901 .

In particular, the Court pointed out that the officer never explained why he thought that [Ransome’s] stopping to look at his unmarked car as it slowed down was suspicious or why petitioner’s later nervousness or loss of eye contact, as two police officers accosted him on the street, was suspicious. As noted, Terry requires the officer to point to “specific and ariiculable facts’’ justifying his conduct. Unlike the defendants in the cited cases, or indeed in Terry, petitioner had done nothing to attract police attention other than being on the street with a bulge in his pocket at the same time Officer Moro drove by. He had not committed any obvious offense, he was not lurking behind a residence or found on a day care center porch late at night, was not without identification, was not a known criminal or in company with one, was not reaching for the bulge in his pocket or engaging in any other threatening conduct, did not take evasive action or attempt to flee, and the officer was not alone to face him.

Id. (emphasis added). In these circumstances, the Court concluded that the State had failed to satisfy its burden of establishing a factual basis for the stop. The command that we generally respect the inferences and conclusions drawn by experienced police officers does not require that we abandon our responsibility to make the ultimate determination of whether the police have acted in a lawful manner or that we “rubber stamp” conduct simply because the officer believed he had a right to engage in it.

We understand that conduct that would seem innocent to an average layperson may properly be regarded as suspicious by a trained or experienced officer, but if the officer seeks to justify a Fourth Amendment intrusion based on that conduct, the officer ordinarily must offer some explanation of why he or she regarded the conduct as suspicious; otherwise, there is no ability to review the officer’s action. ¹² We are fully cognizant of dangers constantly lurking on our streets and of the plight of conscientious police officers who have to make split-second decisions in balancing their duties, on the one hand, to detect and prevent crime and assure their own safety while, on the other, respecting the dignity and Constitutional rights of persons they confront. The conduct here, on the record before us, crossed the line. If the police can stop and frisk any man found on the street at night in a high-crime area merely because he has a bulge in his pocket, stops to look at an unmarked car containing three un-uniformed men, and then, when those men alight suddenly from the car and approach the citizen, acts nervously, there would, indeed, be little Fourth Amendment protection left for those men who live in or have occasion to visit high-crime areas. We hold that Officer Moro did not have a reasonable basis for frisking petitioner and that the evidence recovered by him as a result of the frisk and subsequent extended search was inadmissible.

Id. at 110-11 , 816 A.2d 901 (emphasis added and citations omitted). This ease differs from Ransome in that Detective Lee’s suspicion that appellant was carrying a weapon stemmed from his observation of appellant’s behavior in making adjustments at his waistband, not from the presence of a bulge in appellant’s pocket. Conceding this obvious factual distinction, appellant nevertheless argues that, just as the bulge in Ran-some’s pocket, plus his nervous demeanor while standing on a sidewalk in a high crime area on a summer night, did not raise a reasonable suspicion that criminal activity was afoot, neither did appellant’s handling of his shirt at his waistband, while standing on a street in a high crime area on a summer night, establish an objectively reasonable basis for this Terry stop. We agree with the State that, generally “a bulge and hand movements around the waistband are not equivalent factors in a reasonable suspicion analysis.” See, e.g., Singleton v. United States, 998 A.2d 295, 302-03 (D.C.2010) (although a bulge in the defendant’s pocket did not give rise to reasonable suspicion “without further elaboration,” where defendant also en ¹³ gaged in an “awkward walk and hand movement that seemed to be protective of a firearm secreted in the pocket” and repeatedly looked back nervously at the officer as he walked away from him, reasonable suspicion existed). 3 Yet it is clear that, just as a bulge may be created by a wide variety of objects other than a weapon, so, too, can a person touching the area of his waistband be indicative of a wide variety of causes other than adjusting a concealed weapon.

And both the State and appellant recognize that there is no Maryland precedent involving a stop premised solely on the type of waistband adjustments at issue in this case. Cf., e.g., Bost v. State, 406 Md. 341, 359 , 958 A.2d 356 (2008) (defendant’s “clutching at his waistband” during unprovoked flight from police established reasonable suspicion); In re David S., 367 Md. 523, 539 , 789 A.2d 607 (2002) (reasonable suspicion was established by evidence that defendant was observed in the commission of a possible burglary, placing a dark object that looked like a gun into his waistband); Smith v. State, 106 Md.App. 665 , 666 A.2d 883 (1995) (affirming reasonable suspicion finding where police were called to the area for weapons discharging and encountered defendant, who immediately withdrew and tucked an object into his waistband), aff'd on other grounds, 345 Md. 460 , 693 A.2d 749 (1997). ¹⁴ Appellant cites a number of “waistband” cases decided in other jurisdictions and our research uncovered others. Although there can be no bright-line rule given the individualized nature of such cases, our review indicates that a police officer’s observation of a suspect making an adjustment in the vicinity of his waistband does not give rise to