In Re Lorenzo C.

DAVIS, J. Appellant, Lorenzo C., was charged as a juvenile with wearing and/or carrying a handgun and related charges. On November 5, 2007, the Circuit Court for Prince George’s County (Dawson, J.) held an adjudicatory hearing on the charges. At this hearing, Lorenzo C. moved to suppress the handgun; however, this motion was subsequently denied. At the conclusion of the hearing, the court found Lorenzo involved in the crime of possession of a handgun.

On November 29, 2007, the court held a disposition hearing and ultimately ordered Lorenzo to be placed on an indefinite period of supervised probation at the Maryland Department of Juvenile Justice. Appellant filed this timely appeal and presents the following question for our review: Did the trial court err in denying appellant’s motion to suppress? For the reasons that follow, we answer appellant’s question in the negative. Accordingly, we affirm the judgment of the circuit court.

STATEMENT OF FACTS At the hearing on appellant’s Motion to Suppress, Officer Argens Contrares of the District of Columbia Police Department testified that, at approximately 1:00 a.m. on December 19, 2006, he was in the 5700 block of Eastern Avenue in the District of Columbia, responding to a call for a robbery that had occurred in the 6100 block of Eastern Avenue, Northeast, approximately four blocks from his position. According to Officer Contrares, he and his partner were canvassing the area in response to a police radio broadcast that the robbery had been committed by “several suspects, one of whom was on ⁴¹⁸ a bicycle, wearing dark clothing.” When asked what he observed at the 5700 block of Eastern Avenue, Officer Cont-rares testified that he and his partner saw “a group of subjects, about four of them, including a gentleman on a bike at the corner, standing at the corner of the 5700 block.” The corner where the group was standing was located “at the border between D.C. and P.G. (Prince George’s) County,” four blocks away from the scene of the alleged robbery in the District of Columbia. Lorenzo C. was one of the individuals in the group.

Officer Contrares described what occurred as the officers approached the group on foot: Well, as we entered further into Maryland, ‘cause they were walking into Prince George’s County, I stepped out of the vehicle to conduct, well I attempted to conduct a stop. The individual on the bike kept going which is why my partner kept trying to catch up to the individual as I stayed with the [appellant] and a couple more individuals at the scene. When asked to describe appellant’s behavior, Officer Cont-rares explained: As I tried to interview the [appellant,] he had his hand in his pockets. I asked him, for officer safety, to let me see his hands.

He didn’t respond to me; he didn’t want to take his hands out of his pocket, let me see his hands. Once again, he denied my request. Well, when I was asking him, he was kind of hesitant, kind of walking away from me looking back at me. Also, making furtive gestures and movements inside his pockets.

And that’s when I decided that I need to make physical contact to get his hands out of his pocket, lay it against the vehicle, ask my partner to come back and assist me since I had three individuals with me and I was alone and conducted a pat-down, a protective pat-down. After Officer Contrares forcibly removed appellant’s hands from his pockets and placed him against his police vehicle, he ⁴¹⁹ conducted a frisk of appellant, finding a revolver inside his right jacket pocket. The only testimony elicited on cross-examination that expounded upon that received on direct examination related to Officer Contrares’ characterization of appellant’s hand movements as “furtive”: 1 mean he appeared very nervous after I asked him the second time and he was also moving his hands inside his pockets. I could tell he was moving his hands because I was looking at his hands.

At least I tried to, to make sure obviously ‘cause there was one of me and three of them. Officers from Prince George’s County subsequently responded to the scene and recovered the gun. These officers assisted in appellant’s arrest. Appellant’s trial counsel and counsel for the State presented their respective arguments on the motion to suppress: 1 [APPELLANT’S COUNSEL]: Your Honor, again, the argument.

Mr. C had a right to be free from unreasonable searches and seizures. First of all, an individual has the right to walk away from an officer. An officer can stop a person if that officer believes that there is reasonable suspicion that criminal activity is afoot. If then there is a separate basis for a frisk, a person can be patted down.

Neither of which existed here when Officer Contrares approached him and then subsequently patted him down. In addition, Your Honor, in order for a Metropolitan Police Department officer to even have, from what I can read of the law, jurisdiction or a basis to arrest a person, they have to have felony, excuse me, probable cause that a felony has been committed and essentially be in hot pursuit crossing over the jurisdictional line. ⁴²⁰ And he was arrested, Your Honor, when he was placed up against that police car. No reasonable person would believe after an officer takes his hands out of your pockets and puts you against a police car, which is what Officer Contrares testified that he did, that you could walk away at that juncture. So, he was arrested and pursuant to Criminal Procedure Section 2-305, he did not have the authority to do that.

It was an illegal seizure and as a result of that the gun should be suppressed, Your Honor. There was not probable cause that he had committed any felony at that juncture. And the officer didn’t have any basis to come in to Prince George’s County. He could have conceivably followed him, called PG County and they could have taken their own actions but he chose not to do that.

He overstepped his boundaries, Your Honor, and for that the gun should be suppressed. THE COURT: What was with the call for the armed robbery? [APPELLANT’S COUNSEL]: I’m sorry, what Your Honor? THE COURT: What was the call for the armed robbery that Contrares testified about? What was that all about? [APPELLANT’S COUNSEL]: They’re, my understanding is based on that testimony, obviously I have some other reports and things which Your Honor doesn’t have, is that there was an allegation that a robbery had occurred in the District of Columbia.

THE COURT: Yeah. [APPELLANT’S COUNSEL]: And there was a lookout essentially for individuals wearing dark clothing and someone on a bike. THE COURT: Right. [APPELLANT’S COUNSEL]: That might'give him— THE COURT: Probable cause? ⁴²¹ [APPELLANT’S COUNSEL]: No, not probable cause that he had committed a crime, Your Honor. Probable cause,— THE COURT: Okay. [APPELLANT’S COUNSEL]:—Your Honor, requires more than that and I apologize ‘cause 1 printed the case and I don’t have it right in front of me, Your Honor. But probable cause requires, Court’s indulgence.

Facts and circumstances within the arresting party’s knowledge of which they have reasonably trustworthy information and are sufficient in themselves to authorize a man of reasonable caution in the belief that an offense has been committed by the person arrested. He may have had some suspicion, Your Honor, that this person may have been involved in that but there was no particular description, no height, no weight, no age, no specific clothing in terms of types of dark garments show-it’s counsel’s position that there’s no reasonable suspicion but I’ll back up to that argument in a minute, Your Honor. In looking at probable cause, a lookout giving a vague description is not sufficient to warrant that an offense has been committed by this person. THE COURT: Okay.

Let me hear from the State. State? [THE STATE]: Well, Your Honor, I think you have to look at the totality of the circumstances. A lookout was broadcast that there were a group of males, one was riding a bike. They were all dressed in dark clothing.

A short time later, Officer Contrares and his partner came upon the [appellant] and a group of individuals. They were all dressed in dark clothing and one was on a bike. This was the middle of the night, 12:30, 1:00 in the morning. They were four blocks from the location of the alleged robbery.

At this point, the [appellant] and his friends or the people he [was] with were in Washington, D.C. At some point they crossed over to Prince George’s County but at this point Officer Contrares, based on the ⁴²² description given, based on all the circumstances, had a reasonable belief that this [appellant] and the other people he was with was involved and possible suspects to the robbery that had occurred. At minimum, he has the right to do a Terry investigatory stop. Now, he goes over to the [appellant] and the [appellant] is acting all jittery, nervous. Hands are in and out of his pockets.

THE COURT: No, hands were in his pockets. [THE STATE]: In and out of his pockets. THE COURT: In his pockets. [THE STATE]: In his pockets. THE COURT: Fidgeting in his pockets, basically. [THE STATE]: The officer said “please remove your hands from your pockets” twice. The [appellant] did not comply.

Now, coupled with the fact that it’s dark, it’s three individuals, Officer Contrares’s partner is trying to track down a person who was on the bike. He’s investigating them for a robbery. . For his own safety, at that point, he needs to check and see what’s going on. He pats him down and there’s a gun in his pocket.

The State’s argument is one, Officer Contrares was in pursuit. There’s nothing in the Annotated Code of Maryland that says it has to be a hot pursuit, that they’re running down the street and their sirens are blazing. He sees the [appellant]; the [appellant] crosses the street. He has the right to go into Prince George’s County and see what’s going on.

I mean the opposite, I mean that wouldn’t even make sense. Are we saying that people can’t go or officers can’t go into other jurisdictions when they have a reasonable belief that the person they’re trying to stop has committed a crime, a felony. At the conclusion of the hearing, the entirety of the court’s ruling, in denying appellant’s Motion to Suppress, was: “The Court has had an opportunity to review the law, to review the testimony and the Court would, in fact, believe that the officer ⁴²³ did have reasonable suspicion at the time of the stop and at the time of engaging the [appellant]. And the Court will deny the Motion to Suppress at this time.” Appellant was subsequently found to be “involved” in wearing and/or carrying a handgun.

STANDARD OF REVIEW “ ‘In reviewing the denial of a motion to suppress under Maryland Rule 4-252, we look only to the record of the suppression hearing and do not consider the record of the trial’ ” (or proceeding adjudicating the merits, i.e., agreed statement of facts). Graham v. State, 119 Md.App. 444, 449 , 705 A.2d 82 (1998) (quoting In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691 (1997); see also Gamble v. State, 318 Md. 120, 125 , 567 A.2d 95 (1989); Herod v. State, 311 Md. 288, 290 , 534 A.2d 362 (1987); Jackson v. State, 52 Md.App. 327 , 332 n. 5, 449 A.2d 438 (1982); Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987)). In considering the evidence presented at the suppression hearing, “[w]e extend great deference to the fact finding of the suppression hearing judge with respect to determining the credibility] ... of the witnesses and to weighing and determining first-level facts.” Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990). “When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that his or her findings are clearly erroneous.” Graham, 119 Md.App. at 449-50 , 705 A.2d 82 (citing Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990)). “ ‘When the question is whether a constitutional right, such as here, a defendant’s right to be free from unreasonable searches and seizures, has been violated, the reviewing court makes its own independent constitutional appraisal, by reviewing the law and applying it to the particular facts of the particular case.’ ” Stokes v. State, 362 Md. 407, 414 , 765 A.2d 612 (2001) (quoting Jones v. State, 343 Md. 448, 458 , 682 A.2d 248 (1996)). See also Lawson v. State, 120 Md.App. 610, 614 , 707 A.2d 947 (1998); Graham, 119 Md.App. at 450 , 705 A.2d 82 (citing Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Perkins, 83 Md.App. at 346 , 574 A.2d 356 )) (Holding ⁴²⁴ that, “[a]s to the ultimate conclusion, however, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.”).

In determining whether a seizure of the person took place, we look to the totality of the circumstances of the initial encounter between appellant and the police. Ferris v. State, 355 Md. 356, 376 , 735 A.2d 491 (1999). We review the trial court’s factual findings in the light most favorable to the State and review these findings for clear error, but we review the legal conclusions de novo. Id. at 368, 735 A.2d 491 (citations omitted).

LEGAL ANALYSIS A Parties’ Contentions and Circuit Court Ruling The parties do not dispute that Officer Contrares detained appellant to conduct a brief investigatory stop. Rather, the parties dispute whether the stop and subsequent search was based on reasonable articulable suspicion and therefore valid under the Fourth Amendment. Relying principally on the decisions of the Court of Appeals in Stokes, 362 Md. 407 , 765 A.2d 612 , Jones v. State, 319 Md. 279 , 572 A.2d 169 (1990), and Cartnail v. State, 359 Md. 272 , 753 A.2d 519 (2000), appellant contends that “Officer Contrares lacked reasonable articulable suspicion to stop [him],” but that, “[e]ven assuming arguendo that Contrares was justified in stopping [him], the officer did not have the requisite reasonable and articulable suspicion to frisk him.” In support of his argument, he endeavors to apply the factors espoused by Professor LaFave in analyzing the existence, vel non, of reasonable articulable suspicion in his treatise 2 and adopted by the Court of Appeals in Cartnail, 359 Md. at 289 , 753 A.2d 519 and Stokes, 362 Md. at 421-22 , 765 A.2d 612 . Appellant summarizes the gravamen of his Fourth Amendment challenge in his brief by concluding that ⁴²⁵ the officer’s suspicion must be reasonable, giving due weight “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.

Because the justification required for a stop differs from that required for a frisk, the right to stop a person does not automatically confer upon the police the right to conduct a pat-down search for weapons. In the present case, even if Officer Contrares was legally justified in stopping [appellant], he did not have the requisite reasonable and articulable suspicion to believe that he was armed. (Citations omitted). “Police officers may conduct a brief investigatory detention based on reasonable, articulable, suspicion that criminal activity is afoot,” counters the State, citing the seminal decision in Terry v. Ohio, 392 U.S. 1, 21, 28 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and, in accordance with that well-settled principle, asseverates, “Officer Contrares’ actions constituted a reasonable police investigation based upon the report of a crime and [constituted] wholly reasonable and prudent action undertaken for his protection in dealing with multiple subjects singlehandedly.” The proper test, implores the State, is “ ‘the totality of the circumstances,’ viewed through the eyes of a reasonable, prudent police officer.” Bost v. State, 406 Md. 341, 356 , 958 A.2d 356 (2008) (citing Stokes, 362 Md. at 415-16 , 765 A.2d 612 ). As noted, the court’s only ruling on appellant’s Motion to Suppress was that “the officer did have reasonable suspicion at the time of the stop and at the time of engaging the [appellant].” Although the court made no findings regarding the credibility of Officer Contrares, the evidence was essentially undisputed; hence, we review that evidence in the light most favorable to the State.

B Scope of Investigative Stop The Fourth Amendment of the United States Constitution, applicable to the States via the Fourteenth Amendment of the ⁴²⁶ United States Constitution, Mapp v. Ohio, 367 U.S. 643, 647 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Fourth Amendment protections extend to brief investigatory stops permitted in street confrontations between a citizen and the police investigating observed suspicious behavior. Stokes, 362 Md. at 414 , 765 A.2d 612 . A Terry stop allows police to “ ‘investigate the circumstances that provoke suspicion.’ ” Collins v. State, 376 Md. 359, 368 , 829 A.2d 992 (2003) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975)). “The detainee is not obligated to respond, however, and, ‘unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released.’ ” Id. at 368, 829 A.2d 992 (quoting Berkemer v. McCarty, 468 U.S. 420, 439-40 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984)).

If an officer has an articulable basis for a reasonable belief that crime is being or is about to be committed, a police officer may make a brief stop of a suspect in order to investigate. Thus, investigatory stops are justified as a result of the need for “ ‘necessarily swift action predicated upon the on-the-spot observations of the officer.’ ” Watkins v. State, 288 Md. 597, 602 , 420 A.2d 270 (1980) (quoting Terry, 392 U.S. at 20 , 88 S.Ct. 1868 ). “A police officer may direct an inquiry to a citizen, even when he or she has no cause for doing so and it may be entirely appropriate for that citizen to decline ‘to stop or respond to such inquiries.’ ” Stokes, 362 Md. at 414 , 765 A.2d 612 (quoting Anderson v. State, 282 Md. 701, 708 , 387 A.2d 281 (1978)). “Under the Fourth Amendment, an officer may make a forcible stop of a citizen ... if the officer has reasonable grounds for doing so.” Id. at 414-15, 765 A.2d 612 . This investigatory stop constitutes a seizure of the person, but not ⁴²⁷ an unreasonable seizure violating a person’s Fourth Amendment protections. Under the Fourth Amendment, police officers conducting investigatory stops need not have probable cause; rather, to justify such an intrusion, the officers must have “reasonable articulable suspicion.” Id. at 415 , 765 A.2d 612 . “Reasonable articulable suspicion” has been defined as “a particularized and objective basis for suspecting the particular persons stopped of criminal activity[.]” Id.

(citing United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981)). “[W]hen evaluating the validity of detention, we must examine ‘the totality of the circumstances—the whole picture.’ ” Id. at 416 , 101 S.Ct. 690 (quoting Graham v. State, 325 Md. 398, 408 , 601 A.2d 131 (1992)). Thus, when viewing the totality of the circumstances, officers must be able to point to specific and articulable facts that warrant the stop. Id. at 415 , 765 A.2d 612 . Conversely, the Court has consistently held that mere hunches are insufficient to justify an investigatory stop.

Id. If the officer also has “an articulable basis for a reasonable belief that the suspect may be armed, the officer may ‘frisk’ him [or her] by conducting a pat-down of the exterior of the suspect’s clothing to insure that he [or she] is not armed.” Weedon v. State, 82 Md.App. 692, 696 , 573 A.2d 92 (1990). That intrusion is reasonable under the Fourth Amendment, for the protection of the officer. Id. “The limited protective search as a preliminary to investigative questioning during a Terry stop is justified only by the officer’s reasonable belief that the suspect is armed and dangerous.” Id. at 699, 573 A.2d 92 (citing Terry, 392 U.S. at 24-27 , 88 S.Ct. 1868 ).

The frisk “requires its own independent justification, not only as to legitimacy but also as to scope.” Id. at 698, 573 A.2d 92 . However, “if the petitioner should not have been stopped in the first place, there certainly would not have, nor could there have been, any search.” Stokes, 362 Md. at 410 , 765 A.2d 612 (citing Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 ⁴²⁸ (1963)) (initiating the doctrine that derivative evidence gained from the illegal actions of police must also be suppressed as fruits of poisonous tree); see also Ott v. State, 325 Md. 206 , 600 A.2d 111 (1992) (noting that physical evidence obtained as the result of an illegal seizure is suppressed under the fruit of poisonous tree doctrine). As a prelude to reaching the merits in Terry v. Ohio, the Supreme Court observed: Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden “seized” Terry and whether and when he conducted a “search.”...

It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” 392 U.S. at 16 , 88 S.Ct. 1868 . Although it is not contested that the legal justification underpinning Officer Contrares’ seizure of the person of appellant was a Terry stop pursuant to Terry v. Ohio, supra, Judge Wilner, writing for the Court of Appeals in Collins, 376 Md. 359 , 829 A.2d 992 , explained the sequential nature of a frisk vis-a-vis an investigative stop: We agree that the issue must be examined in a sequential sense, beginning with the initial accosting of Collins by Officer Jones. The Supreme Court first dealt, directly, with encounters of this kind in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), in which, among other things, the Court concluded that the governmental interest in crime prevention and detection justified the recognition “that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is ⁴²⁹ no probable cause to make an arrest.” Id. at 22 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906-07 .

Terry and its immediate progeny involved investigatory stops where the police suspected the person of either being about to commit a crime, as in Terry, or in the course of committing a crime, which explains the Court’s stressing of prevention and detection as the important governmental interest. In United States v. Hensley, 469 U.S. 221 , 105 S.Ct. 675 , 83 L.Ed.2d 604 (1985), the Court first considered the application of Terry to the accosting of an individual believed to have been involved in a completed crime. The balance of factors in that situation was somewhat different, in that a stop to investigate a completed crime does not promote the interest of crime prevention and detection and may not present the same kind of exigent circumstances as an effort to avert an imminent or ongoing crime. Nonetheless, the Court made clear that the police “are not automatically shorn of authority to stop a suspect in the absence of probable cause merely because the criminal has completed his crime and escaped from the scene.” Id. at 228, 105 S.Ct. at 680 , 83 L.Ed.2d at 611 .

Rather, the ability of the police, even in the absence of probable cause, to stop a person suspected of involvement in a past crime, ask questions, or check identification strengthens the strong governmental interest in solving crimes and bringing offenders to justice. Id. at 366-67 , 829 A.2d 992 (emphasis added). Thus, although the exigency in an investigative stop for purposes of investigating potential or future crimes may be more heightened than that of a completed felony, in either case, it is important that an analysis of a Terry stop proceed sequentially from the initial accosting through the detention and frisk of the suspect. Id. at 19, 88 S.Ct. 1868 . “(T]n determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one—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.” Id. at 19-20 , 88 S.Ct. 1868 . ⁴³⁰ c The Instant Case i In the case sub judice; we begin with the information with which Officer Contrares was armed when he accosted appellant.

The police radio broadcast reported that the robbery had been committed at 1:00 a.m. by several suspects, one of whom was on a bicycle, wearing dark clothing in the 6100 block of Eastern Avenue, Northeast, in the District of Columbia, approximately four blocks from where Officer Contrares was located in the 5700 block of Eastern Avenue. When he arrived at the 5700 block of Eastern Avenue, Officer Cont-rares testified that he and his partner saw “a group of subjects, about four of them, including a gentleman on a bike at the corner, standing at the corner of the 5700 block.” The broadcast informed that the robbery had been committed by “several suspects,” but was nonspecific as to their descriptions. Undoubtedly, the fact that one of the suspects was wearing dark clothes and riding a bicycle attracted Officer Contrares’ attention to the group. The Court of Appeals has held thát, when looking at the totality of the circumstances to determine whether the State illegally effected a Fourth Amendment seizure, we use the facts as deemed credible by the trial judge.

State v. Lemmon, 318 Md. 365, 378-79 , 568 A.2d 48 (1990). As noted, the suppression hearing judge made no factual findings; thus, we look only to the evidence adduced at the hearing. In considering whether the circumstances that confronted them justified effectuating a Terry stop, the “reasonable suspicion” factors we apply are: (1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender