Jones v. State

²¹⁷ DAVIS, Judge. Appellant Reginald Jones was tried for fourth degree burglary and theft of property valued under $300 before a jury in the Circuit Court for Baltimore City. On April 20, 2000, he was convicted of theft of property valued under $300 and sentenced to eighteen months imprisonment. This timely appeal followed.

Appellant raises two questions for our review, which we rephrase as follows: I. Did the trial court err in denying appellant’s motion to suppress?

II

Did the trial court misallocate the burden of proof at the suppression hearing? We answer the first question in the negative and the second in the affirmative; we conclude the error did not effect the court’s ruling and therefore affirm the judgment of the trial court. FACTUAL BACKGROUND On March 13, 1999, appellant was arrested on suspicion of burglary. He was eventually charged with fourth degree burglary and theft.

A hearing was held on appellant’s motion to suppress physical evidence in the Circuit Court for Baltimore City and the following evidence was adduced. Officer Bernadette Giblon of the Baltimore City Police Department testified that, on 9:45 p.m. on the night in question, she learned from a dispatcher that someone had observed two black males carrying a television and other property down Wheeling Street in downtown Baltimore. Officer Joseph Stephens remembered the description as stating that the men were carrying a television and a microwave. Approximately two blocks away from Wheeling Street, at the comer of Hanover and Hamburg Streets, Officer Giblon observed appellant standing alone with a microwave oven sitting on top of a suitcase.

She testified that this area was “known for burglaries.” Officer Giblon asked appellant where he was coming from and where he had gotten the microwave. Appellant’s ²¹⁸ response was “very vague” — he said that he had found the microwave in an alley and pointed “toward Charles Street.” Officer Giblon knew that “there weren’t any alleys in that general vicinity.” Appellant was very nervous. Officer Giblon asked appellant what was in the suitcase and he responded, after probing, “just junk. It’s nothing really.

I got it from the alley.” Appellant consented to a search of the suitcase and Officer Giblon found a VCR inside. Appellant explained that he had found the VCR in the alley. Officer Stephens arrived on the scene after Officer Giblon searched the suitcase. Officer Stephens recognized appellant because he had arrested him one and one-half years before for cocaine possession.

He asked appellant for identification, to which appellant responded, “Joe, you know me. Joe, you know me.” Appellant gave Officer Stephens permission to search his person. Officer Stephens recovered from appellant’s pocket an envelope with the name “Harbor Staffing” and a return address of 924 Light Street. While Officer Stephens went to that address, Officer Giblon stayed with appellant.

Officer Stephens found that a rear window and door had been forced open at 924 Light Street. He radioed Officer Giblon and advised her to place appellant under arrest. Officer Giblon acknowledged that appellant was not free to leave while Officer Stephens was investigating the address and testified that approximately ten minutes elapsed from Officer Stephens’s departure and appellant’s arrest. Appellant’s testimony differed from that of the officers in several key respects.

He stated that, when Officer Giblon initially approached him, she sounded the siren on her police cruiser and another officer exited the cruiser with her. He also testified that he did not feel free to leave from the beginning of the encounter. Finally, appellant maintained that he never gave Officer Stephens permission to search him. The court denied appellant’s motion to suppress.

It found that Officer Giblon stopped appellant, but that the stop was reasonable because it was based on ²¹⁹ being in a neighborhood which ... was known for burglaries, also seeing [appellant] fit a description of individuals going down the street.... He’s walking down the street with a microwave balanced on top of a suitcase and he’s standing on a comer and there’s been a call for that particular behavior. The court also found that appellant consented to Officer Giblon searching the suitcase and to Officer Stephens searching his pockets. Once Officer Stephens investigated the address on the envelope removed from appellant’s pocket and discovered that there was a break-in, the court found that Officer Giblon had probable cause to arrest appellant.

LEGAL ANALYSIS I Appellant first contends that the trial court erred in denying his motion to suppress physical evidence. He argues that his activity did not match the description given to Officer Giblon by dispatch and that she therefore lacked reasonable suspicion to stop him. Because this stop was illegal, appellant maintains, the consent to search and all evidence obtained therefrom should have been suppressed. The State contends that the trial court’s conclusion was correct.

In reviewing the denial of a motion to suppress evidence under the Fourth Amendment, we look only to the record of the suppression hearing and do not consider any evidence adduced at trial. Ferris v. State, 855 Md. 356 , 368, 735 A.2d 491 (1999). We extend great deference to the findings of the hearing court with respect to first-level findings of fact and the credibility of witnesses unless it is shown that the court’s findings are clearly erroneous. Reynolds v. State, 130 Md.App. 304, 313 , 746 A.2d 422 (1999), cert. denied, 358 Md. 383 , 749 A.2d 173 , cert. denied, 531 U.S. 874 , 121 S.Ct. 178 , 148 L.Ed.2d 122 (2000).

Moreover, we view those findings of fact, and indeed the record as a whole, in the light most favorable to the State. Id. We review the court’s legal ²²⁰ conclusions de novo, however, making our own independent constitutional evaluation as to whether the officers’ encounter with appellant was lawful. Id.

The first step in our analysis is to determine whether the encounter between the police officers and appellant was a seizure implicating the Fourth Amendment. We begin with our statement from Graham v. State, 119 Md.App. 444, 453 , 705 A.2d 82 (1998): The touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion, and that reasonableness depends on a balance between the public interest and the individual[’]s right to personal security free from arbitrary interference by law officers. (Internal quotations omitted) (citing Maryland v. Wilson, 519 U.S. 408, 411 , 117 S.Ct. 882 , 137 L.Ed.2d 41 (1997)). Under such an analysis, “a more intrusive governmental action requires a demonstrably more substantial legal basis in order to pass constitutional muster.” Reynolds, 130 Md.App. at 320 , 746 A.2d 422 .

In Reynolds , we explained the four levels of governmental interference with the liberty of a person on a public street, along with the level of suspicion needed to justify each level. They are, in descending order of intrusion: Stop, Search, or Arrest, Pursuant to a Warrant— Extreme governmental intrusion resulting in possible loss of liberty in addition to temporary restriction of movement— permitted because, in addition to facts tending to establish that a crime has been committed and suspect is criminal agent, neutral arbiter, magistrate, or judge with legal knowledge superior to officer has reviewed facts and indicated opinion that they constitute probable cause. Warrantless Stop, Search, or Arrest — Extreme governmental intrusion resulting in possible loss of liberty in addition to temporary restriction of movement — permitted because of the exigency of a felony having been committed or a misdemeanor being committed in officer’s presence, i.e., ²²¹ because of the ability to personally verify the commission of the offense. Stop, Pursuant to Terry v. Ohio — Less intrusive governmental action resulting initially in temporary restriction of movement-permitted when officer observes suspicious activity indicating criminal activity afoot; bases include officer’s experience, knowledge of suspect’s criminal history, high crime area; officer may conduct limited “pat-down” of outer garments to detect weapons when officer has apprehension for his or her safety.

Accosting — Only minimally intrusive governmental action resulting in no restriction of movement — permitted as long as inquiry involves no show of authority and objective circumstances indicate a reasonable person would feel free to leave. Id. at 321 , 746 A.2d 422 (citing Ferris, 355 Md. at 374 n. 5, 735 A.2d 491 ). An accosting occurs when a police officer approaches a person and engages in an inquiry as to the person’s identity, destination, and other general information, a practice also known as a field interview. Id. at 322-23, 746 A.2d 422 .

This procedure, which is of great importance in crime prevention and investigation, is constitutionally permissible without any level of suspicion “so long as the circumstances, viewed against an objective standard, indicate that a reasonable person would feel free to end the encounter and simply walk away.” Id. at 323-24 , 746 A.2d 422 . The voluntary encounter ends, however, and a seizure of the person occurs “when the attendant circumstances demonstrate objectively that a reasonable person no longer feels free to end the encounter and walk away when police ‘indicate that compliance with their requests is required by means of physical force or show of authority.’ ” Id. at 333 , 746 A.2d 422 (quoting Stanberry v. State, 343 Md. 720, 730 , 684 A.2d 823 (1996)). Some relevant factors to be considered are: 1) the time and place of the encounter, 2) the number of officers present and ²²² if they were uniformed, 3) whether the police moved the person to a different location or otherwise isolated him or her from others, 4) whether the police informed the person that he or she was free to go, 5) whether the police indicated that the person was suspected of a crime, 6) whether the police retained any of the person’s documents, and 7) whether the police demonstrated any threatening behavior or physical contact to indicate that the person was not free to go. Id. at 336, 746 A.2d 422 (citing Ferris, 355 Md. at 377 , 735 A.2d 491 ).

In the case sub judice, the encounter between appellant and Officer Giblon began as an inquiry. The record, when viewed in the light most favorable to the State, contains no evidence of any show of force by the officers. Officer Giblon did not impede appellant’s walking progress because he was standing still at the comer when she approached. Although appellant testified at the hearing that he did not feel free to end the encounter, the record does not reflect the type of coercive circumstances that would have caused a reasonable person in his position to feel compelled to remain and talk with Officer Giblon.

We next consider whether the consent given by appellant to search the suitcase and his person was voluntary. “[A] search conducted without a warrant supported by probable cause is per se unreasonable under the Fourth Amendment, subject to only a few exceptions.” Cherry v. State, 86 Md.App. 234, 240 , 586 A.2d 70 (1991) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041 , 36 L.Ed.2d 854