Jordan v. State

ALPERT, Judge. Thomas R. Jordan, appellant, was charged with unlawfully transporting a handgun. Prior to trial, he moved to suppress the handgun. A suppression hearing was held before Judge David Ross, sitting in the Circuit Court for Baltimore City.

The arresting police officer, Richard Grisholm, testified that on July 8, 1986, at 1:21 p.m., he “received a call from Communications to respond to the 500 block of North Payson Street for a narcotics activity.” Officer Grisholm responded in uniform in a marked police car. He testified that when he reached the intersection of Payson Street and ⁵³⁰ Edmondson Avenue, he observed appellant walking across Edmondson Avenue. Appellant glanced in Officer Grisholm's direction “3 or 4 times” and “was holding a bag against his left side.” Grisholm testified that it appeared that appellant “was trying to conceal it on the left side of his leg at thigh level.” Grisholm, therefore, got out of his patrol car and approached appellant, who was standing about fifteen to twenty feet away. According to Grisholm’s testimony, appellant then asked, “You want me?”.

Officer Grisholm then “said something to the effect I would like to speak to you for a minute.” What next took place was described by Officer Grisholm as follows: A. I started toward him. He started toward me, he raised the bag which he had been carrying, up with both hands and pointed it at my upper torso area, and I noticed that he was looking down at the bag and glancing at me and again down at the bag, and he was manipulating something from the back of the bag. We were still closing on each other. We got to between several feet while this was going on, and I became fearful of the contents of the bag.

Q. Why were you afraid? A. I have recovered a number of guns in bags just like that. Q. Okay. A. And the manner in which he was grabbing it and manipulating it, I was thinking, gun in the bag, and it could have been trying to fire it.

Q. How would you describe the emotion that you felt? A. I thought I was about to be shot or hurt in some manner. Q. Okay. After you grabbed the bag, then what happened?

A. I grabbed the bag, and I felt it, and I could feel there was a hard object, possibly a gun in it, and I pivoted him and grabbed him with my left hand and threw him away ⁵³¹ from me, over the hood of the radio car, and pinned him down. At that time, my back-up units started to park behind me. I checked the bag and found the gun inside the bag. Q. And then, what happened?

At what point was the defendant placed under arrest after that? A. Yes. When I saw the bag, or when I saw the gun inside the bag, he was placed under arrest. When asked why he never drew his service revolver or ducked instead of snatching appellant’s bag from him, Officer Grisholm replied: It was just a reaction.

It was the only thing that was left to do. It was like there, and I just lunged for it and grabbed it. It may—I think it turned out it was the right move, but under other circumstances, it may not have been. Appellant’s version of the events that transpired on July 8, 1986 differs from Officer Grisholm’s testimony.

According to appellant, he was walking on Edmondson Avenue when he and Officer Grisholm “exchanged glances.” Appellant testified that, at the time, he assumed that the officer was attracted by the jewelry he was wearing. 1 He then flagged down a cab. Before the cab departed, however, Officer Grisholm pulled his patrol car behind the cab whereupon appellant asked, “Do you want me?”. Appellant asserted that Officer Grisholm “replied in the affirmative, asked what was in the bag he was carrying, snatched the bag, and open [sic] it.” Throughout his testimony, appellant denied that he tried to conceal the bag or that he raised the bag and pointed it at Officer Grisholm. After the hearing, Judge Ross dismissed the motion to suppress, stating: Well, the motion to suppress is denied.

I agree that the story is not without its unusual aspects, but the burden is ⁵³² what is more likely so than not so, and the officer gave all the appearances of testifying honestly and his story is not that different from the defendant’s stoty. The only question is, what happened with the hands, and the defendant, in a rather weak way, sort of tried to explain, well, maybe I was swinging it with one hand in front of me, but there is no—more likely so than not so that this officer honestly felt that he was being threatened by what was in that bag, and he took steps necessary to protect himself in the circumstances, resulting in recovery of the bag, which I see no distinction between patting down a bag that was acquired in the way this was acquired, and patting it down to see what it is, than patting down the individual, except that the bag was separated from the individual, but once having been confronted with the threat and taking reasonable steps to protect himself, I think it is not unreasonable to feel the bag, and having felt the bag, determined, and determined that it could be a handgun, to open the bag and confirm then and there that it was. The case then proceeded on an agreed statement of facts. At the close of the trial, the trial judge found appellant guilty of unlawfully transporting a handgun.

The sole issue appellant raises on appeal is whether the trial court erred in denying appellant’s motion to suppress the handgun. Appellant asserts three reasons in support of his contention of error. 1. The officer did not have a reasonable belief that appellant was armed and dangerous. 2. Assuming that the seizure of the bag was lawful, the warrantless search of the bag was improper. 3.

The warrantless search of the bag was prohibited by Art. 27, Sec. 36D. We will address each of these arguments in turn. I. Protective Search Appellant’s first argument is that Officer Grisholm did not have a reasonable belief that appellant was armed ⁵³³ and dangerous. Rather, appellant asserts that the officer’s actions were based on “his inchoate and unparticularized suspicion or hunch.” Appellant cites Whitmire v. State, 61 Md.App. 548 , 487 A.2d 686 (1985) in support of his contention.

In Whitmire , the police stopped Ronald Jerome Whitmire based on information relayed by radio bulletin. The police directed him to exit the stopped vehicle and place his hands on the car roof. The police then patted him down. During the pat down search, the police officer felt a hard cylindrical object in his trouser pocket that subsequently was discovered to be a roll of dimes.

A rosary and assorted papers were removed from Whitmire’s other pockets during the search. In addition, while checking Whitmire’s vehicle for weapons, the police discovered a pewter disk, screwdrivers and a flashlight. Whitmire was then placed under arrest for burglary and theft of goods worth less than $300. The goods recovered were identified by the burglary victim as belonging to her.

Id. at 551 , 487 A.2d 686 . Prior to trial, Whitmire sought to have the evidence recovered from his person suppressed as the fruits of an illegal search. The right to conduct a limited search for weapons was not contested by Whitmire. Instead, he argued that “after the frisk, the officer conducted a general exploratory search for evidence rather than a limited search for weapons.” After considering the arresting officer’s testimony, 2 the court concurred with Whitmire’s assertion that the officer’s explanation that he was conducting the search to look for weapons was mere subterfuge.

The ⁵³⁴ court explained that, “Absent a reasonable belief that appellant was armed, the seizure of the bag was not warranted under Terry.” Id. at 552, 487 A.2d 686 (emphasis in original). 3 It is clear then that Whitmire is inapposite to the case sub judice. It is the function of the trial court to “evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.” Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). In Whitmire , the court found that the officer’s testimony explaining the reason for his extensive weapons search was less than credible. See 61 Md.App. at 552 , 487 A.2d 686 .

In the case at bar, however, the trial judge concluded that “the officer gave all the appearances of testifying honestly and his story is not that different from the defendant's.” While an appellate court is required to make its own independent determination of the constitutional effect of the facts found by the lower court, Ciriago v. State, 57 Md.App. 563, 573 , 471 A.2d 320 , cert. den., 300 Md. 152 , 476 A.2d 721 (1984), in evaluating the credibility of witnesses, the appellate court “must give great weight to the findings of the trial judge with respect to those first level facts.” Borgen v. State, 58 Md.App. 61, 79 , 472 A.2d 114 (1984). A review of the evidence indicates that the trial court’s finding that Officer Grisholm reasonably believed appellant was armed and dangerous is amply supported and not clearly erroneous. As we explained in Borgen : An appellate court can reject the testimony of a witness credited by the triers of the fact only when the testimony is inherently improbable. There must exist a physical impossibility that the statements of the witness are true ⁵³⁵ or their falsity must appear without resorting to inferences or deduction.

The appellate court may not substitute its judgment with respect to the credibility of a witness for that of the jury and trial judge on the ground that the evidence is inherently improbable unless it is so clearly false and unbelievable that reasonable minds may not differ. Id. (citations omitted). Accordingly, we now hold that Officer Grisholm’s seizure of the bag was justified under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), as a limited protective search based on a reasonable belief that the subject is “armed and presently dangerous.” Id. 392 U.S. at 24 , 88 S.Ct. at 1881 .

See also State v. Ortiz, 67 Hawaii 181 , 683 P.2d 822, 826 (1984) (seizure of knapsack reasonable as protective search where officer “had a strong firsthand suspicion the knapsack contained the most dangerous of weapons, a handgun”); Crowder v. United States, 379 A.2d 1183, 1185 (D.C.App.1977) (seizure of newspaper during Terry stop was reasonable where “the policeman could fairly conclude that appellant’s nervous manner and his attempt to shield the newspaper from view indicated the presence of a weapon”); Nash v. State, 295 A.2d 715, 716 (Del.1972) (seizure of box reasonable where officer feared for his life because he “recognized the box as possibly containing a weapon, a pistol”); People v. Pugach, 15 N.Y.2d 65 , 255 N.Y.S.2d 833, 836 , 204 N.E.2d 176, 178 (1964) , cert. den., 380 U.S. 936 , 85 S.Ct. 946 , 13 L.Ed.2d 823 (1965) (inclusion of brief case in “frisk” for weapons was “not so unreasonable as to be constitutionally illegal”).

II

Search of Appellant’s Bag Having a strong suspicion that he was about to be shot, Officer Grisholm seized appellant’s bag and immediately felt “a hard object, possibly a gun in it.” Appellant argues that even if, as we hold, the bag was lawfully seized during a protective search, once Officer Grisholm had ⁵³⁶ gained “exclusive control” over the bag, he was not authorized to open it because he was no longer in danger. Although appellant’s argument may prevail under other facts and circumstances, see generally LaFave, 3 Search and Seizure, § 9.4(e), at 527 (2d ed. 1987), we hold that under the facts at bar Officer Grisholm acted within the scope of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and did not violate appellant’s constitutional rights. When a police officer lawfully conducting a protective search reasonably believes a gun is concealed in the detainee’s bag, the officer remains vulnerable and in danger if the bag is returned and the detainee released at the conclusion of the investigative stop. LaFave, supra, at n. 158.

Terry recognized that it would be “clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” 392 U.S. at 24 , 88 S.Ct. at 1881 . In Terry , the police officer, while patting down the outer clothing of the suspects, felt a pistol in the left breast pocket of Terry’s overcoat. He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker’s store.

As they went in, he removed Terry’s overcoat completely, removed a .38 caliber revolver from the pocket, and ordered all three men to face the wall with their hands raised. Id. at 7 , 88 S.Ct. at 1872 . As the State has noted, appellant’s reasoning conflicts with Terry . The police officer, by removing Terry’s coat, had reduced it to his exclusive control before removing the gun and had thereby eliminated the need for a protective search.

Clearly, however, the U.S. Supreme Court did not find that the removal of Terry’s coat had “neutralized the threat of physical harm.” Id. at 24 , 88 S.Ct. at 1881 . ⁵³⁷ In both Terry and the case at bar, the police officer had a specific articulable suspicion as to the item being searched. Once the offensive item is properly seized, the further act of searching for what the officer reasonably believes is a gun is only a de minimis additional intrusion on the detainee’s privacy interest. The police officer’s legitimate interest in self-protection greatly outweighs the detainee’s right to prevent this minimal intrusion. In Williams v. State, 19 Md.App. 204 , 310 A.2d 593 (1973), we said that a police officer making a protective search of a person was not limited to the detainee’s person but to the area “within ‘the lunge,’ ‘the grasp,’ ‘the reach’ of the suspect—that area ‘which may fairly be deemed to be an extension of his person.’ ” Id. at 214 , 310 A.2d 593