Lawson v. State

SONNER, Judge. This is an appeal from a conviction in the Circuit Court for Frederick County for driving while under the influence of alcohol. The appellant, Jerry Wayne Lawson, maintains that the trial court erred when it did not suppress evidence that the State obtained through an illegal stop. Before trial, Lawson filed a motion to suppress the evidence, which the trial judge denied after a hearing.

He then pleaded not guilty and submitted his case on an agreed statement of facts. The court found him guilty. FACTS At the suppression hearing, appellant disputed some of the testimony of the arresting officer, Corporal, then Officer, G.S. Gautney from the Frederick Police Department. According to Corporal Gautney, he was patrolling in the area of John Hanson Apartments at about 7:45 p.m. on June 22, 1994, when he drove past appellant, who was sitting in a legally parked vehicle in an area known for its high drug activity.

Corporal Gautney noticed appellant’s vehicle because it displayed West Virginia tags. Corporal Gautney decided to circle around the complex and return to the location of the parked car and, then, ⁶¹³ if it were still there when he returned, he would ask the driver “what business [he] had being in John Hanson.” After circling around the complex, he saw that the vehicle had not moved, so he drove in behind it. As he was doing so, he noticed that the car began to back up, so he turned on his emergency lights to “cause the vehicle to stop.” Once the car stopped, he approached appellant and asked him why he was in John Hanson. Appellant replied that his vehicle had overheated, so Corporal Gautney suggested that appellant start his car and, when he did so, the heat gauge did not show that the car was overheated.

Corporal Gautney said that this contact with appellant revealed the odor of alcohol, so he ordered appellant out of the car and instructed him to perform field sobriety tests. The test results caused Gautney to conclude that appellant was under the influence of alcohol and led to the charge, suppression hearing, and trial, which form the basis of this appeal. When appellant testified on his own behalf at the suppression hearing, he disputed Corporal Gautney’s testimony. He maintained that, as Corporal Gautney’s cruiser approached him from the rear, he shifted his vehicle from park to drive, and then saw the emergency lights of the police vehicle in his rearview mirror and stopped his car.

Appellant maintained that, after approaching the car, the officer said that he had stopped appellant because he was in a high crime and drug area and that he then asked appellant for his license and registration, as well as whether he had any drugs or weapons. When Corporal Gautney asked whether he could search the car, appellant testified that he told the officer he could search the car if he had a search warrant. It was then that the officer asked him to step out of the car. Appellant introduced a copy of the statement of charges prepared by the officer immediately after the arrest, which recorded that Corporal Gautney decided to speak with appellant simply because he was alone, in an area heavy in drug traffic, and in a vehicle with out-of-state tags. ⁶¹⁴ DISCUSSION In reviewing the denial of a motion to suppress, we review the evidence in the light most favorable to the prevailing party.

McMillian v. State, 325 Md. 272, 281 , 600 A.2d 430 (1992) (citations omitted); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990). We also accept the court’s findings of the disputed facts unless clearly erroneous, by giving due regard to that court’s opportunity to assess the credibility of witnesses, and then we make our own constitutional appraisal as to the effect of those facts. Ornelas v. United States, 517 U.S. 690, 697 , 116 S.Ct. 1657, 1662 , 134 L.Ed.2d 911 (1996); McMillian, 325 Md. at 281-82 , 600 A.2d 430 ; Riddick, 319 Md. at 183 , 571 A.2d 1239 . Ordinarily, approaching a parked vehicle to question occupants about their identity and actions is a mere accosting and not a seizure.

Florida v. Royer, 460 U.S. 491, 497 , 103 S.Ct. 1319, 1323 , 75 L.Ed.2d 229 (1983); Evans v. State, 113 Md.App. 347, 360 , 688 A.2d 28 (1997) (citing McChan v. State, 238 Md. 149, 157 , 207 A.2d 632 (1965)). A seizure also does not occur when law enforcement officers attempt to stop a suspect who fails to comply to either a show of authority or application of physical force. California v. Hodari D., 499 U.S. 621, 626 , 111 S.Ct. 1547, 1550 , 113 L.Ed.2d 690 (1991); Brummell v. State, 112 Md.App. 426 , 685 A.2d 835 (1996). But, it is more than a mere accosting when the police attempt to detain a suspect for questioning through the use of police power and the suspect submits.

Id., 499 U.S. at 626 , 111 S.Ct. at 1551 . The approach then becomes a seizure and must be justified by a reasonable articulable suspicion that criminal activity is afoot. Derricott v. State, 327 Md. 582, 587 , 611 A.2d 592 (1992) (citing Terry v. Ohio, 392 U.S. 1, 30 , 88 S.Ct. 1868, 1884 , 20 L.Ed.2d 889 (1968)). In this case, Corporal Gautney did more than just approach appellant’s vehicle; he activated his flashers to stop appellant from backing up any farther and appellant submitted.

At the suppression hearing, the court found that, once Corporal Gautney turned on his emergency lights, he had ⁶¹⁵ “sufficient articulable suspicion for then ... to go up and speak to Mr. Lawson.” The question for us to decide is not whether Corporal Gautney had sufficient cause to approach a West Virginia automobile in an area known for its high crime rate or drug dealing activity. Rather, we must decide, under the circumstances of this case, whether Corporal Gautney’s activation of his emergency lights, in conjunction with appellant’s compliance, constituted a seizure and, if so, whether the officer had sufficient cause to detain appellant. The State’s position is that the officer did not seize appellant when he activated his emergency lights but, even if he did seize appellant, he had sufficient articulable suspicion to have done so. In United States v. Mendenhall, 446 U.S. 544, 554 , 100 S.Ct. 1870, 1877 , 64 L.Ed.2d 497 (1980)(opinion of Stewart, J.), the Supreme Court set out a test to determine whether a person has been seized, thereby triggering a Fourth Amendment analysis of the police action.

A seizure occurs “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. In reviewing the test set out in Mendenhall , Justice Scalia, in a 7-2 opinion, clarified that Mendenhall , states a necessary, but not a sufficient, condition for seizure — or more precisely, for seizure effected through a “show of authority.” Mendenhall establishes that the test for existence of a “show of authority” is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person. Hodari D., 499 U.S. at 628 , 111 S.Ct. at 1551 . Justice Scalia points out that, in Michigan v. Chesternut, 486 U.S. 567 , 108 S.Ct. 1975 , 100 L.Ed.2d 565 (1988), the Supreme Court held that a “chase,” standing alone, did not bring the Fourth Amendment protections into play, and that the conduct of the two officers in the police cruiser, following a suspicious pedestrian, did not communicate to a reasonable person that they ⁶¹⁶ were attempting to intrude upon the suspect’s freedom of movement.

In so holding, the Court went on to observe that [t]he record does not reflect that the police activated a siren or flashers; or that they commanded respondent to halt, or displayed any weapons; or that they operated the car in an aggressive manner to block respondent’s course or otherwise control the direction or speed of his movements. Id., 486 U.S. at 575 , 108 S.Ct. at 1980 (emphasis ours). Therefore, the Supreme Court did not address “whether, if the Mendenhall test was met — if the message that the defendant was not free to leave had been conveyed — a Fourth Amendment seizure would have occurred.” Id., 499 U.S. at 628 , 111 S.Ct. at 1552 . In attempting to answer this question in Hodari D., the Supreme Court considered Brower v. Inyo County, 489 U.S. 593, 596 , 109 S.Ct. 1378, 1381 , 103 L.Ed.2d 628 (1989), in which the Supreme Court held that no seizure, in violation of the Fourth Amendment, occurred when police cars with flashing lights pursued the decedent for twenty miles but he did not stop until fatally crashing into a police-erected blockade.

The Supreme Court based its holding on the fact that the show of authority — chasing the decedent in police cars with flashing lights — by the police did not induce a stop. Applying the same reasoning to Hodari D., the Supreme Court held that “assuming that [the officer’s] pursuit in the present case constituted a ‘show of authority1 enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized until he was tackled.” Hodari D., 499 U.S. at 629 , 111