Lockard v. State

Dwayne Scott Lockard v. State of Maryland, No. 3289, September Term 2018. Opinion by Beachley, J. TERRY FRISK—REASONABLE ARTICULABLE SUSPICION—TOTALITY OF CIRCUMSTANCES—PRESENCE OF A KNIFE—OFFICER’S SUBJECTIVE LACK OF FEAR On the night of July 23, 2018, a Frederick County Deputy stopped a vehicle for following another vehicle too closely. Appellant Dwayne Lockard was the front seat passenger; Jenna Clark was the driver. Shortly thereafter, K-9 officer Corporal Adkins and two other officers arrived on the scene.

Because Corporal Adkins prefers vehicles to be unoccupied when he performs canine scans, he ordered both Ms. Clark and Lockard to exit the vehicle. Once Lockard exited the vehicle, Corporal Adkins instructed him to walk to the three other officers who were on the scene. As Lockard began to walk in their direction, Corporal Adkins observed a knife in Lockard’s pocket. After another officer secured the knife, Corporal Adkins asked Lockard if he would consent to a pat-down for weapons.

Without verbally responding, Lockard turned away from Corporal Adkins and placed his hands in the air. Corporal Adkins began frisking Lockard by feeling around his waistband area, and in doing so, immediately felt what he recognized to be narcotics. Lockard moved to suppress the narcotics, arguing that Corporal Adkins discovered them as the result of an illegal frisk. At the hearing on Lockard’s motion, the suppression court found that Lockard’s possession of the knife constituted reasonable articulable suspicion to justify the Terry frisk.

Lockard timely appealed. Held: Judgment vacated. In order for a Terry frisk to be lawful under the Fourth Amendment of the United States Constitution, the officer must have reasonable articulable suspicion that the person with whom he or she is dealing is armed and dangerous. In reviewing whether there is reasonable articulable suspicion, suppression courts must consider the totality of the circumstances, including reasonable inferences from particularized facts in light of the officer’s experience.

The test is objective; the validity of the frisk is determined by whether the record discloses articulable objective facts to support the frisk. Although the test is objective, an officer’s subjective belief that the suspect is (or is not) armed and dangerous is also a relevant consideration in the totality of circumstances calculus. Here, Corporal Adkins did not subjectively believe that he had reasonable articulable suspicion to conduct a protective frisk. Although the test is whether the officer objectively had a reasonable belief that the suspect was armed and dangerous, an officer’s subjective belief is a relevant consideration in the totality of circumstances calculus.

In addition to the fact that Corporal Adkins did not subjectively believe Lockard was armed, the other circumstances failed to support a Terry frisk: the knife had already been secured, there were four police officers on the scene to control Lockard and Ms. Clark, and Lockard was polite and cooperative. Corporal Adkins’s assertion that “if there’s one weapon, there could be more,” was insufficient to justify a Terry frisk. Judgment vacated and case remanded for a new trial. Circuit Court for Frederick County Case No. C-10-CR-18-000771 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3289 September Term, 2018 ______________________________________ DWAYNE SCOTT LOCKARD v. STATE OF MARYLAND ______________________________________ Nazarian, Beachley, Battaglia, Lynne A.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Beachley, J. ______________________________________ Filed: July 29, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-07-29 12:30-04:00 Suzanne C. Johnson, Clerk We are called upon in this case to etch another inscription upon a monument of criminal procedure jurisprudence: Terry v. Ohio, 392 U.S. 1 (1968). Appellant, Dwayne Scott Lockard, asks whether the suppression court erred in concluding that “police had reasonable suspicion to perform a ‘Terry search’ of Mr. Lockard’s person after observing, and removing, a closed folding knife from his pocket where there was no other indication that Mr. Lockard was armed or otherwise dangerous.”1 We conclude that the police did not have reasonable articulable suspicion that Lockard was armed and dangerous as required to support a lawful Terry frisk. We shall therefore hold that the Circuit Court for Frederick County erred in denying Lockard’s motion to suppress the controlled dangerous substances the police seized from him as a result of the unlawful frisk.

FACTUAL AND PROCEDURAL BACKGROUND At approximately 11:20 p.m. on July 23, 2018, Frederick County Deputy Douglas Story was on patrol in his marked police cruiser when he observed a Ford Escort traveling westbound on Interstate 70 near Middletown, Maryland. Deputy Story stopped the Ford Escort because it was following another vehicle too closely. Before exiting the vehicle, Deputy Story ran the vehicle’s registration and determined that the owner, Jenna Clark, had been charged with possession of heroin only two weeks earlier. Deputy Story then approached the vehicle and identified Ms. Clark as the driver and Lockard as the front seat passenger.

During the course of the stop, Deputy 1 In his brief, Lockard also asserts that the search exceeded the proper scope of a search permitted by the “plain feel doctrine.” Because we conclude that the Terry frisk was improper, we need not address Lockard’s “plain feel” argument. Story noticed that Ms. Clark had track marks on her left forearm, which he believed were indicative of intravenous drug use. The track marks were “scabbed a little,” which suggested they were “pretty recent.” Ms. Clark’s arms and hands were shaking when she handed over her identifying information. Ms. Clark told him that she was coming from the Rosemont area in Frederick, but Deputy Story knew this to be false because he had recently seen this same vehicle on Interstate 70 east of Frederick near New Market.

After Ms. Clark and Lockard both provided their identifying information, Deputy Story went back to his patrol vehicle in order to run warrant and license checks, and call for a K-9 unit. Because Deputy Story discovered that Ms. Clark potentially had an open warrant in Washington County, he detained her pending verification that the warrant was still active. Shortly thereafter, the K-9 officer, Corporal Adkins, and two other officers, including Maryland State Trooper First Class Frye, arrived on the scene.2 Corporal Adkins, who had been employed with the Frederick County Sheriff’s Office since 2005 and assigned as a canine officer since 2013, testified that he and his K-9 partner, Rango, responded to the scene of the traffic stop at around 11:24 p.m. Because Corporal Adkins prefers to conduct canine scans of unoccupied vehicles, he ordered both Ms. Clark and Lockard to exit the vehicle prior to the canine scan.

At the hearing on Lockard’s motion to suppress, Corporal Adkins described the events as follows: 2 Neither Corporal Adkins’s nor Trooper Frye’s first names are included in the record. 2 [THE STATE]: Okay. Once you had the front seat male passenger identif[ied] as Mr. Lockard step out of the vehicle, what happened next? [CORPORAL ADKINS]: I instructed him to walk to the back towards other deputies and a trooper who was on scene. As he was doing so, I noticed that there was a knife in his pocket. [THE STATE]: Okay. And upon observing that, what did you do? [CORPORAL ADKINS]: I relayed my observations, it was something to the effect of, hey, Frye, who was, it was Trooper First Class Frye who was on scene, he’s got a knife in his pocket. [THE STATE]: Okay.

And what did, what did you observe about the -- what did you observe to know that there was a knife in his pocket? [CORPORAL ADKINS]: I just saw like the, the hammer portion sticking out of the top of the pocket like something that you would use to flip the knife open with. [THE STATE]: And upon making that observation, you said you yelled at Trooper Frye, or advised Trooper Frye of it. What, if anything, did you, what, if anything, did you observe after that, okay? [CORPORAL ADKINS]: Trooper Frye went ahead and removed the knife -- [THE STATE]: Okay. [CORPORAL ADKINS]: -- for the time, time being. 3 According to Corporal Adkins, the knife was “sticking partially out” of Lockard’s pocket when he relayed the information to Trooper Frye. As noted, Trooper Frye promptly secured the knife, which was described as a silver “folding knife” with the blade folded or closed.3 Corporal Adkins then articulated the primary reason for the frisk, stating, “I wanted to, at that point, based on that knife, I felt like I should, I wanted to be able to make sure he didn’t have any further weapons on him[.]” Corporal Adkins asked Lockard if he would consent to a pat-down for weapons, and Lockard then “faced away from [Corporal Adkins] and held his hands in the air.” Corporal Adkins interpreted Lockard’s action as impliedly consenting to the request. On cross-examination, defense counsel inquired about the reason for the frisk: [DEFENSE COUNSEL]: You indicated you believed you needed to conduct a frisk for weapons for Mr. Lockard once he was outside of the vehicle, correct? [CORPORAL ADKINS]: I didn’t say I needed to.

I asked him if I could. I didn’t, you know, I didn’t need to. If I needed to, if I had to, I would have. If I had reasonable, articulable suspicion, I would have just searched or frisked him.

(Emphasis added). On redirect examination, Corporal Adkins stated that Lockard’s possession of the knife raised a concern that “[i]f there’s one weapon, there could be more,” and “if he had a knife, what’s saying that there couldn’t be something, another weapon on his person 3 At oral argument, the parties agreed that there was no evidence in the record whether the knife could be legally possessed under Maryland law. 4 along with that knife?” Regarding Lockard’s demeanor, Corporal Adkins indicated that Lockard was neither threatening nor aggressive. Deputy Story characterized Lockard as “polite and cooperative.” Corporal Adkins explained that he commenced the frisk at Lockard’s waistband because “[t]hat’s a place that’s easy to conceal a weapon. Usually there’s a belt or the tightness of the pant will allow somebody to slip a weapon in that will hold the weapon there, kind of securing it without a holster.” He continued: So, when I do that, I, I’ve been trained that it’s not, I’m not looking for narcotics or anything like that.

I’m solely feeling in the area, feeling the defendant for any weapons on his person that could harm me. So, basically, I’m only looking for weapons on the person. I’m not going in the pockets, I’m not manipulating objects unless I believe they’re [sic] a weapon or anything like that. Corporal Adkins then testified: So, as I am conducting my frisk for weapons, I am, my, I started, I believe, in the front.

As I’m sliding my fingers across the waistband to feel for any objects that are weapons, my, I, as I’m dragging my hand, I immediately feel what I recognize was a bag with individual capsules in it, a significant account. Based on his “training and experience in dealing with narcotics,” Corporal Adkins believed that the large number of capsules concealed in Lockard’s waistband gave him probable cause to arrest Lockard.4 After securing Lockard with handcuffs, Corporal Adkins removed from Lockard’s waistband a plastic bag containing suspected heroin capsules. 4 Although Lockard asserts that Corporal Adkins exceeded the permissible scope of a “plain feel” search, he does not contest Corporal Adkins’s determination that the amount and location of the capsules provided probable cause for an arrest. 5 After hearing argument, and after noting that the State abandoned any argument that Lockard consented to the frisk, the court denied the motion to suppress. The suppression court found, in pertinent part, as follows: However, I do find that the officers had reason and justified and [sic] asking Mr. Lockard to vacate or exit the vehicle and that is for them to conduct the, I’ll call it the canine scan of the vehicle. When he did that, they observed, and is walking back, they observed the handle of the knife or part of the knife protruding from his pocket.

Certainly, it was recovered from him with no objection from Mr. Lockard, nothing inappropriately there. But his having one weapon on him, when you, that gives the officers a reasonable, articulable suspicion that there might be other weapons and, therefore, I do find that a Terry search is appropriate and a pat-down is appropriate. In this case, Officer Adkins testified, or Deputy Adkins testified that he knows what he can and cannot do. He was not searching for drugs.

But when he comes upon drugs, or what he believes to be drugs with the packaging, and he’s doing an appropriate search along the waistband, which is where he usually goes first for weapons, which is appropriate, it doesn’t mean you, that’s not the, that will be the only place, but that’s where you go first is the waistband area, and he feels what he believes to be contraband based upon his feel and touch, I find nothing wrong with that in this case. And I, therefore, find that the seizure was appropriate and the motion to suppress is denied. After waiving his right to a jury trial, Lockard pleaded not guilty on an agreed statement of facts. The court found Lockard guilty of possession of fentanyl with intent to distribute.

Consistent with the State’s recommendation for sentencing, the court sentenced Lockard to a term of twenty years’ imprisonment with all but twelve suspended, to be followed by three years’ supervised probation. This appeal followed. 6 DISCUSSION Lockard contends that the motions court erred in denying his motion to suppress because, once police seized the knife from his pocket, a further search for weapons was unreasonable. The State responds that the frisk was reasonable under the totality of the circumstances and the seizure of the capsules was lawful under the plain feel doctrine.5 We hold that, because the police did not have reasonable articulable suspicion to believe Lockard was armed and dangerous at the time of the frisk, the frisk was unlawful and, therefore, the evidence should have been suppressed. Standard of Review On appeal, this Court reviews “a hearing judge’s ruling on a motion to suppress evidence under the Fourth Amendment” by considering “only the facts generated by the record of the suppression hearing.” Sizer v. State, 456 Md. 350, 362 (2017) (citing Longshore v. State, 399 Md. 486, 498 (2007)).

We consider that evidence in the light most favorable to the party that prevailed on the issue raised as grounds for suppression. Id. (citing Longshore, 399 Md. at 498 ). “Suppression rulings present a mixed question of law and fact. We recognize that the ‘[hearing] court is in the best position to resolve questions of fact and to evaluate the credibility of witnesses.’” Thornton v. State, 465 Md. 122, 139 (2019) (alteration in original) (citation omitted) (quoting Swift v. State, 393 Md. 139, 154 (2006)). 5 At oral argument, the State withdrew its argument that Lockard was properly searched incident to arrest based on the officer’s observation of the knife in Lockard’s pocket. 7 “Accordingly, we defer to the hearing court’s findings of fact unless they are clearly erroneous[,]” but “[w]e do not defer to the hearing court’s conclusions of law.” Id.

(citing Bailey v. State, 412 Md. 349, 362 (2010)). Instead, we “review the hearing judge’s legal conclusions de novo, making our own independent constitutional evaluation as to whether the officer’s encounter with the defendant was lawful.” Id. at 139–40 (quoting Sizer, 456 Md. at 362 ). The Basic Constitutional Framework The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. CONST. amend.

IV

This guarantee applies to the States through the Fourteenth Amendment. Thornton, 465 Md. at 140 (citing Grant v. State, 449 Md. 1, 16 (2016)). “When evidence is obtained in violation of the Fourth Amendment, it will ordinarily be inadmissible in a state criminal prosecution pursuant to the exclusionary rule.” Id. (citing Bailey, 412 Md. at 363 ). Warrantless searches are presumed to be unreasonable, so “[w]hen a police officer conducts a warrantless search or seizure, the State bears the burden of overcoming the presumption of unreasonableness.” Id. at 141. “There are ‘a few specifically established and well-delineated exceptions’ to the warrant requirement,” including the Terry stop and frisk doctrine.

Id. The Terry frisk, a protective pat-down, is a search on the Fourth Amendment spectrum. See Pyon v. State, 222 Md. App. 412, 420 (2015). A Terry pat-down is a limited search that must be supported by “reasonable articulable suspicion that the person with 8 whom the officer is dealing is armed and dangerous.” Thornton, 465 Md. at 142 .

Whereas the purpose of a Terry stop is to investigate possible criminal activity, the purpose of a Terry frisk is to protect the searching officer and others in the vicinity. Ames v. State, 231 Md. App. 662 , 673–74 (2017). Indeed, a Terry frisk is limited “to a pat-down of [a person’s] outer clothing,” and is meant to protect the officer and others, not to discover evidence. Thornton, 465 Md. at 142 (quoting Bailey, 412 Md. at 368 ).

The Terry Court recognized: A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a “full” search, even though it remains a serious intrusion. Terry, 392 U.S. at 25–26 (citation omitted). Consequently, circumstances establishing reasonable suspicion for an investigatory stop do not automatically establish justification for a pat-down.

See Thornton, 465 Md. at 142 n.13. It is the State’s burden to overcome the presumption that a warrantless frisk is unreasonable by articulating a “particularized suspicion at its inception.” Id. at 142 . “A law enforcement officer has reasonable articulable suspicion that a person is armed and dangerous where, under the totality of the circumstances, and based on reasonable inferences from particularized facts in light of the law enforcement officer’s experience, a reasonably prudent law enforcement officer would have felt that he or she was in danger.” Norman v. State, 452 Md. 373, 387 (2017). Although such a belief “must be based on more than an inchoate and 9 unparticularized suspicion or hunch,” Terry, 392 U.S. at 27 , the reasonable suspicion standard “does not require an officer to be absolutely certain that an individual is armed and dangerous[,]” Thornton, 465 Md. at 142 (citing Sellman v. State, 449 Md. 526, 541 (2016)). The Court of Appeals has “described the standard as a ‘common sense, nontechnical conception that considers factual and practical aspects of daily life and how reasonable and prudent people act.’” Holt v. State, 435 Md. 443, 460 (2013) (quoting Crosby v. State, 408 Md. 490, 507 (2009)). [C]onduct 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.

Ransome v. State, 373 Md. 99, 111 (2003). Because it is the State’s burden to produce evidence from which a determination of reasonable suspicion may be made, “appellate courts cannot fill in blanks in the evidentiary record.” In re Jeremy P., 197 Md. App. 1, 22 (2011). When evaluating whether an officer had reasonable suspicion for a Terry frisk, courts consider the totality of the circumstances. Holt, 435 Md. at 460 .

Although we must “assess the evidence through the prism of an experienced law enforcement officer, and ‘give due deference to the training and experience of the . . . officer who engaged the stop at issue,’” id. at 461 (alteration in original) (quoting Crosby, 408 Md. at 508 ), we are mindful that ultimately, “[t]he test is objective: ‘the validity of the stop or the frisk is not determined by the subjective or articulated reasons of the officer; rather, the validity of the 10 stop or frisk is determined by whether the record discloses articulable objective facts to support the stop or frisk.’” Sellman, 449 Md. at 542 (quoting Ransome, 373 Md. at 115 ); see also Thornton, 465 Md. at 142–43. Terry’s Requirement of Reasonable Articulable Suspicion that the Suspect is Armed and Dangerous Before we address the propriety of the Terry frisk, we note that Lockard never raised any argument, either at the motions hearing or in his initial brief, concerning Trooper Frye’s seizure of the knife from Lockard’s pocket as a result of