Mack v. State

Wilner, J. After trial on an agreed statement of facts, appellant was convicted in the Circuit Court for Baltimore City of unlawful possession of a regulated firearm, for which he was sentenced to imprisonment for five years without the possibility of parole. His sole complaint in this appeal is that the trial court erred in denying his motion to suppress the handgun-the regulated firearm-recovered by the police in the course of what he contends was an unlawful search of his vehicle. We find merit in his complaint and shall reverse the judgment. The underlying facts, as presented at the hearing on appellant's motion to suppress, are largely undisputed.

The evidence came from the testimony of two Baltimore City police officers-Charles Faulkner and Horace McGriff-and video recordings taken from the body cameras that Officer Faulkner and another City police officer, whom we know only as Officer White, were wearing. Officers Faulkner and White responded to a report from the police dispatch unit that two African-American men, one wearing a blue jacket or coat and the other a gray jacket, were selling drugs from a silver Honda Accord in the 5500 block of Ready Avenue. Faulkner was aware that (1) that block of Ready Avenue, a narrow one-way street, was a "high drug, crime area" to which he had responded to calls numerous times, and (2) the dispatch report emanated from a 911 call that the dispatch unit said was anonymous-that the caller did not give his/her name or any identifying information. Faukner and White, in separate cars, arrived at the 5500 block simultaneously and saw a silver Honda, with two African-American men sitting in it.

The Honda's motor was running. Knowing from experience that "usually when we have calls like that, most people will try to drive off" and that, in that area, "most people who are known for selling drugs do carry weapons," Faulkner parked his vehicle directly in front of the Honda and White parked his vehicle directly behind it, intending to block and effectively blocking the Honda from being moved. Officer Faulkner, who initially was near the driver's side of the Honda, walked in front of the car to the passenger side. As he did, he observed through the front windshield that (1) appellant was wearing a gray jacket, and (2) both men were dipping their shoulders down to the lower part of the seat.

From his ten years of training and experience as a police officer, Faulkner was aware that "an armed person would usually dip their hands down to the lower part of the seat, underneath the seat, to either grab a weapon or put one away." He felt that the men's actions were consistent with that and, as a result, he believed that they may be armed. After speaking with the occupants and receiving appellant's driver's license, Faulkner ordered the passenger out of the car and began to frisk him for weapons. Officer White removed appellant and began a frisk of him. At that point, Sergeant McGriff arrived.

With 24 years of experience as a police officer, McGriff also was aware that the 5500 block of Ready Avenue was a "highly narcotic infested area." He was aware as well that the call that brought him there was "a very specific call" regarding the individuals in the Honda and what they were doing. Also of significance to him was that appellant was wearing a "puff coat" despite the fact that the outside temperature that day was above fifty degrees, that when it was that warm police officers are allowed to wear short sleeve shirts, and that he was wearing one. Based on his training and experience, he testified that "[d]uring warm weather, usually puff coats are worn to secure detection of firearms, drugs, give an additional coverage in their personal lives." As Officer White was frisking appellant, Sergeant McGriff noticed a small piece of plastic hanging outside appellant's underwear which, from McGriff's experience, he believed was part of "a sandwich bag which most likely had narcotics in it." 1 He alerted Officer White and, as McGriff suspected, a ziplock bag of suspected drugs was found. Upon that discovery, another officer who had arrived on the scene searched the car and found the handgun that appellant sought to suppress.

As he does here, appellant contended that the mere blocking of his car by Officers Faulkner and White constituted an unlawful seizure under Terry v. Ohio , 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). The unlawfulness, he argued, arose from the fact that the only basis for the stop was the anonymous tip that was relayed through the police dispatch unit and that the U.S. Supreme Court had declared in Florida v. J.L., 529 U.S. 266 , 120 S.Ct. 1375 , 146 L.Ed.2d 254 (2000), and this Court and the Court of Appeals had confirmed in subsequent cases, that an anonymous tip, without more, is insufficient to justify even a Terry seizure, much less a Terry frisk or a full-blown search. The hearing judge found those cases distinguishable and, in part for that reason, denied the motion to suppress. DISCUSSION As noted, there is no genuine dispute as to the facts as stated above.

The only issue before us is one of law, which we resolve de novo . The issue raised is in two parts-whether the effective immobilization of appellant's car, from which all else flowed, constituted an unlawful seizure mandating suppression of the gun, and if not, whether the tip, coupled with what the officers learned after they reached the Honda and its two occupants, sufficed to allow the car to be searched. Because we find that the immobilization of the car constituted an unlawful seizure of appellant, we need not address the second part of the issue. Encounters between the police and members of the public whom they may suspect of criminal wrongdoing run a gamut with innumerable variations, but, as explained in Pyon v. State , 222 Md. App. 412 , 112 A.3d 1130 (2015), they have generally been placed into three categories for Fourth Amendment purposes.

First, there is the arrest, which is the most significant form of seizure of the person and requires, for its validity, probable cause to believe that the person is committing or has committed an offense for which an arrest is permissible. The intermediate category is the Terry stop, sometimes referred to as an investigatory stop. As Judge Moylan pointed out in Pyon , it constitutes "a Fourth Amendment intrusion upon a citizen's otherwise unfettered freedom," but it is of lesser duration than an arrest and for a different purpose. It does not require probable cause but only a "reasonable, articulable suspicion of criminal activity" and "may only last as long as it takes a police officer to confirm or dispel his [or her] suspicions." Pyon , 222 Md. App. at 420 , 112 A.3d 1130 .

The most innocuous category is an "accosting," sometimes referred to as a "consensual encounter." It involves situations "where the police merely approach a person in a public place, engage the person in conversation, request information, and the person is free not to answer and walk away." Id. at 421 , 112 A.3d 1130 . Fourth Amendment guarantees are not implicated in such an encounter, said the Pyon Court, "unless the police officer has by either physical force or show of authority restrained the person's liberty so that a reasonable person would not feel free to decline the officer's requests or otherwise terminate the encounter." Id. at 421-22 , 112 A.3d 1130 (quoting from Swift v. State , 393 Md. 139 , 151, 899 A.2d 867 (2006), but emphasis in Pyon ). Though acknowledging that appellant's vehicle "could not move because it was blocked," the trial court regarded that immobilization as simply initiating what it referred to as "a field investigation based on the anonymous tip" and focused on what the police observed when approaching the Honda on foot and engaging with the passengers. It did not pay sufficient attention, however, to the consequence of the immobilization itself, which was the threshold issue before it and that is now before us-the undisputed fact that, due to the blocking of his car, appellant was not free to leave and terminate the encounter.

On the undisputed facts presented at the suppression hearing, the immobilization of the Honda fell squarely within the circumference of a Terry stop-a temporary seizure that required reasonable articulable suspicion of possible criminal activity. 2 The immediate issue is whether the record suffices to establish that level of suspicion, and the resolution of that issue hangs on the weight that may be given to the information relayed in the 911 call, to the extent confirmed by the officers' observations at the moment they immobilized appellant's car. That, in turn, is guided principally by two Supreme Court cases- Florida v. J.L., supra , and Navarette v. California , 572 U.S. 393 , 134 S.Ct. 1683 , 188 L.Ed.2d 680 (2014). In Florida v. J.L. , an anonymous caller reported to the Miami-Dade police department that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. No audio recording of the call was placed in evidence, and the record revealed no information regarding the informant.

At some point, two officers arrived at the scene, observed three black males "just hanging out," one of whom, J.L., was wearing a plaid shirt. Apart from the anonymous call, the officers had no reason to suspect any of the three of illegal conduct. One of the officers approached J.L., frisked him, and recovered a gun from his pocket. J.L. was charged with unlawfully carrying a concealed weapon and moved to suppress the gun as the fruit of an unlawful search.

The Florida Supreme Court agreed with the trial court that the search was invalid, and the Supreme Court affirmed that decision. The Supreme Court began its discussion by observing that the officers' suspicion that J.L. was carrying a gun arose "solely from a call from an unknown location by an unknown caller" and not from any observations of their own. It noted then that "[u]nlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her [or his] allegations turn out to be fabricated ... 'an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.' " Id. at 270, 120 S.Ct. 1375 , quoting in part from Alabama v. White , 496 U.S. 325 , 329, 110 S.Ct. 2412 , 110 L.Ed.2d 301 (1990). The J.L. Court acknowledged that there are situations "in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop,' " citing as an example Alabama v. White , where an anonymous caller reported that a woman was carrying cocaine and would be leaving an apartment building at a specified time, would get into a car matching a particular description, and would drive to a named motel.

Standing alone, the White Court said, that tip would not have justified a Terry stop, but after police observation confirmed what the caller had said would occur- i.e. , the "predictive" information-the Court held that the suspicion became reasonable. The J.L. Court contrasted that situation from the one before it, where there was no predictive information that the police could confirm. The Court accepted that an accurate description of a subject's observable location and appearance may be taken as reliable, but the fact that the allegation about the gun turned out to be correct "does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct." Florida v. J.L. supra, at 271 , 120 S.Ct. 1375 . The critical point was that "[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L." Id.

The Court added, as really the crux of its decision on this issue, that: "An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." Id. at 272 , 120 S.Ct. 1375 . Justice Ginsburg's Opinion for the Court in J.L. was unanimous, but Justice Kennedy, joined by