Madison-Sheppard v. State

SALMON, Judge. I. Julian Madison-Sheppard was arrested for cocaine possession in Cecil County on June 25, 2005. He filed a motion to suppress evidence prior to trial. The motion was denied, as was a motion to reconsider the denial.

Thereafter, Madison-Sheppard proceeded to trial based on an agreed statement of facts. The court found the defendant guilty of possession of cocaine. In this appeal, Madison-Sheppard makes four arguments in support of his contention that the warrantless search of his person by a police officer was illegal, and therefore the court erred in denying his motion to suppress the evidence seized as a result of the search. We agree with two 1 of Madison-Sheppard’s arguments and shall reverse his conviction. .

II

At the suppression hearing, Cecil County Deputy Sheriff James Roland was the only witness. His testimony is summarized below. On June 25, 2005, Deputy Roland was on patrol in Elkton, Maryland, at approximately 1:15 p.m. when he received a radio alert to “be on the look out for” a suspect with an outstanding warrant for an attempted murder that occurred sometime that week. He was also advised that the suspect was “possibly armed and dangerous” and was believed to be “in the Elkton area.” According to the broadcast, the suspect was a black male, approximately six feet tall, 180 pounds, with cornrow-style hair, and the crime, believed to have been committed by the suspect, occurred somewhere in the “Wind ¹⁶⁹ ing Brook” area, which is located in the Elkton mailing area but is outside the Elkton town limits.

Not long after hearing the broadcast, Deputy Roland saw appellant standing on a porch of a house 2 “[i]n the area of 215 Hollingsworth Manor” in Elkton. Appellant is an African-American male with cornrow hair and, to the deputy’s eye, was about the same height and weight as the suspect (appellant turned out to be 5'10", 170 pounds). Believing that appellant might be the person suspected of attempted murder, Deputy Roland called for police backup. When the second officer arrived, both Deputy Roland and the officer approached appellant; as they did so, appellant sat down on the porch steps.

When Deputy Roland asked appellant for identification, appellant said that he did not have any. Appellant then became “very nervous and could not stand.” 3 The officers, “for safety reasons,” handcuffed appellant’s arms behind his back. After handcuffing appellant, Deputy Roland conducted a pat-down search for weapons. While patting down appellant’s right pant leg, Deputy Roland detected “blunt objects” in his right front pocket.

This caused Deputy Roland to “squeeze,” “grab,” and “grasp” the objects. According to Deputy Roland the objects were “jagged,” “hard,” and were “sliding back and forth” between his fingers. The material felt like it was made of plastic. Deputy Roland then asked appellant if he had any illegal drugs on him.

Appellant gave no response. Deputy Roland concluded that the objects he felt were crack cocaine. He then reached into appellant’s right front pocket and removed a Ziploc baggie containing thirteen individual baggies of a white rock-like substance, which, based on Deputy Roland’s experience, he believed to be cocaine. Appellant was arrested for possession of a controlled dangerous substance (“C.D.S.”).

Subsequent testing of the white rock-like ¹⁷⁰ substance by the Maryland State Crime Laboratory revealed that it was crack cocaine.

III

At the suppression hearing, defense counsel maintained that the search of her client was illegal for four reasons, viz.: 1. At the time of the search, appellant was under arrest, even though the police did not have probable cause to arrest him, and therefore Deputy Roland’s search incident to the arrest was illegal. 2. Even if appellant was not arrested prior to the search and was, as the State contended, subjected only to a “Terry stopi,” the stop was illegal because when the police handcuffed appellant they did not have a “reasonable articulable suspicion” that appellant had committed any crime; because the stop was illegal, so was the search that followed it. 3. Even if appellant was subjected to a valid “Terry stop,” the police had no right to frisk him for weapons because they had no legitimate ground to believe that he carried a weapon. 4.

Even if the police were conducting a valid Terry pat down for weapons prior to finding the drugs, Deputy Roland exceeded the scope of a valid Terry pat down when he poked and probed appellant’s pocket prior to seizing the CDS. The motions judge ruled as follows: The court has to consider the totality of all of the circumstances within the guidelines provided by Terry v. Ohio, 1968 Supreme Court case — later it’s specifically adopted by our Court of Appeals — [in] the case of Williams v. State in 1973. And, of course, the bottom line holding in Terry and Williams is that if a police officer has reasonable articulable suspicion that an individual accosted is engaged in criminal activity or may have a weapon on him or her, a minimally intrusive search is permitted. Now, the facts presented here, number one, there was a broadcast received by the deputy describing the physical characteristics of a certain individual.

An individual with ¹⁷¹ those physical characteristics was observed shortly thereafter by the deputy, according to him, matching the description of the individual. The individual was acting in a suspicious manner, unable to provide identification. Thereafter, the officer handcuffed the individual for his own safety and thereafter conducted a search to see if his suspicions regarding a weapon were, in fact, justified.... And during the course of that search the contraband was found.

In my reading of the case law, even though a weapon is not found, it’s not an unusual practice to empty all the pockets to see exactly what is there. During the course of the search he did find the contraband. The intrusion that occurred here, it can be argued, was self-inflicted by virtue of refusing to provide identification [4] as well as his physical reaction to being confronted, so I feel the intrusion was justified. It was minimal in nature. [5] The motion to suppress is denied.

(Emphasis added.) A motion for reconsideration was filed. The merits of the motion were addressed in open court by the motions judge who said: I differ ... [with defense counsel’s position that the police did not have reasonable articulable suspicion to stop appellant] in that we have a black male in Hollingsworth Manor with a cornrow hairdo, which is rather unique and unusual. The description issued was a black male with corn-row, six foot — approximately six-foot — feet tall, 180 pounds. The defendant is five-foot-ten, 170 pounds.

So I think he was within a unique group, especially considering the fact that Cecil County only has a four percent black population, to ¹⁷² sanction the stop as being constitutional. At least in my opinion, it is a somewhat unique situation. The second prong of the argument, of course, troubled me somewhat more because of the Minnesota v. Dickerson case where after a pat-down, if there is no disclosure or indication of a weapon being present to the sense of touch, you know, manipulation of the object is prohibited to ascertain if it could be something else that was illegal. But what troubles me, that’s a very narrow distinction.

Here we had an individual who was, well, he was acting suspiciously. He was nervous and couldn’t stand still, would not provide identification, was placed in handcuffs and thereafter, the officer patted him down and admittedly manipulated when he felt something in his pocket, but the object that was found in his pocket was a plastic bag containing 13 individual baggies of crack cocaine. And it just seems to be — which he immediately, through his sense of touch, recognized as being such, I believe, unless I’m recalling wrongly, just seems to me to be incongruous that if during the pat-down search one feels an object of this type or a pipe or a spoon or a hypodermic needle, because none of those things are weapons he has to stop his pat-down search. I could be wrong, but it just doesn’t seem right to me.

And I could very well be wrong, but I’m just going on my gut reaction to this whole situation. I’m going to deny the motion. (Emphasis added.) In this appeal, appellant raises the same contentions regarding the legality of the search of his person as he did below. Because they are dispositive, we shall consider only two of appellant’s contentions, i.e., (1) that the search was illegal because the deputy, prior to the time he searched appellant, did not have a “reasonable articulable suspicion” that appellant had committed a crime or was about to commit one and (2) even assuming that appellant was subjected to a valid Terry frisk, the officers exceeded the permissible scope of such a search.

Therefore, the seizure of the drugs was illegal. ¹⁷³ IV. Standard of Review When reviewing a circuit court’s disposition of a motion to suppress evidence, we only consider the evidence contained in the record of the suppression hearing. Longshore v. State, 399 Md. 486, 498 , 924 A.2d 1129 (2007). We must view the evidence and draw all inferences in the light most favorable to the party prevailing on the motion, in this case the State.

Id. When conflicts in the evidence exist, great deference is accorded the motions judge’s determination, unless the factual determinations are shown to be clearly erroneous. Id. In the case at hand, there were no conflicts in the evidence because only one witness testified, and his testimony was not contradicted.

We make our “ ‘own independent constitutional appraisal, by reviewing the law and applying it to the peculiar facts of the particular case.’” Id. at 499 , 924 A.2d 1129 (quoting Jones v. State, 343 Md. 448, 457 , 682 A.2d 248 (1996)). V. The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...” U.S. Const, amend. IV; see also Longshore, 399 Md. at 500 , 924 A.2d 1129 . This constitutional guarantee is subject only to a few limited exceptions when the search or seizure is “conducted outside the judicial process, without prior approval by judge or magistrate.” Minnesota v. Dickerson, 508 U.S. 366, 374 , 113 S.Ct. 2130 , 124 L.Ed.2d 334 (1993) (quoting Katz v. United ¹⁷⁴ States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) (internal quotations omitted)).

One of the exceptions to the warrant requirement was announced in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). In Terry , the Court held that a police officer may make a brief investigatory stop of an individual, without an arrest warrant, so long as the officer has a “reasonable, articulable suspicion” that a crime is being committed, has been committed or is about to be committed by the person stopped. Id. at 30 , 88 S.Ct. 1868 . The “reasonable articulable suspicion standard” announced in Terry is less demanding than the probable cause standard used to justify a warrantless arrest; it is, however, something more than a police officer’s hunch.

See Sykes v. State, 166 Md.App. 206, 217 , 887 A.2d 1095 (2005). In determining whether reasonable articulable suspicion exists that would justify a Terry stop in situations such as the one here presented, appellate courts of this state frequently consider the six factors discussed in 4 Wayne R. LaFave, Criminal Procedure § 3.8(d), at 244-45 (2d ed.1999). See Stokes v. State, 362 Md. 407 , 765 A.2d 612 (2001); Cartnail v. State, 359 Md. 272 , 753 A.2d 519 (2000); Sykes, 166 Md.App. at 217 , 887 A.2d 1095 . The six LaFave factors are: (1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the time occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.

(Emphasis added.) We shall consider the factors, seriatim. ¹⁷⁵ A. The particularity of the description of the offender is a critical factor in ascertaining whether reasonable articulable suspicion exists. In analyzing this factor, the descriptions at play in Cartnail; Stokes; Collins v. State, 376 Md. 359 , 829 A.2d 992 (2003); and Craig v. State, 148 Md.App. 670 , 814 A.2d 41 (2002), are illustrative. In Cartnail, the police received an anonymous tip that three black males were involved in the robbery of a Quality Inn Hotel and had fled the scene in a gold or tan Mazda. 359 Md. at 277 , 753 A.2d 519 . Over an hour later, the officer stopped a gold Nissan driven by a black male who was accompanied by a black male passenger.

Id. at 277-78 , 753 A.2d 519 . The Court held that the description of the individuals was not sufficiently particular, id. at 289-90 , 753 A.2d 519 , because the only matching features were the gender and race of the person stopped, and color of the car in which they rode. Id. at 289-90 , 753 A.2d 519 . The Cartnail Court said: We hold that the record of the suppression hearing in the present case fails to establish that a reasonable and prudent police officer would have had reasonable suspicion to stop Petitioner and, therefore, the stop was constitutionally illegal under the Fourth Amendment.

There is no question that the police officer in this case was operating on a “hunch” that Petitioner and his passenger may have been two of the three suspects associated with the reported robbery of the Quality Inn. Id. In Stokes, supra, a police broadcast described an armed robbery suspect as “a black male wearing a black tee shirt.” 362 Md. at 410 , 765 A.2d 612 . Defendant, a black male wearing dark clothing, drove into a parking lot near the crime scene roughly thirty minutes after the broadcast.

Id. The Stokes Court held that a reasonable, articulable suspicion to stop the defendant did not exist because the description was “far too generic” and “sparse at best.” Id. at 425, 765 A.2d 612 . In addition, the Court stressed that the State did not put ¹⁷⁶ forth any evidence to support a conclusion that the presence of a black male in the neighborhood where the stop occurred was atypical. Id. at 418 , 765 A.2d 612 .

In the case at hand, the State put forth no evidence showing that the presence of a black male in the Hollingsworth section of Elkton was in any way unusual. Nevertheless, the State stresses the motions court’s comment that only four percent of Cecil County’s population is African American. Assuming, arguendo, that a motions judge can legitimately take judicial notice of demographic information of this type, the statistic relied upon, standing alone, is meaningless. The court did not take judicial notice of (and we have no way of determining) the percentage of African Americans who live in the section of Elkton where appellant was stopped.

What the Court said in Mobley & King v. State, 270 Md. 76 , 82 n. 1, 310 A.2d 803 (1973), is instructive: The [Cjourt [of Special Appeals] also noted that the [N]egro occupants of the vehicle were stopped in a predominantly white neighborhood and that in that demographic setting “they represent a smaller population sample, within which the other identifying factors may concur, than they would in a predominantly Negro neighborhood, where the random chance of such concurrence would have a larger field of possibilities in which to operate.” From this, the court concluded: “To the extent to which their presence in the neighborhood was more atypical than typical, to such an extent is the likelihood of mere coincidence diminished when all other identifying factors do concur.” King and Mobley v. State, ... 16 Md.App. [546,] 551-552, 298 A.2d 446 ... [ (1973) ]. However sound the court’s conclusion may have been, there is no evidence in the record establishing that Sparrows Point is a predominantly white neighborhood and we decline to take judicial notice of that asserted fact. As mentioned earlier, the motions judge indicated that he believed that it was “rather unique and unusual” for a black male to “have a cornrow hairdo.” No evidence was presented at the motions hearing to support the court’s belief that such a ¹⁷⁷ hairdo was either “unique” or “unusual” among African Americans, and this plainly is not a “fact” of which a court can take judicial notice. The Collins and Craig cases illustrate situations where the description of a criminal suspect, when coupled with other factors, were determined to justify a “Terry stop.” In Collins, after a High’s convenience store was robbed, a “lookout was broadcast describing the suspect as a black male, 5'8", 160 lbs, wearing a black “nubbie” hat 6 and a long-sleeved gray shirt with stripes.” 376 Md. at 363 , 829 A.2d 992 .

The store clerk who relayed this information to the police also advised that the robber had “just left” on foot and was armed. Id. The appellant, Collins, did not match all of the characteristics of the suspect (he was six feet, 180 pounds) but matched the predominance of them. 7 Id. at 370 , 829 A.2d 992 . The Collins Court stated that the strength of the other matching factors justified a holding that reasonable suspicion existed.

Id. In Collins, the disparities in the description were outweighed by the fact that Collins was seen shortly after the crime in the immediate vicinity of the place where the crime was committed. Id. Moreover, the suspect was found, just as the clerk indicated, walking away from the store.

Id, In addition, there was no one else in the vicinity with a comparable description. Id. These matching characteristics, coupled with Collins’ peculiar actions (changing direction upon spotting the police car) all supported the existence of a reasonable suspicion. Id. ¹⁷⁸ In Craig , this Court dealt with a reasonable articulable suspicion issue involving a felony theft suspect. 148 Md.App. at 684 , 814 A.2d 41 .

The suspect was described as a black male, in his twenties, 5'4", wearing a blue baseball cap and a black or blue shirt with white writing on it, and carrying a black bag. Id. Within minutes of the broadcast a suspect was located who matched the aforementioned description. Id.

The Craig Court held that the officer who stopped appellant (Montgomery County Police Officer William Hill) had a reasonable articulable suspicion sufficient to detain the petitioner, Renard Craig. The Court explained: Hill heard three dispatch radio calls. Each stated that individuals from an office high-rise at 7910 Woodmont Avenue, Bethesda, observed a black male, in his twenties, approximately 5'4", wearing a blue ball cap, a black shirt with white writing and carrying a black bag, was acting suspicious. The reports also stated that the description matched that of a suspect