Matoumba v. State

SHARER, J. Appellant, Kobie Matoumba, was convicted, following a bench trial in the Circuit Court for Baltimore City, of possession of a handgun by a person previously convicted of a crime of violence. He was sentenced to a mandatory term of five years imprisonment -without parole, pursuant to Md.Code, Public Safety § 5-133(c)(2) (2003). In his appeal, appellant asserts that the circuit court erred in denying his motion to suppress, raising for our review three questions, which we have distilled to the following: 1 Did the motions court err in ruling that the arresting officers had reasonable articulable suspicion to search Matoumba’s person, and probable cause to detain him following a traffic stop? Finding no error, we shall affirm. ⁴³ FACTUAL BACKGROUND On July 18, 2002, at about 10:30 in the evening, Lieutenant Dean Palmero and Officer David Moynihan, of the Baltimore City Police Department, were on crime suppression detail in the west side of Baltimore.

Palmero was the driver and Moynihan the passenger in an unmarked police cruiser. Palmero observed a Chevrolet Lumina traveling at a “greater than reasonable” speed. Their assessment of the speed of the vehicle was based on the fact that they were driving at the speed limit, and the Chevrolet was “pulling away” from them. As a result of their observations, they stopped the Lumina for the traffic violation.

Both Palmero and Moynihan exited the cruiser and approached the Lumina, Palmero to the driver’s side, and Moy-nihan to the passenger side. It was Moynihan who observed appellant seated in the right rear passenger seat. Moynihan testified about appellant’s conduct during the time of the traffic stop, revealing that appellant (1) repeatedly looked back at the police cruiser while the officers were affecting the stop; (2) appeared to dip his right shoulder down toward the floor as Moynihan approached; (3) placed his right hand behind his back as Moynihan actually reached the rear passenger side; 2 (4) maintained constant eye contact with Moynihan; and (5) demonstrated visibly shaking hands when commanded to show them. Eventually, all of the occupants were ordered out of the Lumina.

Conducting a frisk of appellant, Moynihan discovered a loaded .25 caliber Browning handgun in appellant’s back pants pocket. PROCEDURAL BACKGROUND Appellant was charged with possession of a handgun after having been convicted of a crime of violence. On March 24, 2003, and April 10, 2003, the court conducted a hearing on ⁴⁴ appellant’s motion to suppress the handgun recovered from him. At the conclusion of the hearing, the court, in an oral opinion rendered from the bench, denied appellant’s motion.

On May 5, 2003, appellant appeared before the court and entered a plea of not guilty, but stipulated to proceed on an agreed statement of facts. The State proceeded only on the charge of possession of a handgun by a person previously convicted of a crime of violence. On the agreed facts, appellant was found guilty, and on May 9, 2003, was sentenced to the mandatory five years imprisonment without parole. This timely appeal followed.

DISCUSSION Standard of Review Our review of the denial of appellant’s motion to suppress evidence under the Fourth Amendment is limited to the record developed at the suppression hearing. Dashiell v. State, 374 Md. 85, 93 , 821 A.2d 372 (2003) (quoting State v. Collins, 367 Md. 700, 706-07 , 790 A.2d 660 (2002)). Moreover, we consider the record in the light most favorable to the State, the prevailing party on that motion. State v. Green, 375 Md. 595, 607 , 826 A.2d 486 (2003); Dashiell, supra, 374 Md. at 93 , 821 A.2d 372 .

Within this framework, we accept the circuit court’s findings of fact where conflicting evidence is presented, unless those findings are clearly erroneous. Id.; Conboy v. State, 155 Md.App. 353, 361 , 843 A.2d 216 (2004); Charity v. State, 132 Md.App. 598, 606 , 753 A.2d 556 (2000). We shall, however, review the legal conclusions de novo, and, in doing so, make our own “independent constitutional determination” as to whether suppression of evidence is appropriate. See Wengert v. State, 364 Md. 76, 84 , 771 A.2d 389 (2001).

Reasonable Articulable Suspicion The very core of appellant’s argument is that Moyni-han’s frisk of him was in contravention of the Fourth Amendment, because the officer lacked a reasonable articulable suspicion. ⁴⁵ The Fourth Amendment of the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” US Const, amend.

IV

Clearly, the Fourth Amendment “does not proscribe all state-initiated searches and seizures; [ ] merely ... those which are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991). Within this context, the Supreme Court has held it permissible for a police officer to stop and briefly detain a person for an investigative purpose so long as the officer has a reasonable suspicion, supported by articulable facts, that criminal activity is occurring. Terry v. Ohio, 392 U.S. 1, 30 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). An obvious purpose of the Terry holding was to provide for the safety of the public generally and police officers specifically. 3 Id.

Recognizing the danger posed by suspected criminals, the Supreme Court noted: [w]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and dangerous to the officer or to others, it would appear to 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. Id. at 23-24 , 88 S.Ct. 1868 (footnote omitted). To facilitate the protective frisk, the Court added ⁴⁶ [t]here must be narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, when he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch”, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Id. at 27 , 88 S.Ct. 1868 (citations omitted). The Supreme Court has defined the “reasonable suspicion” standard as requiring a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981).

Thus, reasonable suspicion is more than a “hunch”, but it is a “less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123 , 120 S.Ct. 673 , 145 L.Ed.2d 570 (2000); See Nathan v. State, 370 Md. 648, 663 , 805 A.2d 1086 (2002). In analyzing whether reasonable suspicion existed in a particular circumstance, courts must not “parse out each individual circumstance for separate consideration.” Ransome v. State, 373 Md. 99, 104 , 816 A.2d 901 (2003) (citing United States v. Arvizu, 534 U.S. 266, 274 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002)). Rather, the courts must view and consider the “totality of the circumstances.” United States v. Sokolow, 490 U.S. 1, 8 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989). When viewing through the totality lens, courts should be mindful that otherwise innocent behavior may indeed constitute reasonable suspicion.

Nathan, 370 Md. at 663 , 805 A.2d 1086 (citing Sokolow, supra, 490 U.S. at 9-10 , 109 S.Ct. 1581 ). ⁴⁷ In contending that the trial court erred in failing to find that the frisk violated his Fourth Amendment rights, appellant makes three arguments. First, appellant contends that no objectively reasonably prudent person in Moynihan’s position would have believed that appellant was armed. Second, and irrespective of the reasonableness of the search, appellant argues that neither Moynihan nor Palmero was qualified as an expert witness. Therefore, he posits, neither could testify as to his belief that the particular facts justified a search.

Finally, appellant contends that the motions court erroneously weighed witness credibility in favor of the State in the face of a conflict in testimony between appellant and the State’s witnesses, the police officers. We address each argument in turn. The Reasonably Prudent Person Appellant contends first that no reasonably prudent person would have believed him to have been armed. In support of his contention, appellant cites Ransome v. State, 373 Md. 99 , 816 A.2d 901 (2003), in which the Court of Appeals held that a frisk of the defendant was improper on the ground that reasonable suspicion was lacking.

Id. at 111 , 816 A.2d 901 . Given appellant’s reliance on Ransome , we pause to examine the facts of that case. In Ransome , police officers were on night patrol in an unmarked cruiser. Id. at 100-101 , 816 A.2d 901 .

The area through which they were patrolling was notorious for drug dealing, discharging of weapons, and loitering. On the night of the frisk, officers on patrol were looking for “loitering group” behavior. They noticed Ransome with another man standing on the sidewalk, and observed that he had a large bulge in his left front pants pocket. Proceeding on that observation, the officers confronted Ransome.

After a series of questions, and the observation of what one officer characterized as “a nervous defendant,” the officer patted him down, discovering narcotics. After further search, the bulge was revealed to be a roll of coins. No weapon was found. Id.

Superficial similarities exist between Ransome and the case sub judice. For instance, like Ransome, appellant (1) was out ⁴⁸ at night; (2) present in a high crime area; (3) approached by police officers; (4) demonstrated a palpably nervous appearance; (5) looked at police officers; and (6) displayed signs consistent with concealment of a weapon. A distinguishing detail is that appellant was present in a vehicle stopped for a legitimate traffic violation. 4 Thus, unlike Ransome, appellant was not simply walking down the street minding his own business. The distinction is of paramount importance.

Indeed, the Court of Appeals has recognized: If the police can stop and frisk any man found on the street in a high crime area merely because he has a bulge in his pocket, stops to look at an unmarked car containing three uniformed men, and then, when those men alight suddenly from the car and approach the citizen, acts nervously, there would indeed be little Fourth Amendment protection left for those men who live in or have occasion to visit high crime areas. Ransome, supra, 373 Md. at 111 , 816 A.2d 901 . Ransome was wrongfully detained; appellant was rightfully detained. Moreover, appellant here, unlike Ransome, took, as the State characterizes, “evasive action.” As such, Ransome is factually distinguishable and, consequently, offers appellant no comfort.

Our attention has been drawn to United States v. Hassan El, 5 F.3d 726 (4th.Cir.1993), a case factually apposite to the case before us. In Hassan El, police officers stopped a vehicle, in which the defendant was a passenger, for the driver’s failure to stop at a stop sign. Id. at 728 . While at the vehicle, one of the officers observed that Hassan El appeared nervous and uncomfortable.

The officer then noticed a bulge in the defendant’s pants and asked him if he was carrying a gun. Hassan El, according to the police, grew visibly more ⁴⁹ uncomfortable by the question. As the defendant appeared to be bringing his hands up toward the bulge, the officer grabbed the bulge through the window, revealing a loaded .38 caliber handgun. Id.

The Fourth Circuit held that this search did not violate the Fourth Amendment. Id. at 731 . We need not particularize the obvious similarities of Hassan El and the case sub judice. Appellant’s suggestion that Hassan El is not worthy of our consideration is without merit.

The State, recalling that this Court has previously dealt with the issue of a passenger pat-down following a valid traffic stop, refers us to Russell v. State, 138 Md.App. 638 , 773 A.2d 564 (2001), to demonstrate the reasonableness of Moynihan’s conduct. Russell was arrested after police stopped the .car, in