McCracken v. State

BARBERA, J. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), permits a law enforcement officer who has stopped an individual reasonably suspected of criminal activity to conduct a cursory search — a “frisk” — of that individual if the officer reasonably suspects the individual is carrying a weapon. This “strictly circumscribed” intrusion on the suspect’s privacy, however, “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Id. at 26 , 88 S.Ct. 1868 . Yet, if the officer, while conducting a proper Terry frisk, comes upon an item that by mere touch is immediately apparent to the officer ⁵¹¹ to be contraband or of “incriminating character,” then the officer is authorized to seize that item immediately. Minnesota v. Dickerson, 508 U.S. 366, 375 , 113 S.Ct. 2130 , 124 L.Ed.2d 334 (1993).

We must decide in the present case whether there was compliance with these Fourth Amendment principles. On the facts of this case, we conclude that there was compliance. I. Petitioner, Reginald McCracken, was convicted in the Circuit Court for Baltimore City of transporting a handgun in a motor vehicle. A police officer found the handgun in a vehicle he suspected Petitioner had been using a short time earlier for “hacking.” 1 The police officer located the vehicle by pressing a car remote he had seized, along with a set of car keys, while frisking Petitioner.

Before trial, Petitioner moved to suppress the car keys, remote, and handgun. The only evidence presented at the suppression hearing was the testimony of Officer Adrian McGinnis of the Baltimore City Police Department. Officer McGinnis testified that he responded to a report of an armed individual in the early morning hours of September 18, 2010. Upon arriving on the scene minutes later, he witnessed a woman and Petitioner arguing on the front porch of a residence.

Other officers at ⁵¹² the scene separated the two, and several officers remained with Petitioner near the bottom of the steps to the residence while Officer McGinnis spoke with the woman on the porch. The woman, who did not give her name, appeared to Officer McGinnis to be afraid. Upon questioning by the officer, the woman explained that Petitioner had just “hacked” her to her present location in East Baltimore. The woman reported to the officer that she and Petitioner argued during the ride, and he threatened to shoot her.

Officer McGinnis recognized “hacking” as a term describing the illegal transport of a person in exchange for money without a taxi license. The chronology of what happened next is, by all accounts, somewhat muddled. Nevertheless, viewing the evidence in the light most favorable to the State, as we must, 2 we discern the following sequence of events. Officer McGinnis approached Petitioner who, in responding to the officer’s inquiries, stated that he and the woman had been arguing over a cell phone.

Petitioner denied, however, that he had been hacking. Officer McGinnis learned that Petitioner did not live in the immediate neighborhood. When asked how he came to be present in the neighborhood, Petitioner first told Officer McGinnis that he had arrived there on foot, then said that his wife had dropped him off there. Officer McGinnis, suspecting that Petitioner might be carrying the handgun to which the woman had referred, frisked him by patting down his outer clothing.

WTiile patting down Petitioner’s left pants pocket, Officer McGinnis felt what he immediately discerned was a set of keys and a small box hooked to those keys, which he believed to be a car remote. Officer McGinnis, believing that the keys and remote corresponded to Petitioner’s vehicle, immediately removed them from Petitioner’s pants pocket and, thinking that Petitioner’s car was probably parked in the area, pressed the alarm button ⁵¹³ on the remote. 3 Doing so sounded an alarm on a car parked approximately three car-lengths away. Officer McGinnis shone his flashlight into the vehicle’s open passenger side window, saw a black handgun in the open glove compartment, and seized it. Petitioner argued for suppression of the keys and remote on the ground that Officer McGinnis had seized those items from Petitioner’s pants pocket by exceeding the proper scope of a lawful Terry frisk.

As for the handgun, Petitioner did not argue that the seizure of it from the car was unlawful, in and of itself. Moreover, he made no argument that Officer McGinnis conducted a second unlawful search when, after seizing the keys and car remote, he pressed a button on the remote to ascertain the location of the vehicle. Instead, Petitioner argued only that the handgun must be suppressed as the tainted fruit of the earlier unlawful seizure of the keys and remote. Notably, in that regard, Petitioner did not contest that he was illegally stopped, pursuant to Terry , nor did he challenge Officer McGinnis’s authority, under Terry , to conduct the frisk for the weapon the woman had mentioned.

Petitioner likewise did not argue that Officer McGinnis violated the prohibition against manipulating an item encountered during a lawful frisk in order to discern its identity. Petitioner’s argument was grounded solely on the principle that an item touched during a lawful frisk cannot be seized under the “plain feel” doctrine recognized in Dickerson unless the item, once felt, is “immediately apparent” to be contraband or evidence of a crime. The Supreme Court has made clear that the words “immediately apparent” in the context of the “plain view” or, as here, “plain feel” doctrine mean that the officer, upon seeing or feeling the item, must have probable cause to believe that the ⁵¹⁴ item is contraband or evidence of a crime. See Arizona v. Hicks, 480 U.S. 821 , 326, 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987).

Petitioner contended that, when Officer McGinnis touched the keys and remote, he lacked probable cause to believe those items were related to criminal activity. Petitioner pointed out that Officer McGinnis had acknowledged during cross-examination that he did not know for sure at the moment he touched the keys and remote that they necessarily would unlock a vehicle, and he was able to confirm that fact only after he removed those items from Petitioner’s pants pocket. In that same vein, Petitioner further argued that the officer did not have probable cause to believe the keys and remote were evidence of a crime until he pressed a button on the remote and set off an alarm in a nearby vehicle. The court denied Petitioner’s motion to suppress the physical evidence.

The court ruled that the frisk of Petitioner was justified by the woman’s statement that Petitioner had threatened to shoot her. The court acknowledged that, although it was possible the keys and remote Officer McGinnis felt in Petitioner’s pocket did not belong to the car supposedly used in the hacking, the seizure was justified nevertheless. In so ruling, the court evidently, albeit implicitly, found that, when Officer McGinnis felt the keys and remote, they were immediately apparent to him to be evidence of Petitioner’s suspected hacking. 4 Following the court’s ruling, the case proceeded immediately to trial on an agreed statement of facts. The court found Petitioner guilty of transporting a handgun in a motor vehicle then sentenced him for that offense.

Petitioner noted an appeal to the Court of Special Appeals, arguing, as he does here, that Officer McGinnis violated Dickerson by seizing the keys and car remote from Petitioner’s pants pocket without the incriminating character of those items being “immediately apparent.” In an unreported opin ⁵¹⁵ ion, the Court of Special Appeals affirmed the judgment of the Circuit Court. We granted a writ of certiorari, McCracken v. State, 426 Md. 427 , 44 A.3d 421 (2012), and now affirm that judgment. 5 II. In reviewing the denial of a motion to suppress evidence allegedly seized in violation of the Fourth Amendment, we are confined to the record developed at the suppression hearing. Longshore v. State, 399 Md. 486, 498 , 924 A.2d 1129 (2007).

As noted, we view the suppression court’s findings of fact, and reasonable inferences drawn therefrom, in the light most favorable to the prevailing party on the motion below, in this case, the State. Crosby v. State, 408 Md. 490, 504 , 970 A.2d 894 (2009). We do not disturb those findings unless clearly erroneous. Id. at 504-05 , 970 A.2d 894 .

We conduct “our own independent constitutional appraisal” of whether the Fourth Amendment has been violated by applying the law to the facts of the matter sub judice. Bailey v. State, 412 Md. 349, 362 , 987 A.2d 72 (2010) (quoting Crosby, 408 Md. at 505 , 970 A.2d 894 ). The sole basis for Petitioner’s Fourth Amendment claim is grounded in the “plain feel” doctrine discussed in Dickerson , more particularly the requirement of the doctrine that items felt during a lawful Terry frisk must be “immediately apparent” as evidence of a crime. We agree with the State 6 and ⁵¹⁶ our colleagues on the Court of Special Appeals that Petitioner is not entitled to relief on this ground.

The plain feel doctrine has developed in the wake of the “plain view” doctrine. It is settled that law enforcement officials may seize items in plain view without a warrant under certain circumstances. Hicks, 480 U.S. at 326 , 107 S.Ct. 1149 . If, for example, a police officer is conducting, but not exceeding, a lawful search, then the officer’s observation of contraband or evidence of a crime in plain view does not constitute an independent search or intrusion necessitating a warrant or compliance with some exception to the warrant requirement.

See Dickerson, 508 U.S. at 375 , 113 S.Ct. 2130 (describing the rationale for the plain view doctrine). Requiring the officer to obtain a warrant “under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment.” Id. The plain view doctrine has a three-pronged inquiry: (1) the officer must be lawfully “at the place from which the evidence could be plainly viewed”; (2) the “incriminating character” of the item in question must be “immediately apparent”; and (3) the officer “must also have a lawful right of access to the object itself.” Horton v. California, 496 U.S. 128, 136-37 , 110 S.Ct. 2301 , 110 L.Ed.2d 112 (1990); see also Wengert v. State, 364 Md. 76, 88-89 , 771 A.2d 389 (2001). For the incriminating character of an item to be “immediately apparent,” the officer, upon seeing the item, must have probable cause to believe that the “item in question is evidence of a crime or is contraband.” Hicks, 480 U.S. at 326 , 107 S.Ct. 1149 .

The Supreme Court has recognized that the rationale behind the plain view doctrine applies with equal force when law enforcement discovers contraband or evidence of a crime through the sense of touch. Thus, in the context of a Terry frisk, ⁵¹⁷ if a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context. Dickerson, 508 U.S. at 375-76 , 113 S.Ct. 2130 . Applying the plain feel doctrine to the facts presented in Dickerson , the Supreme Court held that the seizure at issue in that case went beyond the limits of the doctrine.

The Dickerson Court saw the facts before it as similar in material respect to those in Hicks.