Pyon v. State

MOYLAN, J. Should the Fourth Amendment be implicated in this case, it was not satisfied. The dispositive threshold question before us, therefore, is whether the Fourth Amendment was even implicated. An encounter between a law enforcement official and a private citizen is a phenomenon that is, like Caesar’s Gaul, divided into three parts. Such encounters, of course, ⁴¹⁹ actually cover a wide spectrum embracing infinite factual variations.

For purposes of Fourth Amendment analysis, however, that wide spectrum has been conveniently sectioned off into three constitutional categories, two of which involve the Fourth Amendment and one of which does not. Before we presume to examine the specimen at hand, we must be sure we are using the proper microscope. It behooves us briefly to survey the respective microscopes. Three Levels of Police-Citizen Encounters As a teaching aid, the 24-karat opinion is Swift v. State, 393 Md. 139 , 899 A.2d 867 (2006).

Judge Raker, 393 Md. at 149-51 , 899 A.2d 867 , there set out the three levels on which a police-citizen encounter may occur. “It is well established that the Fourth Amendment guarantees are not implicated in every situation where the police have contact with an individual____ Many Courts have analyzed the applicability of the Fourth Amendment in terms of three tiers of interaction between a citizen and the police.... The most intrusive encounter, an arrest, requires probable cause to believe that a person has committed or is committing a crime.... The second category, the investigatory stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop and briefly detain an individual. “The least intrusive police-citizen contact, a consensual encounter, ... involves no restraint of liberty and elicits an individual’s voluntary cooperation with non-coercive police contact.” (Citations omitted). An Arrest of the Person The most coercive of the police-citizen encounters is that involved when the officer actually places the citizen under arrest.

Self-evidently the Fourth Amendment applies and self-evidently the Fourth Amendment must be satisfied. The ⁴²⁰ Fourth Amendment justification required for such a severe Fourth Amendment seizure of the person has always been nothing less than probable cause. Swift v. State, 393 Md. at 150 , 899 A.2d 867 . The Supreme Court spoke of the standard in Dunaway v. New York, 442 U.S. 200, 208 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979): “The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest ‘reasonable’ under the Fourth Amendment.” See also Florida v. Royer, 460 U.S. 491, 499 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983).

The present case does not remotely involve this highest level of police-citizen encounter. During that phase of the encounter pertinent to our present analysis, the appellant was clearly not under arrest and the issue of probable cause as a justification is utterly immaterial. Our exclusive concern is with the lower two levels of police-citizen encounter. A Terry Stop (An Investigative Stop) The intermediate level of police-citizen encounter is generally referred to as a Terry stop (from the seminal “stop and frisk” case of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)), although frequently it is described as an “investigative stop.” It is a lesser Fourth Amendment intrusion than a full-scale arrest.

Because it is a Fourth Amendment intrusion upon a citizen’s otherwise unfettered freedom, however, it accordingly requires a Fourth Amendment justification, albeit a lesser justification than is required for an arrest. Swift, 393 Md. at 150 , 899 A.2d 867 , described both its coercive attributes and its required justification: “A police officer may engage in an investigatory detention without violating the Fourth Amendment as long as the officer has a reasonable, articulable suspicion of criminal activity.... • A Terry stop is limited in duration and purpose and can only last as long as it takes a police officer to confirm or to dispel his suspicions.... A person is seized ⁴²¹ under this category when, in view of all the circumstances surrounding the incident, by means of physical force or show of authority a reasonable person would have believed, that he was not free to leave or is compelled, to respond to questions. Factors that might indicate a seizure include a threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of language or tone of voice indicating that compliance with the officer’s request might be compelled, approaching the citizen in a nonpublic place, and blocking the citizen’s path.” (Emphasis supplied) (citations omitted).

The above two levels of police-citizen encounter involve, respectively, greater and lesser Fourth Amendment seizures of the person. Both levels, therefore, require Fourth Amendment justification in order to qualify as reasonable, probable cause in the one case and Terry-level reasonable articulable suspicion in the other. A Mere Accosting (A Consensual Encounter) A mere accosting, by dramatic contrast, falls below the Plimsoll line of Fourth Amendment applicability. It is simply the police-citizen subset of the voluntary and consensual social intercourse that occurs regularly between citizen and citizen.

It is beneath the Fourth Amendment radar. If one citizen may approach another and engage in conversation, a police officer is self-evidently free to do no less. Lest he attract the scrutiny of the Fourth Amendment, however, he must be careful to do no more. Swift, 393 Md. at 151 , 899 A.2d 867 , described this sub-constitutional level of police-citizen encounter: “Encounters are consensual 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.

The guarantees of the Fourth Amendment are not implicated in such an encounter unless the police officer has by either physical force or show of authority restrained the person’s liberty so that a reason ⁴²² able person would not feel free to decline the officer’s requests or otherwise terminate the encounter.” (Emphasis supplied) (citation omitted). In Ferris v. State, 355 Md. 356, 373 n. 4, 735 A.2d 491 (1999), the Court of Appeals had similarly described the consensual encounter as: “[S]imply the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement official. Because an individual is free to leave at any time during such an encounter, he is not ‘seized’ within the meaning of the fourth amendment.” (Emphasis supplied) (citations omitted). In Graham v. State, 146 Md.App. 327, 366 , 807 A.2d 75 (2002), this Court spoke in a similar vein: “The classic Supreme Court opinions explicating the phenomenon of accosting are Immigration and Naturalization Service v. Delgado, 466 U.S. 210 , 104 S.Ct. 1758 , 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983); and United States v. Mendenhall, 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980).

From the beginning, the accosting cases undertook to disabuse bench and bar of the notion that the police need special Fourth Amendment justification even to approach and to talk to citizens. There has never been a suggestion that a police officer enjoys a greater than ordinary right to approach and talk. The message, rather, is that the police officer enjoys no less a right.” (Emphasis supplied). It is, moreover, clear that a mere accosting or consensual encounter, should it stay scrupulously within its limits, does not implicate the Fourth Amendment and does not, therefore, require any Fourth Amendment justification.

See, Swift, 393 Md. at 151 , 899 A.2d 867 . A Border Line Is Not a Border Zone The present case lies perplexingly close to the line between the Terry-stop and the mere accosting. That line is ⁴²³ in this case the dispositive boundary between Fourth Amendment applicability and Fourth Amendment inapplicability. It is frequently, as it is in this case, a line that can be factually ambiguous.

Nonetheless, it is a line and not a zone. The Fourth Amendment is either applicable or inapplicable. There is no halfway. The State will not, therefore, be heard to say, “Even if we lacked full Terry-level reasonable suspicion, we had some suspicion.

We came close. Therefore, it was not unreasonable to enjoy at least some police prerogatives beyond the ordinary, even if not the full complement thereof.” In a decision that must, of doctrinal necessity, be binary, the Fourth Amendment applies either in full measure or not at all. Except in horseshoes, close does not count. The threshold of Fourth Amendment applicability, moreover, is a legal question calling for a de novo determination.

As to it, we are not deferential. As we straddle this elusive border between a mere accosting and an investigative stop, we encounter a not uncommon instance of police behavior that seeks to exploit the benefits of being on both sides of the border at the same time. We spoke of this creative shape-shifting in Graham v. State, 146 Md. App. 327, 337 , 807 A.2d 75 (2002): “[TJhere emerges with unmistakable clarity a picture of a police procedure that is ... a wolf in sheep’s clothing. The innocuous surface trappings are all those of a mere accosting, something long sanctioned by the Supreme Court as an everyday occurrence that does not even catch the eye of the Fourth Amendment.

The underlying reality, however, is a borderline investigative procedure whereby the police seek to enjoy the full Fourth Amendment benefits of ... a Terry-stop ... without paying the attendant Fourth Amendment dues.” (Emphasis supplied). The Conviction On May 28, 2014, the appellant, Andrew J. Pyon, was convicted in the Circuit Court for Howard County in a non- ⁴²⁴ jury trial of the unlawful possession of less than 10 grams of marijuana. He was ordered to pay a fíne of $500. The conviction was for a violation of Maryland Code, Criminal Law Article, § 5-601, which prohibits, inter alia, the possession of a controlled dangerous substance.

Marijuana is a controlled dangerous substance. Chapter 193 and 194 of the Acts of 2012, effective as of October 1, 2012, were the controlling law at the time of the appellant’s initial stop by the police and at the time of the appellant’s trial. The then-new provision had reduced the maximum penalty for the possession of less than 10 grams of marijuana from imprisonment for one year and/or a fine of $1,000 to a maximum imprisonment of 90 days and a maximum fine of $500. 1 The laboratory report introduced into evidence showed that the bag of plant material recovered from the glove compartment of the vehicle in which the appellant was a passenger contained 3.37 grams of marijuana. Notwithstanding the relative lack of gravity of the conviction before us, the Fourth Amendment issue will be examined as if we were reviewing a conviction for murder in the first degree.

The Contentions The appellant raises the following two contentions: 1. that the trial judge erroneously denied his motion to suppress the marijuana seized from the glove compartment of the car in which he was a passenger; and 2. that the evidence was not legally sufficient to support the conviction for possession of marijuana. The Suppression Motion In this case, we are not dealing with a self-contained suppression hearing but rather with a suppression motion in ⁴²⁵ the context of the trial itself. In reviewing that ruling, we will confine our examination to the evidence and argument bearing on the motion to suppress, just as, had there been a pre-trial suppression hearing, we would confine ourselves to the evidence and argument offered at that hearing. The only witness to testify on the motion to suppress was Officer Sally Kimmett of the Howard County Police Department.

On the very early morning of Friday, December 14, 2013, Officer Kimmett was on duty in her marked police cruiser. From the radio dispatch operator, she received a call to proceed to the vicinity of 6518 Overheart Lane in East Columbia. She did so and arrived there within less than 10 minutes. She placed her reception of the call from “dispatch” at approximately 11 minutes after midnight.

We will pass over (but just for the moment) the substance of the dispatch call that sent Office Kimmett to the neighborhood of 6518 Overheart Lane and focus exclusively on what she saw and did upon her arrival at that location. Officer Kimmett saw and first focused upon a gray Honda SUV that was unoccupied. She then noticed a second Honda in the general area and re-directed her attention to it. It is that second Honda that concerns us in this case.

It was parked and its engine was off. As Officer Kimmett, in her marked police cruiser, approached the second parked Honda, it is clear that she maneuvered her cruiser in such a way as to block, at least partially, any potential egress by the Honda. The geography, however, is a trifle ambiguous: “[DEFENSE COUNSEL]: And where did you park? “A. The co-Defendant’s vehicle was parked in and I came around, there’s a circle there and I came around and I came up this way. So it was I would say [catercorner], “Q. So you were directly behind them? “A. No. ⁴²⁶ “Q. This is them parked in and this would be me coming around the circle and parking here. “[THE STATE]: For the record indicating if we’re looking at a clock face, 4:00, 5:00. “A. That’s correct. “Q. So it’s your testimony that if they wished to, the co-Defendant could have left the parking lot? “A. They could have backed out, that’s correct.” (Emphasis supplied).

Any further inquiry about backing out was short-circuited: “Q. Okay, in your opinion were they free to leave at that the time that you approached their vehicle? “[THE STATE]: Objection, her opinion’s irrelevant. “THE COURT: Sustained.” It was also clear that Office Kimmett got out of her cruiser and walked quickly toward the Honda just as the driver began to get out of the Honda. “Q. Did you — how did you approach the vehicle? “A. I walked up to it. “Q. And in what manner did you approach quickly, slowly? “A. The driver began to get out so I approached quickly because I wasn’t sure what he was going to do.” (Emphasis supplied). Office Kimmett requested the driver to produce his driver’s license. “Q. Did you say anything to him? “A. Not that I recall besides can I have your driver’s license. “Q. And you were by yourself at this point? “A. That’s correct.” (Emphasis supplied). The driver of the Honda was the appellant’s ultimate co-defendant, James Chinham. To that point, Officer Kimmett had noted nothing to indicate the presence or use of marijuana ⁴²⁷ (or of any other criminal activity). “Q. And when you first approached my client’s — or I’m sorry, the co-defendant’s vehicle, you didn’t see anybody smoking ma,rijuana? “A. No. “Q. You didn’t see any fire or anybody lighting anything? “A. No. “Q. And when you approach the vehicle you didn’t notice any smoke that was present ? “A. Not that I recall.” (Emphasis supplied).

It was as she was examining Chinham’s driver’s license that Officer Kimmett first observed the appellant sitting in the right front passenger seat of the Honda. Her instinctive response was to call for “back-up.” “Q. Where did Officer James Wintjen come from? “A. / had requested back up when I observed that there were multiple subjects in the vehicle. “Q. And where were you when you called for the back up? “A. I called for the back up once I had gotten Mr. Chin-ham’s ID and saw that there was someone else in the vehicle. “Q. You did this by your mobile communication on your person rather than one in the car, correct? “A. That’s correct, yes. “Q. How long did it take Officer James Wintjen to approach? Or to get to the scene? “A. Not very long at all, I don’t remember an exact time.” (Emphasis supplied). Once Office Wintjen had arrived on the scene, Officer Kimmett walked around to the front passenger’s window and asked the appellant to produce his driver’s license or other identification. 2 ⁴²⁸ As the appellant then handed his license to Officer Kimmett, she testified that she detected the odor of raw marijuana coming from the passenger’s side of the vehicle. “Q. What conversation or what did you do concerning [the appellant]? “A. I again asked him for — or I asked him for his driver’s license. “Q. And did he give it to you? “A. He did. “Q. As he gave you his driver’s license, did anything occur that triggered your training? “A. Yes. “Q. What was that? “A. I detected an odor of marijuana. “Q. Where was the odor of marijuana coming from? “A. The vehicle. “Q. Do you know what part of the vehicle ? “A. The passenger compartment. “Q. Where were you standing when you smelled the odor of marijuana? “A. Next to the passenger’s side of the vehicle.” (Emphasis supplied).

Officer Kimmett ordered the appellant to get out of the car. Both the appellant and Chinham were ordered to stand on the sidewalk as both officers conducted a warrantless Carroll- Doctrine search of the Honda. 3 From the glove compartment, ⁴²⁹ they recovered the baggie containing what turned out to be 3.37 grams of marijuana. Bracketing the Target Our concern in this case is with a very narrow window of time. Our focus is on the status of the encounter between Officer Kimmett, on the one hand, and the appellant and Chinham, on the other, between the moment that Officer Kimmett parked her cruiser cater-corner to the Honda and the moment that she detected the smell of marijuana emanating from the passenger side of the vehicle.

The significance of what happened before and what happened afterward is not subject to serious dispute. Our exclusive concern is whether, during that brief interval, we are looking at a Terry-stop, subject to Fourth Amendment conditions, or at a voluntary and consensual exchange of conversation free of all such barnacles. Before zeroing in on that ultimate target, however, it behooves us briefly to dispose of the “before” and the “after,” pointing out why neither is the occasion for any serious dispute. No Fourth Amendment Justification First, the “before.” In terms of what Officer Kimmett knew as she parked her police cruiser cater-corner to the Honda in which the appellant was seated, it is beyond dispute that she had no Terry-level reasonable suspicion that the Honda and its occupants had committed, were then committing, or were about to commit any crime generally or any traffic offense specifically.

Absent that predicate, there was no basis for any Fourth Amendment intrusion of the most minimal sort. In terms of a traffic offense, there was no evidence that the Honda had even been driving, let alone evidence that it had been involved in any traffic infraction. For all we know, the ⁴³⁰ Honda was legally parked and its two occupants were sitting quietly inside it. There was, moreover, no evidence of any structural defect — no excessively tinted windows, no hanging tail pipe, no loose or missing license tag, etc. As far as the traffic laws were concerned, the Honda and its occupants were clean.

As far as more generic crimes were concerned, the Honda and its occupants were also untouchable. If the Honda and its occupants were subjected to any official restraint, the Fourth Amendment was thereby implicated. The Fourth Amendment fountainhead, of course, is Terry v. Ohio. At the most fundamental level, the gears of the Fourth Amendment are engaged “whenever a police officer accosts an individual and restrains his freedom to walk away[.]” 392 U.S. at 16 , 88 S.Ct. 1868 .

Ornelas v. United States, 517 U.S. 690, 696 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996), described the reasonable suspicion standard that must be satisfied to justify such restraint: “We have described reasonable suspicion simply as ‘a particularized and objective basis’ for suspecting the person stopped of criminal activity!.]” United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981), was emphatic not only about the Terry standard but about the fact that it applies to all seizures of the person, including those involved in brief investigatory stops. “The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Emphasis supplied) (citations and footnote omitted). United States v. Sokolow, 490 U.S. 1, 7 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989), described the standard for a Terry-stop: “The officer, of course, must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ [Terry v. Ohio, 392 U.S. 1 ] at 27, 88 S.Ct., at ⁴³¹ 1883. The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop.” (Citation omitted).

The question is whether Officer Kimmett had any Terry-level justification as she first approached the Honda. A Worthless Tip Pointing In The Wrong Direction What had been communicated to Officer Kimmett’s mind as she drove to 6518 Overheart Lane that night was sketchy in the extreme. The so-called radio dispatch was of “drug activity in the area.” Officer Kimmett then knew absolutely nothing about the provenance of the tip: “[DEFENSE COUNSEL]: Why were you asked to go there? “A. We received a call for drug activity in the area. “Q. Do you know where that call came from? “A. I’m not sure the exact person but it came through Howard County Dispatch. “Q. Did you get the name of the person who reported the call? “A. I did not.” (Emphasis supplied). The Supreme Court has made it abundantly clear that an anonymous tip, unverified by independent police observation, is not a credible basis for a Fourth Amendment intrusion.

The tip that was dismissed as woefully inadequate in Florida v. J.L., 529 U.S. 266, 271 , 120 S.Ct. 1375 , 146 L.Ed.2d 254 (2000), was no more insubstantial than the one given to Officer Kimmett in this case: “The tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court’s decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore, left the police without means to test the informant’s knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the ⁴³² frisks, had a reasonably basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All 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. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.” (Emphasis supplied).

See generally, Carter v. State, 143 Md.App. 670, 678-80 , 795 A.2d 790 (2002). The tip in this case, moreover, was twice bereft. For starters, it was without a shred of credibility. Quite aside from that fatal flaw, it did not even point to the appellant or to James Chinham or to the Honda in Which they were sitting.

The tip mentioned two black males in a Toyota Corolla. When Officer Kimmett arrived at the scene, there was no Toyota Corolla there. If it had been there, it was gone. The tip also mentioned a gray Honda SUV, but said nothing with respect to it.

Officer Kimmett saw a Honda SUV at the scene that she believed was the one mentioned in the tip, but it was unoccupied. Her testimony about the tip and her arrival at the scene was: “Q. Officer, when you first got that call to service, it was a call about two black males in a Toyota Corolla? “A. Correct. “Q. And also about a silver — I’m sorry, a gray Honda SUV, correct? “A. Correct. “Q. And when you got to the scene you observed that same Honda SUV but it was unoccupied, correct? “A. Correct.” (Emphasis supplied). Officer Kimmett redirected her focus to the Honda in which the appellant was sitting essentially on the basis of nothing but guesswork. Whereas the tip, moreover, had expressly ⁴³³ referred to two black males, the appellant was Asian American.

The Honda itself was “kind of a hybrid” and “appeared that it may have been an SUV.” Was it or was it not an SUV? The record does not tell us. The best that Officer Kimmett could offer was that “perhaps the caller got it wrong.” “Q. Okay, so it wasn’t actually my client’s car that was part of the description for the call to service? “A. Not necessarily, the client or it wasn’t your client’s car, it was Mr. Chinham’s car, which is I believe kind of a hybrid and it appeared that it may have been an SUV. Perhaps the caller got it wrong. “Q. But there was a gray Honda SUV in the proximity? “A. That’s correct, yes.” (Emphasis supplied).

If, indeed, “the caller got it wrong,” is Officer Kimmett then competent to confect an alternate dispatch fleshed out by her own imagination? In sum total, that was not so much as an “inchoate hunch,” let alone a Terry-level reasonable and articulable suspicion. Our conclusion, therefore, is that if the Fourth Amendment is implicated, that is, if the police-citizen encounter was a Terry-stop rather than a mere accosting, the Fourth Amendment was not remotely satisfied and the physical evidence should have been suppressed. The State recognizes this as surely as do we.

The heart of its argument is: “The least intrusive police-citizen contact, a consensual encounter ... involves no restraint of liberty and elicits an individual’s voluntary cooperation with non-coercive police contact. Encounters are consensual 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. A consensual encounter need not be supported by any suspicion and because an individual is free to leave at any time during such an encounter, the Fourth Amendment is not implicated; thus, an individual is not considered to have been ‘seized’ within the meaning of the Fourth Amendment.” (Emphasis supplied). The State’s argument is that we are dealing with a mere accosting. ⁴³⁴ All in the Same Boat As part of our “before” analysis, of course, it would not necessarily be fatal to the State’s case that the Fourth Amendment was in a general sense implicated when Officer Kimmett parked her police cruiser cater-corner to the Honda and approached the driver to ask for identification.

The State might still challenge the appellant’s Fourth Amendment standing. The appellant, after all, was a mere passenger (or sedentary occupant) in the Honda and it might be further necessary to establish that he, as well as James Chinham (the driver), had been seized within the contemplation of the Fourth Amendment. Brendlin v. California, 551 U.S. 249 , 127 S.Ct. 2400 , 168 L.Ed.2d 132 (2007) mercifully relieves us of all uncertainty on that score. In a unanimous opinion, the Supreme Court held unequivocally that when an automobile is stopped within the contemplation of the Fourth Amendment, not only has the driver been subjected to a Fourth Amendment seizure of his person but all of the passengers in the vehicle have similarly been seized.

Justice Souter’s opinion for the Court was sure: “The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver ‘even though the purpose of the stop is limited and the resulting detention quite brief.’ ... And although we have not, until today, squarely answered the question whether a passenger is also seized, we have said over and over in dicta that during a traffic stop an officer seizes everyone in the vehicle, not just the driver. See, e.g., ... Whren [v. United States, 517 U.S. 806 ,] 809-10, 116 S.Ct. 1769 [, 135 L.Ed.2d 89 (1996) ] (‘Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of “persons” within the meaning of [the Fourth Amendment]’).” (Emphasis supplied) (citations omitted).

In Brendlin , the police had no adequate justification to stop the vehicle. The Supreme Court of California had held, ⁴³⁵ however, that the unconstitutional stop of the vehicle and driver did not constitute a stop of the passenger. The United States Supreme Court emphatically disagreed. “The State concedes that the police had no adequate justification to pull the car over ... but argues that the passenger was not seized and thus cannot claim that the evidence was tainted by the an unconstitutional stop. We resolve this question by asking whether a reasonable person in Brendlin’s position when the car stopped would have believed himself free to ‘terminate the encounter’ between the police and himself.

We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.” 551 U.S. at 256-57 , 127 S.Ct. 2400 . (Emphasis supplied) (citation omitted). Arizona v. Johnson, 555 U.S. 323, 332 , 129 S.Ct. 781 , 172 L.Ed.2d 694 (2009), reaffirmed the Brendlin holding: “Brendlin held that a passenger is seized, just as the driver is, ‘from the moment [a car stopped by the police comes] to a halt on the side of the road.’ A passenger therefore has standing to challenge a stop’s constitutionality.” (Citations omitted). See also, Pennsylvania v. Mimms, 434 U.S. 106, 111 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977); Maryland v. Wilson, 519 U.S. 408, 413 , 117 S.Ct. 882 , 137 L.Ed.2d 41 (1997).

If the Fourth Amendment was violated by the prolonged detention of the Honda in this case, the appellant, as one of its occupants, had unquestionable Fourth Amendment standing to raise the suppression issue. Sir Isaac Newton and Traffic Stops There might arguably be a second impediment to proceeding with a Fourth Amendment analysis. The argument might be made that cases involving the stopping of an ⁴³⁶ automobile, along with its driver and its passengers, are ‘inapposite because in this case the police never actually “stopped” the Honda but simply approached it after it was already stopped. We see no Fourth Amendment difference, however, between bringing a moving vehicle to a stop in the first instance and potentially prolonging a stop already in progress in the second instance.

According to the laws of Newtonian physics, one may distinguish between 1) a body in motion coming to rest when acted upon by a force and 2) a body already at rest remaining at rest when acted upon (perhaps redundantly) by a force. According to Fourth Amendment law, by contrast, the two phenomena are indistinguishable, if the force in question is a police officer and if the body acted upon is an automobile. Constitutionally, it is a distinction without a difference. In either scenario, the automobile and all of its occupants are immobilized.

As a linguistic convenience, we will in this opinion use the term “stop” to refer to the force or show of authority that results in an already stopped vehicle remaining stopped as well as to the force or show of authority that results in a moving vehicle coming to a halt. The State in its brief seeks to distinguish an automobile passenger in a car that is moving from a passenger in an automobile that is not in any sense moving. “Based on these facts, the motions court made an explicit determination that Officer Kimmett ‘didn’t stop that car, she was just walking towards that car,’ and ‘it’s clear that the officer was approaching that vehicle that had already stopped.’ ” As long as the passenger is presently being restrained by force or show of authority, we see no doctrinal significance in whether he had theretofore been moving or not. The defendant in Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972), was in a posture similar to the one occupied by the appellant in this case. The defendant there was seated in the right front-passenger seat of a car that was legally parked at 2:15 a.m. in a “high crime area” of Bridge ⁴³⁷ port, Connecticut.

The police sergeant who was approaching the vehicle had been told by a reliable informant that the defendant had a loaded revolver in his waistband. “After calling for assistance on his car radio, Sgt. Connolly approached the vehicle to investigate the informant’s report. Connolly tapped on the car window and asked the occupant, Robert Williams, to open the door. When Williams rolled down the window instead, the sergeant reached into the car and removed a fully loaded revolver from Williams’ waistband.” 407 U.S. at 145 , 92 S.Ct. 1921 .

(Emphasis supplied). The Supreme Court found the ultimate “Terry-Msk” to have been reasonable. Because a justifiable Terry-stop is an indispensable antecedent to the legitimacy of a subsequent Terry-frisk, however, it was necessary to find that there had, indeed, been an antecedent “stop”, notwithstanding the fact that the defendant had not been moving. Justice Rehnquist analyzed Sergeant Connolly’s approach to the seated defendant in terms of its having been a “brief stop.” “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” 407 U.S. at 146 , 92 S.Ct. 1921 .

The Supreme Court held that there had been a reasonable “forcible stop” as the necessary predicate for the subsequent frisk. “So long as the officer is entitled to make a forcible stop,1 and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. Petitioner does not contend that Williams acted voluntarily in rolling down the window of his car.” 407 U.S. at 146 , 92 S.Ct. 1921 . (Emphasis supplied). In his dissenting opinion, Justice Brennan also analyzed Sergeant Connolly’s approach to the seated defendant as a “forcible stop.” ⁴³⁸ “The crucial question on which this case turns, as the Court concedes, is whether, there being no contention that Williams acted voluntarily in rolling down the window of his car, the State had shown sufficient cause to justify Sgt.

Connolly’s forcible’ stop.” 407 U.S. at 151 , 92 S.Ct. 1921 (Brennan, J., dissenting) (emphasis supplied). Ferris v. State, 855 Md. 356 , 735 A.2d 491 (1999), is a precise case in point. It involved, as in this case, the detention of a motorist who was already stopped rather than the stopping of a motorist who was then moving. To be sure, there had been an earlier traffic stop on the highway but that stop had officially been terminated and a fresh analysis began at ground zero.

Ferris, who at that point was free to leave, was seated behind the steering wheel of his parked vehicle when the second police-citizen encounter, calling for a separate analysis, began. “[BJecause the traffic stop had ended there, Ferris was lawfully free to drive away, as Trooper Smith himself acknowledged in his own testimony.... “The more difficult question we must answer in this case is whether Trooper Smith’s questioning of Petitioner after he had issued the traffic citation and had returned the driver’s license and registration documents constituted a detention, and hence raises any Fourth Amendment concerns, or was merely a ‘consensual encounter, ’ thus implicating no constitutional overview.” 355 Md. at 373-374 , 735 A.2d 491 . (Emphasis supplied) (citations and footnotes omitted). Both Munafo v. State, 105 Md.App. 662, 673-75 , 660 A.2d 1068 (1995) and Snow v. State, 84 Md.App. 243, 248-49 , 578 A.2d 816 (1990), also involved situations wherein second and independent analyses had to be made of the Fourth Amendment detention of motorists in cars that were already fully stopped before the circumstances calling for fresh analysis even came into play. ⁴³⁹ Indeed, if the Fourth Amendment applies to a passenger in a moving vehicle, on the one hand, and to a pedestrian on the street, on the other hand, it is not exempted from applying to a passenger (or occupant) of a stationary car at some intermediate point between the two more familiar applications. There is no eye in the hurricane of Fourth Amendment applicability.

If the constructive “stop” of the Honda did not pass constitutional muster in this case, the appellant was properly positioned to raise that issue. As we have already held, moreover, if the Fourth Amendment was, indeed, implicated, it was not satisfied. All that remains to be determined is whether we are dealing with a Terry-stop (an investigative stop), so as to implicate the Fourth Amendment, on the one hand, or a mere sub-constitutional accosting (a consensual encounter), on the other. The Proof of Guilt Was Legally Sufficient Before finally zeroing in on the ultimately dispositive question of the status of the police-citizen encounter in this case, it is convenient to complete the “before and after” analysis.

Assuming, arguendo, that there had been no Fourth Amendment violation up to the moment when Officer Kimmett first detected the smell of raw marijuana, the conviction would in that case be unassailable. It is well-settled law that the smell of marijuana by a trained drug-smelling dog can establish the probable cause necessary for a warrantless Carroll- doctrine search of an automobile. Illinois v. Caballes, 543 U.S. 405 , 125 S.Ct. 834 , 160 L.Ed.2d 842 (2005). See also, Wilkes v. State, 364 Md. 554, 586-87 , 774 A.2d 420 (2001); State v. Ofori, 170 Md.App. 211, 221-24 , 906 A.2d 1089 (2006); Carter v. State, 143 Md.App. 670, 674 , 795 A.2d 790 (2002); State v. Funkhouser, 140 Md.App. 696, 711 , 782 A.2d 387 (2001).

Although a much rarer phenomenon, the human smell of raw marijuana has the same evidentiary impact as does the canine smell. Johnson v. United States, 333 U.S. 10 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948); Ford v. State, 37 Md.App. 373, 379 , 377 A.2d 577 (1977) (“We have no doubt ... that knowledge gained from the sense of smell alone may be of such character ⁴⁴⁰ as to give rise to probable cause for a belief that a crime is being committed in the presence of the officer.”). In this case, Officer Kimmett testified that she was trained to detect the smell of raw marijuana and that she smelled it as she stood by the open window at the front passenger door of the Honda. The trial judge, as was his fact-finding prerogative, believed Officer Kimmett’s testimony.

His finding in that regard, therefore, was not clearly erroneous. Armed with the necessary probable cause, the two officers conducted a war-rantless Carroll-doctrine search of the Honda and found a baggie of what turned out to be marijuana in the glove compartment. The appellant, to be sure, was only one of the two persons in the car, and the appellant was not the driver. The evidence, nonetheless, was legally sufficient to support a permissible inference that the appellant and the driver were in joint constructive possession of the marijuana.

Maryland v. Prin-gle, 540 U.S. 366 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003), was decided by a unanimous Supreme Court. The defendant Pringle was a front-seat passenger in a car stopped by the police in Baltimore County, Maryland that was then searched by them. From the glove compartment, immediately behind which Pringle had been sitting, the police recovered $763 in cash. From between a back seat armrest and the back seat, the police recovered five glassine baggies of cocaine.

In the car in addition to Pringle was the driver and another passenger who had been sitting in the back seat. Each of the three occupants denied any knowledge of the cocaine. The Court of Special Appeals affirmed the trial judge’s denial of Pringle’s suppression motion. 141 Md.App. 292 , 785 A.2d 790 (2001). A divided Court of Appeals reversed, holding that the evidence was not sufficiently particularized to point to Pringle who was a mere passenger.

Pringle v. State, 370 Md. 525 , 805 A.2d 1016 (2002). The Supreme Court in turn reversed the Court of Appeals. Chief