Scott v. State

WILLIAM SCOTT V. STATE, No. 3351 September Term, 2018. Opinion by Eyler, Deborah S., J. CONSTITUTIONAL LAW - - FOURTH AMENDMENT SEARCH AND SEIZURE - - CONSENT SEARCH - - VOLUNTARINESS - - ROADSIDE TRAFFIC STOP - - SEARCH OF PASSENGER. The defendant was one of two passengers in a minivan lawfully stopped by the police for speeding on a hot summer afternoon on a busy road in Montgomery County. A canine unit was called immediately because a stop of the same minivan three weeks prior had led to heroin trafficking charges against a passenger (who was not in the minivan this time).

Five officers were involved in the stop. For about 13 minutes, the driver, the defendant, and the other passenger sat in the minivan, chatting with two officers. The defendant was hunching over and from time to time complained of feeling hot and of having been overcharged for a hotel room. The atmosphere of the traffic stop was nonconfrontational.

When the K-9 unit arrived, the occupants of the minivan were told to get out. Despite being warned he was about to do so, the defendant dropped his phone and wallet when he stood up. He retrieved them and walked, still hunching over, to the median strip next to the minivan. Because that location was too close to the area the canine would be sniffing, an officer told the defendant not to sit there and, when he stumbled, guided him to a place to sit farther down the median strip.

The defendant sat down next to another officer, who was standing on the median strip. The driver was briefly patted down after he revealed knives in his pocket (which the police returned to the minivan) and the other passenger was searched by consent. There was no evidence that the defendant saw either search. As he sat on the median strip, the defendant began to grab the right front pocket of his shorts.

The police officer standing next to him said he did not want him grabbing the pocket and asked, “May I reach inside and get it?” The defendant answered “yes” and nodded his head affirmatively. The officer reached in the pocket and took out some over the counter medicine, a pack of cigarettes, and some money. As he looked through those items, the defendant leaned slightly to his left, and the officer saw the butt of a handgun in his waistband and the gun’s outline. The handgun was seized and the defendant was arrested.

In a search incident, an Adderall pill was found in another pocket. After being charged with various offenses, the defendant moved to suppress the handgun and Adderall pill from evidence, asserting they had been seized in violation of his Fourth Amendment rights. In an evidentiary hearing that included testimony by several officers and body camera evidence, the officer who searched the pocket stated that he only was able to see the handgun because the items were removed from the defendant’s pocket. The court ruled that the defendant voluntarily consented to the search of his pocket and denied the motion.

The defendant took a conditional plea to handgun possession and possession of Adderall and noted an appeal, challenging the search. Held: Judgments affirmed. Under the Fourth Amendment, as a passenger in a lawful traffic stop, the defendant was detained legally for the period of time needed to fulfill the purpose of the stop. A search of such a detained passenger only would be proper if the criteria of Terry v. Ohio or its exceptions were met.

One such exception is consent to search, if the consent was given voluntarily. Under Schneckloth v. Bustamonte, consent to search is voluntary if, under the total circumstances, consent was freely given and was not the product of duress or coercion, express or implied. The State bears the burden to prove voluntariness by a preponderance of the evidence. The suppression court’s factual findings in support of voluntariness of consent were supported by competent and material evidence in the record and the total circumstances supported the conclusion that consent to search was freely given by the defendant.

The stop was on a busy road, in daylight, in full view of rush hour traffic. There were five police officers but three of them had little to no interaction with the defendant. Most of the traffic stop consisted of the occupants of the vehicle engaging in friendly banter with the officers. The officers helped the defendant navigate to a safe area to sit on the median strip.

The defendant was not asked any questions at all, and the officers did not seem to have any suspicions that he was engaging in any illegal activity until he started grabbing his pocket. The officers were polite throughout. When the officer who asked for consent to reach into the defendant’s pocket did so, he spoke calmly, not in a raised voice, and clearly was requesting permission, not demanding compliance. The defendant knew his handgun was not in the pocket the officer was asking to search.

The defendant responded affirmatively, both orally and by nodding. Although the defendant mentioned Article 26 of the Maryland Declaration of Rights in his brief, he did not raise it below and did not make an argument about it on appeal. Circuit Court for Montgomery County Case No. 134380C REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3351 September Term, 2018 ______________________________________ WILLIAM SCOTT v. STATE OF MARYLAND ______________________________________ Fader, C.J. Leahy, Eyler, Deborah S. (Senior Judge, Specially Assigned) JJ. ______________________________________ Opinion by Eyler, Deborah S., J. ______________________________________ Filed: July 29, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-07-29 15:42-04:00 Suzanne C. Johnson, Clerk William Scott, the appellant, was a passenger in a vehicle lawfully stopped for speeding. During the traffic stop, he answered yes and nodded affirmatively to a police officer’s request to search his right front pants pocket. After the officer removed some items from that pocket, Scott moved slightly, and the officer saw a handgun in his waistband. The handgun was seized, Scott was arrested, and in a search incident to arrest, an Adderall capsule was found in another pocket.

Scott was indicted for wearing, carrying, and transporting a handgun, possession of Adderall, and other crimes, and moved to suppress the handgun and Adderall from evidence. The court denied the motion, ruling that Scott had consented voluntarily to the search of his pants pocket. Scott took a conditional guilty plea to the handgun and Adderall possession charges and was sentenced by the court.1 On appeal, Scott asks whether the suppression court erred in denying his motion. We answer in the negative and shall affirm the judgments.

SUPPRESSION HEARING FACTS AND COURT’S RULING The State called four officers with the Montgomery County Police Department’s Sixth District Community Action Team (“CAT”): Sergeant Robert Sheehan and Officers William Weill, Marshall Weider, and Timothy Serlo. It also introduced into evidence a 1 The court sentenced Scott to three years, suspend all but two days, with credit for two days’ time served, for the handgun conviction and did not impose a sentence for possession of Adderall. The other charges were dismissed as part of the plea agreement. DVD containing police body camera videos from several officers and documents, including still photographs from some of those videos.

The search in question took place on July 16, 2018. That afternoon, Sergeant Sheehan was working undercover in the Gaithersburg area. While driving into the parking lot of the Extended Stay Hotel at 205 Professional Drive, a location known for drug activity and prostitution, he recognized a dark green Buick minivan heading toward the exit. He had stopped that same minivan almost a month earlier, on June 21, 2018.

At that time, the minivan had had three occupants: John Dicks, the driver and owner; Andre Stevenson, the front seat passenger; and Danielle Kidwell, the backseat passenger. Evidence generated from the June 21 stop of the minivan had been used to obtain an arrest warrant for Stevenson for heroin trafficking and as of July 16 the police still were looking for him to serve the warrant. Thinking Stevenson might be in the minivan, Sergeant Sheehan followed it south on Frederick Road. He paced it for about half a mile and determined its speed to be 10 miles per hour over the posted speed limit.2 He radioed Officer Weill, who was nearby, and told him to stop the minivan for speeding.

Officer Weill was in uniform and driving a marked police cruiser. At 4:42 p.m., Officer Weill stopped the minivan in the leftmost of three southbound lanes of Frederick Road, near its intersection with Gunners Branch Road, in a 2 The State introduced into evidence documents supporting Sergeant Sheehan’s calculation of the minivan’s speed. -2- heavily populated area. It was rush hour on a Monday and the traffic was steady. The weather was overcast and very hot.3 When Officer Weill approached the driver’s side of the minivan, he saw there were three occupants.

From the June 21 traffic stop, he recognized the driver as Dicks and the backseat passenger as Kidwell. A male front seat passenger was holding some papers and complaining about a hotel overcharging him. Because the man was looking down, Officer Weill could not tell if he was Andre Stevenson. Officer Weill told Dicks he had been stopped for speeding and asked for his driver’s license and registration, both of which Dicks turned over.

Officer Weill returned to his cruiser and began processing the traffic violation. Officers Weider and Serlo, and Officer Ruth Zotti (who did not testify), all in uniform, arrived at the scene close behind Officer Weill. A K-9 unit was called right away. A minute after Officer Weill returned to his cruiser, Officers Weider and Zotti approached the passenger side of the minivan and Officer Weider motioned for the front seat passenger to open his window.

He did so, and asked Officer Weider whether he wanted identification. Officer Weider responded yes, and the passenger handed him his identification card, which showed that his name was William Scott and that he was born in 1976. Officer Weider took some notes about the card, returned it to Scott, and gave 3 The high temperature recorded that day near Gaithersburg was 95 degrees, and it was still in the 90s by the time of the traffic stop. See https://www.wunderground.com/history/daily/us/md/gaithersburg/KGAI/date/2018-7-16 (last visited June 19, 2020). -3- the notes to Officer Weill in his cruiser.

Officer Zotti did likewise as to Kidwell’s identification. Officer Weider walked to the median strip, which is wide and grassy, and stood about two car lengths behind the minivan. Officer Serlo stayed next to the driver’s side of the minivan. He could see Scott and noticed that he was “kind of hunched over” and “didn’t look like he felt okay.” Scott’s papers, cell phone, and wallet were in his lap.

He stayed hunched over and sitting forward most of the time he was in the minivan. Officer Zotti stood by the passenger’s side of the minivan. The two officers conversed with the three occupants of the minivan. Dicks had turned off the vehicle’s air conditioning, and Scott was complaining about the heat.

Dicks complained that every time he gave someone a ride, he got stopped and, in a half- joking tone, told Kidwell he would no longer give her rides. He showed Officer Serlo papers concerning the June 21 stop, then began scrolling through his cell phone. Apparently, he opened a real estate website because Officer Serlo, who could see the phone from where he was standing, asked whether he was looking to buy a house. Dicks said yes and showed Officer Serlo photographs of houses.

Dicks and Officer Serlo exchanged comments about various houses, including about how expensive some of them were. On the other side of the minivan, Officer Zotti chatted with Kidwell, who was scratching off lottery tickets. Kidwell asked whether the sliding door could be opened because of the heat and Officer Zotti said that would be fine. Kidwell and Officer Zotti talked about a tattoo Kidwell had designed and applied to her knee.

At one point, Scott -4- resumed complaining about his hotel bill and Officer Zotti asked him what was wrong with it. He replied that his credit card had been charged for two nights instead of one. In the meantime, Sergeant Sheehan had parked his unmarked vehicle in a lot across the street to watch the traffic stop. He got out of his vehicle, put on his police vest, and waited near the minivan, by the median strip.

The K-9 unit arrived at 4:54 p.m., twelve minutes after the traffic stop began.4 Police policy required the vehicle’s occupants to exit so they would not be bitten by the canine, and for them to be far enough away from the vehicle so their presence wouldn’t interfere with the scan. Remarking that they had done this before, evidently a reference to the June 21 traffic stop, Officer Serlo told Dicks to get out.5 When asked whether he was carrying knives, Dicks answered “yes” and showed Officer Serlo knives he had in two side pants pockets. Officer Serlo took them, handed them to Sergeant Sheehan, and performed a brief pat down of Dicks’s waist area, near the side pants pockets. After telling Dicks he was doing so, Sergeant Sheehan put the knives in the minivan.6 4 The parties stipulated to the time the K-9 unit arrived. 5 This happened at 4:55 p.m. 6 The brief pat down of Dicks took place at the driver’s side of the minivan, next to the window behind the driver’s seat.

Scott was still sitting in the vehicle. Although it would appear that he did not see the pat down because of his location relative to Dicks, that is not clearly established. -5- Sergeant Sheehan then approached the passenger’s side of the minivan and told Scott to get out.7 As Scott stood up, holding his papers, Sergeant Sheehan said, “Watch your stuff,” referring to the cell phone and wallet. Scott either didn’t hear or wasn’t focusing and his wallet and cell phone fell off his lap to the ground. According to Sergeant Sheehan, Scott took “a little longer” than would be expected to pick these items up.

As Scott began walking toward the median strip, hunched over, Sergeant Sheehan asked him whether something was wrong. Scott didn’t answer, so Sergeant Sheehan asked Kidwell, still in the minivan, whether Scott was drunk. She replied no, that he had “sickle cell.”8 At no time during the traffic stop did Scott himself mention having sickle cell disease or any illness. As soon as Scott reached the median strip, he began to sit down on the curb next to the minivan.

Officer Serlo saw him and said, “No, get up” because Scott would be too close to the canine scan. He told Scott to go beyond the rear of the minivan, to an area on the median strip behind Officer Weill’s cruiser and in front of the cruiser behind it. As Scott stood up to move he stumbled. Officer Serlo took hold of the back of his shirt and guided him to “prevent[] him from falling on the ground.” Once Scott reached the right location, Officer Serlo told him he could sit on the curb if he wanted to, as it was cooler 7 This happened at 4:56 p.m. 8 Sergeant Sheehan testified that he recalled Kidwell saying something about Scott’s being sick, but not mentioning sickle cell disease.

The body camera records her saying “sickle cell disease.” -6- there, away from the heat of the car engines. Scott sat down on the curb of the median strip facing the road. Officer Serlo remained in the area, standing on the shoulder of the road, between Scott and Dicks. Officer Weider already was standing on the median strip near Scott and to his right.

Scott was wearing a black tee shirt and low-slung jeans shorts with large front pockets. Because his tee shirt was not tucked in and he was hunching over, the waistband of his shorts was not visible. As Scott was sitting on the curb of the median strip, Officer Weider noticed a bulge around his right front pants pocket but could not tell whether it was from something in that pocket or his waistband. At the same time, Scott began “kind of grabbing in that front pocket area” and “manipulating the front pocket area.” (Officer Serlo demonstrated for the court what he saw Scott doing and it is visible on his body camera video.) From experience, Officer Weider took this as an indication that Scott might be carrying a weapon.

Officer Weider leaned over next to Scott, bending so their heads were close to the same level. In a calm but serious voice he said: “Okay well you’re trying to grab it and I don’t want you to grab it. May I reach into your pocket and get it?” Scott said “yes” and nodded his head affirmatively. 9 Officer Weider reached inside Scott’s right front pants pocket and removed a packet of over-the-counter medicine, a pack of cigarettes, and two twenty-dollar bills. Scott complained he “d[id] not feel good,” and when Officer Weider asked why, he said he was hot and had not eaten.

As Officer Weider was looking through the items he had 9 Officer Weider posed his consent question at 4:57 p.m. -7- removed from Scott’s pocket (commenting that he smelled marijuana on the items), Scott continued to complain about being hot. Then, still sitting on the curb, he leaned slightly to his left. As he moved, his tee shirt lifted a little, and Officer Weider could see the butt of a handgun and the weapon’s outline in Scott’s waistband.10 Officer Weider yelled “handgun” and held Scott down. Officer Serlo grabbed the handgun, gave it to Sergeant Sheehan, and handcuffed Scott.11 In a search incident to arrest, the Adderall capsule was found in another pocket. 12 At the time that Scott consented to let Officer Weider reach in his pocket, Dicks was standing on the median strip, to Scott’s left, and Kidwell was on the other side of Dicks.

Two minutes earlier, as Kidwell had been starting to get out of the minivan, Officer Zotti noticed her move something from between her legs to her purse.13 When she asked Kidwell what she was doing, Kidwell gave a non-response. Kidwell got out of the minivan and Officer Zotti asked for permission to search her. She replied yes. The search took place on the median strip at the same time Officer Weider was reaching into 10 Officer Weider testified that he would not have been able to see the handgun if the items in Scott’s right front pants pocket had not been removed. 11 The handgun was recovered 42 seconds after Officer Weider asked Scott whether he could reach into his pocket.

The State’s DVD evidence contains body camera videos from Officers Weill, 12 Weider, Serlo, and Zotti. The defense’s DVD evidence contains body camera video from Sergeant Sheehan. The only body camera videos that show Officer Weider asking whether he could search Scott’s front pants pocket, performing the search, and/or finding the handgun are from Officers Weider and Serlo. 13 On Officer Zotti’s body camera video the item appears to be a Bic lighter. -8- Scott’s pocket. The body camera and still photograph evidence shows that when Kidwell was being searched, Scott either was looking toward Officer Weider, in the opposite direction from Kidwell, or was looking down at the ground.

He is not seen looking in Kidwell’s direction. When the handgun was spotted, Officer Zotti’s search of Kidwell was over and Kidwell was sitting on the median strip. Officer Serlo’s body camera video shows that once the handgun was found and taken from him, Scott stopped hunching over. He stood up straight and argued with the police officers over why he was carrying a handgun.14 He had no difficulty standing or speaking and stopped complaining that he didn’t feel well.

While all this was happening, Officer Weill was inside his cruiser processing the traffic violation.15 He did not see the events surrounding the search of Scott’s pocket or the recovery of the handgun. Less than a minute after Scott was arrested, the canine alerted to the minivan. At that point, Officer Weill interrupted what he was doing and got 14 Scott did not have a permit for the handgun and was telling the officers that he had purchased it because people had broken into his residence and he was scared. At sentencing, Scott repeated that reason and the court credited it, imposing a very light sentence. 15 Officer Weill’s scanner had been moved to the back seat of his cruiser to accommodate a police intern who was riding with him, so he had to enter Dicks’s information into the police computer manually while searching multiple databases.

When the K-9 unit arrived, Officer Weill briefly spoke to that officer, through his window, to bring him up to date. He then continued processing the traffic violation. Officer Weill’s body camera video shows exactly what he was doing. -9- out of his cruiser to assist with the vehicle search. After that, he completed processing the traffic stop.16 The suppression court found that the traffic stop for speeding was lawful, was still in progress when the handgun was found, and was not prolonged beyond the time necessary for Officer Weill to process the violation.17 It further found that the body 16 Scott did not introduce evidence controverting the State’s evidence.

As noted, he introduced a DVD containing Sergeant Sheehan’s body camera video. In addition, he called Officer Ware (no first name in the record) who was not present at the traffic stop but wrote a report about it in which he said the handgun was found during a pat down of Scott. Officer Ware acknowledged what he had written but explained that he had assumed, erroneously, that Scott had been patted down, but later learned that that had not happened. Scott also called a woman he was living with at the time who testified about aspects of the case having nothing to do with the traffic stop. 17 In a footnote in his brief, Scott states that “his prolonged detention following his removal from the minivan itself represented a violation of the Fourth Amendment.” He acknowledges that his argument “may be foreclosed by” Arizona v. Johnson, 555 U.S. 323 (2009).

There, during a traffic stop, a passenger suggested that he was affiliated with a gang, prompting an officer to order him out of the vehicle, move him away from the driver, and perform a pat down for officer safety, which resulted in his finding a handgun. In a unanimous decision upholding the pat down on the ground that the police had reasonable suspicion that the passenger was armed and dangerous, the Supreme Court commented that “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop. . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” Id. at 333 . In this case, as in Johnson, there was no evidence indicating that the traffic stop had ended before the search of Scott’s pocket was undertaken. The suppression court’s finding that the traffic stop was not prolonged beyond the time necessary to fulfill its purpose was supported by the evidence, especially the body camera videos.

The evidence showed that officers immediately called the K-9 unit at the inception of the stop and the canine search of the minivan took place before Officer Weill had finished processing the traffic stop. See Rodriguez v. United States, 575 U.S. 348 (2015) (police may not extend a traffic stop beyond the time needed to address the traffic violation in order to conduct a dog sniff, except upon reasonable suspicion). When the handgun was (Continued…) -10- camera evidence “clearly show[s] officers being non-confrontational” with the passengers and “[m]aking small talk with both of them.” The court determined that, in the body camera evidence, Scott “does not appear to be bothered by the officers in any way. He doesn’t seem to be nervous and he’s in fact, going over and has concerns about a hotel bill that he is chit-chatting with the officer about.” The court credited Officer Weider’s testimony that Scott consented verbally to the search of his pocket and further found that Scott could be seen on the body camera footage nodding his head affirmatively.18 It concluded that Scott’s consent to the search of his pocket by Officer Weider was “freely and voluntarily given.” The court observed, “[T]his was a very straight forward, hey can I go in your pocket.

And it was a yes.” We shall address additional findings by the court in our discussion. STANDARD OF REVIEW “Our review of the propriety of the denial of a motion to suppress is confined to the record of the suppression hearing.” Fitzgerald v. State, 384 Md. 484, 490 (2004). We “view the evidence adduced at the suppression hearing, and the inferences fairly (…continued) spotted, the traffic stop only had been in progress for 15 minutes. Cf.

Carter v. State, 236 Md. App. 456 , cert. denied, 460 Md. 9 (2018) (holding that a 17 minute traffic stop for failure to make a complete stop at a stop sign and driving eight miles over the posted speed was not unreasonably lengthy and a brief halt in processing the stop to inform the K-9 officer who arrived at the scene and direct the defendant out of the vehicle for the canine search did not transform the legitimate stop into an illegal detention). 18 The body camera videos did not capture Scott’s verbal consent due to the loud traffic noise. -11- deducible therefrom, in the light most favorable to the party that prevailed on the motion[,]” here, the State. Crosby v. State, 408 Md. 490, 504 (2009). The suppression “court’s factual findings of voluntariness [of a consent to search] is not to be set aside unless clearly erroneous.” McMillian v. State, 325 Md. 272, 285 (1992). With respect to the constitutional challenge to the search or seizure, we “render[] an ‘independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case.’” Pacheco v. State, 465 Md. 311, 319-20 (2019) (quoting Grant v. State, 449 Md. 1, 15 (2016), in turn quoting State v. Wallace, 372 Md. 137, 144 (2002)).

DISCUSSION Contentions Scott contends any consent he gave Officer Weider to search his right front pants pocket was not voluntary because he was in a coercive environment and merely acquiesced in Officer Weider’s request. Without voluntary consent, he argues, the search violated the Fourth Amendment to the federal constitution and Article 26 of the Maryland Declaration of Rights. Because the handgun only became visible once Officer Weider removed items from his pocket, the handgun was the product of the unconstitutional search, and should have been suppressed from evidence. Likewise, the Adderall, found in a search incident to the arrest brought about by the unconstitutional search, was the product of that search and should have been suppressed.

The State responds that none of the suppression court’s factual findings were clearly erroneous and the total circumstances supported the court’s assessment that Scott -12- voluntarily consented to the search of his right front pants pocket. After the search, Scott leaned over to one side and Officer Weider saw the butt of the handgun and its outline in Scott’s waistband, giving the police probable cause to seize the handgun and arrest Scott. In a proper search incident to arrest, Officer Weider found the Adderall. Accordingly, the suppression court’s ruling was not in error.19 Fourth Amendment Analysis The Fourth Amendment protects the people against unreasonable searches and seizures by the government, that is, those conducted without warrants issued upon probable cause.20 There are judicially crafted exceptions, however, and in Terry v. Ohio, the Supreme Court recognized “the legitimacy of an investigatory stop ‘in situations where [the police] may lack probable cause for an arrest.’” Arizona v. Johnson, 555 U.S. 323, 330 (2009) (quoting Terry v. Ohio, 392 U.S. 1, 24 (1968) (alteration in Johnson). 19 Scott also argues, apart from the issue of consent, that the suppression court erroneously found that the police had probable cause or reasonable suspicion to search his right front pants pocket.

The State does not respond to this argument. The transcript reveals confusion by the court on this issue. At that point in its ruling, the court seemed to be saying that Officer Weider saw the butt of the handgun before he searched Scott’s right front pants pocket – which is factually incorrect – and that gave him probable cause or reasonable suspicion to search the pocket. The court did not provide any other reason to support that aspect of its ruling.

The court made clear, however, that it was relying equally on voluntary consent to search in denying the motion to suppress. Accordingly, we are confining our opinion to the consent issue. 20 The Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. -13- The Supreme Court has allowed that traffic stops “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry.” Berkemer v. McCarty, 468 U.S. 420 , 439 n. 29 (1984). When a vehicle lawfully is stopped for a traffic violation, the driver and any passengers are “seized,” i.e., detained, for the duration of the traffic stop.

Brendlin v. California, 551 U.S. 249, 255 (2007) (“everyone in the vehicle” is seized during a lawful investigatory traffic stop).21 The permitted stop of the vehicle (and associated lawful detention of its occupants) allows the police “to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning.” Ferris v. State, 355 Md. 356, 372 (1999). Such a stop is temporary as it must “last no longer than is necessary to effectuate [its] purpose[.]” Florida v. Royer, 460 U.S. 491, 500 (1983). As the Supreme Court also has recognized, traffic stops are “especially fraught with danger to police officers.” Michigan v. Long, 463 U.S. 1032, 1047 (1983). Due to this safety concern, “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment[.]” Pennsylvania v. Mimms, 434 U.S. 106 , 111 n. 6 (1977).

For the same reason, police officers making a traffic stop may order passengers 21 In Brendlin, the Court stated that, during the traffic stop, “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. 249, 257 (2007) (citations omitted). -14- in the vehicle to get out. Maryland v. Wilson, 519 U.S. 408, 410, 413 (1997) (commenting that traffic stops with passengers pose a greater danger to police officers than traffic stops without them). We pause in our discussion of the law to state that it is undisputed that the traffic stop of the minivan was lawful. Sergeant Sheehan’s calibrations created probable cause to believe Dicks was violating the law by driving above the posted speed limit.

See Rodriguez v. United States, 575 U.S. 348, 354 (2015) (noting that ordinarily a traffic stop is an investigatory Terry stop for which only reasonable articulable suspicion is required but when the police have witnessed the traffic violation, probable cause exits). There was Fourth Amendment justification for the police to stop the minivan, and Scott offers no argument to the contrary.22 Our inquiry focuses, then, on whether the suppression court erred in concluding that during the lawful traffic stop of a vehicle in which he was a passenger, Scott gave the police valid consent to search his pocket.23 22 To be sure, this was a pretextual stop, as the police were hoping to find Andre Stevenson in the minivan so they could arrest him under the outstanding warrant. Because there otherwise was legal justification for the stop, it was permissible, under Whren v. United States, 517 U.S. 806 (1996). 23 Likewise, this case does not raise the question, often necessary to address in consent to search cases, whether Scott was seized/detained by the police and if so whether the seizure was lawful. In Florida v. Bostick, 501 U.S. 429, 437 (1991), the Supreme Court addressed the “crucial test” for determining whether a person has been seized, i.e., that, “taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’” (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).

As the Court explained in Bostick, however, consent may be given voluntarily by a person who is being detained and does not feel (Continued…) -15- Consent to search is a well-established exception to the warrant/probable cause requirement of the Fourth Amendment. Gamble v. State, 318 Md. 120, 123 (1989) (“‘one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent’” (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)); see also Katz v. United States, 389 U.S. 347 , 358 n.22 (1967) (a search authorized by consent is valid). Consent may be given expressly or impliedly, “by conduct or gesture.” Turner v. State, 133 Md. App. 192, 207 (2000). Significantly for our purposes, “[f]or consent to be effective, it must have been freely and voluntarily given[.]” Id. at 202 .

It is the State’s burden to prove, by a preponderance of the evidence, that the consent to search was voluntary. United States v. Mendenhall, 446 U.S. 544, 557 (1980); McMillian, 325 Md. at 284-85 . As our Court of Appeals observed in Scott v. State, 366 Md. 121, 140 (2001), in Schneckloth the Supreme Court laid down the “ground rules” for determining the Fourth Amendment validity of a consent to search.24 The Supreme Court held that “whether a (…continued) free to leave. The question in that sort of situation is “whether a reasonable person would have felt free to decline the officers’ requests or otherwise terminate the encounter.” Id. at 436. 24 The ground rules in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), govern when, at the time consent to search is requested, the subject either was not being detained under the Fourth Amendment or was being detained legally.

If the subject was being detained unlawfully, “the ostensible consent would be the tainted fruit of the Fourth Amendment violation” unless the taint was shown to have been attenuated. Graham v. State, 146 Md. App. 327, 351, 370-71 (2002); see infra at n. 34. -16- consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” 412 U.S. at 227 . Assessing voluntariness therefore requires “analyzing all the circumstances of [the] individual consent” and “careful sifting of the unique facts and circumstances of each case[.]” Id. at 233 . The meaning of voluntariness in this context must accommodate two competing concerns: “the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.” Id. at 227 .

The Scott Court held that the defendant, one of the occupants of a motel room when the police conducted a knock and talk operation, was not seized (which, had there been a seizure, would have been illegal absent attenuation) and, applying the Schneckloth test, consented voluntarily to a search of the room.25 It included among the factors relevant to voluntariness “the number of officers present, the age, maturity, intelligence, and experience of the consenting party, the officers’ conduct and other circumstances under which the consent was given, and the duration, location and time of the encounter.” 366 Md. at 142 . The Court pointed out that these factors are akin to those relevant to whether an interaction between a police officer and an individual after a traffic stop has In a “knock and talk” operation, police officers approach a dwelling in a crime 25 ridden area, without a warrant or probable cause, knock on the door, identify themselves, and ask permission to enter to pose questions about unlawful activity in the area. If allowed to enter, they eventually ask for permission to search the premises. Scott v. State, 366 Md. 121, 139-40 (2001). -17- ended is a consensual encounter (which does not implicate the Fourth Amendment) or a seizure (which does).

Id. at 142 (citing Ferris, 355 Md. at 377 ). In State v. Green, 375 Md. 595 (2003), the Court applied those same factors in holding that a driver voluntarily consented to a police search of his vehicle after a traffic stop had ended. It explained that factors potentially relevant to whether a police officer obtained a voluntary consent to search from the subject “or induced [the subject’s] cooperation by coercive means” include: “the time and place of the encounter, the number of officers present and whether they were uniformed, whether the police removed the person to a different location or isolated him or her from others, whether the person was informed that he or she was free to leave, whether the police indicated that the person was suspected of a crime, whether the police retained the person’s documents, and whether the police exhibited threatening behavior or physical contact that would suggest to a reasonable person that he or she was not free to leave.” Id. at 613-614 (quoting Ferris, 355 Md. at 377 ); see also United States v. Robertson, 736 F.3d 677, 680 (4th Cir. 2013) (listing similar relevant factors). As the Green Court recognized, “one factor to be taken into account” in deciding voluntariness is whether the subject knew he had the right to refuse to give consent. 375 Md. at 227 .

Supreme Court jurisprudence is clear that an individual may give voluntary consent to a search without knowing he has the right to withhold consent. Schneckloth, 412 U.S. at 234 (“[K]knowledge of [the] right to refuse [consent] is not a prerequisite of a voluntary consent.”); see also United States v. Drayton, 536 U.S. 194, 206 (2002) (“The Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless -18- consent search.”). An individual’s lack of knowledge that he could withhold consent to a police search of his car “may be a factor in the overall judgment, [but] is not to be given controlling significance.” United States v. Watson, 423 U.S. 411, 424 (1976). Likewise, the fact that a person is being temporarily detained by the police when he gives consent to search is one factor in the total circumstances and is not determinative of voluntariness.

In Collins v. State, 376 Md. 359 (2003), the Court made clear: A person temporarily detained in a Terry stop may validly consent to a search of his person, papers, or effects, and that presupposes that it is permissible for an officer to seek such consent. Id. at 372-73 (citations omitted); see also Jones v. State, 407 Md. 33, 50 (2008) (whether the defendant was seized is a factor to be considered under the totality of the circumstances in assessing whether consent was voluntarily given).26 Indeed, the Supreme Court and our Court of Appeals have held that a person under arrest or in custody – a greater restriction on freedom than being temporarily detained – may voluntarily consent to a search.27 United States v. Watson, 423 U.S. at 424 (in holding 26 In his reply brief, Scott quotes United States v. Olivares-Campos, 276 F. App’x 816, 824 (10th Cir. 2008) (Gorsuch, J.), as saying, “[T]he fact that one is detained during an investigation no doubt implies an atmosphere not altogether consensual.” That is only a portion of the quoted sentence, however. The full sentence reads, “Although the fact that one is detained during an investigation no doubt implies an atmosphere not altogether consensual, our precedent firmly instructs us that the fact of an investigative detention, standing alone, is not so coercive as to render the consent of all detained persons involuntary.” Id. at 824 . In that case, the court held that the defendant’s consent to a