Snow v. State

ROSALYN B. BELL, Judge. The Fourth Amendment states that 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 person or things to be seized.” 1 Distinguishing a “stop” from an “arrest” and a “frisk” from a “search,” the Supreme Court of the United States created the “reasonable suspicion” standard in order to deal ²⁴⁶ “with the rapidly unfolding and often dangerous situations [that police encounter] on city streets[.]” Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). In Terry, 392 U.S. at 30 , 88 S.Ct. at 1884 , the Supreme Court held, inter alia: “[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous ...,” he may “stop” the suspect and make “reasonable inquiries.” The sole issue involved in this appeal is whether the police officer had “a reasonable and articulable suspicion” to support the detention of a driver after issuing a warning ticket for speeding. The observed facts upon which the officer based the articulable suspicion were: (1) the driver’s lack of eye contact with the officer; (2) driving on a major interstate route which the officer knew to be a drug route; (3) the presence of three air fresheners in the driver’s car; and (4) the driver’s refusal to consent to a search of his vehicle. 2 We hold that the police officer may not consider the last of the four “facts” to support the “reasonable suspicion” and that the first three do not create a “reasonable suspicion” to detain a driver after the purpose of the initial stop had been fulfilled.

Consequently, the evidence recovered should have been suppressed. FACTS Just past noon on April 4, 1989, Maurice Jerome Snow, appellant, who was driving a 1983 Chevrolet Blazer, was stopped on Interstate 95 by Trooper First Class Nicholas Paros. Paros saw the car cross the state line from Delaware into Maryland at what he believed to be an excessive rate of speed. He followed the Blazer and clocked its speed at 64.1 miles per hour in 55 mile-per-hour zone.

When ²⁴⁷ stopped, Snow, produced a driver’s license and temporary registration, and admitted to driving at 58 miles per hour. Paros stated that Snow “seemed somewhat nervous and was not making any eye contact with me.” There is some discrepancy regarding when Paros asked Snow where he was going: Paros claims at this point, while Snow maintains that Paros asked after he gave him a warning. In any event, Snow replied that he and his passenger, Carl Davis, were coming from Philadelphia and going to northeast Washington, D.C., to see Davis’s girlfriend. Paros was aware that reports showed that controlled dangerous substances were moving from the Philadelphia area to that part of Washington, D.C. Paros also noted three air fresheners hanging from the rear view mirror.

Paros testified that from his experience air fresheners were “one of numerous concealment methods that smugglers use;” and that air fresheners were “sometimes ... used as a concealment method to hide odor ... for narcotics.” Paros at some point asked both men to exit the car and move over to the grass, but he admitted he was not sure when this occurred. Corporal Eric Danz testified, however, that when he came upon the scene he saw Paros talking to the two men seated at a table outside the car. Paros then told Danz he was going to do a drug scan. After Paros issued a traffic warning to Snow, he then requested permission to search the Blazer.

Snow refused. Paros used a K-9 dog to scan or sniff the exterior of the Blazer. 3 After ²⁴⁸ sniffing a portion of the car, the dog sat down, which according to Paros, signaled an alert that drugs were present. Paros returned the dog to the patrol car and watched Snow and Davis while Danz searched the Blazer and recovered suspected heroin from three bags within an overnight bag in the rear of the Blazer. Paros arrested Snow and Davis and advised them of their rights in accordance with Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

Snow was charged with one count of smuggling heroin into the State, two counts of possession of heroin, and one count each of conspiracy to smuggle and to distribute heroin. He was tried on an agreed statement of facts, found guilty of possession of heroin (the other counts were nolle prossed) and sentenced in the Circuit Court for Cecil County to two years with credit for 224 days, all suspended in favor of two years supervised probation. Snow appeals, contending the trial court erred in denying his motion to suppress the evidence. We agree with Snow and reverse the judgment.

SEQUENCE OF EVENTS There can be no doubt, and Snow does not contest, that the initial stop was justified, as Snow was admittedly exceeding the speed limit. But the purpose of the initial stop was fulfilled when Paros issued the warning. We agree with the State that, if Paros properly and constitutionally conducted the scan or sniff of the perimeter of the car using his trained dog, the dog’s responses could be held to provide probable cause to search the interior of the car. See Florida v. Royer, 460 U.S. 491, 505-06 , 103 S.Ct. 1319, 1328-29 , 75 L.Ed.2d 229 (1983); Grant v. State, 55 Md.App. 1, 14-15 , 461 A.2d 524 (1983), cert. dismissed, 299 Md. 309 , 473 A.2d 455 (1984).

But the doubt in this case focuses on the legality of Paros’s detention of Snow and Davis in order to scan the vehicle after having issued the warning for speeding. Directing our attention to that time frame, the State does not contend that Paros had probable cause to arrest Snow ²⁴⁹ when he asked to search the car. Rather, the State relies on the “articulable suspicion” standard first recognized in Terry v. Ohio, which is “less than probable cause, but more than a mere inarticulable hunch.” Gilbert & Moylan, Maryland Criminal Law: Practice and Procedure, § 33.1 (1983). Seizure Initially, we must determine whether Snow was, in fact, seized for purposes of the Fourth Amendment.

In State v. Lemmon, 318 Md. 365 , 568 A.2d 48 (1990), the Court of Appeals analyzed two recent United States Supreme Court decisions in this area. The Court noted that the standard used to determine whether an individual is seized is that “whenever an officer restrains the freedom of a person to walk away, he has seized that person.” Lemmon, 318 Md. at 375 , 568 A.2d 48 , citing Brower v. County of Inyo, 489 U.S. 593 , 109 S.Ct. 1378, 1380 , 103 L.Ed.2d 628 (1989), quoting Tennessee v. Garner, 471 U.S. 1, 7 , 105 S.Ct. 1694, 1699 , 85 L.Ed.2d 1 (1985). The Court of Appeals also stated that Michigan v. Chesternut, 486 U.S. 567, 573 , 108 S.Ct. 1975, 1979 , 100 L.Ed.2d 565 (1988), “declares that the test to be applied in determining whether a person has been ‘seized’ within the meaning of the Fourth Amendment is whether in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Lemmon, 318 Md. at 372 , 568 A.2d 48 . The Case Law Federal The nature of Terry and the reasonable, articulable suspicion standard is such that a brief review of the cases, both federal and Maryland, is necessary.

The circumstances of Terry were very different from the facts in the case at bar. In Terry , a police officer noticed two men acting suspiciously in front of a store at a time when the store was not open to the public. Moreover, the police officer had reason to ²⁵⁰ fear for his own safety since he thought the suspects were carrying guns. The Terry Court upheld the admission of the guns into evidence at the defendants’ trial on that basis.

Subsequently, the Court arguably limited the impact of Terry solely to the search for weapons. 4 See Ybarra v. Illinois, 444 U.S. 85 , 100 S.Ct. 338 , 62 L.Ed.2d 238 (1979). Two cases involving cars, which further developed the doctrine of the intrusion based on the Terry stop, have been decided by the United States Supreme Court. In Michigan v. Long, 463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983), two police officers observed a car traveling erratically and at excessive speed. The car went off the road and landed in a ditch.

The police approached and saw the suspected drunk driver standing at the rear of the vehicle. Through the open left door they saw a hunting knife on the floor of the car. The officers frisked the suspect. The frisk was upheld as a valid search to protect themselves based on the “plain view” sighting of the knife.

In Pennsylvania v. Mimms, 434 U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977) (per curiam), the police stopped a vehicle because its license plates had expired. They ordered the driver to get out of the car, which was considered a de minimis additional intrusion requiring no independent justification. Mimms, 434 U.S. at 111 , 98 S.Ct. at 333 . The subsequent patdown, however, was a separate and distinct intrusion which required separate justification.

In Mimms , the patdown was justified by the “bulge” in the driver’s jacket which gave rise to a reasonable and articulable suspicion that the driver was armed. ²⁵¹ Most of the case law in the area of what facts are required in order to meet this “reasonable, articulable suspicion standard” has dealt with drug couriers in airports. See United States v. Sokolow, 489 U.S. 1 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989); Florida v. Rodriguez, 469 U.S. 1 , 105 S.Ct. 308 , 83 L.Ed.2d 165 (1984) (per curiam); Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983) (plurality); Reid v. Georgia, 448 U.S. 438 , 100 S.Ct. 2752 , 65 L.Ed.2d 890 (1980). The law enforcement agents in Sokolow knew that the suspect: (1) had paid $2100 cash for two airplane tickets from a roll of $20 bills; (2) was traveling under a name which did not match the name under which the telephone number he gave to the airline ticket agent was listed; (3) was going to Miami, a source city for drugs; (4) stayed in Miami for only 48 hours, though the round-trip flight from Honolulu to Miami takes 20 hours; (5) was very nervous; and (6) checked no luggage. Sokolow, 109 S.Ct. at 1582 .

Clearly the kinds of suspicious activities observed by the police in Sokolow were far different from the “facts” in the present case. Less “suspicion” was needed in Florida v. Rodriguez, 469 U.S. 1 , 105 S.Ct. 308 , 83 L.Ed.2d 165 (1984). There, two officers in plain clothes observed three men who behaved in an “unusual manner” when they left the ticket counter in the airport. The officers followed the men and, when one of the men spotted the officers, he said to the other two, “let’s get out of here.” Rodriguez, 469 U.S. at 3 , 105 S.Ct. at 309 .

Rodriguez then tried to flee, but was unsuccessful. When caught, he uttered a vulgar exclamation at one of the officers. Rodriguez, 469 U.S. at 4 , 105 S.Ct. at 309 . The Court held that the facts justified the Terry stop.

In Royer , the police believed that the suspect’s “appearance, mannerisms, luggage, and actions fit the so-called ‘drug courier profile.’ ” Royer, 460 U.S. at 493 , 103 S.Ct. at 1321 . The officers asked Royer if he had a minute to talk with them and he agreed. “Upon request, but without oral consent, he produced ... his airline ticket and driver’s ²⁵² license.” Royer, 460 U.S. at 494 , 103 S.Ct. at 1322 . The names on the airline ticket and luggage did not match the name on his driver’s license. The police asked about the discrepancy and Royer explained that a friend had made the airline reservation for him.

Royer became more nervous during this conversation and the officers informed him that they were narcotics agents and suspected him of transporting narcotics. The officers kept Royer’s ticket and driver’s license and asked him to join them and go to a nearby room. He did not respond, but went with them. Without Royer’s permission, the officers retrieved and opened his luggage and discovered the contraband.

Royer, 460 U.S. at 494 , 103 S.Ct. at 1322 . The Supreme Court stated: “What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions.” Royer, 460 U.S. at 503 , 103 S.Ct. at 1327 . The Royer plurality opinion concluded that the “consent was tainted because the detention in the office was an arrest for which probable cause was lacking.” 5 3 LaFave, Search and Seizure, § 9.3(c) at 444 (1987) (footnote omitted). The Reid Court held that more suspicious facts were required than simply meeting the drug courier profile.

The observed facts which were listed as supporting a reasonable suspicion were: (1) he flew in from a principal source city; (2) he arrived early in the morning which is the time when law enforcement is leanest; (3) his only luggage was a shoulder bag; and (4) he concealed the fact that he was travelling with someone (the district court discounted this fact). The Court observed that three of the four factual observations that were made “describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude ²⁵³ that as little foundation as there was in this case could justify a seizure.” Reid, 448 U.S. at 441 , 100 S.Ct. at 2754 . Thus, the Court held that as a matter of law the law enforcement agent could not have reasonably suspected Reid of criminal activity on the basis of the observations made. The Fourth Circuit has recently held that travel to and from a source city and nervousness do not constitute reasonable suspicion.

United States v. Haye, 825 F.2d 32 (4th Cir.1987). In Haye , the officers stopped the suspects, who had just arrived on a plane from Miami, based on their observations which were consistent with the drug courier profile. Two officers approached the two men and, as one officer held up his credentials and announced they were police, the two suspects ran. Haye, 825 F.2d at 33 .

The addition of flight from the police to these two facts does give rise to reasonable suspicion. Haye, 825 F.2d at 34 . Maryland The Court of Appeals recently opined that, where an officer had reason to believe that the offense of either underage consumption of alcoholic beverages or obtaining alcoholic beverages for juveniles was being committed, a frisk was not justified. Simpler v. State, 318 Md. 311, 321 , 568 A.2d 22 (1990).

In Simpler, 318 Md. at 322 , 568 A.2d 22 , the police officer testified that patdowns “were a routine matter of caution,” suggesting that any lawful stop justifies a frisk. This is not the case. “Judge Moylan ... succinctly pointed out that ‘[although a reasonable “stop” is a necessary predecessor to a reasonable “frisk,” a reasonable “frisk” does not inevitably follow in the wake of every reasonable “stop.” ’ ” Simpler, 318 Md. at 319 , 568 A.2d 22 , quoting Gibbs v. State, 18 Md.App. 230, 238-39 , 306 A.2d 587 , (footnote omitted), cert, denied, 269 Md. 759 (1973). Similarly, the fact that the initial stop for speeding in the instant case was ²⁵⁴ valid, does not necessarily legitimize what occurred after-wards. In Mosley v. State, 45 Md.App. 88, 92-93 , 411 A.2d 1081 (1980), aff'd, 289 Md. 571 , 425 A.2d 1039 (1981), this Court observed: “Six variables have been suggested as means of determining whether a reasonable suspicion exists.

These include: 1. The appearance of the detainee 2. Conduct 3. Criminal record 4.

Environment 5. Police purpose 6. Source of information[.]” (Footnote omitted.) See also Watkins v. State, 288 Md. 597, 603 , 420 A.2d 270 (1980). We then applied these criteria, except one and three which did not apply, to the facts of that case.

There, the police officer had observed the suspects for approximately 15 minutes before stopping them. The location of the stop also supported the officer’s suspicion as he knew about many crimes that had been committed in the area within the preceding few weeks. The purpose of the stop was to prevent a crime of violence. As we noted, when balanced against the Fourth Amendment right to be free from unwarranted searches and seizures, “the articulable facts necessary to satisfy the Terry test should decrease as the severity of the investigated crime increases.” Mosley, 45 Md.App. at 93 , 411 A.2d 1081 .

Finally, in that case, we noted that the source of the information was the law enforcement agent himself, and therefore this information was highly reliable. Based on these four criteria, we affirmed the trial court’s finding of reasonable, articulable suspicion. A more recent decision of this Court which applied the reasonable suspicion test is Timms v. State, 83 Md.App. 12 , 573 A.2d 397 (1990). In Timms , Judge Robert Bell distinguished the case sub judice from Lemmon .

The police in Timms observed Timms talking to another person in the ²⁵⁵ early morning hours in an alley in a neighborhood where “B & E [breaking and entering] calls were a frequent occurrence.” Timms, 83 Md.App. at 23 , 573 A.2d 397 . We held that these facts supported a reasonable suspicion and were unlike the situation in Lemmon where the police had no more than an anonymous tip heard by three police officers who were on patrol. An even more recent case decided by this Court with similar legal issues is Derricott v. State, 84 Md.App. 192 , 578 A.2d 791 (1990), filed September 4, 1990. In Derricott , a police officer stopped a car for speeding.

During the course of the stop, the officer observed the following: (1) the driver was a young, black male, (2) driving an expensive sports car, (3) wearing a blue sweat suit, gold chains, and a thick, monogrammed gold ring. Derricott , at 200, 578 A.2d at 795 . In addition, from his position outside the car, the officer looked inside the car and saw a beeper lying on the center console, as well as various papers containing phone numbers lying on the passenger seat. This Court upheld the finding of reasonable, articulable suspicion for the search based on these facts.

We said that, although some of the factors by themselves were innocuous, when looked at together, these “facts” had “special significance.” But, as Judge Moylan also pointed out: “In the last analysis, it is never a profile per se that is the object of appellate review. The data to be scrutinized by the suppression hearing judge and appellate judge alike are the factual observations of the policeman. They may, to be sure, be interpreted through the collective police experience reflected in a profile. The ultimate issue, however, is whether the factual observations in combination, refracted through the trained eye of the policeman, yield articulable suspicion.” Derricott , at 205, 578 A.2d at 797 .

Instant Case We must look at the situation known to Paros when he gave the warning ticket for speeding to Snow to determine ²⁵⁶ whether he had a reasonable suspicion that a crime was being or was about to be committed. Paros undeniably had good cause to stop Snow, who was driving in excess of the legal speed limit. When questioned by Snow’s attorney about the events of that day, Officer Paros testified as follows: “BY [SNOW’S ATTORNEY]: $ $ $ afr $ $ “Q Was there a reason you asked Davis to step from the vehicle? “A If I’m going to conduct a consent search or a K-9 scan and I have someone with me, I ask them to exit the vehicle to remove them from any weapons that might be available. “Q You had already made up your mind before this consent search you were going to search this vehicle. “A I made up my mind, if it came down to that, that would be out of the way. They would be removed from the threat of weapons. “Q That’s not my question.

Before, before Mr. Snow was presented with this consent to search, you already made up your mind you were going to search that vehicle? “A No, I had no probable cause to search that vehicle at that time. You’re asking me if I made up my mind and the answer is no. “Q Okay. And then after Mr. Snow refused to sign, what did, how did you consider that or put that into the equation? “A That it’s time to use the K-9. “Q Because he’s refused to sign? “A Yes, sir. “Q In other words— “A Based with other things that I had seen. “Q —if somebody exercises his Constitutional right not to sign, to you that’s an idea that this person has guilty knowledge, right? ²⁵⁷ “A It has been known to happen. Most people sign the consents, that’s what’s amazing. “Q This is supposed to be a voluntary consent, right? “A Yes, sir. “Q And your experience though is most people sign it? “A Yes, sir. “Q Okay.

So, Mr. Snow refuses to sign and then you decide to do a scan, correct? “A Yes, sir. “Q Did you tell them they were free to leave? “A No, I did not. “Q Matter of fact, you told them they had to stay over in the grass, didn’t you? “A Stand off to the side, yes, sir. “Q You specifically told them to stay in a certain area. Matter of fact, one of them, you told them they were being detained, right? “A No, I don’t recall telling them they were being detained. “Q ’Course, they couldn’t go anywhere, could they? “A No, I was going to conduct a scan.” (Emphasis added.) In addition, at the suppression hearing, Snow testified as follows: “BY [DEFENSE COUNSEL]: “Q Okay. Now, back on April the 4th, 1989, you were stopped by Trooper Paros. Is that correct? “A Yes. “Q In Cecil County? “A Yes. “Q And can you tell us what happened when he stopped you? “A He came up to the truck. “Q ...

What happened then? ²⁵⁸ “A He told me I was speeding. He asked me for my license, registration. “Q Were you still in the vehicle? “A Yes. “Q Okay. What did you do then? “A I gave it to him and he went back and checked, checked that