State v. Blackman

MOYLAN, Judge. The appellee, Keith Blackman, was charged by two criminal informations filed in the Circuit Court for Baltimore City with the crimes of 1) assault, 2) resisting arrest, 3) possession of cocaine with intent to distribute, 4) possession of cocaine, and 5) possession of cocaine with intent to distribute within 1,000 feet of an elementary school. The appellee moved pretrial to suppress the the physical evidence. Following a hearing on that suppression motion, the motion was granted.

Pursuant to the provisions of Md. Code Ann., Cts. & Jud.Proc. § 12-302 (c)(3) (1989), the State has taken this appeal. For the reasons that follow, we reverse the ruling of the circuit court suppressing the evidence and remand the case to that court for trial. We are dealing with a sequence of actions. A Terry -stop of the appellee, Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), led to a Terry -frisk of the appellee.

In resisting the frisk, the appellee shoved a police officer. That led to an arrest of the appellee for assault and battery. A search incident to that arrest revealed, in the appellee’s coat pocket, the large bag of cocaine that was the subject of the suppression motion. Like a World War II artilleryman, we are able to bracket the target of analysis to a single action in the middle of the sequence.

It is agreed by all parties that the Terry -stop of the appellee was reasonable. At the far end of the sequence, it is agreed by all parties that if the shoving of the police officer was not privileged, the arrest for assault was reasonable and the search incident to that arrest was, in turn, reasonable. The single issue for decision is whether the appellee was privileged to shove the officer. As we bracket that target for further analysis, we will set the factual stage. ²⁸⁹ The Terry-Stop At approximately 12:40 P.M. on March 2, 1992, Officers Keith Matthews and Donna Gutberlet of the Baltimore City Police Department were executing an arrest warrant on a burglary charge for Ulysses Thompson at 6220 Feroie Way.

As the two officers entered the residence in an attempt to arrest Thompson, they encountered resistance from both Thompson and members of Thompson’s family. Officer Matthews described the scene as “very chaotic.” In the midst of that turmoil, the appellee Blackman entered the house unannounced just as Officer Matthews was attempting to place handcuffs on Thompson. Officer Matthews had to direct Blackman to keep out of the way. Officer Gutberlet immediately advised her colleague that she recognized Blackman as someone who had been arrested for an attempted homicide in 1991.

She recalled, moreover, that Blackman was the person who had actually done the shooting. Officer Matthews testified that he believed Blackman might be dangerous and that he was concerned for his own safety and that of Officer Gutberlet. He testified that, as he continued to struggle with Thompson, his primary concern was officer safety. While Officers Matthews and Gutberlet were attempting to subdue Thompson, Officer James Stephens arrived as a “backup.” Shortly thereafter, the police wagon arrived.

Officer Stephens testified that, when he first heard the call for backup coming across the police radio, he could hear commotion in the background during the call. His primary concern as he responded to the scene was to determine whether any of the officers were in need of assistance. As Officer Stephens arrived, he observed a British Sterling pull up in front of the Thompson house and observed Blackman exit the vehicle and enter the house. As Officer Stephens entered, he saw that Officers Matthews and Gutberlet were engaged in placing Thompson under arrest.

He saw the appellee standing near the doorway. Officer Stephens recalled that he recognized the appellee “from being ²⁹⁰ in the neighborhood, I’ve known him as being a drug dealer.” Officer Stephens had, moreover, been to the appellee’s residence just a “couple of weeks prior” in an attempt to serve an arrest warrant on the appellee. On that earlier occasion, Officer Stephens had not been successful in his effort to locate the appellee and serve the warrant upon him. As he now spotted him near the doorway of the Thompson house, he did not know whether that arrest warrant had ever been served.

It was established at the suppression hearing that the arrest warrant for the appellee had been issued on January 5 and was actually served upon him on February 10. The warrant was for battery and for carrying a deadly weapon. In an effort to ascertain the status of the arrest warrant against the appellee, Officer Stephens detained him. He asked to see the appellee’s driver’s license so that he could run a warrant check over the police radio.

He explained that to run a warrant check, the officer must supply the suspect’s name, date of birth, and, when available, an address. Officer Stephens indicated that he regularly found a driver’s license a better source of such information than the suspect himself, because “a lot of times people lie to you, and they don’t give you their correct date of birth and that type of thing.” Officer Stephens further testified that a warrant check typically takes between ten and twelve minutes. The hearing judge found, and both parties agree, that this was a Terry -type stop, based upon the reasonable possibility that an arrest warrant might have been outstanding for the appellee. With respect to the Fourth Amendment reasonableness of that stop, the hearing judge ruled specifically: “As to the stop, I believe under Terry v. Ohio and the United States v. Hensley case, Officer Stephens had reasonable suspicion to believe that a crime had been committed because of the fact that he had attempted to serve an arrest warrant several weeks before.

And though this was not an arrest, I think that was certainly ²⁹¹ enough to detain and to stop him while he momentarily did a warrant search, which was under 15 minutes. And it was closer, I think, to between 10 and 12 minutes, he said, that a warrant search would take to do. So as far as the stop under Terry v. Ohio, the State conceded, and I agree, that a stop occurred. Another reason, I believe the State concedes, and the Court agrees, is that Officer Stephens candidly testified that the defendant was not free to leave the area until after he had done the warrant check because he wanted to know what — in fact, if that warrant was still there.

That’s reasonable suspicion to believe that a crime has been committed in the past. Therefore, this case is more like another 1991 Court of Special Appeals case, Aguilar v. State, 88 Md.App. 276 , 594 A.2d 1167 (1991), an opinion by Judge Garrity. In the Aguilar case, the stop in that case was also conceded and, indeed, was found to be legal. And I have found the stop here to be legal.

There is nothing about the stop to be illegal.” We believe that that conclusion was eminently correct. The Terry-Frisk or Attempt Thereat It was while this stop of the appellee by Officer Stephens was in progress that the frisk, or attempted frisk, at the hands of Officer Matthews took place. While Officer Stephens was conducting the radio check on the status of the arrest warrant, Officer Matthews finally succeeded in arresting Thompson. Officer Matthews placed Thompson in the police wagon and then was free to turn his attention to the appellee.

As he did so, Officer Stephens informed him that he “thought he had a warrant for [Blackman].” At that point, Officer Matthews approached Blackman and stated that he “was going to pat him down.” Officer Matthews testified that he wanted “to make sure [Black-man] didn’t have any guns or any weapons on him.” He stated that in his mind “officer safety was first and paramount to me and the other officers there.” He further ²⁹² related that he believed he had “a person possibly wanted on a warrant who could have possibly been an armed felon.” Blackman was wearing pants and a jacket. As Officer Matthews was reaching out to begin the frisk, but before his hands had actually touched Blackman’s person, Blackman shoved Officer Matthews’ hand, pushed him back, and began to run. Blackman was caught a few feet away and arrested for assault and battery. The search incident to that arrest revealed a large bag of cocaine in his jacket pocket.

In his suppression hearing testimony, the appellee candidly acknowledged that the reason he resisted the anticipated frisk was not because of any sense of offended dignity at being touched by the policeman but because he had drugs on his person. The Legality of the Arrest If the appellee was privileged to use force against Officer Matthews in resisting the frisk, his subsequent arrest for such use of force was unlawful, the search incident to that unlawful arrest was unreasonable, and the cocaine was properly suppressed. If, on the other hand, the use of force against Officer Matthews was not so privileged, the arrest was lawful, the search incident to that lawful arrest was reasonable, and the cocaine should not have been suppressed. We hold that the appellee was not privileged to use force against Officer Matthews under either of two alternative rationales.

A. The Standard of Judicial Review at All Levels: The first of those reasons is that the frisk was reasonable. As we examine its reasonableness, a preliminary consideration is called for as to the nature of judicial review. There is first the question of what standard of scrutiny we, on appellate review, should apply to the decision of the suppression hearing judge. There is then the question of what standard of review the suppression hearing judge should have applied to the determination made by the officer on the street. ²⁹³ To the extent to which the suppression hearing judge was called upon to make findings of first-level fact and to assess the credibility of Officer Matthews, and others, those are decisions that the suppression hearing judge is at a vantage point to make far more competently than we.

Those are decisions, therefore, to which we, on appellate review, extend great deference and reverse only when they, as a matter of law, are clearly erroneous. No such problem is involved in this case. Once credibility has been assessed and first-level findings of fact have been made, such as who did what to whom and when, a very different issue emerges. It is a mixed question of law and fact.

The issue is that of what significance shall be given to the first-level facts as found. That is a question as to which all reviewing judicial tribunals — the suppression hearing court, the trial court, and the appellate court alike — are called upon to exercise an appellate-like discipline. At none of those levels of review will the court presume to decide, as if it were on the street, whether articulable suspicion existed. A reviewing court, at whatever level, will not second-guess that initial decision that had to be made and that then became the object of judicial scrutiny.

By analogy to the review of probable cause determinations made by an officer on the street, we hold that the reviewing court, trial and appellate alike, must make the far more deferential determination of whether the officer had a substantial basis for concluding that articulable suspicion existed. As we articulate the standard of judicial review in the context of stop-and-frisk scenarios, we are in a sense writing on a clean slate. In a larger sense, however, we are strongly influenced, if not controlled, by the compelling analogue of how the Supreme Court, the Court of Appeals, and earlier decisions of this Court have handled the not dissimilar responsibility of reviewing probable cause determinations. The analogy is an apt one.

Probable cause determinations are frequently made by the officer on the street. Articulable suspicion or reasonable suspicion deter ²⁹⁴ minations, either to stop or to frisk, are always made by the officer on the street. The exclusive and overarching constitutional concern is whether the officer, conducting either an intense search or a limited frisk, was acting reasonably. The reasonableness of the officer’s conduct will always be assessed on the basis of the officer’s training and experience and on the basis of circumstances as they reasonably appeared to the officer.

The probable-cause analogue by which we are here guided was a two-stage development. Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), first made clear that probable cause determinations, in that case made by warrant-issuing magistrates, should not be subjected to de novo second-guessing by way of independent constitutional determinations of probable cause by reviewing courts. Reviewing courts were admonished to be deferential to those probable cause determinations and to affirm whenever there was a “substantial basis for ... concludpng] that probable cause existed.” 462 U.S. at 238-239 , 103 S.Ct. at 2332 . In Potts v. State, 300 Md. 567 , 479 A.2d 1335 (1984), the Court of Appeals, speaking through Chief Judge Murphy, explicitly adopted the Supreme Court’s holding as to the appropriate standard of review. “After-the-fact judicial scrutiny of the affidavit should not take the form of de novo review.” Potts, 300 Md. at 572 , 479 A.2d 1335 .

See also Birchead v. State, 317 Md. 691, 701 , 566 A.2d 488 (1989): “Our review of the judge’s decision to issue the search warrants is limited to whether there was a substantial basis for concluding that the evidence sought would be discovered in the place described in the application for the warrant____ Moreover, we generally pay great deference to a magistrate’s determination of probable cause. (Citations omitted).” In State v. Amerman, 84 Md.App. 461 , 581 A.2d 19 (1990), we applied this body of law and analyzed its logic. We pointed out that in certain circumstances a suppression hearing judge and/or a trial judge, no less than an appellate ²⁹⁵ court, sits in an appellate-like capacity where he is enjoined to extend deference to a decision made by another and to forego the luxury of making that decision for himself: “The controlling principle dictating this reversal of a suppression order is that when a judge, either at a pretrial suppression hearing or at trial, sits in review of another judge’s earlier determination that probable cause existed to issue a search and seizure warrant (or an arrest warrant), the reviewing judge sits in an appellate-like capacity with all of the attendant appellate constraints. Although he may ordinarily be accustomed to assessing probable cause as a matter of fact [as when he issues a warrant], he is in this less characteristic role called upon to assess it as a matter of law.

The issue is no longer the familiar one of whether probable cause exists; that has already been determined by someone else. The distinct issue, at the reviewing level, is whether that earlier decision now being reviewed was or was not legally in error.” Amerman, 84 Md.App. at 463 , 581 A.2d 19 . There is good reason for a reviewing court to refrain from presuming to make a de novo determination as to probable cause and, by analogy, as to articulable suspicion as well. There is along an ascending continuum no fixed, constant, or immutable point at which everyone must agree that probable cause (or articulable suspicion) suddenly springs into existence.

There is, rather, a range within which rational determinations as to probable cause (or articulable suspicion) may be made. Rational decision-makers, moreover, may find probable cause (or articulable suspicion) at different points within that legitimate range. The ultimate question is not where some reviewing court may find probable cause (or articulable suspicion) to exist but whether the first decision-maker called upon to make that assessment did so reasonably. It was of this we spoke in State v. Amerman, 84 Md.App. at 463-464 , 581 A.2d 19 : “Probable cause does not suddenly spring to life at some fixed point along the probability continuum.

It may ²⁹⁶ arise at any number of points within a band of not insignificant width. Within that range of legitimate possibilities, the determination is as much an art form as a mathematical exercise and relies necessarily upon the eye of the beholder. One judge may give a circumstance great weight; another may give it slight weight; each is entitled to weigh for himself and neither will be legally wrong in so doing. Within proper limits, one judge may choose to draw a reasonable inference; another may as readily decline the inference; each will be correct and each is entitled, therefore, to the endorsement of a reviewing colleague.

A permitted inference, after all, is not a compelled inference. Under the circumstances, it is perfectly logical and not at all unexpected that a suppression hearing judge might say, T myself would not find probable cause from these circumstances; but that is immaterial. I cannot say that the warrant-issuing judge who did find probable cause from them lacked a substantial basis to do so; and that is material.’ There is a Voltairean echo, T may disagree with what you decide but I will defend with my ruling your right to decide it.’ ” (footnotes omitted). The second stage in the building of the probable-cause analogue which guides us in this case came with the decision of the Court of Appeals in Malcolm v. State, 314 Md. 221 , 550 A.2d 670 (1988).

In affirming the essential opinion of this Court, the Court of Appeals was called upon to determine whether the more permissive and deferential standard for reviewing probable cause determinations, which already was being applied when reviewing courts assessed the probable cause determinations of warrant-issuing magistrates, would also apply to the probable cause determinations made by officers on the street in order to conduct warrantless searches and seizures. After analyzing Illinois v. Gates itself, Massachusetts v. Upton, 466 U.S. 727 , 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984), and numerous state and federal authorities, the Court of Appeals held ²⁹⁷ that the Gates standard applied to warrantless searches and seizures as well: “We hold that a totality of the circumstances test applies to warrantless searches and seizures, just as it currently applies to searches based on a warrant. See Potts v. State, 300 Md. 567 , 479 A.2d 1335 (1984) (applying Gates test under state and federal constitutions for a search based on a warrant). Our review of the precedent of other jurisdictions supports this view.” (footnote omitted).

Malcolm, 314 Md. at 230 , 550 A.2d 670 . In our opinion in Malcolm v. State, 70 Md.App. 426 , 521 A.2d 796 , aff'd and sentence vacated on other grounds, 314 Md. 221 , 550 A.2d 670 (1988), we elaborated more fully on what the Illinois v. Gates standard looked for as it assessed the reasonableness of a policeman’s probable cause decision. We observed: “Assuming that the Illinois v. Gates standard is applicable to the warrantless determination of an officer (a point we will consider formally when we deal with the appellant's next contention), it is clear that the task of the officer ‘is simply to make a practical, common-sense decision whether, given all the circumstances ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ 462 U.S. at 238 , 103 S.Ct. at 2332 . Our duty, as a reviewing court, is ‘simply to ensure that the [officer] had a “substantial basis for ... concluding]’’ that probable cause existed.’ 462 U.S. at 238-239 , 103 S.Ct. at 2332 .” (emphasis supplied).

Malcolm, 70 Md.App. at 430 , 521 A.2d 796 . Our review was focused upon the decisional process of the policeman. Did the officer have a “substantial basis for concluding]” as he did? Was the officer’s decision reasonable?

In anticipating the Court of Appeals’ extension of the Gates standard of review from the warrant context to the warrantless context as well, we reasoned: ²⁹⁸ “If anything, the argument for the practical, commonsense approach is stronger when applied to a policeman on the street than when applied to a judge in chambers---- The observation that ‘the central teaching of our decisions bearing on the probable-cause standard is that it is a “practical, nontechnical conception,” ’ applies with equal force to both settings. When Illinois v. Gates quoted with approval the statement from Brinegar v. United States, [ 338 U.S. 160 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949) ], ‘In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act/ the point had even more bearing on the warrantless context than on the warrant context.” (citations omitted). Malcolm, 70 Md.App. at 438 , 521 A.2d 796 .

By parity of reasoning, we see no principled basis for applying a different standard of review to a policeman’s on-the-street decision that articulable suspicion exists to conduct a stop or a frisk than we are now applying to a policeman’s on-the-street decision that probable cause exists to conduct a warrantless search or seizure. Each decision is to be assessed by its reasonableness under the circumstances: did the officer have a substantial basis for concluding as he did? The ultimate question before us, therefore, is not whether we or the suppression hearing judge, had we been present at 6220 Feroie Way at 12:40 P.M. on March 2, 1992, might under those conditions have feared that Keith Blackman had a gun. The question is whether Officer Keith Matthews’s fear that Blackman had a gun was reasonable.

If that fear was reasonable, if there was some substantial basis for it, the Fourth Amendment was not offended. B. Who Must Entertain the Reasonable Suspicion? As we assess the reasonableness of the fear that the appellee might be armed, we note that it was Officer ²⁹⁹ Matthews, not Officer Stephens, who attempted to execute the frisk. We note that it was Officer Matthews, not Officer Stephens, who articulated reasons for believing that a frisk for weapons was necessary.

It is only those facts known to the articulating officer that may be included in the articulable suspicion computation. Thus, we will eschew reliance on Officer Stephens’ knowledge that the appellee was a drug dealer and the virtually “automatic” right to frisk for weapons that would flow from that knowledge. Simpler v. State, 318 Md. 311, 318-319 , 568 A.2d 22 (1990); Derricott v. State, 84 Md.App. 192, 219-221 , 578 A.2d 791 (1990), rev’d on other grounds, 327 Md. 582 , 611 A.2d 592 (1992); Aguilar v. State, 88 Md.App. 276, 283 , 594 A.2d 1167 (1991). Officer Matthews did not know that.

We will also eschew reliance on the knowledge available to the more extended police team that the recent arrest of the appellee was for the carrying of a deadly weapon. Officer Matthews did not know that. What an officer does not know cannot be the basis for any suspicion on his part. We will, therefore, confine ourselves scrupulously to what was known or reasonably believed by the frisking officer.

Ironically, the crime for which the appellee was legitimately stopped was one that ordinarily would entitle the stopping officer to a frisk automatically. The appellee was stopped so that Officer Stephens might ascertain the status of the arrest warrant for him that had issued on January 5. Apparently none of the officers knew what those charges were. The warrant, of course, charged the appellee, inter alia, with carrying a deadly weapon.

Had Officer Matthews but known that, the justification for the frisk would have been automatic. 3 LaFave,