State v. Carter

State of Maryland v. Kennard Carter, No. 74, September Term, 2019. Opinion by Biran, J. CONSTITUTIONAL LAW – FOURTH AMENDMENT – SEIZURE – The Court of Appeals held that a Maryland Transit Authority (“MTA”) police officer seized Respondent within the meaning of the Fourth Amendment when the officer announced a fare sweep aboard a Baltimore Light Rail train after it arrived at a station. A reasonable passenger would not have felt free to leave the train without first displaying proof of fare payment, or the lack thereof, to the officer. CONSTITUTIONAL LAW – FOURTH AMENDMENT – IMPLIED CONSENT – The Court of Appeals held that Light Rail passengers do not impliedly consent to be seized in a fare sweep.

No signs or other notices inform riders that they may be subject to a seizure aboard the train. In addition, the Light Rail differs from military bases, airports, and other facilities where individuals who enter reasonably expect that they may be subject to search and seizure for security reasons. CONSTITUTIONAL LAW – FOURTH AMENDMENT – SPECIAL NEEDS DOCTRINE – The special needs doctrine is a recognized exception to the Fourth Amendment’s warrant requirement. Under that doctrine, a program of warrantless searches or seizures undertaken without reasonable suspicion may be constitutional if the primary purpose of the program is to further a governmental interest besides the detection of ordinary criminal wrongdoing.

The Court of Appeals held that the record of the suppression hearing was insufficiently developed to determine the primary purpose of a fare sweep and, therefore, whether the special needs doctrine renders MTA’s program of fare sweeps constitutional. CONSTITUTIONAL LAW – FOURTH AMENDMENT – ATTENUATION – The Court of Appeals held that, assuming (without deciding that) Respondent’s seizure was not constitutional under the special needs doctrine, the discovery of an open warrant for Respondent’s arrest did not attenuate the taint of the illegal warrantless seizure. The discovery of a warrant does not attenuate the taint of an unconstitutional seizure conducted under an agency program, where one of the directives of the program requires officers to search for open warrants. Circuit Court for Baltimore City Case No. 117303014 Argued: September 15, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 74 September Term, 2019 STATE OF MARYLAND v. KENNARD CARTER Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.

Opinion by Biran, J. Watts, J., concurs. Filed: January 29, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2021-01-29 13:55-05:00 Suzanne C. Johnson, Clerk Several million passengers ride Baltimore Light Rail (“Light Rail”) trains each year. There is no turnstile to pass through before boarding a Light Rail train.

Nor does anyone check passengers for proof of fare payment before they get on a train. Thus, it is possible for a person to board a Light Rail train without paying the required fare. However, Maryland Transit Administration (“MTA”) police officers routinely check whether passengers on Light Rail trains who are required to pay the fare have done so. One of the methods that MTA police officers have used to make this determination is a “fare sweep.” In a fare sweep, after a train has arrived at a station, MTA officers simultaneously board each car of the stationary train and announce that all passengers must show their tickets or passes.

If a passenger does not produce proof of fare payment, the officer at that point directs the passenger to leave the train and to speak with another officer who is waiting on the platform. Once all non-paying passengers have stepped off the train, the train departs the station. On the platform, officers then obtain identification from the non-paying passengers, conduct warrant checks on those passengers, and issue a $50 citation to each passenger for the criminal offense of fare evasion. If a non-paying passenger is not the subject of an outstanding warrant, the passenger is then free to leave.

On the evening of October 2, 2017, MTA police officers conducted a fare sweep aboard a Light Rail train after the train arrived at the Mount Royal station in Baltimore City. After an officer announced that she was checking all riders for tickets, Respondent Kennard Carter approached the officer and told her that he did not have a ticket. The officer then directed Carter to step off the train. After Carter did so, an officer on the platform obtained identifying information from Carter and ran a warrant check on him, which revealed the existence of a warrant for Carter’s arrest.

In the course of attempting to arrest Carter on that warrant, officers saw that Carter had a gun. Carter subsequently was indicted in the Circuit Court for Baltimore City on firearms and other charges. Carter moved to suppress the gun and other evidence allegedly found by officers after Carter left the Light Rail train, arguing that the fare sweep constituted a seizure without reasonable suspicion to believe that he had evaded payment of the fare. The circuit court denied Carter’s suppression motion, finding that the officers did not seize Carter prior to his admission that he lacked a ticket.

Alternatively, the circuit court ruled that, if officers unlawfully seized Carter, the discovery of the arrest warrant attenuated the taint of the Fourth Amendment violation. A jury subsequently found Carter guilty of several offenses. On appeal, Carter renewed his argument that the fare sweep constituted a warrantless seizure not based on reasonable suspicion. Both Carter and the State also addressed for the first time whether the fare sweep was constitutional under the “special needs” doctrine, one of the recognized exceptions to the Fourth Amendment’s warrant requirement.

The answer to that question turned, as a threshold matter, on whether or not the primary purpose of an MTA fare sweep is to further the State’s generalized interest in criminal law enforcement – a point that the circuit court had not considered during the suppression hearing. The State also argued on appeal that Carter impliedly consented to a seizure necessary to determine whether he had paid his fare. Finally, the State renewed its argument that the discovery of the warrant for Carter’s arrest attenuated the taint of any Fourth Amendment violation. 2 The Court of Special Appeals held that: (1) the fare sweep effected a warrantless seizure of Carter; (2) Carter did not impliedly consent to the seizure; (3) the seizure was not constitutional under the special needs doctrine; and (4) the discovery of the warrant did not attenuate the taint of the unlawful seizure. Thus, the Court of Special Appeals concluded that the circuit court should have granted Carter’s suppression motion, and the court reversed Carter’s convictions.

We largely agree with the Court of Special Appeals’ resolution of the parties’ contentions. However, we disagree with the intermediate appellate court that the record is sufficiently developed to assess whether or not the special needs doctrine renders Light Rail fare sweeps constitutional. Nevertheless, because it was the State’s burden to establish the constitutionality of Carter’s seizure at the suppression hearing in this case and the State failed to do so, we will affirm the judgment of the Court of Special Appeals. I Background A. The Light Rail MTA operates the Light Rail, an above-ground modern streetcar-like train system transporting passengers in the city of Baltimore and surrounding counties.1 The Light Rail 1 The Light Rail system was renamed the “Light RailLink” in 2017.

It formerly was called the “Baltimore Light Rail.” In this opinion, we refer to the system as it is still commonly known in the Baltimore metropolitan area, which is simply the “Light Rail.” 3 services over seven million passenger trips annually.2 As the Light Rail neared completion in 1991, the Maryland Department of Transportation (“MDOT”) advocated that the General Assembly make the Light Rail a “barrier-free” mass transit system, explaining that barrier-free systems can cost 20-30 times less than systems that contain barriers to entry. See Md. Dept. of Transp., Office of the Sec’y, MDOT Written Testimony to Sen. Jud. Proc.

Cmte. (Mar. 19, 1991), 1991 HB 716 Bill File, H.B. 716, 405th Sess. (Md. 1991). In a barrier-free rail system, passengers purchase their fares in advance of boarding the train, and do not pass through a ticket checkpoint or a barrier verifying payment prior to boarding.

The General Assembly adopted MDOT’s recommendation that the Light Rail operate as a barrier-free system, and made it a misdemeanor for a passenger to fail to “pay the applicable fare” or fail to “[e]xhibit proof of payment.” See 1991 Md. Laws, ch. 222. A police officer or an authorized agent of MTA may issue a citation to a passenger who fails to show proof of payment of the applicable fare upon request. Md. Code, Transp. § 7- 704.1(d)(1) (2020 Repl. Vol.).

Passengers may purchase Light Rail tickets or passes using ticket vending machines located at each station, as well as at MTA’s retail locations or on MTA’s website. 2 See MTA Media Guide at 9 (2019), available at https://s3.amazonaws.com/mta- website-staging/mta-website-staging/files/Brochures/Media_Guide_2019_WEB.pdf (last accessed on Nov. 24, 2020), archived at https://perma.cc/EH46-LTMZ. 4 B. Carter’s Prosecution 1. The Fare Sweep and Carter’s Arrest On Monday, October 2, 2017 at approximately 8:05 p.m., Corporal Latoya Russell and Officer Zachary Tobin, along with other MTA police officers, were waiting on the platform of the Mount Royal Light Rail station in Baltimore City to conduct a fare sweep of the next Light Rail train to arrive at that station.3 Carter was a passenger on that train. The train pulled in shortly before 8:06 p.m. Within seconds of the train’s arrival, Corporal Russell and other officers boarded the two train cars.

Officer Tobin and other officers remained on the platform. Once on the train, Corporal Russell announced the fare sweep, informing all passengers that she was checking tickets and advising them to have their tickets out. In response to Corporal Russell’s announcement, Carter approached Corporal Russell and told her that he did not have a ticket. At Corporal Russell’s direction, Carter stepped off the train and reported to officers on the platform at approximately 8:07:23 p.m.

The train left the station at 8:07:30 p.m. Officer Tobin instructed Carter to sit on a bench on the platform and asked him for identification. Carter was unable to provide identification, but gave Officer Tobin his name, date of birth, and social security number. A check of that information revealed an open warrant for Carter’s arrest. 3 The events that occurred on and near the platform at the Mount Royal Light Rail station on October 2, 2017, and the times at which they happened, are visible on a video recording made by a camera situated above the platform. 5 Based on the result of the warrant check, Officer Tobin began to place Carter in handcuffs.

Carter resisted Officer Tobin’s attempt to handcuff him and tried to flee. Carter then struggled on the platform with Officer Tobin and other officers. During the struggle, Officer Tobin saw that Carter had a handgun in his waistband. Carter attempted to retrieve the gun, which fell onto the train track during the struggle.

After Officer Tobin was able to subdue Carter, the officers recovered the gun from the tracks and then searched Carter incident to his arrest, allegedly discovering cocaine on Carter’s person. 2. The Suppression Hearing and Trial Carter was indicted in the Circuit Court for Baltimore City on five counts: (1) possession of a firearm after having been convicted of a crime of violence; (2) possession of a firearm after having been convicted of a disqualifying crime; (3) wearing, carrying, and transporting a handgun on his person; (4) possession of cocaine; and (5) resisting arrest. After Carter moved to suppress the gun and drugs that the officers allegedly discovered in the course of arresting him, the circuit court held a suppression hearing. As part of its evidentiary presentation, the State played the video recording that showed the officers boarding the train to conduct the fare sweep, as well as the aftermath of the fare sweep.

Corporal Russell and Officer Tobin also testified at the hearing. Both Corporal Russell and Officer Tobin explained that MTA officers routinely conduct fare sweeps such as the one that led to Carter’s arrest. According to Corporal 6 Russell, MTA officers perform such fare sweeps approximately six times per week, and they are a “standardized process.” Officer Tobin described the fare sweep as follows: [S]ome officers board the train. Some officers stay on the platform awaiting officers as they pull patrons off of the train that have not paid fare. …. [W]hen we board the train, we announce that we are conducting a fare inspection and we promptly ask everybody to show us their passes.

Those who do not show passes are required to alight the train and seek an officer on the platform. On cross-examination, defense counsel asked Officer Tobin: “The purpose of you checking for fare cards is to see if people paid, correct?” Officer Tobin responded, “Correct.” Corporal Russell testified that, after announcing a fare sweep, “you check each patron for tickets.” She also explained that running a warrant check is a “part of the process” after a non-paying passenger leaves the train,4 as is issuing a $50 citation to the fare evader. In response to leading questions from defense counsel, Corporal Russell agreed that the purpose of the fare sweep was to “see if someone has committed a crime by riding the train without paying,” and that a fare sweep entails “an investigation to determine if someone broke the law as set by MTA.” Corporal Russell also agreed with defense counsel’s characterization that “the fare checking also works as an apparatus to be able to check people for warrants as well.” 4 Officer Tobin also described warrant checks of non-paying passengers as “routine.” 7 After the officers testified, Carter’s attorney argued that Corporal Russell effected a Terry stop5 of Carter without reasonable suspicion to believe that he had evaded payment of the fare. Thus, defense counsel contended, Carter’s admission that he did not have a ticket was the fruit of an illegal stop, and the court should suppress all evidence that flowed from the Terry stop.

The prosecutor argued that Corporal Russell did not restrain Carter’s “liberty of movement” when she announced the fare sweep and directed all passengers to show their tickets. Thus, according to the prosecutor, Corporal Russell did not seize Carter prior to his telling her that he lacked a ticket. Once Carter admitted that he had evaded the fare, the prosecutor contended, Corporal Russell had probable cause (or at least reasonable suspicion) to detain Carter. Alternatively, the prosecutor argued that, if Corporal Russell seized Carter without reasonable suspicion, the discovery of an open arrest warrant attenuated the taint from the illegal seizure.

The State did not alternatively contend that, if the fare sweep constituted a seizure, it was permissible under the special needs doctrine. The circuit court denied Carter’s suppression motion. The court first ruled that Corporal Russell “engaged in a mere accosting by announcing a fare inspection, and therefore the inquiry did not require Fourth Amendment justification.” The court stated that “the fare inspection, albeit investigatory, was not concentrated on [Carter] personally, nor was [Carter] threatened or physically touched by the MTA police officers in any way” prior to his admission to Corporal Russell that he did not have a ticket. Once Carter made 5 See Terry v. Ohio, 392 U.S. 1 (1968). 8 that admission, the circuit court reasoned, the officers had probable cause to believe that Carter had committed the offense of fare evasion, and therefore they were permitted to detain him to give him a citation as well as to conduct the routine warrant check that led to Carter’s arrest and the discovery of the evidence Carter sought to suppress.

Alternatively, the court ruled that, if Corporal Russell seized Carter at the outset, the discovery of the arrest warrant attenuated the taint of the unlawful stop. The circuit court did not consider or decide whether the fare sweep was constitutional under the special needs doctrine. Carter’s jury trial began on March 22, 2018. At the close of the case, the circuit court entered judgments of acquittal as to Counts 2 and 4.6 The jury found Carter guilty on Counts 1, 3, and 5, which charged Carter with two firearms offenses and resisting arrest, respectively.

The circuit court sentenced Carter to 10 years’ imprisonment on Count 1 (possession of a firearm after having been convicted of a crime of violence), suspending all but a mandatory minimum five-year term without the possibility of parole. The court imposed concurrent three-year terms on the other two counts of conviction, along with three years of supervised probation. 6 The State elected not to submit Count 2 – the lesser of the two firearm possession counts – to the jury, thus leading the trial court to enter an acquittal on that count. As for Count 4, which charged Carter with possession of cocaine, the State failed to establish a chain of custody with respect to the cocaine that the officers allegedly discovered while searching Carter incident to his arrest. 9 3. Appeal Carter appealed his conviction to the Court of Special Appeals.

In a reported opinion, the intermediate appellate court concluded that the circuit court should have granted Carter’s suppression motion. Carter v. State, 243 Md. App. 212 (2019). First, contrary to the State’s argument, the court held that Corporal Russell seized Carter when she boarded the stationary train and announced the fare sweep, asking all passengers to have their tickets out for inspection. The court explained that, although the officers did not physically restrain Carter when they boarded the train, Corporal Russell’s show of authority, as well as the presence of multiple officers outside the train car, implied to a reasonable person that individuals were not free to leave prior to providing proof of fare payment.

Id. at 231 . The court then considered and rejected two alternative arguments that the State made to justify the warrantless, suspicionless seizure. First, the State argued that the fare sweep was constitutional under the special needs doctrine. In their briefs to the Court of Special Appeals, the parties discussed a leading Supreme Court case on the special needs doctrine, City of Indianapolis v. Edmond, 531 U.S. 32, 41-42 (2000), which held that the warrantless highway checkpoints at issue in that case were unconstitutional because their primary purpose was to uncover evidence of ordinary criminal wrongdoing.

The State distinguished MTA fare sweeps from the highway checkpoints at issue in Edmond and argued that, if the officers seized Carter, the seizure was permissible under the special needs doctrine. Carter disagreed, arguing that the primary purpose of MTA fare sweeps “is to 10 ferret out possible criminal wrongdoing,” thereby rendering the special needs exception inapplicable. The Court of Special Appeals agreed with Carter that the special needs doctrine did not save MTA’s warrantless, suspicionless fare sweep from invalidation under the Fourth Amendment. Carter, 243 Md. App. at 232 -34 & n.4.

Although the court recognized that the Supreme Court has upheld suspicionless searches and seizures where they have furthered “special needs, beyond the normal need for law enforcement,” id. at 233 (quoting Edmond, 531 U.S. at 37 ), the intermediate appellate court accepted Carter’s contention that the primary purpose of a fare sweep is “to uncover evidence of ordinary criminal wrongdoing.” Id. at 233 n.4 (internal quotation marks omitted). The court based this factual finding on Corporal Russell’s testimony on cross-examination in which she agreed with defense counsel’s suggestion that fare sweeps are used as a vehicle to conduct outstanding warrant searches. See id. Next, the State argued that Carter impliedly consented to a seizure so that officers could check whether he had paid the fare to board the Light Rail train.

Id. at 234-36. The Court of Special Appeals disagreed, distinguishing cases such as Farkas v. Williams, 823 F.3d 1212 (9th Cir. 2016), in which the federal appellate court held that individuals impliedly consent to being searched upon entering a military base: As the Court reasoned in Farkas, individuals entering a “restricted-access” base, past gate-guarded entry points, signs stating that all visitors are subject to search, and military personnel patrols impliedly consent to being searched…. By contrast, Light Rail Trains do not have such barbed-wire fencing or armed guards at their entrance, nor do their security reflect national defense concerns. As such, it cannot be assumed that individuals 11 entering the trains have consented to searches like those individuals who enter military bases….

As the State expresses in its brief, reasonable patrons of the Light Rail understand that they may be required to show proof of payment upon request by MTA officials. However, reasonable patrons might not understand that by simply traveling on the Light Rail, they may be subject to suspicionless seizures resulting in warrant checks. Carter, 243 Md. App. at 235-36 . Finally, the Court of Special Appeals held that the subsequent discovery of the open warrant for Carter’s arrest did not attenuate the taint of the unlawful seizure.

Id. at 236-41 . In reaching this conclusion, the court applied the three factors set forth in Brown v. Illinois, 422 U.S. 590 (1975). The court observed that the first two factors – the “temporal proximity” between the unlawful seizure of Carter and the seizure of the evidence, and the “intervening circumstance” of the discovery of the open warrant – essentially canceled each other out. See Carter, 243 Md. App. at 238-39 .

As to the third and “especially significant” factor, the flagrancy of the police misconduct, the Court of Special Appeals again relied on Corporal Russell’s testimony that “the purpose of the fare inspection is to see if someone has committed a crime by riding the train without paying” and her “affirmation to being asked if fare inspections are ‘an apparatus to be able to check people for warrants.’” Id. at 240-41 . The court opined that “MTA officers cannot systematically use fare inspections as a means of determining if Light Rail passengers have outstanding warrants. To allow such misconduct would be a grave injustice and greatly hinder the protections afforded by the Fourth Amendment.” Id. at 242 . 12 Having concluded that the officers unlawfully seized Carter and that the subsequent discovery of the open warrant for Carter’s arrest did not attenuate the taint of the constitutional violation, the Court of Special Appeals held that the circuit court should have granted Carter’s suppression motion. Id.

Because the suppressed evidence “was a vital component of the State’s case against [Carter] and was necessary to subsequently convict [him],” the court reversed Carter’s convictions. Id. On January 30, 2020, the State filed a petition for a writ of certiorari. On March 11, 2020, we granted the State’s petition, 467 Md. 691 (2020), and agreed to review the following questions (which we have paraphrased): I. Does MTA’s practice of conducting fare sweeps on the Light Rail comply with the Fourth Amendment?

II

If the fare sweep that resulted in Carter’s seizure violated the Fourth Amendment, did the subsequent discovery of an open warrant for Carter’s arrest attenuate the violation, where any unconstitutionality of the MTA’s fare inspection practice was not previously established?7 7 The State phrased the questions for which it sought review as: (1) Does [MTA’s] practice of fare inspection on the Light Rail comply with the Fourth Amendment? (2) If fare inspection does not comply with the Fourth Amendment, did the discovery of an open warrant for Carter’s arrest nevertheless attenuate the violation under Utah v. Strieff, 136 S. Ct. 2056 (2016), where any unconstitutionality of the MTA’s fare inspection practice was not previously established? This case involves a fare “sweep,” which we understand to be one specific kind of fare “inspection” that MTA personnel have conducted. Accordingly, we have rephrased the questions presented to refer specifically to fare sweeps. 13 II Standard of Review Suppression rulings “present a mixed question of law and fact.” Thornton v. State, 465 Md. 122, 139 (2019).

When this Court reviews a circuit court’s denial of a motion to suppress, “ordinarily our review is limited to the evidence presented at the suppression hearing.” Jones v. State, 407 Md. 33, 44 (2008). We give deference to the trial court's factual findings, upholding them unless they are clearly erroneous. Id. at 45 . We consider the evidence and all inferences that may be reasonably drawn from the evidence in a light most favorable to the prevailing party on the motion.

Id. “The ultimate determination of whether there was a constitutional violation, however, is an independent determination that is made by the appellate court alone, applying the law to the facts found in each particular case.” Belote v. State, 411 Md. 104, 120 (2009) (citations omitted). We evaluate any questions of law de novo “without any special deference to the views of the Circuit Court or the Court of Special Appeals.” State v. Thomas, 465 Md. 288, 301 (2019). III Discussion The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend.

IV

Warrantless searches and seizures are presumptively unreasonable under the Fourth Amendment. Thornton, 465 Md. at 141; Grant v. State, 449 Md. 1, 16-17 (2016). When police have obtained evidence through a warrantless search or seizure, the State bears the burden to demonstrate that the search or 14 seizure was reasonable, by establishing the applicability of one of the “few specifically established and well-delineated exceptions” to the warrant requirement. Id. at 16 (citing Katz v. United States, 389 U.S. 347, 356-57 (1967)).

Evidence obtained in violation of the Fourth Amendment will ordinarily be inadmissible under the exclusionary rule. Thornton, 465 Md. at 140 ; Bailey v. State, 412 Md. 349, 363 (2010). However, the “significant costs” of the exclusionary rule “have led [the Supreme Court] to deem it applicable only ... where its deterrence benefits outweigh its substantial social costs.” Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (cleaned up). Thus, the Supreme Court has recognized several exceptions to the exclusionary rule, including the attenuation doctrine.

See id. The attenuation doctrine provides that, in some instances, an intervening event – such as the discovery of a warrant for a person’s arrest – will sufficiently attenuate the taint of an initially unlawful search or seizure to allow for the admission of evidence discovered subsequent to the intervening event. See id. A. Constitutionality of Fare Sweeps on Light Rail Trains 1.

The Announcement of the Fare Sweep Effected a Seizure of Carter. An encounter between an individual and a law enforcement officer implicates Fourth Amendment protections when the officer, by physical force or show of authority, restrains a person’s movement, such that a reasonable person would not feel free to walk away from the officer or disregard the officer’s questions. See United States v. Mendenhall, 446 U.S. 544, 553-54 (1980). Whether an encounter is a seizure implicating the protections of the Fourth Amendment is a fact-specific inquiry based on the totality of the circumstances in a given case.

See Swift v. State, 393 Md. 139, 150-53, 156 (2006). 15 In the Court of Special Appeals, the State defended the circuit court’s ruling that Corporal Russell did not seize Carter. In support of this position, the State argued that “[n]o record evidence indicated that a patron could not simply elect to leave a Light Rail train at the time a [fare sweep] is announced, provided that the patron does so before his or her individual fare is checked.” The Court of Special Appeals rejected the State’s argument, concluding that, “[a]though [Carter] was not restrained physically by the MTA officers when they entered the Light Rail Train, Corporal Russell’s show of authority, as well as the presence of multiple officers outside the train car, implied to a reasonable person that individuals were not free to leave prior to providing proof of a fare ticket.” Carter, 243 Md. App. at 231 . The intermediate appellate court also found significant that Corporal Russell did not inform the passengers as part of her announcement of the fare sweep that any passengers who wished to detrain at the Mount Royal station could do so without displaying a ticket or proof of payment. See id.

For these reasons, the court held that Carter “was seized within the meaning of the Fourth Amendment.” Id. at 232 . The State now concedes that Corporal Russell seized Carter when she announced the fare sweep, representing to us that, during a fare sweep, “a passenger generally is not free to leave … without showing proof-of-payment.” We accept the State’s concession that Corporal Russell’s announcement of the fare sweep effected a seizure, as it is consistent with the record before the circuit court. Corporal Russell and other officers boarded both cars of the Light Rail train after it arrived at the Mount Royal station, while several other officers waited on the platform. This was a substantial display of law enforcement authority.

Moreover, Officer Tobin testified that, in a fare sweep, when officers board a 16 train, they “announce that [they] are conducting a fare inspection and [they] promptly ask everybody to show us their passes. Those who do not show passes are required to alight the train and seek an officer on the platform.” Corporal Russell similarly described her announcement of the fare sweep as informing all the passengers on the train car that she was “checking tickets,” and “advis[ing] them to have their tickets out.” Corporal Russell also testified that, after announcing a fare sweep, “you check each patron for tickets.” In short, the record suggests that a reasonable passenger would have believed what the State tells us, in fact, was the case: the passenger was not free to leave the train without first displaying proof of fare payment or the lack thereof. For these reasons, we conclude that Corporal Russell seized Carter within the meaning of the Fourth Amendment when she announced the fare sweep. She did so without suspicion that Carter had committed any criminal offense, including fare evasion.

Thus, unless the State can establish that the fare sweep falls under one of the recognized exceptions to the warrant requirement, Carter’s seizure violated the Fourth Amendment, and his subsequent admission that he lacked a ticket was the fruit of an unlawful detention. 2. Implied Consent The State contends that two of the exceptions to the warrant requirement render Carter’s seizure constitutional. We first consider the State’s argument that Carter impliedly consented to the seizure by traveling on the barrier-free Light Rail system. Consent to a search or seizure is a recognized exception to the warrant requirement.

See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Jones, 407 Md. at 51 . The State “bears the burden of proving that ‘consent was in fact voluntarily given.’” State v. Wilson, 17 279 Md. 189, 201 (1977) (quoting Schneckloth, 412 U.S. at 248-49 ); Jones, 407 Md. at 51 . Most Fourth Amendment consent cases concern express grants of consent. See, e.g., State v. Green, 375 Md. 595, 620-24 (2003) (analyzing whether driver’s express consent to search his car expired before the start of the search); Wilson, 279 Md. at 202-03 (considering whether officer obtained defendant’s express consent to search through coercion).

However, in some circumstances, consent to a search or seizure can be implied from the surrounding circumstances. See, e.g., Farkas, 823 F.3d at 1216-17 (holding that civilian who entered naval base gave implied consent to a Fourth Amendment intrusion).8 The State claims that Carter impliedly consented to the seizure Corporal Russell effected when she announced the fare sweep. The Court of Special Appeals rejected this contention, see Carter, 243 Md. App. at 234-36 , as do we. The State bases its implied consent argument on the fact that the Light Rail is a barrier-free transit system that requires prepayment of the fare, and because signs on Light Rail platforms accordingly state: “Ticket or Pass Required Before Boarding Trains.” In addition, the State asserts that the requirement to show proof of payment during a Light Rail fare sweep is a minimal intrusion compared with other searches and seizures to which citizens have been found to impliedly consent in other contexts.

For these reasons, the State 8 Implied consent, as we use that term here, is distinguishable from a Fourth Amendment principle that some courts have also referred to as “implied consent,” but is more properly understood as “non-verbal” consent. See, e.g., Chase v. State, 120 Md. App. 141, 150 (2000) (occupant of house gave non-verbal consent to officers’ requested entry by stepping out of the doorway and allowing the officers to enter the house). Unlike the implied consent that we discuss here, non-verbal consent is a person-specific, affirmative manifestation of agreement to an officer’s request to conduct a search or seizure. 18 contends that the reasonable expectation of any Light Rail passenger is that the passenger may be subject to fare inspection on any given trip. By deciding to ride the Light Rail while maintaining this reasonable expectation, the State argues, a passenger impliedly consents to a fare sweep.

As Carter correctly observes, one of the important things that is missing in this case, but was present in the cases upon which the State relies, is express prior notice that a person may be subject to a search or seizure. For example, in Farkas, a civilian (Farkas) entered a naval base for an interview with an investigator. Farkas, 823 F.3d at 1214 . The investigator directed Farkas to place his keys, wallet, and loose change in a lockbox during the interview.

Id. Farkas subsequently filed a civil rights lawsuit in which he claimed, among other things, that the investigator seized him in violation of the Fourth Amendment when he restrained his freedom of movement by requiring him to hand over his wallet and keys. Id. at 1216 . The Ninth Circuit affirmed the trial court’s grant of summary judgment against Farkas, holding that “Farkas impliedly consented to this limited restraint on his freedom by voluntarily entering the passage-restricted base and agreeing to enter the interview room.” Id.

The court explained: [T]he usual Fourth Amendment analysis does not apply because visitors give their implied consent to be searched and seized when entering a military base…. [T]he typical trappings of a military base (e.g., the barbed- wire fence, the security guards at the gate, the sign warning of the possibility of search) combine to puncture any reasonable expectations of privacy for a civilian who voluntarily enters. The same trappings … were at play here. The Ventura County naval base is a restricted-access military base. Each point of entry is gate-guarded and dotted with warning signs alerting visitors that access is restricted, all persons and vehicles are subject to search, the base is patrolled by military 19 working dogs, and violators will be prosecuted.

Farkas’s assertion that his consent did not extend to the storage of his personal items is belied by the objective circumstances. Farkas passed the warning signs, met the investigator in the parking lot, and agreed to place his belongings into a lockbox before voluntarily entering the interview room. By passing through an internal checkpoint, which the investigator was required to administer, Farkas reaffirmed by his conduct what had been established at the gate: that he impliedly consented to the possibility of a Fourth Amendment intrusion. Id. at 1216-17 .

Similarly, in Dept. of Transp., Motor Vehicle Admin. v. Armacost, 299 Md. 392 (1984), this Court analyzed a search as to which citizens had notice. Armacost concerned, as relevant here, the Fourth Amendment implications of MVA’s Vehicle Emissions Inspection Program (“VEIP”). To measure a car’s emissions, the testing official was required to insert a probe into the tailpipe of the vehicle while it was idling for approximately two minutes. Id. at 406 .

Respondents in Armacost argued that the warrantless inspection of the interior of a vehicle’s tailpipe violated the Fourth Amendment. This Court disagreed. Among other reasons for this conclusion, the Court explained that the search of a vehicle tailpipe to test the level of emissions would likely be deemed consensual. No Maryland resident is forced to have his vehicle inspected; the penalty for noncompliance is a loss of the right to drive that vehicle.

The VEIP does not affect a citizen’s right to drive any other vehicle or to seek alternative means of transportation. It is well accepted … that consent to minimal intrusions may be required by the state as a prerequisite to use of regulated means of travel. Id. at 407-08 . The point underpinning this analysis was that, because a reasonable owner of a motor vehicle knows that the VEIP requires the insertion of a piece of equipment inside a car’s tailpipe, the owner can make an informed decision about whether to bring the car in for inspection, thereby subjecting the vehicle to such a search. 20 Here, there is no signage that explicitly warns passengers they may be subject to a seizure.9 It is difficult to understand how someone can impliedly consent to a search or seizure without having notice that the search or seizure may occur.

Moreover, the Light Rail contains none of the other security trappings of a military base or an airport10 that, along with signage informing visitors of the possibility of search or seizure, “combine to puncture any reasonable expectation of privacy” for someone who voluntarily enters the secure portion of such a facility. Farkas, 823 F.3d at 1216 . The State asserts that a reasonable passenger understands a barrier-free transit system requires onboard fare inspection to ensure a sufficient rate of fare payment, and therefore, impliedly gives consent to fare inspection when the passenger boards the train. Carter agrees that a reasonable Light Rail passenger likely does understand that some form of fare inspection may occur aboard a train.

However, it does not follow that a reasonable passenger understands that the passenger will be seized on a stationary train by police officers for as long as it takes to check whether all passengers have paid their fare. Although the fare sweep in this case – which occurred on a weeknight shortly after 8:00 p.m. – took 9 In an Appendix to its Reply Brief, the State included photographs of several signs and notices that, the State tells us, are located in or near Light Rail train cars. Several of these signs state that passengers must show a valid ticket or pass to a fare inspector upon request. These photographs are not part of the record of the suppression hearing.

Even if we were to consider the additional signs depicted in these photographs, they would not change our analysis. None of the additional signs gives notice that passengers may be subject to seizure by police officers in a fare sweep. 10 See, e.g., United States v. Edwards, 498 F.2d 496 (2d Cir. 1974) (upholding the constitutionality of requiring airline passengers to submit to preflight searches of their persons and baggage). 21 only approximately 90 seconds to complete, a fare sweep during peak travel hours presumably could take longer to conduct. Moreover, there is a significant difference between a team of armed officers seizing an entire train of passengers while the train is stopped at a station, and an individual MTA officer or civilian fare inspector asking passengers to show proof of fare payment while a train is traveling between stations. The Court of Special Appeals did not believe that the latter scenario would constitute a seizure.

See Carter, 243 Md. App. at 232-33 (explaining that “[i]n this hypothetical scenario, it is the nature of train travel itself and not the MTA officer that restrain[s a passenger’s] freedom of movement,” and contrasting it to the fare sweep that occurred in this case: “Once the train arrived at the station … and the train ceased travel, it was solely the MTA officers who prevented [Carter] from leaving.”). We need not decide in this case whether a fare inspection aboard a moving Light Rail train conducted by an individual MTA police officer or civilian fare inspector,11 or by a team of police officers and inspectors,12 constitutes a seizure for purposes of the Fourth 11 The State informs us that MTA civilian fare inspectors also conduct individual fare inspections on Light Rail trains. However, unlike MTA police officers, civilian fare inspectors lack authority to issue citations or make arrests. 12 Following the Court of Special Appeals’ issuance of its opinion in Carter’s case, MTA issued a “Training Bulletin” regarding “Enforcement Sweeps on the Light Rail.” In this bulletin, dated December 3, 2019, MTA announced that, effective immediately, “all stationary fare enforcement sweeps on the light rail system are suspended until further notice.” (Emphasis in original.) The bulletin explained that “[f]are enforcement sweeps will only commence while light rail trains are mobile between stations,” and that “[l]ight rail trains will not be held for the purpose of a fare inspection sweep at any station.” The bulletin also stated that civilian fare inspectors “will be the primary examiner[s] of all payment fares of patrons during sweeps,” and that the civilian fare inspectors “will report all fare violators to an MTA Police officer for proper enforcement actions.” 22 Amendment. Nor need we decide, assuming a fare inspection aboard a moving Light Rail train is a seizure, whether a reasonable passenger impliedly consents to such a seizure.

We conclude only that a reasonable Light Rail passenger does not impliedly consent to the type of fare sweep at issue in this case.13 3. The Special Needs Doctrine Next, we consider the State’s argument that the MTA fare sweep is constitutional under the “special needs” exception to the Fourth Amendment warrant requirement. Under the special needs doctrine, courts may uphold the constitutionality of a program of seizures without individualized suspicion, where the program is designed to serve “special governmental needs, beyond the normal need for law enforcement.” Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 449 (1990) (citation omitted). For example, in Sitz, the Supreme Court held that the Michigan State Police’s use of warrantless sobriety checkpoints along state roads was constitutional, where the program was designed to “prevent[] accidents caused by drunk drivers.” Id. at 449 (internal quotation marks and citation omitted); see also Little v. State, 300 Md. 485, 506 (1984) (sobriety checkpoint seizure held to be constitutional, despite lack of warrant, in light of the “State’s compelling interest in detecting and deterring drunk driving”).

Similarly, in United States v. Martinez- Fuerte, 428 U.S. 543, 557, 560-62 (1976), the Supreme Court upheld suspicionless seizures 13 The State’s argument comparing the level of intrusion of a fare sweep to the level of intrusion in other cases where courts have found implied consent, is fallacious. It does not follow, for example, that because passengers who have notice of the possibility of a bag search at an airport are deemed impliedly to consent to such a search, see State v. Hanson, 34 P.3d 1, 5 (Haw. 2001), a Light Rail passenger without notice of a fare sweep impliedly consents to that comparatively less intrusive police action. 23 that occurred at a Border Patrol checkpoint near the U.S.-Mexico border, noting that a requirement of reasonable suspicion “would largely eliminate any deterrent to the conduct of well-disguised smuggling operations.” In upholding these types of suspicionless searches and