State v. Darden

DAVIS, Judge. Ricky Darden, appellee, was indicted on September 9, 1991, on two counts of possession with intent to distribute a controlled dangerous substance, one count of possession of a controlled dangerous substance, and one count of transporting a handgun. On September 25, 1991, Darden filed a motion to suppress evidence, and a January 21,1992 evidentiary hearing followed in the Circuit Court for Prince ³⁷⁶ George’s County. In a memorandum opinion filed on February 19, 1992, the trial court granted Darden’s motion.

The State now seeks our review, asserting that the trial court erroneously granted Darden’s motion. We issued an order on August 12,1992, affirming the order of the Circuit Court for Prince George’s County. We now explain. FACTUAL BACKGROUND On August 20, 1991, at approximately 1:50 p.m., Ricky Darden, in the midst of approximately fifteen to twenty people, disembarked from a train arriving at the New Carrollton Metro Station in Prince George’s County from New York City.

He caught the attention of Officers T.N. Mallory and Thomas J. Call as he proceeded past them on the platform and then down the escalator to the mezzanine level, at which time, according to Mallory at the suppression hearing, he followed Darden to the exit of the Amtrak subway station. There, Mallory approached Darden, identified himself as a Metro Transit Police Officer, and requested to speak with him. According to Mallory, Darden had made eye contact with him four times — three times looking over his left shoulder and once over his right shoulder. As Darden proceeded down the escalator, glancing at the Metro policemen, “he was very nervous and started to shake.” He then looked over his left shoulder and was observed shaking.

Darden agreed to speak with Mallory, whereupon Mallory advised him that he and his partner were conducting drug interdiction “to stop the illegal flow of narcotics coming from New York City into the metropolitan area.” Mallory observed that Darden “was sweating profusely at that time from his forehead and that he was shaking.” It was his opinion that the perspiring was inconsistent with the temperature in the Metro station at the time. When asked for his train ticket, Darden replied that he didn’t have one, at which time Mallory “advised him that he needed a ticket to ride the Amtrak train.” ³⁷⁷ After producing his wallet from a pants pocket, Darden “start[ed] to fumble in his wallet for the ticket.” The witness opined that Darden appeared to have problems locating his ticket, he was very nervous, his hands were shaking, and “he had trouble getting anything out of his wallet.” Darden handed the ticket to Mallory and, after observing that Darden had boarded the train at Penn Station in New York City, the police officer returned the ticket to Darden, inquiring if he had purchased the ticket. Darden advised him that his mother had paid for the ticket. When asked his name, the appellee identified himself as Ricky Darden and then, when requested, spelled his last name D-A-R-D-O-N. Darden then produced identification in the form of an unofficial laminated ID card on which the name indicated was Ricky Darden with the last name spelled D-A-R-D-E-N. The identification card was returned to the appellee, and he was next questioned about his destination, whereupon he stated he was going to 18408 London Lane in Bowie, Maryland.

When questioned further, Darden indicated that he was not carrying any large amounts of money or drugs on him or in his bag. Mallory then asked Darden for permission to search his bag; according to Mallory, the appellee gave his consent. As Mallory began to open up the center pouch of the gym bag, appellee went over to Officer Call and asked, “Did I [Mallory] have to look in the bag?” Upon being advised that Mallory could only search the bag if he had Darden’s consent, appellee stated that he did not want the officers to look in the bag, at which point Mallory stopped. Before he was able to fasten the zipper, however, Darden “grabbed the handles of the bag and tried to walk off very quickly.” Mallory grabbed the bag and told Darden that he was temporarily detaining the bag in order to call a narcotics detection dog to “do the exterior inspection of the bag.” Darden was free to go or stay, as he chose, until the dog arrived and inspected the bag.

Appellee was advised that it would be somewhere between ten to twenty minutes before the dog arrived and, if the dog did not indicate the presence ³⁷⁸ of narcotics, the bag would be returned if appellee would provide the officers with an address and a phone number where he could be located. The address Darden gave them was 18408 London Lane. According to Mallory, the narcotics detection dog arrived approximately twenty minutes later. 1 . The drug-sniffing dog, Wolf, conducted an exterior inspection and indicated the presence of a controlled dangerous substance by scratching the bag vigorously.

Following the dog's reaction, the officers took the bag to a Prince George’s County police station and prepared an application for a warrant to search the bag. Once the application was completed, Mallory called Assistant State’s Attorney Kathy Evans, who approved the warrant application after it had been read to her over the telephone. Mallory then learned that Judge Devlin was on duty that evening and went to his home, where Mallory attested, under oath, to the facts in the affidavit. Mallory affixed his signature, and the judge signed the warrant, returning it to Mallory.

The officer returned to the police station with the warrant and searched the bag, discovering 223.9 grams of suspected cocaine. The substance field-tested positive for cocaine, and Mallory prepared an arrest warrant for Darden. Mallory then went to the commissioner’s office and had Darden charged with possession with intent to distribute. The next day Mallory and other officers attempted to arrest Darden at the address he had given and discovered that there was no house at the address given.

Through a BMW automobile registered in his name, police tracked Darden to 14808 London Lane, where they observed Darden leaving the residence at approximately 11:00 a.m., carrying a green paper bag and a plastic bag. Darden entered a ³⁷⁹ waiting taxi cab and departed. The officers, who were in unmarked vehicles, pursued and arrested Darden when the cab stopped at a Camp Springs apartment complex. Police recovered a loaded 9mm handgun and a triple-beam scale from the green paper bag.

A loaded .25 caliber gun was recovered from the other bag. Officer Tommy Call was the final witness to testify concerning the incident, and he related facts identical to those given by Officer Mallory. LEGAL ANALYSIS The Fourth Amendment to the United States Constitution provides: [Security from Unwarrantable Search and Seizure] The right of 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. The constitutional right against unreasonable searches and seizures is made applicable to the States through the Fourteenth Amendment and is specifically applicable to State prosecutions by the Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961).

The appellee, citing Terry v. Ohio, 392 U.S. 1, 30 , 88 S.Ct. 1868, 1884 , 20 L.Ed.2d 889 (1968), acknowledges that it is permissible for an investigating officer to “briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulated facts that criminal activity ‘may be afoot’ even if the officer lacks probable cause.” Appellee contends that “no reasonable articulable suspicion supported the seizure of Darden’s bag” and that the court was therefore correct in its finding that the State’s remaining evidence must be suppressed because it “was the direct result of the unlawful seizure.” The State ³⁸⁰ replies that the trial court’s ruling is erroneous because there was articulable suspicion of criminal activity to justify the seizure of the bag. Assuming, arguendo, the bag was illegally seized, the State alternatively contends that the subsequent actions of the police officers were based upon the good faith exception that they were acting pursuant to a valid search warrant. The lower court, in its memorandum opinion, determined that the initial confrontation in questioning of the appellee was constitutionally permissible because “it would appear to a reasonable person in [appellee’s] position, that he had a right, at any time, to terminate the questioning and leave,” citing U.S. v. Mendenhall, 446 U.S. 544, 546 , 100 S.Ct. 1870, 1873 , 64 L.Ed.2d 497 (1980). The court further observed that appellee’s constitutional rights were not violated when the initial search commenced because it was pursuant to the consent obtainéd.

Concerning the initial seizure of the appellee’s sports bag, the lower court considered six factors relevant to the inquiry: To summarize, at the time Officer Mallory detained the bag, the Officer knew the following: (1) defendant had been a passenger on a train which had come from a “source city”; (2) from the time defendant got off the train until the time the bag was seized, defendant was agitated and nervous; (3) that defendant, before producing identification, had misspelled his surname; (4) that defendant had falsely said he did not have a ticket; (5) that defendant had withdrawn his consent to the search immediately upon being made aware of his right to refuse consent; and (6) that although he had searched the bag for a minute he had not found anything incriminating in it. The court’s memorandum opinion continues by adverting to the principle that, subject only to a few exceptions, the seizure of a person’s property is per se unreasonable under the Fourth Amendment when such seizure is not conducted pursuant to the authority of a warrant supported by proba ³⁸¹ ble cause. Riddick v. State, 319 Md. 180 , 571 A.2d 1239 (1990). Finding that there was not a reasonable articulable suspicion to warrant a narcotics-related detention, the lower court granted appellee’s motion to suppress.

STANDARD OF REVIEW We have set forth the factual findings made by the judge on the motion to suppress because we are mandated, when the facts are in dispute, to accept them as found by the trial judge unless he is clearly erroneous in his judgment on the evidence before him. Riddick, 319 Md. at 183 , 571 A.2d 1239 . Our determination as to whether he is clearly erroneous requires us to give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Md.Rule 8-131(c).

Notwithstanding the requirement that we defer to the findings of fact of the trial judge on the motion to suppress, when the question is whether a constitutional right has been violated, we must make our own independent constitutional appraisal by reviewing the law and applying it to the peculiar facts of the particular case. Riddick, 319 Md. at 183 , 571 A.2d 1239 ; State v. Gee, 298 Md. 565, 571 , 471 A.2d 712 (1984). REASONABLE ARTICULABLE SUSPICION As noted above, the Fourth Amendment prohibits the search and/or seizure of a person or the issuance of a warrant to search the person or the effects of a person “but upon probable cause.” Succinctly put, probable cause is defined as “a fair probability that contraband or evidence of a crime will be found in a particular place.” Malcolm v. State, 314 Md. 221 , 550 A.2d 670 (1988), citing Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) (citations omitted). In Terry v. Ohio, supra, the Supreme Court announced a standard less stringent than probable cause under which a police officer may conduct a field ³⁸² interview and a limited search of a suspect.

Under Terry , a reasonable articulable suspicion is required before an officer is authorized to detain a citizen to confirm or dispel his suspicion of the citizen’s involvement in criminal activity. Id. In Graham v. State, 325 Md. 398, 406 , 601 A.2d 131 (1992), quoting Florida v. Bostick, 501 U.S.-, 111 S.Ct. 2382, 2386 , 115 L.Ed.2d 389 (1991), the Court of Appeals noted that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” [Citations omitted.] In the case before us, both sides agree, and we concur, that the Fourth Amendment was not implicated until such time as Officer Mallory exercised dominion and control over Darden’s bag and refused to allow him to leave with it. 2 Until that moment, the encounter between Darden and the officers, as evident from the testimony given, was purely consensual. The principal focus of this appeal is whether the police officers had a reasonable articulable suspicion that Darden’s bag contained contraband when they seized it.

We hold that they did not satisfy the requisites of a Terry stop, and we now explain. The Supreme Court discussed reasonable articulable suspicion in Reid v. Georgia, 448 U.S. 438 , 100 S.Ct. 2752 , 65 L.Ed.2d 890 (1980), a case involving the so-called “drug-courier profile.” The petitioner in Reid flew into Atlanta and, as he walked through the airport, glanced back occasionally at a second man. The men, who both carried shoulder bags, were stopped by police and asked for identi ³⁸³ fication. Though they consented to a search of their persons and shoulder bags, the petitioner tried to run away but was apprehended.

The Georgia Court of Appeals held that the evidence against the petitioner should not be suppressed, finding that the investigatory stop was valid because he fit the “drug-courier profile.” The Supreme Court reversed the state court and held that the petitioner’s actions did not warrant a Terry-type investigatory stop because the police officers lacked a reasonable articulable suspicion of criminal activity. The Court said the circumstances present in Reid would “describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures.” Reid, 448 U.S. at 441 , 100 S.Ct. at 2754 . The Court discounted the following circumstances: that Reid flew in from a principal source city; that he arrived early in the morning, “when law enforcement activity is diminished”; and that he had no luggage other than a shoulder bag. Id.

The Court also was not swayed by the fact that Reid and his traveling companion appeared nervous during conversations with drug agents and were visiting Ft. Lauderdale only for one day. The Court concluded that “the agent could not, as a matter of law, have reasonably suspected the petitioner of criminal activity on the basis of these observed circumstances.” Id. Although the instant case was not decided on the basis of the drug courier profile, Reid is instructive in its teaching that “more [is] required than the presence of drug courier profile characteristics.” United States v. Haye, 825 F.2d 32, 34 (4th Cir.1987).

Other factors also must be present sufficient to arouse a “particularized suspicion” that the defendant is engaging in criminal activity. Invocation of a Terry stop for brief periods when there is a reasonable, articulable suspicion is an appropriate investigatory tool, as explicated in United States v. White, 890 F.2d 1413 (8th Cir.1989). In White , the defendant, who was arrested in an airport, was convicted of possession of cocaine with intent to distribute. Police made an investigate ³⁸⁴ ry stop because White appeared nervous; he was clutching his carry-on bag under his arm as he deplaned; he was traveling from a source city; he had arrived early in the morning; he had purchased a one-way ticket with cash; and the flight he was on had previously yielded arrests of narcotics traffickers.

When police asked for permission to search his luggage, the defendant declined to give his consent. The defendant asked to leave, and the officers responded that he could leave but that he could not take his luggage with him. Police brought a drug-sniffing dog to the scene about one minute after the defendant was told he could not take his luggage. The dog “alerted” to the carry-on bag, and police obtained a warrant to search it and found a package containing cocaine.

The Court wrote that even if White was at all times free to leave, officers must have a reasonable, articulable suspicion to justify detention of a person’s luggage, just as they must have to detain the person himself____ The officers confronting White, therefore, needed sufficient grounds to form a reasonable, articulable suspicion of criminal activity in order to detain White’s bags. Id. at 1416 (emphasis added). The Court held that the officers lacked sufficient justification to detain either White or his luggage. It said: Without having any advance information that suggested “criminal activity may be afoot,” Terry, supra, 392 U.S. at 30 , 88 S.Ct. at 1884 , or that pointed to someone matching White’s description, the officers relied on the sort of “fragmentary facts” that the Supreme Court rejected as a valid basis for the investigative stop in Reid [v. Georgia, 448 U.S. 438 , 442 n. 1, 100 S.Ct. 2752 , 2755 n. 1, 65 L.Ed.2d 890 (1980)].

Id. at 1419. Numerous federal cases have considered when sufficient factors exist to satisfy the reasonable articulable suspicion standard. A police officer’s hunch or intuitive belief is not sufficient to establish a reasonable articulable ³⁸⁵ suspicion; there must be some “particularized suspicion about the individual.” United States v. Millan, 912 F.2d 1014, 1017 (8th Cir.1990). The courts, in deciding whether a reasonable articulable suspicion exists, do not focus on singular isolated facts but “upon the totality of the circumstances.” United States v. Grant, 920 F.2d 376, 385 (6th Cir.1990), citing United States v. Sokolow, 490 U.S. 1 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989).

See United States v. Whitehead, 849 F.2d 849, 858 (4th Cir.1988) (“[W]e cannot engage in piecemeal refutation of each individual factor as being consistent with innocence. It is the entire mosaic that counts, not single tiles.”) In the instant case, the officers said their suspicions were aroused because the appellee, who had arrived aboard a train from New York, a source city for narcotics, made repeated eye contact with them. When police stopped the appellee, they said he appeared nervous and began “shaking” and “sweating profusely.” The appellee told police he did not have a train ticket but then produced one when reminded by the officers that he needed a ticket to ride the train, and, when asked his name, misspelled his last name as D-A-R-D-O-N, when in fact it was Darden. When we view these circumstances in their totality, we find “too slender a reed,” Reid, 448 U.S. at 441 , 100 S.Ct. at 2754 , to support a reasonable articulable suspicion of criminal activity.

The State cites appellee’s nervousness as a principal factor to buttress its argument that the officers reasonably suspected him of criminal wrongdoing. Court decisions have made it clear, however, that a person passing through an airport, train station or bus depot cannot be stopped solely because he appears nervous, harried, or anxious. “[C]ertain behavior characteristics [are] inherently unsuspicious and, thus, entitled to no weight in the calculation.” United States v. Saperstein, 723 F.2d 1221, 1228 (6th Cir.1983) (emphasis added). The Saperstein Court cited both nervousness and travel to and from a source city as examples of such behavior. “Nervousness is entirely con ³⁸⁶ sistent with innocent behavior, especially at an airport where a traveller may be anticipating a long-awaited rendezvous with friends or family.” U.S. v. Andrews, 600 F.2d 563, 566 (6th Cir.1979). In Whitehead, supra, nervousness was only one of several factors the Court considered in deciding that the police reasonably suspected the defendant was engaged in the transport of illegal drugs.

Police said the defendant appeared startled, nervous, and began sweating profusely when approached by police. There also were other circumstances to consider in deciding whether police reasonably suspected the defendant of criminal activities, including the fact that Whitehead travelled from Miami, a major source city; he had stayed at a Miami hotel known as a meeting place for drug traffickers; he had arrived at the train station just minutes before his train was to depart and then repeatedly looked around the entrance before going inside the station; and when asked his name, he had responded “W. Tucker” rather than supplying a full name. Whitehead, 849 F.2d at 858 . In Grant, supra, the Court rejected the prosecution’s contention that agents reasonably suspected the defendant because he was nervous, had shaking hands, and misstated the destination of his flight as Kennedy Airport rather than LaGuardia Airport.

Grant, 920 F.2d at 386 . United States v. Haye, 825 F.2d at 34 , involved a man walking through an airport who appeared nervous, while his travel-ling companion followed some 20 to 25 feet behind him. Because they exhibited some of the characteristics of the drug courier profile, the officers approached the two as they left the terminal building; both men bolted. Id. at 33 .

The Fourth Circuit Court of Appeals held that police did not have reasonable suspicion sufficient to make an investigatory stop at the time of the initial encounter. The Court concluded, however, that “all of the circumstances, including the flight, furnished reasonable suspicion for a brief, involuntary, investigative stop.” Id. at 34 . ³⁸⁷ Innocent passengers fly on airplanes from such cities as Miami that are known sources of drug supplies. Some of them may take circuitous routes through airline terminals and appear nervous or furtive, but they do not break into precipitous flight upon being informed by a man in civilian clothing that he is a policeman. Against the background of drug courier characteristics they had shown, their flight from the presence of two men upon their announcement that they were policemen gave the police reasonable, articulable suspicion, based upon objective facts, quite sufficient to warrant a Terry stop.

Id. In the case sub judice, there was neither evidence that Darden fit the drug courier profile nor was the issue of the existence, vel non, of reasonable articulable suspicion based on such a profile. The nervousness exhibited by Darden and the fact that he was en route from a source city and that he misspelled his name did not provide sufficient grounds for the police officers’ investigatory stop. We hold, therefore, that the police did not have a reasonable articulable suspicion that the appellant was engaged in any criminal wrongdoing.

Assuming, arguendo, that the officers had reasonable suspicion sufficient for an investigatory stop, the officers’ constitutional intrusion in the instant case would have exceeded that permitted by a Terry stop, and thus the officers were required to have probable cause to justify their prolonged seizure of the bag. Once they seized the bag, the officers temporarily retained the bag to await the arrival of the drug-detecting canine. When the dog indicated that narcotics were in the bag, the officers removed the bag to the police station to obtain a warrant to search the bag and, once there, performed a second canine inspection with the same results. The officers then obtained the warrant.

After obtaining the warrant, they searched the bag and found the illicit drugs. ³⁸⁸ In contrast to what occurred in United States v. White, supra, where the detention was for one minute, the drug-sniffing dog did not arrive for twenty minutes in this case. In circumstances where the information possessed was more than present here and the time of detention less, the White Court found the requisite reasonable articulable suspicion lacking. Probable cause was also lacking to seize the bag, as we explain infra. In another factually similar case, the Supreme Court considered the detention of a defendant’s luggage in United States v. Place, 462 U.S. 696 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983).

The defendant, in Place , boarded a New York-bound plane in Miami where agents had asked him if they could search his luggage. Even though the defendant consented, the police did not conduct a search because his flight was about to depart. The Miami officers alerted agents in New York who stopped him when he deplaned. When Place declined to let them search his luggage, the agents informed him that they were taking the luggage and would try to get a search warrant, which they did ultimately.

About ninety minutes elapsed between the seizure of Place’s luggage and the arrival of a drug-sniffing dog. The dog reacted positively to one of the defendant’s bags. Because it was a late Friday afternoon, the agents kept the defendant’s luggage until Monday when they secured a search warrant and discovered 1,125 grams of cocaine. The Supreme Court determined that the agents made a “seizure” under the Fourth Amendment “when, following his refusal to consent to a search, the agent told Place that he was going to take the luggage to a federal judge to secure issuance of a warrant.” Id. at 707 , 103 S.Ct. at 2645.

The Court, relying largely upon the length of time the agents detained the defendant’s luggage, concluded that the agents had exceeded “the permissible limits of a Terry-type investigative stop.” Id. at 709, 103 S.Ct. at 2645. The Supreme Court wrote: The precise type of detention we confront here is seizure of personal luggage from the immediate possession of the ³⁸⁹ suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler’s immediate possession, the police conduct intrudes on both the suspect’s possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage.

Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return. 462 U.S. at 708, 103 S.Ct. at 2645 (emphasis added). The Court continued: The length of the detention of respondent’s luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. Although we have recognized the reasonableness of seizures longer than the momentary ones involved in Terry ..., the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion____ Thus, although we decline to adopt any outside time limitation for a permissible Terry stop, we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case.

Although the 90-minute detention of respondent’s luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. In short, we hold that the deten ³⁹⁰ tion of respondent’s luggage in this case went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics. Id. at 709-10, 103 S.Ct. at 2645-46 (emphasis added) (citations omitted) (footnote omitted). Under the above rationale and the facts of this case, the seizure of Darden’s bag went beyond the pale of a Terry stop and into the realm of a full-blown seizure. [T]he constraint on liberty imposed by a Terry stop is relatively minimal.

It is limited in space in the sense that it does not involve removing the suspect from the place where he is initially stopped to some more remote location. It is limited in time in that its duration must be brief. Derricott v. State, 84 Md.App. 192, 210 , 578 A.2d 791 (1990). Notwithstanding that the cited decisions emphasize that the detention must be brief, we do not decide (as did the Supreme Court regarding the ninety minute delay in Place) that a thirty minute delay is per se unreasonable.

Our decision turns rather on whether there were indicia that appellee’s bag was reasonably suspected of containing drugs, thereby rendering a brief detention reasonable. The Fourth Amendment requires a valid warrant or a warrant exception to justify such a seizure. The officers in this case did not possess a warrant for the seizure of the bag. We have consistently held that “[warrantless arrests, searches and seizures are presumptively invalid and the burden is cast upon the State to rebut that presumption and establish their validity.” Anderson v. State, 78 Md.App. 471, 484 , 553 A.2d 1296 (1989), citing Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971).

The State argues that, under our decision in Derricott, supra, the officers were authorized to detain the bag temporarily to await the arrival of a narcotics detection dog. The recent reversal of our decision, in Derricott , by the ³⁹¹ Court of Appeals severely undercuts the State’s argument. As we have observed, supra, p. 383, the case sub judice was not decided on the basis of the drug courier profile although much of the analysis parallels the approach taken in such cases and many of the cases cited considered the use of profiles. Our decision, in Derricott , relied, in part, on the use of the drug courier profile.

The Court of Appeals, in rejecting the use of such profiles absent data supporting their validity, said In this case, the state has not disclosed any underlying statistics or data to explain why the combination of circumstances at issue here produces reasonable suspicion, No attempt was made to explain how this profile was formulated, or even whether empirical evidence which might lead to its development exists, Without more the attributes the state claims were suspicious about Derricott’s appearance simply are not enough to establish the requisite level of reasonable suspicion that Derricott was engaged in criminal activity. Derricott v. State, 327 Md. 582, 591, 593 , 611 A.2d 592 (1992.) Appellant’s reliance on our decision in Derricott is flawed because reasonable suspicion was based on the discovery of the glassine bag. The decision of the Court of Appeals however provides even greater support for appellee’s position. In Derricott, the appellant was pulled over for a routine traffic violation.

Believing the driver to fit the current “drug courier profile,” before giving Derricott the traffic citation, the officer called for additional “back-up” and a narcotics detection dog. Upon returning to Derricott’s car, the officer asked him to step out of the vehicle, at which time the officer leaned into the vehicle and saw a glassine bag in a console between the two front seats containing what he believed to be cocaine. The officer seized the bag, and the substance was later found to be cocaine. ³⁹² Notwithstanding that the Court of Appeals has viewed drug courier profiles with disfavor where no statistical basis is set forth, the decision turned on the discovery of the glassine bag containing suspected narcotics, which fact renders the instant case distinguishable. More to the point, however, the Court of Appeals, echoing the sentiments of the Supreme Court, in Reid, supra decried targeting descriptions and actions which fit a large category of innocent travelers and determined that one could not conclude that Darone Antonio Derricott was trafficking in drugs and was armed and dangerous simply because he was (1) a young, black male, (2)