State v. Dick

ZARNOCH, J. The State appeals the decision of the Circuit Court for Baltimore County granting appellee’s Motion to Suppress evidence seized in connection with his arrest on charges of possession of cocaine with intent to distribute and related charges. The decision below turned on whether appellee had been “seized” in violation of the Fourth Amendment to the United States Constitution and whether he was “free to leave” the scene of his initial confrontation with police. However, we believe the issues are best framed as: (1) whether reasonable suspicion existed to initiate an investigative stop of the appellee; (2) whether the police intrusion retained the status of an investigative stop, rather than being transformed into an arrest requiring the showing of probable cause; and (3) whether probable cause existed when appellee was arrested to justify the seizure of evidence from appellee’s person. We answer all three questions in the affirmative and reverse the interlocutory decision of the circuit court and remand the case for trial.

I. On the evening of May 10, 2006, members of the Community Drug and Violence Interdiction Team of the Baltimore County Police were conducting surveillance in a residential area of Wise Avenue and Church Road near a BP gas station. ⁶⁹⁷ Previously, the police had received complaints from patrons of the gas station and nearby residents reporting incidents of drug activity on the premises. Detective Timothy Ward and another member of the team had made arrests at the location. At approximately 7:30 p.m., when it was still daylight, Detective Ward observed Brian Hoffman on a bicycle pedaling around making circles in the parking lot of the gas station. The detective watched him for 10 or 15 minutes as Hoffman continued to pedal circles through the lot.

Ward later testified that Hoffman “kept looking up Wise Avenue as if he was waiting for someone to show up.” 1 Hoffman then left the lot and pedaled up Wise Avenue where he made contact with appellee, James William Dick, who was on foot. They engaged in a quick conversation, turned, and both went toward the gas station. While Hoffman waited outside on his bike, Dick entered the gas station’s convenience store and then exited the store a few minutes later. 2 At this time, Ward radioed his sergeant that he and Detective Jason Stricklin were going to initiate surveillance on the two men and the officers “took up various locations to have all angles of the gas station covered.” Both men left the parking lot and walked down Church Road and out of the view of these officers. However, two other members of the team, Detectives Christopher Mazan and Ryan Massey, joined in the surveillance and, according to Ward’s testimony, “had a good eye on the two subjects.” Detective Mazan then radioed that Dick and Hoffman had stopped on the side of the roadway near the curb and “they observed the white male on foot hand something to the white male on the bicycle, and the white male on the bicycle handed something to the white male on foot, and the white male on the bicycle quickly took the object and put it in his pocket.” The detectives observing the two men were not able to determine exactly what was transferred, ⁶⁹⁸ but team members believed that a drug transaction had just occurred.

Thus, Detectives Massey and Mazan advised that they would try “to stop and make contact” with Hoffman, who rode off on the bicycle, while Detectives Ward and Stricklin would attempt “to make contact” with Dick, who left on foot. 3 Ward and Stricklin each drove off in their unmarked cars and caught up with Dick who was walking down an alley behind Church Road. Ward drove his car into the alley until he was in front of Dick, while Stricklin pulled into the mouth of the alley to the rear of the suspect. 4 Ward exited his vehicle, and with the door open, stood between the door and the interior of the car about three feet from Dick. He identified himself as a police officer “with verbal commands.” Ward was also wearing his badge on a chain around his neck. Neither Ward nor Stricklin drew their weapons.

Ward later testified in response to a question from the court that at that point, he said to Dick that “my team had just witnessed him do a drug transaction ... up the street a little ways.” 5 Dick responded that he did not know what the detective was talking about. Then, as Ward “attempted to make contact with him,” Dick pushed him in the chest and “took off running.” 6 The suspect ran out of the alley and for another 20 yards. He attempted to hop a split rail fence that collapsed under his weight and he fell to the ground. When Dick refused Ward’s order to put his hands behind his back, the two struggled.

Stricklin arrived, and the two officers were able to subdue ⁶⁹⁹ Dick and place him under arrest. Then, Ward searched him and found in the suspect’s pants pocket a clear sandwich bag containing 34 individually packaged baggies of crack cocaine and $220 in cash.

II

Dick moved to suppress this evidence, arguing that he had been unconstitutionally seized because, under the circumstances of his initial encounter with the police, a reasonable person would believe he was not free to leave. 7 The State countered that the police had made an investigatory stop of Dick based on reasonable suspicion that criminal activity was afoot and that, in any event, the officers had probable cause to arrest him. At the suppression hearing, only Detectives Ward and Stricklin testified. Thus, Dick’s version of the encounter was not presented to the court. A major subject of inquiry at the hearing was whether the police cars had “blocked” Dick.

The following exchange occurred between defense counsel and Detective Ward: Q. And, and what was the purpose in driving one car to one side and one to the other? A. Just to make contact with Mr. Dick. I mean speak with him. Q. I see.

It wasn’t, I, cause I used the word block. It wasn’t to block him in? A. No sir, there was, there was definitely enough room that Mr. Dick could have passed. It wasn’t like we pulled the bumpers up to the fences of the, of the residences,— Q. Okay.

A. —where no one could pass. ⁷⁰⁰ When asked about whether Dick had to push Ward aside to leave the alley, Ward testified that Dick pushed him “just to make room between me and him so he could start to run” and that “he made room to put distance between myself and him.” When Stricklin testified, the following exchange occurred between the officer and defense counsel: Q. And so at that point Detective Ward goes to the front of Mr. Dick and you’re at the rear? A. Yes sir. Q. Okay. You got em blocked in?

A. Yes. Q. Right? A. Well I, we were in vehicles. So we— Q. Look, I, I understand that.

A. Yes. Well I was at the rear and Detective Ward was in the front. Q. That was, that was in case he turned and went the other way you would be blocking him in,— A. Yes Q. —to grab him. Right?

A. Yes. Q. So once you heard this transmission, the idea was to go and to get Mr. Dick. Right? A. Yes.

Q. Okay. Now you, I mean you, you all didn’t sit there and formulate a plan that you’ll do this and I’ll do that. But I guess having worked together in the past you sort of could anticipate what to do? A. Yes.

They, we advised each other on the radio that Detective Massey and Mazan would approach the gentleman on the bike, and myself and Detective Ward would approach Mr. Dick. Q. All right. You used the word approach. A. Yes.

Q. Is that what the word you used in the, in your transmissions? ⁷⁰¹ A. I don’t, I don’t recall exactly what was said. Q. Okay. A. Stop maybe. Q. Stop.

All right. I have no other questions Your Honor. On January 11, 2008, the court issued a Memorandum Opinion and Order granting Dick’s motion to suppress. The opinion, relying on State v. Lemmon, supra, framed the issues as whether appellee had been lawfully seized and whether under the circumstances, a reasonable person would have believed he was not free to leave.

The court said: In the instant case, the Defendant’s freedom of movement was restricted by the positioning of the police vehicles on either side of his person within the confínes of a narrow alley. Further, the Defendant was approached by an officer in this situation and asked about a recent narcotics transaction. A reasonable person surrounded by police vehicles to his front and rear in a narrow alley and then questioned by an officer about a narcotics transaction would not feel free to walk away from that situation. That Defendant did not feel free to leave in these circumstances is further evidenced by the fact that Defendant pushed one of the officers in an attempt to leave the alley.

Therefore, Defendant was seized within the meaning of the Fourth Amendment. Here, the seizure of the Defendant was not reasonable under the totality of the circumstances. The only activity the arresting officers observed was that of the Defendant meeting with the individual on the bicycle, walking toward the gas station, entering and exiting the convenience store, and proceeding down a small street. Thereafter, the officers acted pursuant to a call over police radio informing them that other officers had observed the occurrence of a narcotics transaction involving two individuals whose descriptions matched those of the Defendant and the individual on the bicycle. [8] Finally, the court noted: ⁷⁰² Under these facts, the officers had the requisite reasonable suspicion to effectuate an investigative stop, but did not have a reasonable basis for seizing the Defendant to the extent that he did not feel free to leave.

The State timely noted an appeal of the circuit court decision, pursuant to Maryland Code (1973, 2006 RepLVol.), Courts & Judicial Proceedings Article, § 12-302(c).

III

The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... ” However, this constitutional proscription is not a guarantee against all searches and seizures, only those that are unreasonable. United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985). In Swift v. State, 393 Md. 139 , 899 A.2d 867 (2006), the Court of Appeals analyzed the applicability of the Fourth Amendment in terms of three tiers of interaction between a citizen and the police: The most intrusive encounter, an arrest, requires probable cause to believe that a person has committed or is committing a crime.... The second category, the investigatory stop or detention, known commonly as a Terry stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop and briefly detain an individual____ The least intrusive police-citizen contact, a consensual encounter, ... involves no restraint of liberty and elicits an individual’s voluntary cooperation with non-coercive police contact, (citations omitted).

Id. at 150-51 , 899 A.2d 867 . ⁷⁰³ Further complicating the three-tiered approach are the oft-litigated questions of whether a police “encounter” or “accosting” has escalated into a “seizure”, see, e.g., Trott v. State, 138 Md.App. 89 , 770 A.2d 1045 (2001), and whether an “investigatory stop” has ripened into an “arrest”, see, e.g., Longshore v. State, 399 Md. 486 , 924 A.2d 1129 (2007). The former issue often turns on whether, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. California v. Hodari D., 499 U.S. 621, 627-28, 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991). The latter question is determined on the basis of whether the investigatory stop was justified at its inception and reasonably related in scope to the circumstances which justified the interference in the first place and did not continue for an excessive period of time or resemble a traditional arrest.

Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 185-86 , 124 S.Ct. 2451 , 159 L.Ed.2d 292 (2004). The opinion of the circuit court appears to have confused these categories in its statement that “the officers had the requisite reasonable suspicion to effectuate an investigatory stop, but did not have a reasonable basis for seizing the Defendant to the extent that he did not feel free to leave”, and in its reliance on State v. Lemmon, supra. An investigatory stop, like an arrest, is a seizure of the person. See Swift v. State, supra, 393 Md. at 150 , 899 A.2d 867 . 9 Moreover, unlike a consensual encounter, where a person is free to leave, one subject to an investigatory stop is not.

As noted by Judge Moylan in Carter v. State, 143 Md.App. 670, 677 , 795 A.2d 790 (2002): The appellant solemnly insists that he “was not free to leave.” Of course, he wasn’t. That’s why this was a Terry stop requiring the Terry level of Fourth Amendment justification. Had he been free to leave, this would have been a mere accosting and the Fourth Amendment would not even ⁷⁰⁴ have been implicated. Under Terry, a stoppee’s freedom of movement is most definitely restricted under the command of the law.

It necessarily follows that a suspect has no right to react to a Terry stop by fleeing. See n. 18, infra. In Lemmon, the State attempted to justify an “investigatory pursuit” on alternative theories, viz. 1) that, as in an accosting, no seizure had occurred; and 2) that if treated as an investigatory stop, it was supported by reasonable suspicion. Lemmon, 318 Md. at 368, 568 A.2d 48 .

The Court of Appeals rejected both contentions. Id. Here, in contradictory fashion, the circuit court declared the Lemmon Court’s finding that reasonable suspicion did not exist “controlling,” even though in Dick’s case, it said “the officers had the requisite reasonable suspicion to effectuate an investigative stop.” 10 Perhaps the circuit court really meant to say that reasonable suspicion did not exist to justify an investigatory stop or that the circumstances of the encounter had transformed a stop into an arrest. Nevertheless, we need not put words in the court’s mouth, because “[a]n appellate court ... under an independent de novo review standard, must consider the application of the law to those facts in determining whether the evidence at issue was obtained in violation of the law, and, accordingly should be suppressed.” Longshore, supra, 399 Md. at 499 , 924 A.2d 1129 .

IV

First, we consider whether Dick was lawfully stopped in the alley behind Church Road by police officers who had a reasonable, articulable suspicion of criminal activity. 11 In United ⁷⁰⁵ States v. Sokolow, 490 U.S. 1, 7 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989), the U.S. Supreme Court said that under this standard: The officer, of course, must be able to articulate something more than an