State v. Wilson

MOYLAN, Judge. The appellee, Jerry Lee Wilson, was indicted by the Baltimore County Grand Jury for the possession of cocaine with intent to distribute and for related narcotics and conspiracy offenses. He filed a pretrial motion to suppress physical evidence on the ground that it had been obtained in violation of his Fourth Amendment right to be secure from unreasonable searches and seizures. On November 23, 1994, Judge Thomas J. Bollinger conducted a suppression hearing and reserved his decision on the motion.

On January 10, 1995, Judge Bollinger granted the appellee’s motion to suppress the evidence. Under the provisions of Md.Code (1995 RepLVol.), § 12-302(c)(3) of the Cts. & Jud. Proc. Article, the State has appealed that suppression order.

The Issue The single issue before us is very narrow. When a police officer makes a routine traffic stop, does his automatic right to order the driver to exit the vehicle, a procedure deemed to be constitutionally reasonable by Pennsylvania v. Mimms, 434 ²⁷ U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977), also extend to passengers in the stopped vehicle? The Factual Background The only "witness to testify at the suppression hearing was Trooper David Hughes of the Maryland State Police. At approximately 7:30 P.M. on June 8, 1994, Trooper Hughes observed a white 1994 Nissan Maxima driving southbound on 1-95 at what appeared to be a high rate of speed.

The trooper pulled into the lane behind the Maxima and “paced” it for approximately one mile. It was going 64 miles per hour in a 55 miles-per-hour zone. He also observed that there was no regular license tag on the front or rear of the car, except that on the back there was “a paper tag kind of hanging half off, half on that said Enterprise Rent-A-Car.” Officer Hughes activated his lights and siren, but the Maxima continued to drive, with Trooper Hughes behind it, for approximately one- and-one-half miles before finally stopping in Baltimore City. Both during the pursuit and then in approaching the Maxi-ma after it had stopped, Trooper Hughes observed that the car had three occupants.

During the pursuit, the two passengers had turned and looked at him several times and had on several occasions ducked below the sight level and then reappeared. As Trooper Hughes started to approach the Maxima on foot, he saw that the driver had spontaneously exited the vehicle. The trooper directed the driver to step back toward him and the two met at a point between their respective vehicles. Trooper Hughes advised the driver, a Mr. McNichol, why he had been stopped and asked McNichol for his license and registration card.

McNichol explained that he was coming from Connecticut and going toward South Carolina. He produced a valid Connecticut driver’s license. McNichol further indicated that the rental papers for the car were in the vehicle. It was at that point that Trooper Hughes instructed McNichol to return to the vehicle to retrieve the rental ²⁸ documents.

McNichol got in the vehicle and sat in the driver’s seat. Throughout the initial encounter, Trooper Hughes had observed that McNichol was extremely nervous. He appeared at times to be trembling and answered every question with a question. Trooper Hughes had also observed that the front seat passenger, the appellee Jerry Lee Wilson, was sweating and extremely nervous.

It was after McNichol had reentered the car that Trooper Hughes ordered Wilson out of it. As Wilson complied with the trooper’s direction to walk back closer to the police vehicle, what appeared to be (and, indeed, turned out to be) crack cocaine fell to the ground. Trooper Hughes drew his weapon and placed Wilson under arrest. When Trooper Hughes was asked why he had directed Wilson to exit the vehicle, he replied: Well, due to the movement in the vehicle I thought possibly there could be a handgun in the vehicle.

I had concern for my safety. At that time when Mr. McNichol went back to the car, I asked Mr. Wilson to step out, that is my whole purpose of not approaching the vehicle, by myself, with three occupants in the vehicle, I wanted each one out at a time to speak to each individual, for my safety. The single issue before Judge Bollinger was whether Trooper Hughes violated Wilson’s Fourth Amendment right against having his person seized unreasonably when he ordered Wilson to step out of the vehicle. A False Trail Both at appellate argument and in appellate brief, the State urged, as an alternative rationale, that Trooper Hughes had articulable or particularized suspicion under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) and Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968), either to “stop” Wilson for questioning or to “frisk” Wilson for weapons.

Under either set of circumstances, the minimal seizure of Wilson’s person occasioned by ordering him ²⁹ from the car would have been reasonable. We reject the State’s alternative rationale, however, for several reasons. In the first place, the State never urged such a basis for the exit-order at the suppression hearing. Judge Bollinger was not called upon to rule whether there was articulable suspicion either for a Terry “stop” or for a Terry “frisk” and, indeed, he made no such rulings.

With respect to this alternative rationale, the State is even more bereft. Articulable suspicion, for either a stop or a frisk, requires not simply the external circumstances that would justify such particularized suspicion. It requires, in addition, that the officer purporting to act on the basis of such suspicion actually articulate such a purpose and such a basis for action. Gibbs v. State, 18 Md.App. 230, 239-42 , 306 A.2d 587 (1973).

What must be articulated to justify a Terry “stop” is particularized suspicion that a crime has occurred, is then occurring, or is about to occur. A “stop,” unlike a “frisk,” is crime-related, not weapon-related. The societal purpose served by a Terry “stop” is the prevention or detection of crime. The justification for a “stop,” therefore, must be framed and phrased in terms of suspected crime.

It is, moreover, the officer who must do the articulating, not the Attorney General by way of appellate afterthought. Trooper Hughes articulated nothing with respect to any crime that he suspected Wilson of being involved in. The absence of an articulated basis for a Terry “stop” is as absolute here as it was in Gibbs v. State: Officer Stewart, in the case at bar, articulated absolutely nothing as to what crime or type of crime he reasonably suspected the appellant of having engaged in, of then engaging in, or of being about to engage in. (Emphasis supplied.) 18 Md.App. at 241 , 306 A.2d 587 .

With respect to a possible justification for the exit-order based on the notion that Trooper Hughes was somehow undertaking a Terry “frisk,” the overarching fact is that ³⁰ Trooper Hughes never remotely articulated having entertained any such purpose. He did, to be sure, express some fear that “possibly there could be a handgun in the vehicle.” The ostensible purpose for ordering Wilson out of the car, however, was to take Wilson out of proximity to such a possible weapon rather than to frisk him for a weapon. Whatever Trooper Hughes was doing when he ordered Wilson out of the car, it was not in furtherance of any intent to conduct a frisk. In the absence of such a purpose, whether there might, in the abstract, have been a constitutional basis for a frisk is immaterial.

If these were not impediments enough, the State urges us to exercise our own independent constitutional appraisal on a de novo basis. Such appellate latitude is not available to us. Although we may exercise de novo review with respect to mixed questions of law and fact, we are enjoined to extend the more deferential “clearly erroneous” standard of review to the findings of the trial judge on purely factual questions. Aiken v. State, 101 Md.App. 557, 563 , 647 A.2d 1229 (1994), cert. denied, 337 Md. 89 , 651 A.2d 854 (1995); State v. Jones, 103 Md.App. 548, 606-11 , 653 A.2d 1040 (1995).

Judge Bollinger found as a first-level fact that Trooper Hughes possessed no fear that Wilson was armed. Judge Bollinger’s conclusion was not that the external circumstances did not add up to articulable suspicion. That, indeed, would have been a finding on a mixed question of law and fact and would be subject to de novo review. Judge Bollinger’s finding, by way of contrast, was that Trooper Hughes did not even possess such a suspicion.

That is a finding of pure fact that can be overturned only if clearly erroneous. In part because Trooper Hughes did not order all three individuals out of the Maxima initially, and in part because McNichol was freely permitted to reenter the vehicle, Judge Bollinger concluded that Trooper Hughes’s action was not a preventive or preemptive measure intended to neutralize the risk of harm from offensive weapons. His conclusion was not that there was no basis for a reasonable suspicion that Wilson ³¹ was armed and dangerous, but rather that Trooper Hughes entertained no such suspicion, reasonable or unreasonable: In this case the officer’s experience is 13 months as a trooper and this Court finds that when the officer allowed the driver of the vehicle to return to the car to obtain the rental documents he could not have had a reasonable suspicion that the person was armed and dangerous; and, therefore, any future intrusion into the right of the occupants of the car are violative of one’s Fourth Amendment proscription of unreasonable searches and seizures. As first-level fact finding, inevitably influenced by Judge Bollinger’s observation of Trooper Hughes’s demeanor and manner of testifying and by Judge Bollinger’s assessment of Trooper Hughes’s credibility, this is the type of thing that the trial judge is far more competent to weigh and to decide than we would be on the basis of a cold record.

This, we hold, is a finding that was not clearly erroneous. It is as important, perhaps, to note what we do not hold as it is to note what we do. Had Judge Bollinger found that Trooper Hughes had reason to fear that Wilson might be in possession of a weapon and had ordered Wilson out of the vehicle in order to frisk him for a weapon, we are not holding that such a conclusion and such an action on the trooper’s part would have been unreasonable. That, however, is not the decision before us for review.

Judge Bollinger found, to the contrary, that the trooper had no such fear and we simply hold that Judge Bollinger was not clearly erroneous in so finding. Pennsylvania v. Mimms If the State’s argument that it was reasonable for Trooper Hughes to order Wilson out of the car, therefore, is somehow to fly, it must lift off from the doctrinal launching pad of Pennsylvania v. Mimms and not from that of Terry v. Ohio. It is treacherous to attempt to extract too much meaning from Pennsylvania v. Mimms. It is a six-page, unsigned opinion explaining a summary disposition reached without benefit of oral argument.

One must be careful not to read ³² more meaning into such an opinion than the authors ever intended to put there. The simple holding of Pennsylvania v. Mimms is that whenever a police officer stops a vehicle for a traffic violation, even of the most minor variety, it is reasonable for the officer to order the driver to alight from the vehicle before the officer proceeds to inspect the driver’s license and registration card, to question the driver, to observe the driver with respect to sobriety, to issue a traffic citation, or to take other appropriate action. In the Mimms case itself, two Philadelphia police officers had observed Harry Mimms driving an automobile with an expired license plate. They stopped the car for the purpose of issuing a traffic citation.

One of the officers approached the vehicle and asked Mimms to step out of the car and to produce his owner’s card and operator’s license. When Mimms did so, one of the officers noticed a large bulge under his sports jacket. Fearing that the bulge might be a weapon, the officer frisked Mimms and discovered in his waistband a .38 caliber revolver loaded with five rounds of ammunition. Mimms was arrested and convicted for carrying a concealed weapon and for carrying a firearm without a license.

In its opinion, the Supreme Court made it clear that its focus was very narrow. There was no question about the propriety of the initial stop of the vehicle. 434 U.S. at 109 , 98 S.Ct. at 332 . Nor was there any question about the propriety of the ultimate frisk of Mimms for weapons, because the observation of the bulge furnished articulable or particularized suspicion that a weapon might be present, to wit, an independent basis for that further intrusion. The only issue before the Supreme Court was the propriety of the intermediate act of ordering Mimms to step out of the vehicle after it had been stopped: [W]e need presently deal only with the narrow question of whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment.

This inquiry must therefore focus not on the intrusion resulting from the-request to stop the vehicle or from the later “pat-down,” but ³³ on the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped. 434 U.S. at 109 , 98 S.Ct. at 332 . After balancing the societal interest of protecting the officer from harm against the intrusion into the Fourth Amendment interests of the driver, the Court concluded that it is reasonable for an officer to order a driver to alight from the vehicle whenever the vehicle is lawfully stopped for a traffic violation. The holding was very clear that that prerogative is automatic under such circumstances and that no individualized or particularized suspicion that the driver might be armed is involved. The police practice under review in Mimms was always to order the driver to alight from the vehicle: The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior.

It was apparently his practice to order all d;rivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation. (Emphasis supplied.) 434 U.S. at 109-10 , 98 S.Ct. at 332 . The police prerogative vis-a-vis a stopped driver is plenary and automatic. Once the lawfulness of the initial stop of the vehicle is established, nothing more need be shown on a case-by-case basis to justify the incremental intrusion of ordering the driver out of the vehicle.

In the case now before us, Trooper Hughes had made a lawful stop of the Nissan Maxima on 1-95. He was, thereby, automatically entitled to order the driver out of the car. It turned out, coincidentally, to be unnecessary because the driver had already alighted spontaneously. The appellant Wilson, however, was not the driver but only one of the passengers.

Did or did not the automatic police prerogative extend to him? ³⁴ Mimms Did Not Deal With Passengers The Mimms opinion was completely silent on the police prerogative, if any, vis-a-vis a passenger. There had coincidentally been a second occupant of Harry Mimms’s vehicle who, it turned out, was carrying a .32 caliber revolver. Once that narrative fact was mentioned, however, the armed passenger dropped totally from sight and the opinion does not further allude to him even obliquely. The Supreme Court, indeed, went out of its way to disclaim any consideration of the rights or vulnerabilities of passengers: The State does not, and need not, go so far as to suggest that an officer may frisk the occupants of any car stopped for a traffic violation.

Rather, it only argues that it is permissible to order the driver out of the car. 434 U.S. at 110 n. 5, 98 S.Ct. at 332 n. 5. The State argues, however, that the automatic police prerogative vis-a-vis a driver should be equally automatic vis-avis any other occupant of a stopped vehicle. The State actually makes two arguments in support of this proposition, one based on legal authority and the other based on the inherent logic of drawing the parallel. A. The Argument Based on Legal Authority: The State does not simply argue that the principle of Pennsylvania v. Mimms should be extended to passengers; it argues that the Mimms principle already has been extended to passengers.

It cites as the extending authorities the Supreme Court opinions in Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978) and Michigan v. Long, 463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983), and our own opinion in Derricott v. State, 84 Md.App. 192 , 578 A.2d 791 (1990), rev’d on other grounds, 327 Md. 582 , 611 A.2d 592 (1992). What significance, if any, has Michigan v. Long, Rakas v. Illinois, or our own Derricott v. State in resolving the issue now before us. If nothing else, they afford an occasion for serious philosophic reflection on the present state of stare ³⁵ decisis. In looking to the case law as a source of legal authority, there seems to be an almost epidemic trend among lawyers generally—civil and criminal, on the prosecution side and the defense side of the trial table alike, and even among some judges—to forget the most elemental ABC’s of first-semester, first-year Legal Method.

Everything said by a judge or by a court is not of equal weight. Were the three cases that we are about to examine offering us three thoroughly considered holdings, their authority would stand on undeniable bedrock. Were they three well considered, well researched, and well analyzed instances of even deliberate and conscious dicta, they would still be standing on firm, persuasive ground. If, on further examination, however, they turn out to be no more than three careless, casual, and passing instances of the most obiter of dicta, they should represent no more to us than the glib blandishments of a snake oil salesman, no matter who wrote them.

In Michigan v. Long, the Supreme Court was not remotely dealing with a Pennsylvania v. Mimms situation. It was a case, rather, where there was undeniable articulable suspicion that an individual might be armed and dangerous. The only issue before the Court was whether a Terry “frisk” could extend geographically from the suspect himself into the passenger compartment of the automobile from which he had just alighted. Pennsylvania v. Mimms was cited only to illustrate that an automobile can be the source of a dangerous weapon.

The reference to Mimms consisted of the following: In Pennsylvania v. Mimms, we held that police may order persons out of an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous. Our decision rested in part on the “inordinate risk confronting an officer as he approaches a person seated in an automobile.” (Citation omitted.) (Emphasis supplied.) 463 U.S. at 1047-48 , 103 S.Ct. at 3480 . The Mimms principle itself was not being considered, let alone some more subtle ultra-Mimms distinction between ³⁶ driver and passenger. The only significance that could conceivably be derived from this quotation for present purposes is that twice the word “persons” appeared in the plural rather than in the singular.

Clearly, there was involved no consideration of the police prerogative vis-a-vis a passenger as opposed to the prerogative vis-a-vis a driver, for in Michigan v. Long there was only one suspect involved—the driver himself. The casual use of the plural rather than the singular in this content does not in any way support the doctrinal weight the State seeks to place upon it. Every word that is uttered in a legal opinion is not legal authority. The other two instances illustrate even more pointedly why the fundamental distinction between holdings and dicta should be rigorously maintained.

In the Anglo-American common law tradition of judge-made law, it is, when we are meticulously precise about the matter, the decision of an appellate court that has, within the appropriate jurisdictional framework, binding precedential authority, and not necessarily the opinion announcing the decision. Generally speaking, however, when it comes to the actual holding of a case, the decision of a court and the opinion of the court announcing the decision are coterminous. The precedential weight of a holding is predicated in large measure on its status as the deliberate and considered judgment of an entire collegiate court, including the opinion writer, on the issue before it that must be decided. Each member of an appellate court peers in with painstaking scrutiny not only on the decision itself but on the framing of the holding that announces the decision.

The articulation of the holding passes through a stern editorial process that insists that every “i” be dotted, every “t” be crossed, every word be carefully chosen, and every far-flung repercussion be sagely anticipated. A holding, therefore, has earned the authoritative weight we give it. The holding, however, consists of no more than a few sentences or, at most, a few paragraphs, generally located near the end of what may be a twenty or thirty-page opinion. ³⁷ When it comes to the composition of the opinion leading up to the holding, the collegiate editorial reins are, although not totally relaxed, far looser. There is a wide stylistic range within which the opinion writer may freely express a particular legal philosophy; a special analytic approach to problem solving; possibly idiosyncratic reactions to certain arguments; or, above all, an individualistic writing personality.

The active collegiate participation in the formulation of a holding retreats to gentle stylistic suggestion when it comes to the writer’s modality of expression. It is not uncommon for a panel member to subscribe to an opinion, notwithstanding an occasional wince of pain or smile of indulgent tolerance along the way. The point is that everything said in an opinion—the dicta—is not entitled to the same weight as is the holding of the Court. Well-considered dicta, of course, is sometimes very good and, therefore, of significant persuasive weight.

That is a far cry, however, from giving persuasive weight to every hurried word that may appear in the course of an opinion. The opinion-writing process is frequently a high volume production line and it should be obvious that every syllable is not chiseled in marble. Inadvertent mistakes inevitably creep in. This is unremarkable, unless we seize upon the mistakes, extend them a precedential weight to which they are not entitled, and then follow them as false gods.

The citations to Rakas v. Illinois and Derricott v. State at least flirt with just such precedential heresy. The citation to Rakas is to a footnote in a concurring opinion. The issue for decision in Rakas had nothing to do with the police prerogative to order a driver or a passenger to alight from an automobile. It dealt exclusively with the standing of a “mere passenger” to raise a Fourth Amendment challenge to the search of someone else’s automobile.

The footnote in the concurring opinion was responding to the dissent in the case and was making the point that an automobile generally, with no distinction even considered between driver and passenger, enjoys a lesser expectation of privacy ³⁸ than do other places, such as homes. Pennsylvania v. Mimms was used simply to illustrate that point: Last Term, this Court determined in Pennsylvania v. Mimms that passengers in automobiles have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made. (Citation omitted.) 439 U.S. at 155 n. 4, 99 S.Ct. at 436 n. 4 (concurring opinion by Powell, J.). The deceptively broad reference to “passengers” was simply wrong.

It should, more carefully, have been a more limited reference to “drivers.” That distinction, however, was not remotely involved in the discussion and should not be given a significance that was never intended. The same sort of inadvertent mistake infected our opinion in Derricott v. State. As we worked our way toward the critical issue actually before us in that case, we described, almost as passing landscape, the unquestioned legitimacy of an initial traffic stop and then the unquestioned legitimacy of ordering the stopped driver to alight from his vehicle. Clearly, we were not dealing with any distinction between a driver and a passenger, because there was no passenger in the Derricott vehicle.

No one other than the driver was involved. Nonetheless, our characterization of Pennsylvania v. Mimms did read: Pennsylvania v. Mimms established unequivocally that when the police have legitimately stopped an automobile, for a traffic offense or for any other reason, they are automatically entitled to order the driver and/or any of the passengers to alight from the vehicle. (Citation omitted.) (Emphasis supplied.) 84 Md.App. at 197-98 , 578 A.2d 791 . The overly broad inclusion of the phrase “and/or any of the passengers” was simply wrong.

Pennsylvania v. Mimms did not stand for so broad a proposition. The writer of the concurring opinion in Raleas and the writer of this Court’s opinion in Derricott did exactly the same thing, as opinion writers sometimes do. On an immaterial issue and casually in passing, they characterized Pennsylva ³⁹ nia v. Mimms as they remembered it, but they remembered it wrongly. They did not put down a pen in mid-sentence and run to the United States Reports for the obvious reason that the passing reference was not in any way the focus of consideration.

To be sure, a judge said the words. The words, however, in such a context, should be given the weight they would be given if the judge had said them in a law review article or in a newspaper column or in a talk to the Kiwanis Club. In this same regard, see also Harris v. State, 81 Md.App. 247, 300 , 567 A.2d 476 (1989), rev’d on other grounds, Harris v. State, 324 Md. 490 , 597 A.2d 956 (1991). In summation, stare decisis is ill served if readers hang slavishly on every casual or hurried word as if it had bubbled from the earth at Delphi.

Obiter dicta,, if noticed at all, should be taken with a large grain of salt. 1 B. The Argument Based on Logic: In urging that the Mimms-based police prerogative vis-a-vis a stopped driver should be extended to cover passengers in a stopped vehicle as well, the State is on much firmer ground as it makes its argument based on the inherent logic of the parallel. In deciding Mimms as it did, the Supreme Court engaged in a balancing exercise. It measured the governmental or societal interest that would be furthered by the prerogative against the privacy interest that would be compromised by it. On balance, it deemed the prerogative, vis-a-vis a driver, to be reasonable.

The same general factors would go into the weighing process of whether it would be reasonable automatically to sub ⁴⁰ ject a passenger to the same police procedure. We accept the State’s invitation to engage in such a weighing exercise. We point out, as we do so, that we are assessing the reasonableness of subjecting a passenger to the automatic police prerogative of ordering him out of an automobile, just as automatically as in the case of the driver, and not to such a prerogative when conditioned on some sort of particularized or individualized suspicion. On the societal-interest pan of the balance scale, the Supreme Court placed two factors.

The heavy factor was the interest in protecting the officer from harm at the hands of the driver. A secondary factor was the interest in protecting the officer from the risk of harm from oncoming traffic. In referring to that secondary factor, the Court observed: The hazard of accidental injury from passing traffic to an officer standing on the driver’s side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both.

Mimms, 434 U.S. at 111 , 98 S.Ct. at 333 . Assuming that stopped vehicles generally pull to the right-hand curb of the street or the right-hand shoulder of the road and that it is the driver’s side that is thereby exposed to traffic, this factor obviously does not come into play when considering the officer’s position vis-a-vis a passenger. In a routine traffic stop, there would, indeed, be few occasions when an officer would even have any interest in standing outside the passenger’s window and talking to a passenger. Since this societal interest, however, was clearly little more than a makeweight, its absence from the balance in the case of a passenger