Stokes v. State

BELL, Chief Judge. Glen Keith Stokes, the petitioner, was stopped by a Montgomery County police officer within thirty minutes of, and around the corner from where, a robbery had occurred. 1 The pat down search that followed resulted in the recovery of controlled dangerous substances, for the possession of which the petitioner was subsequently tried, convicted and sentenced. 2 Prior to trial, the petitioner moved to suppress the fruits of the search. The Circuit Court for Montgomery County denied the motion. The propriety of that ruling was the only issue presented on appeal to the Court of Special Appeals, which, in an unreported opinion, affirmed the petitioner’s conviction and sentence.

This Court granted the petitioner’s Petition for Writ of Certiorari to consider “wheth ⁴¹⁰ er a police officer’s observation of a black man rapidly parking a car and exiting it, around the corner from the location of a robbery thirty minutes earlier, gave him reasonable articula-ble suspicion that the man was the robber sufficient to detain him and search him, thereby uncovering controlled dangerous substances....” 3 Answering that question in the negative, we shall reverse. I. On February 27, 1997, while parked in a marked police cruiser in a “town house community, residential” parking lot, Officer Mark Hayden heard a lookout for a robbery that had just occurred around the corner from where he was then located. The lookout, which was broadcast at 9:30 p.m., contained neither a height and weight description nor a description of a get-away vehicle. It was for a black male wearing a black tee shirt, 4 but Officer Hayden testified that the look-out was for a “black man wearing a dark top .” Within thirty minutes, the petitioner, who is black, drove into the parking lot, at what the officer described as “a high rate of speed,” and parked diagonally across several parking spaces near the officer.

Once parked, he immediately shut off the engine and got out of his car. The petitioner was wearing dark clothing, a black leather jacket, dark pants and a skull ⁴¹¹ cap. The officer testified that he believed the petitioner to be a “close match” to the lookout and, so, detained him and patted him down. Upon feeling a bulge consistent with a bag of “vegetable matter,” the officer inquired as to its contents.

When the petitioner replied that it was “weed,” the officer removed the bag, observed what he suspected to be marijuana, and arrested the petitioner. A subsequent “search incident to the arrest” 5 uncovered marijuana-laced PCP in the petitioner’s pocket and in his car. The petitioner moved to suppress the evidence recovered in the search. Finding that “the stop was justified, the intrusion was justified, [and] the brief inquiry as to the nature of the substance that the officer felt that he believed to be marijuana were all appropriate,” the Circuit Court denied the motion.

Affirming, the Court of Special Appeals reasoned: “Viewing the court’s factual findings in the light most favorable to the State, we are persuaded that the officer had a reasonable, articulable suspicion that the appellant was involved in the robbery that was relayed by the police dispatch. The trial court found that the stop was made relatively shortly after the robbery occurred, in the same neighborhood as the crime scene. Appellant matched in a general way the description of the perpetrator in that he was a black male in dark clothing. We are satisfied that the officer was justified in making the investigatory stop.

With regard to the frisk of appellant’s clothing, the court determined that robbery was a type of felony that presents potential for danger. Specifically, the court reasoned that a ‘robbery means there was a possible weapon,’ and that the exact wording of the dispatch did not exclude the possibility that the perpetrator may have been armed. We agree with the court’s observation, and we conclude that the circum ⁴¹² stances of the stop warranted a reasonable frisk for weapons.” The Court of Special Appeals then upheld the search under the “plain feel” doctrine. 6 II. The petitioner argues that the arresting officer lacked reasonable articulable suspicion to support that the petitioner was the perpetrator of the robbery for which the officer received the look-out.

He notes that the robbery had occurred thirty minutes before he was stopped, but only moments away. And, he points out, the robber was reported to have been on foot, wearing a black tee shirt. By contrast, the petitioner observes, he was in a car and wearing a leather jacket. He thus asserts that “even a robber proceeding at snail’s pace would have been long gone and [the petitioner] was in a hurry.” More telling, he believes, is the unlikelihood that a fleeing robber would select a parking space near a marked police cruiser right around the corner from the crime scene.

The petitioner concludes, therefore, that “[t]here was no basis for believing that [he] was [the robber] under any standard, even that of the ‘inchoate hunch.’ ” For this Court to uphold his conviction, he maintains, “would mean that any time there is a lookout for a black male involved in a robbery, for at least thirty minutes afterwards, police officers may stop any black man in the vicinity who is in a hurry and subject him to a forcible detention and frisk.” The State disagrees. As it sees it, the brief detention and pat down of the petitioner is fully consistent with the Terry doctrine. 7 It argues that, given that the petitioner “was the ⁴¹³ only person in the immediate vicinity of a recently reported robbery who matched the description given by the victim, and who acted suspiciously,” it would have been irresponsible police behavior not to have stopped the petitioner and undertaken “the minimal investigatory action permitted under Terry.” While conceding that the description of the robber could have been more specific, the State asserts that the description was “sufficient to narrow the class of persons who could be legitimately stopped.” We agree with the petitioner. Viewing the totality of the circumstances, the stop in this case was based on nothing more substantial than a hunch and, thus, the police action exceeded the exception to the probable cause requirement allowed in street confrontations between a citizen and the police investigating observed suspicious behavior. Accordingly, we hold that the petitioner’s motion to suppress should have been granted and the fruits of that search excluded from the evidence at his trial.

III

On a motion to suppress, while reviewing findings of fact under the “clearly erroneous standard,” Jones v. State, 343 Md. 448, 458 , 682 A.2d 248, 254 (1996); see also Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491, 497 (1999), this Court ⁴¹⁴ will review de novo the question whether, under those facts, there was reasonable suspicion to make a warrantless search. See Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990). In so doing, we consider the facts, as they exist on the record, and the reasonable inferences from those facts, in the light most favorable to the State. See Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519, 525 (2000); Ferris, 355 Md. at 368 , 735 A.2d at 497 ; In re Tariq A-R-Y, 347 Md. 484 at 488 , 701 A.2d 691 at 693 ; Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239,1240 (1990); Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22, 22 (1990). “When the question is whether a constitutional right, such as, as here, a defendant’s right to be free from unreasonable searches and seizures, has been violated, the reviewing court makes its own independent constitutional appraisal, by reviewing the law and applying it to the peculiar facts of the particular case.” Jones v. State, 343 Md. at 457 , 682 A.2d at 253 .

See also Riddick, 319 Md. at 183 , 571 A.2d at 1240 ; State v. Gee, 298 Md. 565, 571 , 471 A.2d 712, 715 , cert. denied, 467 U.S. 1244 , 104 S.Ct. 3519 , 82 L.Ed.2d 827 (1984). The Fourth Amendment to the United States Constitution 8 protects against unreasonable searches and seizures, including seizures that involve only a brief detention. See supra at n. 7, n. 8, citing U.S. Const. amend.

IV

See also Ferris, 355 Md. at 368 , 735 A.2d at 497 . A police officer may direct an inquiry to a citizen, even when he or she has no cause for doing so and it may be entirely appropriate for that citizen to decline “to stop or respond to such inquiries.” Anderson v. State, 282 Md. 701, 708 , 387 A.2d 281, 285 (1978). If the officer does nothing more, takes no further action, then no seizure will have occurred. Under the Fourth Amendment, an officer may make a forcible stop of a citizen, however, if the officer has ⁴¹⁵ reasonable grounds for doing so.

See Cartnail, 359 Md. at 285 , 753 A.2d at 526 ; Jones v. State, 319 Md. 279, 287-88 , 572 A.2d 169, 173 (1990); Anderson, 282 Md. at 706 , 387 A.2d at 284 . In Anderson , we were emphatic: “The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.” 282 Md. at 707 , 387 A.2d at 285 , citing Sibron v. New York, 392 U.S. 40, 64 , 88 S.Ct. 1889, 1903 , 20 L.Ed.2d 917, 947 (1968). This Court has consistently held that mere hunches are insufficient to justify an investigatory stop; for such an intrusion, an officer must have “reasonable articulable suspicion.” Ferris v. State, 355 Md. at 371 , 735 A.2d at 499 ; Graham v. State, 325 Md. 398, 408 , 601 A.2d 131, 135 (1992); Quince v. State, 319 Md. 430, 433 , 572 A.2d 1086, 1087 (1990); Derricott v. State, 327 Md. 582, 588 , 611 A.2d 592, 596 (1992); Jones v. State, 319 Md. 279, 287 , 572 A.2d 169, 173-74 (1990).

Thus, an officer must be able to point to specific and articulable facts that warrant the stop. See Cartnail, 359 Md. at 284 , 753 A.2d at 526 ; Ferris v. State, 355 Md. at 384 , 735 A.2d at 506 . While there is no litmus test to define the “reasonable suspicion” standard, see Ornelas v. United States, 517 U.S. 690, 695 , 116 S.Ct. 1657, 1661 , 134 L.Ed.2d 911, 918 (1996) (noting that it is impossible to articulate, with precision, what “reasonable suspicion” means), it has been defined as nothing more than “a particularized and objective basis for suspecting the particular person stopped of criminal activity,” United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621, 629 (1981); see also Ornelas, 517 U.S. at 695-96 , 116 S.Ct. at 1661 , 134 L.Ed.2d at 918 , and as a common sense, nontechnical conception that considers factual and practical aspects of daily life and how reasonable and prudent people act. See Ornelas, 517 U.S. at 695 , 116 S.Ct. at 1661 , 134 L.Ed.2d at 918 .

This Court has made clear that, under the Fourth Amendment, the level of suspicion necessary to consti ⁴¹⁶ tute reasonable, articulable suspicion “ ‘is considerably less than proof of wrongdoing by a preponderance of the evidence’ ” and “ ‘obviously less demanding than that for probable cause.’ ” Quince v. State, 319 Md. 430, 433 , 572 A.2d 1086, 1088 (1990), quoting United States v. Sokolow, 490 U.S. 1, 7 , 109 S.Ct. 1581, 1585 , 104 L.Ed.2d 1, 10 (1989). Moreover, “[w]hen evaluating the validity of a detention, we must examine ‘the totality of the circumstances-the whole picture.’ ” Graham, 325 Md. at 408 , 601 A.2d at 136 , quoting United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621, 629 (1981). To be sure, as former Chief Justice Burger explained in Cortez, 449 U.S. at 418 , 101 S.Ct. at 698 , 66 L.Ed.2d at 629 , the totality of the circumstances test contains two parts which must both be in existence before a stop is permissible: “First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers.

From these data, a trained officer draws inferences and makes deductions— inferences and deductions that might well elude an untrained person. ¹* ^ “The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry v. Ohio, ... said that, “[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” ” (citations omitted). See also Lemmon, 318 Md. at 378 , 568 A.2d at 55 ; Graham, 325 Md. at 408 , 601 A.2d at 135-36 . ⁴¹⁷ The critical question to be addressed in the case sub judice is how to evaluate whether the police have reasonable articula-ble suspicion in a particular context. The starting point is Anderson , which was our seminal case following Terry.

There, police officers investigating a robbery committed six days earlier by two black males, one tall and one short, stopped and frisked two black males without any preliminary inquiry, one of whom was three to five inches shorter than the other. When stopped, the two suspects were walking in the neighborhood allegedly frequented by one of the robbers and had looked back several times at an unmarked police car as it patrolled the area. Officers stopped the two men and a search uncovered an unregistered handgun. The defendant appealed the denial of his motion to suppress evidence, the introduction of which resulted in his conviction of a handgun violation.

In our analysis of Anderson , we identified factors “deemed relevant to a determination of reasonable suspicion to stop,” ie., “the character of the area where the stop occurs, the temporal or spatial proximity of the stop to a crime and the appearance or conduct of the suspect,” Id. at 707 n. 5, 387 A.2d at 285 n. 5, and applied them in reversing the defendant’s conviction: “Here, there [were] no facts from which it could be reasonably inferred that Anderson was the person the police officers were seeking, and hence that he was armed and dangerous. To arrive at such an inference from the tenuous facts that a tall and a short black man are seen together leaving a group, six days after a robbery committed by a tall and a short black man, in a neighborhood one of the alleged robbers is said to frequent, even when coupled with the fact that they looked back several times toward an unmarked police car, is wholly unreasonable. Indeed, to say that such facts constitute ‘reasonable suspicion’ would be perilously close to entitling a policeman ‘to seize and search every person whom he sees on the street.’ [Sibron v. New York, 392 U.S. 40, 64 , 88 S.Ct. 1889, 1903 , 20 L.Ed.2d 917, 935 (1968) ]. The police behavior here presents the very paradigm of the “inchoate and unparticularized suspicion or ⁴¹⁸ ‘hunch.’ ” ” Terry v. Ohio, supra, 392 U.S. at 27 , 88 S.Ct. at 1883 [, 20 L.Ed.2d at 909 ].” Id. at 707, 387 A.2d at 285 .

Although discussing factors that inform the reasonable suspicion determination only implicitly, Alfred v. State, 61 Md. App. 647 , 487 A.2d 1228 (1985), is nevertheless instructive. There, the Court of Special Appeals held that there was no reasonable, articulable suspicion for the stop of two black males within a mile of an abandoned stolen car, which had been occupied by several black males and had been seen leaving the area of a residential burglary, prior to being abandoned. The intermediate appellate court reasoned: “The only basis that Officer Penney had for making a Terry stop of the appellant and his companion, at the very inception of that stop, was that they were two black males within less than a mile of an automobile that had been abandoned by three or four black males approximately ten minutes before. As we analyze these proximities of time and space, it is clear that the relevant epicenter was the spot on Grand Pre Road where the Datsun was abandoned and not the apartment on Pear Tree Lane that had been burglarized.

The presence of two black males within a circle of almost a mile in radius would have little significance if that circle were imposed upon a densely populated and essentially all black neighborhood; the same presence in rural Finland might have far greater significance. Obviously, the demographics of this centrifugal force field could have some bearing on the probabilities which are offered as the basis for a stop. The State, which bears the burden of justifying warrantless activity, offered no direct evidence on the demographics. “The indirect demographic clues argue against' the State’s position. The two suspects — Hall and Jones — who were picked up near the abandoned Datsun made reference to the nearby home of the aunt or grandmother of Jones.

Hall, moreover, took the police to the home of a Mr. Hill in the 3200 block of Pear Tree Court, where all of the young men had been visiting earlier that evening. Officer Penney, ⁴¹⁹ before stopping the appellant and Alexander, had stopped in a 7-11 Store situated between the abandoned Datsun and the spot where the appellant was first observed. He described five or six young black males who were in the 7-11, whom he cleared of suspicion because the proprietor vouched for their presence there through most of the evening. Officer Penney also described several commercial establishments in the immediate area — a Dart Drug Store and a K-Mart. “The whole point is that a large area of relatively well populated suburbia lay within the suspect perimeter; and within that perimeter, there was nothing unusual about the presence of a black male.

Under the circumstances, we find that the initial stop was no more than an ‘inchoate and unparticularized suspicion or hunch.’ ” Alfred v. State, 61 Md.App. at 656-57 , 487 A.2d at 1233 , quoting Terry v. Ohio, 392 U.S. at 27 , 88 S.Ct. at 1883 , 20 L.Ed.2d at 909 . In Derricott v. State, 327 Md. 582 , 611 A.2d 592 (1992), this Court addressed whether police had reasonable and articulable suspicion to search a defendant, based solely upon a local drug courier profile. In that case, a young black male wearing a blue sweat suit, gold chains, and other thick jewelry, was driving a sports car 89 miles per hour in an area zoned for 55 mile per hour. When the officer stopped the car for speeding, he noticed an electronic pager and papers with telephone numbers written on them.

Notwithstanding that the defendant did not appear nervous, and even promptly complied with all orders, the officer decided that the defendant matched the local drug courier profile, which included: (1) young, black males wearing expensive jewelry; (2) driving expensive cars, usually sports cars; (3) carrying beepers; and (4) in possession of telephone numbers. See id. at 585 , 611 A.2d at 594 . Although having “observed nothing unusual about [the defendant’s] conduct or demeanor,” the officer ordered him to exit his vehicle in order to search it, and his person, for “weapons.” Id. We were presented with the question whether the officer had reasonable and articulable suspicion, supported by articu- ⁴²⁰ lable facts, that the defendant was engaged in criminal activity, and was armed and dangerous.

In clarifying the issue, we said: “[W]hile it is true that ‘a trained law enforcement agent may be “able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer,” ’ such as ‘the characteristics of the person engaged in ... illegal practices,’ ... the officer must still be able to articulate why the elements of the profile lead to a reasonable suspicion that the person detained is armed and dangerous.” Id. at 588-89 , 611 A.2d at 596 , quoting United States v. Mendenhall, 446 U.S. 544, 563 , 100 S.Ct. 1870, 1882 , 64 L.Ed.2d 497, 515 (1980). We then concluded that the officer did not have a reasonable, articulable suspicion that the defendant was trafficking in drugs and was armed and dangerous, pointing out that “[tjhose of his attributes which match the drug courier profile are sufficiently common that allowing a search and seizure, however brief, on this basis alone would subject too many innocent travelers to the invasion of privacy that such police action necessarily entails.” Id. at 592 , 611 A.2d at 597 . More recently, in Cartnail v. State, 359 Md. 272 , 753 A.2d 519 (2000), this Court again was faced with the issue. On this occasion, we utilized factors synthesized by Professor LaFave, and indeed urged upon us in the cáse sub judice by the State, as “reasonable suspicion” factors that courts generally consider: “(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.” ⁴²¹ Id. at 289 , 758 A.2d at 528, quoting 4 Wayne R. LaFave, Search and Seizure § 9.4(g), at 195 (3d ed. 1996 & 2000 Supp.). 9 There, we held that an officer did not have reasonable, articulable suspicion to stop a gold Nissan,