Timms v. State

ROBERT M. BELL, Judge. John Robert Timms, appellant, was arrested and charged with possession of cocaine and possession of heroin. He moved, pretrial, to suppress the evidence seized when he was arrested. That motion having been heard and denied, he proceeded to trial, before the court, in the Circuit Court for Baltimore City, on a not guilty plea upon an agreed statement of facts.

The court found him guilty of both ¹⁴ charges and imposed sentence. On appeal, he presents a single question: “Whether the trial court erred in denying appellant’s motion to suppress.” The facts pertinent to the resolution of this case were established at the hearing on the motion to suppress, through the testimony of one of the two arresting officers. His testimony, which was accepted by the court, was as follows. At approximately 5:30 a.m. on the morning of November 28, 1988, he (Officer Junta) and Officer O’Donnell were patrolling the area of the 2100 block of Division Street in Baltimore City, a designated drug-free zone. 1 They were dressed in plain clothes and traveling in an unmarked police car.

Upon reaching the 500 block of Gold Street, they observed two men, appellant and an unidentified man, standing in the middle of an alley. The two men “seemed to be in some kind of conversation.” Proceeding around the block, to the other end of the alley, the officers left their car and went “to the top of the alley.” They then identified themselves by shouting “Police.” Thereafter, The unidentified male ran. The defendant followed, but not really in a quick run. It was like a jogging, just to get out of the alley.

We went through the alley and followed him. Like I said, it was hard to get through the alley. It was a bunch of garbage in the alley. When we came out of the alley, the defendant was walking down Division Street.

The other person was out of sight. At that time, myself and Officer O’Donnell noticed the defendant carrying a white ziplock bag. But we didn’t know it ¹⁵ was a ziplock bag at that time. It was a white bag sticking out of his hand at each end.

You could tell there was a white substance inside the bag. Well, through my training and experience, I believed it to be heroin or cocaine. So we stopped the defendant and at which time, we recovered the bag from his hand. The bag had the word boy[ 2 ] written on it.

They also seized another ziplock bag from appellant’s person. Chemical analysis confirmed that the bags contained controlled dangerous substances: in one bag, cocaine, and in the other, heroin. “Ruling on the motion to suppress, the trial court said: This officer’s testimony, which is accepted by the parties, is that the defendant was in an alley with another man. The police officer from 30 yards away yelled to them police. One ran at a fast clip.

The other ran at a much slower pace. The officer never took control of the person of these individuals until after he had gotten out of the alley. Even upon exiting the alley, he didn’t take physical control of anyone. As he approached the defendant, as he indicated in his testimony that he observed a bag of white powder protruding from his hand.

We have the confluence of that with the testimony that this was a high narcotics area. The officer’s seizure of the person of the defendant occurred after he had made a visual observation of a suspicious object in the hand of the defendant.” The foregoing makes clear that the court believed that, to constitute a seizure, the officer had to “take” physical control of appellant. Subsequent to this decision, the Court of Appeals decided State v. Lemmon, 318 Md. 365 , 568 A.2d 48 (1990). There, the Court addressed two questions, namely: In light of Brower v. Inyo County [— U.S. -], 109 S.Ct. 1378 [ 103 L.Ed.2d 628 ] (1989), did the Court of Special Appeals err in ruling that Lemmon was “seized” ¹⁶ for purposes of the Fourth Amendment when chased by police officers?, and In light of United States v. Sokolow [ 489 U.S. 593 ], 109 S.Ct. 1581 [ 104 L.Ed.2d 1 ] (1989), did the Court of Special Appeals err in concluding that the “seizure” of Lemmon was not supported by sufficient articulable suspicion? 318 Md. at 368 , 568 A.2d 48 .

As in the instant case, the pertinent facts in Lemmon were developed during the suppression hearing. There, according to the police testimony, which the trial court credited, on the day Lemmon was arrested, three police officers were on patrol in Baltimore City, in plain clothes and an unmarked police car. A call reporting a narcotics violation in progress at a specified location, came over police radio. The source of this information was never identified.

On arrival at the specified location, two of the officers got out of the car and approached Lemmon and another man. One officer, having identified himself as a police officer, asked the men to “come here.” Lemmon ran, and the officers pursued him. The third officer followed in the car, with which he unsuccessfully tried to block Lemmon’s escape. At some point, Lemmon took a “medicine type vial” from his pocket and tried, unsuccessfully, to force it through a chain link fence.

Id., 318 Md. at 370 , 568 A.2d 48 . He was eventually caught and detained while the officer retrieved the vial. Upon recovery, the officer concluded, based on his expertise, that the vial contained 44 valiums. Lemmon was then “arrested”.

Later testing confirmed that the vial contained valiums. The Court held that a Fourth Amendment seizure of Lemmon occurred when the officers ordered him to “come here.” Id., 318 [Md.] at 374, 568 A.2d 48 . It relied upon Michigan v. Chesternut, 486 U.S. 567 , 108 S.Ct. 1975 , 100 L.Ed.2d 565 (1988). In that case, the Supreme Court articulated the test to be used in determining whether a person has been “seized” within the meaning of the Fourth Amendment: ¹⁷ ... the police can be said to have seized an individual “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Citation omitted) 486 U.S. at 573 , 108 S.Ct. at 1979 .

The Court of Appeals found significant that the Chesternut Court rejected both the rule espoused by the State — “that a lack of objective and particularized suspicion would not poison police conduct, no matter how coercive as long as the police did not succeed in actually apprehending the individual”, ( 486 U.S. at 572 , 108 S.Ct. at 1979 ) — as well as that favored by Chesternut — “that the police may never pursue an individual absent a particularized and objective basis for suspecting that he is engaged in criminal activity” (Id.). 318 Md. at 372-73 , 568 A.2d 48 . It also reiterated the observation by the Supreme Court that: The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to “leave” will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs. Id.

Finally, the Court summarized the facts it considered dispositive of the seizure issue: The approach by two officers, the command to ‘Come Here,’ the immediate pursuit by the officers when Lemmon ran, the attempt to set up a blockade with the police car when it was apparent that Lemmon was getting away, the joinder of the third officer in the posse, leaving the police car unattended, the attempt by one of the pursuers to circumvent a possible line of flight-all of these measures were amply sufficient to communicate to the reasonable person an attempt to capture or otherwise intrude upon freedom of movement. The aggressive actions of the police would cause the reasonable person to ¹⁸ believe that the police objective in the pursuit was to restrain his liberty, not merely to be afforded the opportunity to talk to him. We find it clear that the conduct of the police was so intimidating in the circumstances that Lemmon could reasonably have believed that he was not free to disregard the police presence and go about his business. Id., 318 Md. at 374 , 568 A.2d 48 .

Addressing the first certiorari question, the Court rejected the State’s argument that Brower v. County of Inyo, 3 supra, held, refining Chestemut, that the fourth amendment is not implicated until the police have intentionally acquired physical control of the defendant. 4 318 Md. at 374 , 568 A.2d 48 . On the contrary, it found the cases compatible. In that regard, the Court said: The Court noted that whenever an officer restrains the freedom of a person to walk away, he has seized that person____ In the light of the opinion as a whole, we do not construe this to mean there must be an actual taking of the person; there may be a constructive restraint of the freedom to walk away. A significant part of the Court’s opinion was with respect to the intentional acquisition of physical control as a characteristic of a seizure, as distinguished from accidental or unintentional control____ Any implication that actual physical control is required must be read in the frame of reference of the Court’s concern with that characteristic.

We do not see in the Court’s declaration, even if not dicta, that “[Violation of the Fourth Amendment requires an intentional ¹⁹ acquisition of physical control,”... that there must be an actual laying on of hands and a taking of the person. The declaration goes no further than the notion that a governmental termination of freedom of movement must be through means intentionally applied____ In short, we believe that Brower is in no way inconsistent with Chestemut and leaves the Chesternut test intact in all material aspects. (Emphasis in original, citations omitted) 318 Md. at 375 , 568 A.2d 48 . Appellant argues “that the encounter by the police officers was either a ‘seizure’ or an ‘arrest’ for constitutional purposes as of the time that police officers shouted ‘Police’ at Appellant when Appellant was in the alley.” (emphasis in original) 5 Therefore, he continues, the seizure can only be upheld if, at the time appellant was seized, the officers could point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the intrusion.” State v. Lemmon, 318 Md. at 380 , 568 A.2d 48 . 6 See also Jones v. State, 319 Md. 279 ,