Trott v. State

KRAUSER, Judge. In this appeal, we are asked to consider once again the question of when an on-the-street inquiry by a police officer becomes a seizure of the inquiree under the Fourth Amend ⁹⁴ ment to the United States Constitution. Although viewed by some as a quagmire of quibble, this area of the law, with all its niggling distinctions, lies at the heart of maintaining a free, just and ordered society. To that end, we willingly enter the maze of precedent that has developed around this issue in the hope of emerging with our common sense intact and our decisional law enhanced.

Appellant, Donald Glenn Trott, was convicted of second degree burglary after a bench trial on an agreed statement of facts in the Circuit Court for Anne Arundel County. He was subsequently sentenced to a term of ten years’ imprisonment, five years of which were suspended. Before trial, appellant unsuccessfully moved to suppress the fruits of his crime and his statements to police on the ground that, when he was initially approached and questioned by a police officer about the equipment in his possession, he was in effect “seized” by that officer who, according to appellant, had no reasonable articulable suspicion that appellant was involved in criminal activity. Therefore, according to appellant, his “seizure” and subsequent arrest were in contravention of the Fourth Amendment.

The denial of that motion by the circuit court forms the basis of this appeal. BACKGROUND 1 At the hearing on appellant’s motion to suppress, testimony was presented that on February 19, 1999, at approximately 3:23 a.m., Anne Arundel County Police Officer Middleton was walking down a residential street, Bellerive Drive, when he ' heard a loud crash. At that time, he was in uniform and on duty. ⁹⁵ Moments later, he observed appellant pushing a woman’s bicycle with a “kid’s tote ... attached to the back” up Bellerive Drive. The street was well lit, and, as appellant approached, Officer Middleton could see that the tote contained a weed whacker, a snow blower, a large tire, and a tow hitch.

At the suppression hearing, Officer Middleton testified: I observed a subject walking up [Bellerive] 2 Drive pushing a female bicycle that had a caption [sic] on the back of the bicycle commonly carried two children [sic]. It was a double — they call it a kid’s tote that’s attached to the back of the bicycle. And loaded in the back in the kid’s tote, I observed a snow blower, a weed whacker and a large ... tire and capacity tow hitch[ ] that were loaded in the back of this tote. And there was a white male pushing the bicycle up the hill, and that’s when I first observed him.

He was on the street pushing the bicycle with all these items in the back. “[B]ecause it was 3:30 in the morning ...” and it “looked completely out of place,” Officer Middleton walked over to appellant, who was on the other side of the street. He asked appellant “what he was doing with the items and the bicycle.” In reply, appellant stated that, on the way home, his pick-up truck had broken down, and “he did not want to leave the materials in the back of the pick-up truck.” When he gave his name upon the officer’s request, Middleton immediately recognized it as the name of someone who “ha[d] been involved in numerous break-ins in the past.” Officer Middleton then radioed for a back-up unit. While on the radio, he was advised by another officer to “be careful” because appellant “was wanted and to hold on to him, because he was going to run.” As the field interview progressed, the officer, either knowing that appellant had no driver’s license or playing a hunch that he did not have one, commented on that fact. In response, appellant stated that his brother had been driving the ⁹⁶ truck when it broke down.

Worried that appellant might have overheard the radio transmissions and concerned that, appellant was growing more “nervous” and “jittery,” the officer placed appellant in handcuffs for, as he put it, “his and my safety.” Officer Middleton then ran a warrant check and learned that there was an outstanding warrant for appellant’s arrest. The officer placed appellant under arrest at approximately 3:35 a.m., twelve minutes after he had first approached appellant. Departing from the record of the motion to suppress, 3 we note that the next day the police were contacted by a “Mr. Weber.” He advised the police that very early that morning he and his son had “heard a noise ... out back” but, seeing nothing, had gone back to bed. When they awoke later that day, they discovered that the “storage shed located toward the rear of [their] home” had been broken into and that, among the items stolen, was a woman’s bike, a weed whacker, a snow blower, and a “tot tote.” Upon arriving at the police station, they identified the items taken from appellant as the property that had been stolen from their storage shed.

At the conclusion of the suppression hearing, the circuit court denied appellant’s motion to suppress the items seized, finding that Officer Middleton’s initial stop of appellant was based upon a reasonable articulable suspicion that appellant was engaged in criminal activity. The court also denied appellant’s motion as to the statements he made to the officer, concluding that appellant had voluntarily made those statements to police. DISCUSSION I Appellant contends that his “initial stop” by the police officer constituted a seizure and that the officer seized him ⁹⁷ without a reasonable articulable suspicion of criminal activity and thereafter arrested him without probable cause. Therefore, appellant claims, the circuit court erred in failing to grant his motion to suppress.

We disagree. When the officer walked over to appellant and asked who he was and what he was doing — an encounter that appellant characterizes as the “initial stop” — no seizure occurred within the meaning of the Fourth Amendment. Even if one did, the officer had a reasonable articulable suspicion to make that “stop.” Moreover, the arrest that followed was supported by probable cause. In reviewing a denial of a motion to suppress, we accept the findings of fact made by the circuit court, unless they are clearly erroneous.

See Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. 341, 346-47 , 574 A.2d 356 (1990). Our review is based solely upon the record of the suppression hearing. See In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691 (1997). And we review that record in the light most favorable to the prevailing party.

See Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Cherry v. State, 86 Md.App. 234, 237 , 586 A.2d 70 (1991). We review de novo, however, all legal conclusions. See Riddick, 319 Md. at 183 , 571 A.2d 1239 . In other words, this Court must make its own independent constitutional determination of whether the encounter in question and subsequent arrest of appellant were lawful.

Id.; Perkins, 83 Md.App. at 346 , 574 A.2d 356 . The Fourth Amendment proscribes unreasonable searches and seizures, but not every encounter between a citizen and a police officer constitutes a “seizure.” As the Supreme Court observed in Terry v. Ohio, 392 U.S. 1, 13 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), “[s]treet encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations .... ” ⁹⁸ Nor does police questioning transform such an encounter into a seizure. “Mere police questioning does not constitute a seizure. This is so even if the police lack any suspicion, reasonable or otherwise, that an individual has committed a crime or is involved in criminal activity, because the Fourth Amendment simply does not apply.” Ferris v. State, 355 Md. 356, 374-75 , 735 A.2d 491 (1999) (internal citations omitted).

Indeed, “[u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.” INS v. Delgado, 466 U.S. 210, 216 , 104 S.Ct. 1758 , 80 L.Ed.2d 247 (1984). Such an encounter has been dubbed, for better or worse, an “accosting.” Unfortunately, the term itself, though no doubt intended to be a neutral description of actions taken by a police officer to trigger an encounter, connotes a confrontational and unwelcome act by the investigating officer and thereby begs the question whether the subject of the “accosting” was intimidated by the officer’s conduct. 4 The better and more neutral term, we believe, is “inquiry.” For the purposes of this opinion, however, we will use the terms interchangeably as we fear that the term “accosting” is too well rooted in the case law to be extirpated. “Typically, an accosting occurs when police officers approach a citizen and ask for information, usually one’s name, address, date of birth, destination, point of origin, and con ⁹⁹ tents of luggage or vehicle.” Reynolds v. State, 130 Md.App. 304, 322-23 , 746 A.2d 422 (1999), cert. denied, 358 Md. 383 , 749 A.2d 173 , and cert. denied, — U.S.-, 121 S.Ct. 178 , 148 L.Ed.2d 122 (2000). Such a procedure is not only constitutionally permissible but plays a pivotal role in law enforcement. A “field investigation” is “the principal investigative technique in law enforcement.” Id. at 323, 746 A.2d 422 .

Virtually all such interviews conducted during the course of an officer’s duties are done for the purpose of gathering information to ferret out criminal offenses or to elicit from witnesses facts relative to a criminal event or an ongoing investigation. We certainly recognize an officer’s right— indeed, his or her responsibility — to conduct inquiries regarding criminal activity. Simply put, that is what they do. Id.

Equally important is the role such inquiries play in crime prevention. Undoubtedly, the questions of a curious and street-wise police officer have ended more than one criminal enterprise before it was undertaken. Indeed, such inquiries are the heart and soul of good police work. Without them, “those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved.

In short, the security of all would be diminished.” Schneckloth v. Bustamonte, 412 U.S. 218, 225 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). To restrict the police from making such inquiries subjects the public to unnecessary perils without a compensating enhancement of constitutional rights. As this Court has previously observed, “ ‘[b]ecause an individual is free to leave during such an encounter, he [or she] is not “seized” within the meaning of the Fourth Amendment.’ ” Reynolds, 130 Md.App. at 322 , 746 A.2d 422 (quoting United States v. Werking, 915 F.2d 1404, 1408 (10th Cir. 1990)). In other words, “[e]ven when the officers have no basis for suspecting criminal involvement, they may generally ask questions of an individual ‘so long as the police do not convey a message that compliance with their request is re ¹⁰⁰ quired.’ ” Ferris, 355 Md. at 375 , 735 A.2d 491 (quoting Florida v. Bostick, 501 U.S. 429, 434-35 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991)).

If, however, “the police, in some way, communicate to a reasonable person that he or she was not free to ignore the police presence and go about their business, then the Fourth Amendment is implicated.” Id. at 375, 735 A.2d 491 . We are not unmindful of the fact that few (and perhaps we are being generous with that estimate) ever avail themselves of the opportunity to leave or decline to answer questions. But there are a variety of reasons for that phenomenon, many of which do not necessarily involve fear of arrest or abuse at the hands of the police. In fact, the test reasonably “assumes that the citizen is aware of police duties to keep the peace and prevent crime, and that that ‘awareness, coupled with feelings of civic duty, moral obligation, or simply proper etiquette, will often lead a reasonable person to cooperate.’ ” 4 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 9.3(a), at 100 n. 58 (3rd ed., 1996) (quoting United States v. Tavolacci, 895 F.2d 1423 (D.C.Cir.1990)).

That assumption, of course, does not include those who are contemplating, engaged in, or have completed a criminal act. But “the ‘reasonable person’ test presupposes an innocent person.” Florida v. Bostick, 501 U.S. 429, 438 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991). And the focus is on the conduct of the investigating officer and not the subjective response of the person being questioned. See Michigan v. Chesternut, 486 U.S. 567, 573-74 , 108 S.Ct. 1975 , 100 L.Ed.2d 565 (1988) (“This reasonable person standard ... ensures that the scope of the Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.”).

Moreover, “[wjhile most citizens will respond to a police request,” the Supreme Court observed in Delgado , “the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” Delgado, 466 U.S. at 216 , 104 S.Ct. 1758 . The Fourth Amendment is therefore not implicated unless, as we stated earlier, “the circumstances of the encounter are so ¹⁰¹ intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded....” Id. at 216 , 104 S.Ct. 1758 . In making that determination, we are to consider the totality of the circumstances surrounding the encounter. See United States v. Mendenhall, 446 U.S. 544, 554 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980); Ferris, 355 Md. at 376 , 735 A.2d 491 ; Jones v. State, 319 Md. 279, 283 , 572 A.2d 169 (1990). “We conclude,” the Supreme Court declared in Mendenhall, “that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554 , 100 S.Ct. 1870 .

The test, however, is an “objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” California v. Hodari D., 499 U.S. 621, 628 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991). In Mendenhall, the Supreme Court gave the following “[ejxamples of circumstances that might indicate a seizure:” “the threatening presence of several [police] officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554 , 100 S.Ct. 1870 . “In the absence of some such evidence,” the Court cautioned, “otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to seizure of that person.” Id. at 555 , 100 S.Ct. 1870 . In a later case involving the pursuit by officers in a police car of a suspect on foot, the Court added several other factors for consideration: whether the police had (1) “activated a siren or flashers;” (2) commanded the individual to “halt”; (3) “displayed any weapons;” (4) “operated their car in an aggressive manner to block [the individual’s] course or otherwise ¹⁰² control the direction or speed of his movement.” Chesternut, 486 U.S. at 575 , 108 S.Ct. 1975 . Citing Mendenhall, the Court of Appeals in Ferris stated that “the test to determine whether a particular encounter constitutes a seizure, or whether the encounter was simply a ‘consensual’ non-constitutional event is whether a reasonable person would have felt free to leave.” Ferris, 355 Md. at 375 , 735 A.2d 491 (citing Mendenhall, 446 U.S. at 554 , 100 S.Ct. 1870 ).

It further explained: If a reasonable person would have felt free to leave, no seizure occurred. Conversely, if a reasonable person would have felt compelled to stay, a seizure took place. The focus, then, is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” [Florida v. Bostick, 501 U.S. 429, 436 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991) ]. The key inquiry has also been characterized as whether “the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Id. at 437 [, 111 S.Ct. 2382 ] (quoting Michigan v. Chesternut, 486 U.S. 567, 569 , 108 S.Ct. 1975 , 100 L.Ed.2d 565 (1988)).

Id. at 375-76 , 735 A.2d 491 . In support of his contention that Officer Middleton’s initial approach was not an accosting, but a seizure, unsupported by reasonable articulable suspicion, appellant relies principally on Jones v. State, 319 Md. 279 , 572 A.2d 169 (1990). In that case, Jones was observed by a police officer at approximately 3:20 a.m., riding his bicycle. Clothing that appeared to be on hangers and covered with plastic was draped across his shoulders and a grocery-type plastic bag hung from his handle bars. “[B]ecause of recent burglaries in the area and because Jones was traveling from the direction of a dry cleaning establishment located six blocks away,” id. at 281 , 572 A.2d 169 , the officer’s suspicions were aroused. “As Jones approached, [the officer] exited his vehicle and asked Jones to stop ... [and] he said something to the effect of ‘Hey, could ¹⁰³ you come here’ or ‘Hold on a minute.’ ” Id.

As Jones got off the bicycle, the officer “noticed a bulge in [Jones’s] jacket pocket that appeared to be a handgun.” Id. Upon patting him down, the officer found a .25 caliber pistol and placed Jones under arrest. “A search of the grocery bag revealed 14 capsules containing cocaine, a quantity of marijuana, one pack of rolling paper, and a billfold containing five smaller vials of cocaine.” Id. Apparently, Jones had just left his mother’s house, which was only twenty feet away, when he was stopped by the officer. He was enroute to a party at his girlfriend’s house, where he intended to change into the clothing he was transporting.

In Jones , the Court of Appeals “conclude[d] that Jones was seized at the moment the officer commanded him to stop,” id. at 285 , 572 A.2d 169 , and that the officer “lacked a reasonable suspicion to justify the stop of Jones.” Id. at 287 , 572 A.2d 169 . The Court reasoned: The officer’s conduct was tantamount to a formal demand compelling the individual to comply and a reasonable person would not have felt free to ignore the officer’s command to stop. The officer was dressed in uniform and driving a marked patrol car. As Jones approached, the officer pulled his car to the side of the road, exited the vehicle, and stood in the street when he called out to Jones using one of three salutations — “Hey, could you come here” or “Hold on a minute” or “Hey, wait a minute.” It seems reasonable for Jones to feel constrained to stop.

He was operating a bicycle on a public highway and it would be an offense under the Maryland Vehicle Law for him willfully to disobey any lawful order or direction of any police officer. Id. at 285 , 572 A.2d 169 (internal citations omitted). Although appellant was stopped while using a bicycle during the early morning hours, the similarity of the instant case to Jones ends there. Moments before appellant came into view, Officer Middleton, while patrolling on foot, heard a loud crash in a quiet residential neighborhood.

He then observed appellant pushing a woman’s bicycle up the street. Attached to the ¹⁰⁴ rear of the bicycle was a children's tote that contained an odd and suspicious assortment of equipment — a snow blower, a weed whacker, a large tire and a tow hitch, just the sort of equipment one might find in a garage or storage shed. He later testified: “Well, my hair raised, because it was 3:30 in the morning, and the subject had all these items loaded in the back of the tote. It looked completely out of place.... ” In contrast to Jones , although in uniform, Officer Middleton did not drive up in a police car; he was on foot when he approached appellant.

Nor did he summon appellant or order him to stop as the investigating officer did in Jones , effectively compelling Jones to get off of his bike. Instead, he walked over to appellant and, without giving any commands or requiring any action from appellant, asked what he was doing and who he was. There is no evidence that his tone of voice was anything but conversational or that his behavior was threatening. Nor were the questions he asked unusual or inherently threatening or intimidating.

They were routine questions, typical of any lawful accosting. See Reynolds, 130 Md.App. at 322-23 , 746 A.2d 422 . In fact, they were not nearly as detailed as the questions approved by this Court in Reynolds . In that case, we stated: “Typically, an accosting occurs when police officers approach a citizen and ask for information, usually one’s name, address, date of birth, destination, point of origin, and contents of luggage or vehicle.” Id.

Moreover, unlike in Jones , had appellant chosen to ignore the questions posed by Officer Middleton, he would not have been in violation of a “lawful order or direction of any police officer,” Jones, 319 Md. at 285 , 572 A.2d 169 , a criminal offense under the Maryland Motor Vehicle Law and a factor stressed by the Jones Court in reaching its conclusion that Jones’s submission to police authority was not voluntary. In so ruling, the Court stated that “[t]his was not a situation where the officer merely approached Jones on the street to ask him if he was willing to answer some questions.” Id. at 286 , 572 A.2d 169 . That, of course, is precisely the situation here and why the instant case is clearly distinguishable from Jones . ¹⁰⁵ Finally, there was no evidence that Officer Middleton was armed or, if he was, that his weapon was visible. Presumably, the officer had a weapon, but in the early hours of a February morning, it is quite likely that it was not visible.

But, even if it were, it is unlikely that the sight of a holstered weapon on a police officer would surprise or intimidate any citizen. We expect and even count on our police officers, in uniform or in plain clothes, to be armed. The more important question is whether, at any time during the encounter, the officer drew or pointed his weapon, see In the Matter of T.T.C., 583 A.2d 986, 988 (D.C.1990), or referred to it. In Ferris v. State, supra, as noted earlier, the Court of Appeals provided further guidance for ascertaining when an encounter between a civilian and the police becomes a seizure.

In that case, Ferris was pulled over by a Maryland State Trooper for speeding. The trooper had clocked Ferris’s vehicle at ninety-two miles per hour in a sixty-five mile per hour zone. Inside the vehicle were Ferris and one front-seat passenger. When the trooper asked Ferris for his driver’s license and registration, he noticed that “Ferris’s ‘eyes were bloodshot and he did appear a little nervous, a little fidgety.’ ” Ferris, 355 Md. at 362 , 735 A.2d 491 .

After returning to his patrol car to request a driver’s license and outstanding warrant check, the trooper noticed that Ferris and his passenger “were moving around and looking back towards him ‘quite frequently.’ ” Id. While the trooper was writing a citation, a deputy sheriff arrived and parked his patrol car behind the trooper’s and activated his vehicle emergency “flashers.” Id. He too noticed Ferris and his passenger moving around a lot in the vehicle and glancing back towards the officers. The trooper returned to Ferris’s vehicle with the deputy, who stood at the rear of the vehicle.

After Ferris had signed a citation and his license and registration had been returned, along with a copy of the citation, the trooper asked him “ ‘if he would mind stepping to the back of his vehicle to answer a couple of questions.’ ” Id. at 363 , 735 A.2d 491 . Ferris responded that “ ‘he didn’t mind.’ ” Id. The reasons that the trooper asked Ferris “to step out of the car were that [Fer ¹⁰⁶ ris’s] eyes were bloodshot, [Ferris] and the passenger were acting very nervous, and there was no detectable odor of alcohol on [Ferris’s] breath.” Id. The trooper suspected “ ‘some drug use.’ ” Id. at 363 n. 2, 735 A.2d 491 .

Standing behind the vehicle, the trooper asked Ferris if he had been smoking drugs before the traffic stop. He denied it at first, but when asked again by the trooper, Ferris admitted that he and his passenger had smoked a “joint” about three hours earlier. In response to further questioning by the trooper, Ferris admitted that his passenger possessed a small amount of marijuana. After the passenger turned over to the officers a small baggie containing marijuana and a search of the vehicle uncovered more marijuana, Ferris was arrested.

At the beginning of its analysis, the Court noted that the facts presented two distinct police stops: the initial traffic stop, which ended when a citation was issued to Ferris and his license and registration were returned, and the post-traffic stop detention, which began when the trooper subsequently requested that Ferris step behind the car to answer a few questions. The Court explained: It is without dispute that the stop of Ferris by [the trooper] for exceeding the posted speed limit constituted a seizure for Fourth Amendment purposes, but that such a seizure was justified by the probable cause possessed by the trooper in having witnessed Ferris’s traffic violation. Indeed, Ferris does not contest the initial stop. The real issue lies in the actions taken by the officer after he had issued the speeding citation to [Ferris] and had returned his driver’s license and registration to him.

Id. at 369 , 735 A.2d 491 . Acknowledging that “the inquiry is a highly fact-specific one,” the Court summarized the factors that other courts have identified as “probative of whether a reasonable person would have felt free to leave,” id. at 377 , 735 A.2d 491 , as follows: the time and place of the encounter, the number of officers present and whether they were uniformed, whether the police removed the person to a different location or isolated ¹⁰⁷ him or her from others, whether the person was informed that he or she was free to leave, whether the police indicated that the person was suspected of a crime, whether the police retained the person’s documents, and whether the police exhibited threatening behavior or physical contact that would suggest to a reasonable person that he or she was not free to leave. Id. After considering the totality of the circumstances surrounding Ferris’s arrest, the Court concluded “that a reasonable person in Ferris’s position would not have believed that he was free to terminate the encounter with [the trooper] when the trooper asked him ‘if he would mind stepping to the back of his vehicle.’ ” Id .

Indeed, such a person, the Court concluded, “would have reasonably believed he was neither free to leave the scene nor to ignore and disobey the police officer’s ‘requests.’ ” Id. at 378 , 735 A.2d 491 . The Court explained: A host of factors gives rise to our determination that Trooper Smith’s prolonged encounter with Ferris was a seizure under the Fourth Amendment. First and foremost is the prior existence of the initial traffic seizure of Ferris. This pre-existing seizure enhanced the coercive nature of the situation and the efficacy of the other factors in pointing toward the restriction of Ferris’s liberty.

The situation faced by Ferris was markedly different from that of a person passing by or approached by law enforcement officers on the street, in a public place, or inside the terminal of a common carrier. We find significant the following circumstances: the trooper never told Ferris that he was free to leave, the trooper’s “request” of Ferris to exit the vehicle seamlessly followed the pre-existing lawful detention, the trooper removed Ferris from his automobile, the trooper separated Ferris from the passenger, there were two uniformed law enforcement officers present, the police cruiser emergency flashers remained operative throughout the entire encounter, and it was 1:30 a.m. on a dark, rural interstate highway. Given the cumulative effect of these circum ¹⁰⁸ stances, a reasonable person would not have felt free to terminate the encounter. Id. at 378-79 , 735 A.2d 491 (internal citations omitted).

In contrast to Ferris , no “lawful detention” preceded Officer Middleton’s encounter with appellant. Therefore, unlike Ferris , appellant’s cooperation cannot be attributed to a misimpression that the officer’s questions were all part of a lawful detention pursuant to a valid traffic stop. Nor were patrol cars with flashing lights or other uniformed officers present. 5 Officer Middleton was alone and on foot when he approached appellant. There is no evidence that his patrol car was visible or near the scene of the encounter.

The encounter, moreover, did not occur on a “desolate, rural interstate highway,” but on a well lighted residential street. Id. at 383 , 735 A.2d 491 . More important, appellant was never asked by Officer Middleton to stop or to change his location as Ferris was. The entire encounter took place at precisely the same spot.

In Ferris , the Court of Appeals was particularly troubled by that aspect of the Ferris encounter. The Court asserted that the trooper “affirmatively sought to move Ferris from the relative comfort of his vehicle to a more coercive atmosphere,” between his car and the two patrol cars. Id. at 382 , 735 A.2d 491 . To underline the importance of that fact, the Court ¹⁰⁹ noted that “[h]aving the driver ‘exit his vehicle ... shifts control away from the driver to the officer.

No longer could [the driver] simply turn the ignition key and drive away. Instead, in order to leave, he had to affirmatively reverse an action previously requested by the officer — he had to get back into his car.” Id. at 382-83 , 735 A.2d 491 (quoting George M. Dery III, “When Will This Traffic Stop End?”: The United States Supreme Court’s Dodge of Every Detained Motorist’s Central Concern—Ohio v. Robinette, 25 Fla. St. U.L.Rev. 519, 556 (1998)). In the instant case, however, no request was made that appellant take any action except to answer a few questions.

Moreover, the failure of Officer Middleton to inform appellant that he was free to leave, plays a far less important role in the instant case than it did in Ferris . By not advising Ferris, at the conclusion of the traffic stop, that he had a right to leave, the police left him with the impression that the questions which followed were part of his continued detention. The Court observed: The