Williams v. State

KRAUSER, C.J. Convicted of robbery with a dangerous weapon, 1 after pleading not guilty to an agreed upon statement of the facts in the ⁴⁰¹ Circuit Court for Kent County, Thedral Thomas Williams, III, 2 appellant, contends that the circuit court erred in denying his motion to suppress. Specifically, he maintains that the police lacked a reasonable suspicion of criminal activity, when they stopped the car in which he was a passenger, and lacked probable cause to arrest, when they blocked the doors of that vehicle with their patrol cars, preventing him from leaving it. We disagree and shall affirm. Suppression Hearing Williams filed, as noted, a motion to suppress physical evidence seized and statements he made to police on the grounds that the car in which he was traveling was unlawfully stopped and then his exit from that vehicle was unlawfully blocked in violation of the Fourth Amendment.

The testimony presented at his suppression hearing, viewed in the light most favorable to the prevailing party—in this instance, the State 3 —showed that at about 1:00 a.m., on January 4, 2011, Patrolman First Class Brett Lysinger of the Chestertown Police Department received two calls “almost simultaneously” from the police dispatcher: one concerned a home invasion at 108 Elm Street and the other a panic alarm at a Citgo gas station within yards of that house. When Patrolman Lysinger arrived at the location of the home invasion, he was informed ⁴⁰² by the home’s owner that she had seen flashlights and that one or more individuals had attempted to break into her house. After checking the area around the house, the patrolman was advised by the dispatcher that the Citgo station call had been upgraded to an armed robbery. So he left the site of the alleged home invasion for the Citgo station.

Upon arriving at that location, he spoke to a clerk employed by the gas station. The clerk informed him that three males, with their faces covered, had entered the gas station store. After one of them brandished a sawed-off shotgun and demanded money, they forced him to lay on the ground face down and threatened to Mil him if he looked up. After taMng cash and cigarettes from the store, they fled.

When Patrolman Lysinger finished interviewing the clerk, he viewed, at the Citgo station, the surveillance video of the robbery, which showed “two black males” and “one possibly white male” entering the store from the direction of Greenwood Avenue, which is perpendicular to Elm Street, where the attempted home invasion had occurred. The videotape showed the three robbers fleeing in the same direction from which they had approached the Citgo. Other units from the Maryland State Police and the Kent County Sheriffs Office were also at the scene. They stopped a vehicle, which was “almost directly in front of the Citgo.” But, when it was determined that the occupants were neither witnesses nor suspects, the police allowed them to drive away.

The only other vehicle that the patrolman recalled seeing while he was at the Citgo was a box delivery truck. After viewing the videotape, Patrolman Lysinger called the dispatcher and requested a canine unit. Patrolman James Walker arrived with a dog to trace the departing suspects’ path. The two patrolmen, joined by a Detective Lodge, then went to the Elm Street home to conduct a canine search.

At that time, the streets and sidewalks, in what was described as a “secluded” residential neighborhood, were completely devoid of traffic of any sort, vehicular or pedestrian. ⁴⁰³ While the officers were standing in a yard adjacent to 108 Elm Street, the location of the attempted home invasion, with their vehicles’ lights off, a Dodge suddenly appeared, after making a left turn onto Elm Street. It then passed by them, first slowing down and then speeding off. In the words of the patrolmen, the Dodge was driving at a “normal speed,” but then it slowed down to between “3 to 5 miles an hour” as it passed by the officers, though the posted speed limit in that area was 25 miles per hour. At that point, the officers were able to “clearly observe” that there was a white male and a white female in the front seats of the car and two black males and a black female in the back seat.

Patrolman Walker recognized the white male occupant seated in the front as someone he had had “prior dealings” with. Specifically, the patrolman knew him because of the occupant’s “history of drug use.” 4 After the Dodge had passed the officers, the passengers in the rear seat looked back through the vehicle’s rear window at the officers. The car then sped up as it left the area. Although no traffic violation had occurred, the officers decided to pull the Dodge over “to identify them as either possible witness [sic ] or a ... possibly suspects.” Patrolman Walker was the first officer to take off after the Dodge in his patrol car.

Though right behind the Dodge, he had to “accelerate pretty heavily” to “at least 40 miles an hour ... to catch the vehicle.” At that time, “approximately 30 to 40 minutes” had elapsed since the initial call from the dispatcher. When the pursuing patrolman activated his emergency lights, the Dodge slowed down and appeared to be coming to a ⁴⁰⁴ stop, but, before it did, the driver’s side rear-passenger door opened, prompting Patrolman Walker to pull up to the Dodge and position his patrol car so that it blocked what appeared to be an attempt to exit the moving vehicle. Moments later, when Patrolman Walker’s fellow officer, Patrolman Lysinger, drove up in his patrol car, the rear door on the passenger’s side of the Dodge also opened. Patrolman Lysinger then used his car to block any attempt to exit from that door as well.

As the patrolmen were approaching the Dodge in their respective patrol cars, they both observed Williams and the other male passenger in the back seat of the Dodge trying to leave the vehicle as the female backseat passenger attempted to pull them back to prevent that from happening. As Patrolman Lysinger put it, Williams was “attempting to crawl over the female” in what appeared to be an effort to exit the Dodge. After getting out of his vehicle, Patrolman Walker instructed the occupants to stay in their car. When Williams was ultimately removed from the rear seat, Patrolman Lysinger recognized him from “previous experiences.” Patrolman Lysinger then patted down Williams.

Feeling “a large bulge in ... the leg area of his pants,” the patrolman asked Williams what it was. Williams responded, “Money, man. It’s money.” Patrolman Lysinger then removed a “large stack of United States currency” from Williams’s person. 5 Suppression Court Ruling The suppression court held that the stop of the Dodge was a lawful investigatory stop and denied the suppression motion. Nearly a month later, Williams filed a motion for reconsideration.

Without hearing argument, the court denied the motion. ⁴⁰⁵ In so doing, it further explained that it found the officers had a reasonable articulable suspicion and that that suspicion justified the stop of the Dodge. Six days later, on the date of his trial, Williams, before entering his plea of not guilty, based on an agreed upon statement of facts, made what appeared to be a second motion for reconsideration of the denial of his suppression motion, contending, for the first time, that when the police “pinned” him in the Dodge by blocking, with their vehicles, the rear doors of the Dodge, that that action constituted an arrest, which was unsupported by probable cause. The court also denied that motion. DISCUSSION I. It is not a violation of the Fourth Amendment for an officer to “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)).

This is known as an “investigatory stop” and is underlaid by “strong concerns for public safety and for effective crime prevention and detection[.]” Quince v. State, 319 Md. 430, 434 , 572 A.2d 1086 (1990) (citing United States v. Hensley, 469 U.S. 221, 228-29 , 105 S.Ct. 675 , 83 L.Ed.2d 604 (1985)). But what constitutes a reasonable suspicion? To answer that question, we first observe that the “level of [reasonable] suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence” and “obviously less demanding than that for probable cause.” Sokolow, 490 U.S. at 7 , 109 S.Ct. 1581 . But, predictably, there is no “standardized litmus test” that governs the determination of what is a reasonable suspicion.

Cartnail v. State, 359 Md. 272, 286 , 753 A.2d 519 (2000). ⁴⁰⁶ Rather, “reasonable suspicion” is a “common sense, nontechnical conception that considers factual and practical aspects of daily life and how reasonable and prudent people act.” Id. (citing Ornelas v. United States, 517 U.S. 690, 695 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996)). To be more precise, in deciding whether reasonable suspicion justified an investigatory stop, we “look at the ‘totality of the circumstances’ of each case to see whether the detaining officer ha[d] a ‘particularized and objective basis’ for suspecting legal wrongdoing.” Collins v. State, 376 Md. 359, 368 , 829 A.2d 992 (2003) (quoting United States v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002)). Williams contends that the trial court erred in denying his motion to suppress evidence, including the money taken from his pants, 6 as well as statements he subsequently made to police, during what he contends was an unlawful traffic stop.

In support of his claim, Williams invokes the six factors identified in 4 Wayne R. LaFave, Search & Seizure § 9.4(g), at 550-51 (4th ed.2004), as relevant in determining whether police had a reasonable articulable suspicion to make an investigatory stop of a vehicle or person. They are: (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. Selective in his application of these factors, Williams stresses that, when the car passed the officers, the police were only able to corroborate three characteristics of the perpetrators of ⁴⁰⁷ the armed robbery with those of the occupants of the Dodge: race, gender, and proximity to the scene of the attempted break-in at 108 Elm Street; that the police were not searching for a particular vehicle; that there were more occupants in the Dodge than had been recorded by the gas station’s surveillance video; that enough time had passed since the crime so that the time span, between the crime and the stop, could no longer be used as a reason to pull over the car; and that the rear passengers “merely looked” at the police when their car slowed and passed by. Williams concludes that the officers pulled over the Dodge based on a “hunch,” not reasonable articulable suspicion and, therefore, evidence that was seized and statements that he made to police were the fruits of an unlawful stop and should have been suppressed.

To address Williams’s contentions, we must first determine at what point in time Williams was “seized” under the Fourth Amendment. Justice Stewart, in his opinion in United States v. Mendenhall, which was later adopted by a majority of the Court, 7 declared that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” 446 U.S. 544, 554 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); INS v. Delgado, 466 U.S. 210, 215 , 104 S.Ct. 1758 , 80 L.Ed.2d 247 (1984); Michigan v. Chesternut, 486 U.S. 567, 573 , 108 S.Ct. 1975 , 100 L.Ed.2d 565 (1988). But, in California v. Hodari D., the Supreme Court cautioned that, though the free-to-leave test was a “necessary” requirement in determining whether a person has been seized under the Fourth Amendment, it was not necessarily “sufficient.” 499 ⁴⁰⁸ U.S. 621, 628 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991). In fact, a person is not seized, it declared, until he is restrained by physical force or by a “show of authority” to which he has yielded.

Id. at 626 , 111 S.Ct. 1547 . See Brendlin v. California, 551 U.S. 249, 254 , 127 S.Ct. 2400 , 168 L.Ed.2d 132 (2007) (“A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned.” (citing Hodari D., 499 U.S. at 626 & n. 2, 111 S.Ct. 1547 )). See Swift v. State, 393 Md. 139, 152, 158 , 899 A.2d 867 (2006) (applying Mendenhall and Hodari D.); Ferris v. State, 355 Md. 356, 375-76 , 735 A.2d 491 (1999) (same); see also Brummell v. State, 112 Md.App. 426, 433-34 , 685 A.2d 835 (1996). Admittedly, the activation, as in the instant case, of the overhead emergency lights of a police car to induce a pursued vehicle to stop is a “show of authority.” See Lawson v. State, 120 Md.App. 610, 616-17 , 707 A.2d 947 (1998).

But, Williams and the other male in the backseat of the Dodge did not yield to that show of authority until the vehicle came to a complete stop and their avenue of escape was blocked. Indeed, as Hodari D. illustrates, although there is a “show of authority,” a seizure does not take place until the subject yields to that “show of authority” and stops. In Hodari D., two officers were on patrol in a high-crime area when they rounded a corner and saw a group of “youths” in a huddle, one of whom was Hodari. Id. at 622-23 , 111 S.Ct. 1547 .

When the youths saw the officers approaching, they took flight and the officers gave chase. Id. at 623 , 111 S.Ct. 1547 . As Hodari fled, he did not see anyone chasing him until one of the officers was “almost upon him,” whereupon Hodari tossed what appeared to be a small rock. Id.

After the officer tackled and handcuffed him, the rock was recovered, and it was found to be crack cocaine. Id. Even though the officer’s pursuit of Hodari was a “show of authority,” the Supreme Court held that Hodari was not ⁴⁰⁹ “seized,” under the Fourth Amendment, because the language of the Fourth Amendment, more specifically, the word “seizure,” does not “remotely apply ... to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee.” Id. at 626 , 111 S.Ct. 1547 . Thus, the cocaine he had “tossed,” the Court concluded, was not the fruit of an unlawful seizure.

Id. at 629 , 111 S.Ct. 1547 . We therefore conclude, as have many other courts, but not all, 8 that events that occur between a “show of authority” and the actual seizure may be considered in deciding whether police had reasonable suspicion to seize an individual. See, e.g., United States v. Simmons, 560 F.3d 98, 105-07 (2d Cir.2009); United States v. Waterman, 569 F.3d 144 , 145-46 & n. 3 (3d Cir.2009); United States v. Muhammad, 463 F.3d 115, 123 (2d Cir.2006); United States v. Swindle, 407 F.3d 562, 567-69 (2d Cir.2005); United States v. Smith, 396 F.3d 579 , 586 n. 5 (4th Cir.2005); United States v. Valentine, 232 F.3d 350, 358-59 (3d Cir.2000); United States v. Johnson, 212 F.3d 1313, 1316-17 (D.C.Cir.2000); Watkins v. City of Southfield, 221 F.3d 883 , 889 n. 3 (6th Cir.2000); United States v. Santamaria-Hernandez, 968 F.2d 980, 981-83 (9th Cir.1992); Plummer v. United States, 983 A.2d 323, 331-34 (D.C.2009); People v. Archuleta, 980 P.2d 509, 514-15 (Colo.1999) (en banc); Perez v. State, 620 So.2d 1256, 1258 (Fla.1993). In ⁴¹⁰ other words, a reasonable-articulable-suspicion inquiry begins, not when there is a “show of authority” by police, but when the subject yields to that “show of authority.” Before we address the factors that we believe gave rise to a reasonable suspicion, we note that, as Williams points out, Maryland appellate courts frequently consider LaFave’s factors in performing a reasonable-articulable-suspicion analysis.

See Lewis v. State, 398 Md. 349, 362 , 920 A.2d 1080 (2007); Myers v. State, 395 Md. 261, 281 , 909 A.2d 1048 (2006); Collins, 376 Md. at 369 , 829 A.2d 992 ; Stokes v. State, 362 Md. 407, 420-21 , 765 A.2d 612 (2001); Cartnail, 359 Md. at 289 , 753 A.2d 519 ; In re Lorenzo C., 187 Md.App. 411, 430-31 , 978 A.2d 890 (2009); Sykes v. State, 166 Md.App. 206, 217 , 887 A.2d 1095 (2005), cert. denied, 393 Md. 162 , 900 A.2d 207 (2006); Farewell v. State, 150 Md.App. 540, 564-55 , 822 A.2d 513 (2003), cert. denied, 376 Md. 544 , 831 A.2d 4 (2003). But that approach, though helpful, is not, as Williams suggests, mandatory. The LaFave factors are not an exhaustive list, nor can they be, as new cases periodically present facts and circumstances that were not foreseen when this list was composed. Indeed, several factors in the instant case contributed to the formation of a reasonable suspicion, which are not part of LaFave’s list, namely the secluded nature of the area where the stop occurred; the time of day of the stop; the total lack of vehicular and pedestrian traffic in that area; and the occurrence of two successive criminal intrusions within less than an hour in that small secluded area, suggesting a pattern of criminal conduct still in motion.

Those factors, when combined with suspicious behavior of the occupants of the Dodge, gave rise, as we shall see, to a reasonable suspicion. In describing the area where the stop occurred, Patrolman Walker testified that in the “all residential” neighborhood where 108 Elm Street is located, “nobody is out at that hour,” and “once [the residents are in], they stay in.” He stated that, when he and his fellow officers were standing on the front lawn of the house, where the attempted home invasion happened, “there was no body around” except them, and he ⁴¹¹ described the area as “off the beaten path” and “kind of secluded.” The suppression court agreed with the officers’ characterization of the locality where the attempted burglary took place, observing that “in Chestertown, Maryland, a town of 5,000 people!,] ... you don’t expect to find many people on the highway anywhere, let alone at the time of the morning at that location.” In fact, the officers had observed only three vehicles during the time that passed between the crime and the stop: the box delivery truck, the passenger vehicle that was stopped in front of the Citgo, and the Dodge, which contained Williams. Because there was no pedestrian and almost no vehicular traffic in the area where the police initiated the stop, both the location where the police observed the Dodge and the time of day when they observed it—approaching 2:00 a.m—are factors supporting, though hardly establishing, a reasonable articulable suspicion with respect to Williams’s vehicle. Moreover, though thirty to forty minutes had elapsed since the Citgo robbery—given the pattern of criminal conduct the police were presented with—that time period may be viewed as lending greater weight to the officers’ suspicion.

As the attempted home invasion and Citgo robbery occurred in close temporal and physical proximity to each other, and just a little more than a half hour before the stop at approximately the same location, it was not unreasonable to assume that the perpetrators were still in the area and on the lookout for other opportunities. That appears to have been the situation in Farewell v. State, 150 Md.App. 540, 565 , 822 A.2d 513 (2003), where culprits had robbed a wine and beer store and then a pizza parlor in the “same general location” within a span of about fifty minutes. To summarize, the police were aware that two crimes had occurred within a relatively short period of time, late in the very early morning hours of a weekday, and in close proximity within a relatively secluded residential area. The return to the scene of the attempted home invasion thirty to forty minutes after the initial call suggests that the occupants of the ⁴¹² Dodge may have gone back to check on police activity, complete the crime, or commit another one in that neighborhood.

We consider next the behavior of the occupants of the Dodge, which more than any other factor, laid the basis for a lawful investigatory stop. The Dodge drove directly in front of 108 Elm Street, the scene of the attempted home invasion, at an hour when and at a location where no one would be expected to be on the road. It was initially traveling at “normal” speed, but then slowed down as it passed the house and the officers at 108 Elm Street, who stood on the lawn without the lights of their vehicles on. As the car was driving by, individuals in the rear seat turned and looked through the vehicle’s rear window at the officers.

Fourth, once the car had passed, it immediately sped up, and turned onto another street, an action that could reasonably be interpreted as a form of flight. Furthermore, although the Dodge had slowed down, in response to a flash of lights from Patrolman Walker’s cruiser, it had not yet stopped, or as framed by the words of Hodari D., it had not yet “yielded” to a “show of authority.” It was then that Patrolman Walker and Patrolman Lysinger observed the two black male passengers, in the rear seat of the Dodge, attempting to leave that vehicle. Patrolman Lysinger stated that he saw Williams trying to climb over the female seated in the middle of the back seat of the car in what appeared to be an attempt to get out of the car and flee. At that moment, Patrolman Lysinger also saw the female passenger in the rear trying to keep both black male passengers from leaving the vehicle.

The actions of Williams and the other male passenger were manifestly inconsistent with a “yielding” to a “show of authority” by police. Then, while the Dodge was still moving, a rear door opened, prompting Patrolman Walker to use his vehicle to block any attempt to leave the Dodge by that door and flee. After that occurred, the other door opened, presumably, for the same purpose. The officers’ seizure of the vehicle was certainly reasonable under circumstances given the furtive actions of ⁴¹³ the occupants and the high probability that Williams and another passenger were actually engaged in an effort to flee the scene, factors which may be considered in making an arrest and, a fortiori, in making an investigatory stop.

See Collins, 376 Md. at 374 , 829 A.2d 992 (“[D]eliberately furtive actions and flight at the approach of