Williams v. State

Richard W. Williams v. State of Maryland, No. 858, September Term, 2019. Opinion by Nazarian, J. CRIMINAL LAW – FOURTH AMENDMENT – TERRY FRISK State violated criminal defendant’s Fourth Amendment rights when police officer performed a take down without testifying that defendant was armed and dangerous, at risk of flight, or a threat to the officer’s safety. CRIMINAL LAW – FOURTH AMENDMENT – ARREST Defendant was placed under arrest when he was tackled, wrestled to the ground, told to put his hands behind his back, and pepper sprayed. The arrest was not supported by probable cause because there was no evidence to warrant a prudent person in believing that the defendant had committed or was committing a criminal offense at the time of the arrest, and evidence gathered after the unlawful arrest should have been suppressed as fruits of the poisonous tree.

CRIMINAL LAW – RESISTING ARREST Evidence was insufficient to convict criminal defendant of resisting arrest where arrest was unlawful. CRIMINAL LAW – JURY SELECTION – RIGHT TO FAIR AND IMPARTIAL JURY Trial court’s jury selection method, which involved eliminating all potential jurors who responded to a voir dire question, did not violate defendant’s right to a fair and impartial jury where defendant was unable to show that a cognizable group was excluded from the jury panel. Even so, the method risks improperly excluding categories of jurors, and the marginal gains in judicial efficiency are not worth the risk. Circuit Court for Worcester County Case No. C-23-CR-18-423 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 858 September Term, 2019 ______________________________________ RICHARD W. WILLIAMS v. STATE OF MARYLAND ______________________________________ Nazarian, Leahy, Friedman, JJ. ______________________________________ Opinion by Nazarian, J. ______________________________________ Filed: May 29, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-10-23 15:03-04:00 Suzanne C. Johnson, Clerk Richard Williams was pulled over by Sergeant Rudell Brown, a police officer in Pocomoke City, Maryland, for talking on his cell phone while driving. When Mr. Williams stopped his car, both he and Sergeant Brown got out of their vehicles. Sergeant Brown approached Mr. Williams quickly from behind and took him down to the ground. While Mr. Williams was handcuffed, Sergeant Brown discovered three baggies of marijuana, all (and collectively) non-criminal in amount, and $443 in cash on and about Mr. Williams’s person.

Sergeant Brown then searched his car and found a scale and a criminal amount of marijuana. Mr. Williams was charged and convicted of possession with intent to distribute marijuana, possession of marijuana, resisting arrest, and driving on a suspended license. He argues on appeal that the trial court violated his constitutional right to a fair and impartial jury because its method of selecting the jury excluded significant parts of the community. Mr. Williams contends that Sergeant Brown violated his Fourth Amendment right against unlawful searches and seizures when he arrested him without a warrant.

And he argues that the evidence was insufficient to support his conviction for resisting arrest. We hold that Mr. Williams’s Fourth Amendment rights were violated by an illegal arrest and search and that the evidence could not support his conviction for resisting arrest, and we reverse the judgments for possession with intent to distribute marijuana, possession of marijuana, and resisting arrest. We affirm his conviction for driving on a suspending license. We observe as well that the method used to select the jury in this case risks excluding members of the venire in ways the Constitution forbids and, as a result, seems to undermine the judicial economy objectives it seeks to achieve.

I. BACKGROUND A. The Suppression Hearing On April 2, 2019, the circuit court held a hearing to resolve pending motions, including a defense motion to “suppress evidence that was recovered . . . from a search of a vehicle subsequent to a traffic stop,” arguing that it was “sort of a warrantless search” and for a ruling that the State had the “burden of showing that [the search] fits into one of the established exceptions to the warrant requirement.” Sergeant Brown was the sole witness for the state. He testified he was on patrol on October 20, 2018, in an unmarked vehicle at the intersection of Linden Avenue and 6th Street in Pocomoke City. Sergeant Brown saw Mr. Williams driving westbound on Linden and turn left onto 6th Street with “his cell phone up to his ear,” so he turned his car around on 6th Street and initiated a traffic stop. The Sergeant’s testimony on the mechanics of this traffic stop vacillated.

He stated on direct that Mr. Williams pulled over “[a] short time later,” after taking a right onto Bank Street, which is a block away from the 6th Street/Linden Avenue intersection. But he indicated later that it took Mr. Williams “two to five minutes” to stop after he turned on his emergency equipment. On cross-examination, he testified that he didn’t turn his emergency signal on until both he and Mr. Williams were on Bank Street, where Mr. Williams stopped his car on the edge of another individual’s property. He did not clarify how it took him “two to five minutes” to stop Mr. Williams after they turned onto Bank Street, which only 2 stretches a few blocks in that direction.1 Regardless, as Sergeant Brown got out of his car, he noticed Mr. Williams “quickly [getting] out of his vehicle” without being instructed to do so.

Sergeant Brown stated on direct that he “approached [Mr. Williams] quickly as he got out” and observed that Mr. Williams had his back to him and that he “held something in his hands” that were “clenched” together. On cross, he indicated that he “didn’t see anything in [Mr. Williams’s] hands” and that “normal people don’t jump out of their car” during routine traffic stops. Sergeant Brown didn’t identify himself as an officer, but he was in uniform. He “grabbed” Mr. Williams, he said, because he “didn’t know what he had in his hands.” Then Sergeant Brown wrestled Mr. Williams to the ground, “told him to put his hands behind his back” and to “stop resisting,” and pepper sprayed him.

After being pepper sprayed, Mr. Williams complied and quit struggling or resisting. He then threw “two bags of marijuana underneath the car” and Sergeant Brown “eventually” placed him in handcuffs. Sergeant Brown’s testimony on the order in which he searched Mr. Williams’s person and car wasn’t clear: [THE STATE]: After Mr. Williams was in handcuffs, what did you do? [SERGEANT BROWN]: I’m not quite sure I understand you. [THE STATE]: Well, after – so you put Mr. Williams in handcuffs. You recovered these two bags. [SERGEANT BROWN]: Back up shortly after arrived [sic] during that time.

I ended up searching the vehicle. [THE STATE]: Okay. Well did you ever search Mr. 1 Sergeant Brown testified further that the police report stated incorrectly that Mr. Williams turned onto Oxford Street, which is an additional block away from Linden Avenue. 3 Williams’s person? [SERGEANT BROWN]: Yes, I did. [THE STATE]: Okay. And what other – what, if anything, did you observe or did you find on Mr. Williams’s person? *** [SERGEANT BROWN]: He had marijuana in his left jacket pocket. [THE STATE]: And where was that? [SERGEANT BROWN]: In his left jacket pocket. [THE STATE]: Oh, okay. Was it loose?

Was it – how was it contained if it was? [SERGEANT BROWN]: In a plastic bag. [THE STATE]: Okay. Did you find anything else on his person at that time? [SERGEANT BROWN]: $443 in his right pants pocket. Nonetheless, Sergeant Brown testified on cross that the two baggies of marijuana tossed under the car and the baggie recovered from Mr. Williams’s jacket pocket were not criminal in quantity. After Mr. Williams was handcuffed, and “obviously not free to leave,” Sergeant Brown searched the car and found a “large amount” of “plastic baggies” in the center console, a cell phone, and a larger, criminal quantity of marijuana and a scale in the trunk of the car.

Sergeant Brown later towed the vehicle “for safekeeping” without allowing Mr. Williams to try to contact a licensed driver to move the car. The State argued that Sergeant Brown was “okay with putting his hands first on Mr. Williams and then placing him in handcuffs” and relied “upon either the risk of flight or danger to the police officer.” The prosecutor stated that Sergeant Brown “definitely had probable cause” to search the car because of the recovery of the three baggies of marijuana and because Mr. Williams had been observed exiting the car. Alternatively, the State 4 argued that the evidence would have been found under the inevitable discovery doctrine because the car was towed. Defense counsel argued that the detention and use of handcuffs moved the search from a “Terry-style limited detention or your routine traffic stop into arrest . . . conducted without probable cause.” And defense counsel responded that the State failed to meet the threshold showing necessary to invoke the inevitable discovery doctrine.

The suppression court first made findings of fact about the pursuit and searches: Well, the facts as the Court finds in this matter for purposes of this motions hearing are that: The police officer is on patrol. He sees [Mr. Williams] operating a motor vehicle. He’s got a cell phone to his ear, apparently using this cell phone to communicate, in violation of Maryland law. The police officer, driving in an unmarked vehicle, but nonetheless has emergency lighting and all that sort of thing, activates his lights, turns around, activates his lights [sic], follows [Mr. Williams]. [Mr. Williams] makes a turn, as the police officer describes, pulls up into the yard, he said, of a vehicle – of a house alongside the roadway, immediately jumps out of the vehicle, that is [Mr. Williams], before the police officer can even get out of his vehicle, turns away so that the police officer can’t see his front or what he has in his hand.

The police officer observes that [Mr. Williams] has something in his hand. The police officer approaches him quickly, grabs ahold of him, tries to get him to turn around. He doesn’t turn around. They end up wrestling.

The police officer tells him to stop resisting. Tells him to put his hands behind his back. [Mr. Williams] does not, continues to struggle. Some time during the course of this, [Mr. Williams] discards, throws away, two bags, which the police officer believes contain marijuana based on his experience, discards them, if you will, under the vehicle. The police officer manages to control [Mr. Williams], cuffs him, searches him.

First of all, he recovers the two bags that [Mr. Williams] has discarded immediately after getting out of 5 the vehicle and discarded under the vehicle, confirms that the contents of those bags are, based on his experience, marijuana. Back-up arrives. He searches [Mr. Williams], finds a significant quantity of money and more marijuana in [Mr. Williams’s] jacket. He then searches the interior of the vehicle.

The suppression court ruled that Sergeant Brown had probable cause to search the car because there were baggies in the center console: So the question is, does he have probable cause to believe that there’s an additional quantity of marijuana in the vehicle? The Court finds that under all the circumstances that he does have probable cause to search the interior of the vehicle. He searches the interior of the vehicle. Among other things, he finds a number of plastic bags in the center console, additional evidence, if you would, that would cause a reasonable police officer to suspect that there’s additional marijuana in the vehicle.

He continues to search, searches the trunk, finds another quantity of marijuana in the trunk and finds a scale in the trunk. Thereupon, [Mr. Williams] is [] restrained already— is arrested and presumably taken to the police department or whatever for processing. The court went on to find that even if the search was bad, the doctrine of inevitable discovery applied: And the doctrine of inevitable discovery applies, it seems to me. If there was something wrong, if there wasn’t probable cause to conduct a search, then the police officer’s right to seize the vehicle under the circumstances, have it towed, conduct an inventory as he’s required to do, is something that would have happened anyway.

B. Jury Selection Before selecting the jury for this case, the trial court described for the panel the method it used to select jurors: [I] have prepared—after reviewing the request of the State and 6 the defense, I’ve prepared the voir dire questions that I will propose or propound on the venire panel . . . . Those questions have been enumerated. What I plan on doing is asking all of the enumerated questions one through 15 of the jury panel, noting any responses by the prospective jurors. [T]he Court intends on seating one alternate which means that we need 24 qualified jurors or jurors who don’t have a bias, that they can be fair and impartial. It is my intent that if a review of the venire panel following asking all of the questions, if there are 24 jurors who have not responded affirmatively or negatively which means that they have not identified a potential bias and have through their inaction or their lack of being responsive to any of the questions, they have identified themselves as individuals who can be fair and impartial if seated as a juror, then my intent is to begin the selection of those jurors that would preside over Mr. Williams’ case from those individuals, meaning people who answer yes or no to a question, their numbers will not be called provided that we have 24 jurors who are fair and impartial and have not identified any bias.

(emphasis added). Defense counsel objected to the court’s method and argued that it would deprive individuals in the venire of their right to sit on a jury and Mr. Williams of his right to an impartial jury: Jury service, particularly from our perspective, is often thought of as a right that inures to the benefit of the defendant a fair and impartial jury selected from your peers in the community. . . . I think that there’s an aspect from which jury service is actually a right that also inures to the benefit of the jury venire itself. The right of women to serve on juries has been something that had been long fought over in the 20th century and hard won.

And I think that the proposed method by the way the Court suggests we proceed is in some senses equivalent to disqualifying jurors who would otherwise be qualified. (emphasis added). Defense counsel responded that typically, a voir dire question is asked, and if 7 anyone in the venire “answers yes,” they would be questioned by the court individually. Counsel argued that the court’s approach would exclude individuals who “would otherwise be able to be fair and impartial” in a way that violated their right to serve on a jury.

The defense posited that “a fair and diverse jury would include individuals who have varying views about various crimes, varying thoughts [and] strong feelings about certain things, various knowledge of other elements of the trial process,” and that “Mr. Williams would have a right to have individuals like that” be considered for his jury. The trial court treated the defense’s objection as a motion and denied it, indicating that its method of jury selection doesn’t violate the individual jurors’ right to sit on a jury or Mr. Williams’s right to a fair and impartial jury: The purpose [of voir dire] is, number one, an examination to determine whether prospective jurors meet minimum statutory qualifications for jury services. Those questions were all propounded to the panel during their application process . . . . Purpose two is an examination to discover the juror’s state of mind as to the matter at hand or any collateral matters reasonably liable to have undue influence over him or her.

The purpose is not [] to find out as much as you can about a person so that you can then decide whether or not you want them on your jury. . . . In Maryland the purpose is only to identify potential biases and those things that might influence a person [] to determine whether they can be in fact fair and impartial. The court explained that any potential juror who responded affirmatively to a question would have a higher chance to have a “potential bias,” and by selecting jurors solely from the pool of people who had not responded to any voir dire question, the court would “provide[] Mr. Williams the fairest and the most impartial jury pool possible . . . .” Finally, the court stated that it was exercising “judicial discretion in how and in what order 8 these names are called” and that this method was “one of the identified methods of selection” identified in the Maryland State Bar Association’s Special Committee on Voir Dire 2015-2016 report. The court indicated that it wasn’t, in its view, disqualifying prospective jurors so much as reordering them: I don’t consider—I think [the record] needs to be clear.

I don’t consider this process to result in a determination that jurors are disqualified. Disqualified would be an identification of a bias that they do not satisfactorily answer relieving any concern about bias that results in someone being stricken for cause. They then become disqualified, not qualified to serve. Individuals who answer affirmatively or negatively to any of these questions, they remain qualified until such time as they are unqualified.

I am simply choosing to select jurors for consideration in an order that I believe is efficient and effective and results in the fairest possible jury or venire panel for Mr. Williams or any defendant. As a result of the trial court’s method, the following members of the venire responded affirmatively to the affiliated voir dire question: Question Juror Numbers “[D]o you know any of those witnesses [Sergeant Rudell Brown, 139, 185 Corporal Rodney Wells, or Jessica Taylor] in any capacity?” T6/11 22. “Would you give any greater or lesser credit or weight to the 108, 127 testimony of a police officer over that of a witness in another occupation merely because of his or her status as a police officer? Greater or lesser credit or weight to a member of law enforcement.” T6/11 23. “Have any of you or any member of your immediate family, 223, 148, 227, 163, immediate family is defined as your parents, your children, your 127*, 160, 494, 484, siblings or spouses of siblings. Have any of you or any members 183, 131, 154, 215, of your immediate family ever been the victim . . . . of a crime 126, 110, 139*, 257, similar to the crimes charged, a witness to a crime similar to the 185*, 175 crimes charged or arrested for, charged with or convicted of a crime similar to the crimes charged?” T6/11 24 “Have any of you ever been a member of a law enforcement 206 9 agency?” T6/11 26. * Responded to a previous question Two jurors were excused in response to the witness question, two were excused in response to the police credibility question, eighteen jurors were excused in response to the crime victim/crime witness/crime charged question (including one juror, Juror 127, who responded affirmatively to the police credibility question and two jurors, Juror 139 and Juror 185, who had responded to the witness question), and one juror was excused in response to the member of law enforcement question, for a total of twenty excluded potential jurors.

II

DISCUSSION Mr. Williams raises three questions on appeal that we rephrase and reorder.2 First, did the suppression court err when it denied Mr. Williams’s motion to suppress evidence 2 Mr. Williams raised three Questions Presented: 1. Did the trial court err by using a method of jury selection that excluded significant parts of the community from the jury without a finding of bias? 2. Did the suppression court err in failing to suppress evidence discovered during a search of Mr. Williams’ vehicle? 3. Was the evidence insufficient to convict Mr. Williams of resisting arrest?

The State rephrased those Questions Presented as: 1. Did the trial court properly conduct jury selection? 2. Did the trial court properly deny Williams’s motion to suppress the evidence recovered from his vehicle? 3. Was the evidence sufficient to convict Williams of resisting arrest? 10 of marijuana on Mr. Williams’s person and in his car?

Second, was the evidence sufficient for a jury to find Mr. Williams guilty of resisting arrest? And third, did the trial court err during jury selection when it selected a jury from a pool in the venire that did not respond affirmatively or negatively to voir dire? A. Mr. Williams’s Fourth Amendment Rights Were Violated And The Evidence Obtained From The Car Should Have Been Suppressed At Trial. First, Mr. Williams argues that Sergeant Brown’s unjustified use of force on him transformed a traffic stop into an arrest unsupported by probable cause, and that the evidence police found in the car should have been suppressed as the fruits of an illegal arrest.

In the alternative, he contends that even if the arrest were lawful, there was insufficient probable cause to support a warrantless search of the vehicle. The State responds that Sergeant Brown’s use of force was “reasonable to further a lawful Terry3 stop” and that Sergeant Brown had probable cause to search the vehicle because Mr. Williams threw two bags of marijuana under the car and had another bag of marijuana and a “large amount of cash” on his person. Alternatively, the State argues that the inevitable discovery exception applies. We agree with Mr. Williams that the search was unlawful.

Our review of a motion to suppress “is ‘limited to the record developed at the suppression hearing.’” State v. Johnson, 458 Md. 519, 532 (2018) (quoting Moats v. State, 455 Md. 682, 694 (2017)). “We view the evidence and inferences that may be drawn 3 Terry v. Ohio, 392 U.S. 1 (1968). 11 therefrom in the light most favorable to the party who prevails on the motion,” id. (quoting Raynor v. State, 440 Md. 71, 81 (2014)), in this instance the State. We accept the suppression court’s factual findings unless they are clearly erroneous, “but we review de novo the court’s application of the law to its findings of fact.” Pacheco v. State, 465 Md. 311, 319 (2019) (cleaned up). And ultimately, we render an “independent constitutional evaluation” of a constitutional challenge to a search or seizure.

Id. (quoting Grant v. State, 449 Md. 1, 15 (2016)). The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. amend.

IV

A “seizure” of a person means any nonconsensual detention. Norman v. State, 452 Md. 373 , 386–87 (2017). Warrantless searches are presumed to be unreasonable, so “[w]hen a police officer conducts a warrantless search or seizure, the State bears the burden of overcoming the presumption of unreasonableness.” Thornton v. State, 465 Md. 122, 141 (2019). There are, however, limited exceptions to the warrant requirement, including the stop and frisk procedure outlined in Terry v. Ohio, 392 U.S. 1 (1968).

Thornton, 465 Md. at 141. Ultimately, though, “[t]here are two types of seizures of a person: (1) an arrest, whether formal or de facto, which must be supported by probable cause; and (2) a Terry stop, which must be supported by reasonable articulable suspicion.” Norman, 452 Md. at 387 . 1. The Terry frisk was unlawful. Under Terry, a “frisk” is limited “to a pat-down of [an individual’s] outer clothing,” and is meant to protect the officer and others, not to discover evidence.

Thornton, 465 Md. at 142 (quoting Bailey v. State, 412 Md. 349, 368 (2010)). For that reason, Terry allows a 12 police officer to frisk someone they believe to be “armed and dangerous” for the safety of themselves and others. Norman, 452 Md. at 387 . The frisk must be supported by “particularized suspicion at its inception.” Thornton, 465 Md. at 142 (emphasis added).

The officer doesn’t need to be certain that the individual in question is armed and dangerous, but must “have ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.’” Id. (quoting Sellman v. State, 449 Md. 526, 541 (2016) (brackets omitted)). When a court considers whether an officer had reasonable articulable suspicion to frisk an individual, it “must take an objective view of the totality of the circumstances.” Id. at 143. Then it must decide whether a reasonably prudent police officer “would have felt that he [or she] was in danger, based on reasonable inferences from particularized facts in light of the officer’s experience.” Id.

(quoting Bailey, 412 Md. at 365 ). Our inquiry is fact- specific. Id. We cannot see how, based on his testimony to the suppression court, Sergeant Brown’s frisk was supported by reasonable articulable suspicion from its inception.

The Court of Appeals has described reasonable articulable suspicion as “a commonsense, nontechnical concept” and noted that we “give due deference to a law enforcement officer’s experience and specialized training . . . .” Norman, 452 Md. at 387 . But reasonable articulable suspicion can’t just be a hunch, and an officer can’t frisk someone just because he initiated a lawful traffic stop. Id. Here, Sergeant Brown’s testimony did not rebut the presumption that the search was unreasonable.

Sergeant Brown has a long history working as a law enforcement officer, 13 starting his career in 1997. At the time of the stop, he was working as patrol supervisor and stated that he’s responsible for traffic stops “at times.” Sergeant Brown stated that he was on patrol on Linden Avenue in an unmarked police vehicle when he saw Mr. Williams driving with “his cell phone up to his ear.” He “turned around and initiated a traffic stop on the vehicle on Bank Street” a “short time later.” He specified that the stop occurred “two to five minutes” after he activated his emergency equipment. Sergeant Brown testified that as he was getting out of his vehicle, Mr. Williams “quickly got out of his vehicle” as well. He didn’t identify himself as a police officer or say anything else to Mr. Williams after he got out of his vehicle.

He then “approached [Mr. Williams] quickly as he got out,” and as he approached, he observed that Mr. Williams “turned his back to [him] quickly” and “held something in his hands.” He said Mr. Williams “clenched his hands together,” so he “grabbed him” because he “didn’t know what he had in his hands.” After grabbing Mr. Williams, Sergeant Brown “wrestled” him to the ground and “told him to [] stop resisting,” his first oral communication with Mr. Williams. Sergeant Brown “told him to put his hands behind his back,” and when Mr. Williams didn’t comply, Sergeant Brown pepper sprayed him. Then, Mr. Williams stopped struggling and threw two baggies under his car. He testified that he “eventually” placed Mr. Williams in handcuffs after Mr. Williams threw marijuana under the car.

And he “ended up searching the vehicle” and Mr. Williams’s person. Viewing the facts under the totality of the circumstances, the State has failed to present sufficient evidence to rebut the presumption that the warrantless frisk was unreasonable. At the time Sergeant Brown took down Mr. Williams, he knew that: 14 (1) Mr. Williams had been talking on his cell phone while driving; (2) Mr. Williams stopped his car after emergency equipment was activated (although he contradicts himself on how long it took Mr. Williams to stop); (3) as he got out of his police car, Mr. Williams got out of his car quickly as well; (4) Mr. Williams was facing forward; and (5) Mr. Williams had his hands clenched together. Sergeant Brown never expressed any belief that Mr. Williams posed a risk to his safety or the safety of others around them.

Similarly, his testimony included no expressions of fear, and no sense that he was afraid, felt he was in danger, or that Mr. Williams appeared to be engaged in criminal conduct. Again, a Terry frisk is meant to protect officers and bystanders from risks posed by weapons. Thornton, 465 Md. at 146 . And “[t]o articulate reasonable suspicion, an ‘officer must explain how the observed conduct, when viewed in the context of all other circumstances known to the officer, was indicative of criminal activity.’” Thornton, 465 Md. at 147 (quoting Sizer v. State, 456 Md 350, 365 (2017) (emphasis added)).

The record at the suppression hearing reveals no such risks or observations. Sergeant Brown is an experienced law enforcement officer, and he didn’t attempt here to explain how Mr. Williams’s conduct, at the inception of the seizure, was potentially criminal or dangerous. He didn’t say how his training and experience made him believe that what he observed may have been criminal activity. See Sellman, 449 Md. at 549 (“[T]he officer must explain how the observed conduct, when viewed in the context of all of the other circumstances known to the officer, was indicative of criminal activity.”) (quoting Crosby v. State, 408 Md. 490, 508 (2009)).

Under the totality of the circumstances, Sergeant Brown did not have reasonable suspicion to frisk Mr. Williams, 15 and we will not “‘rubber stamp’ conduct simply because the officer believed he had the right to engage in it.” In re Jeremy P., 197 Md. App. 1, 22 (2011). The State didn’t rebut the presumption that the take-down and search were unreasonable, and Sergeant Brown violated Mr. Williams’s rights when he conducted an unlawful Terry frisk. 2. Mr. Williams was placed under arrest when he was wrestled to the ground and handcuffed, and that arrest wasn’t supported by probable cause. Next, we consider Mr. Williams’s alternative argument that the non-Terry seizure was a de facto arrest not grounded in probable cause.

An arrest is the “detention of a known or suspected offender for the purpose of prosecuting him for a crime.” Longshore v. State, 399 Md. 486, 502 (2007) (quoting Bouldin v. State, 276 Md. 511, 516 (1976)). A detention normally occurs where there is a “touching by the arrestor or when the arrestee is told that he is under arrest and submits . . . .” Longshore, 399 Md. at 502 (quoting Bouldin, 276 Md. at 516 ). “[W]hile a formal arrest occurs when an officer informs the suspect that he or she is under arrest, a de facto arrest occurs when the circumstances surrounding a detention are such that a reasonable person would not feel free to leave.” Reid v. State, 428 Md. 289 , 299–300 (2012). We examined the elements of an arrest in Bouldin v. State: It is generally recognized that an arrest is the taking, seizing, or detaining of the person of another (1) by touching or putting hands on him; (2)