Wilson v. State

KRAUSER, J. Francis Eugene Wilson, Jr., appellant, was tried by jury in the Circuit Court for Washington County for disarming a law officer, second degree assault, resisting arrest, possession of marijuana, and disorderly conduct. During the trial, he claimed that his arrest was illegal and moved to suppress “anything that subsequently flowed from” that arrest, including the very testimony presented establishing his guilt of assault, resisting arrest, disorderly conduct, and disarming a police officer. After the circuit court denied the motion, appellant was found guilty of all charges except disarming a law officer. On appeal, he claims that the circuit court erred in denying his motion to suppress.

Because we hold that it did not, we affirm. TRIAL Although appellant filed a motion to suppress before trial, court and counsel agreed that the court would consider appellant’s motion during trial. Consistent with that approach, midway through the testimony of the State’s first witness, Officer Wayne J. Zimmerer of the Hagerstown Department of Police, the court dismissed the jury, and then, after argument, ruled on appellant’s motion to suppress. Our review of the trial testimony considered by the court in denying appellant’s request for suppression will therefore focus on Officer Zimmerer’s testimony up to the point when the court ruled on the appellant’s motion to suppress.

Suppression Motion Testimony At trial, Officer Zimmerer testified that on the morning of February 13, 2005, he was in uniform and on routine patrol in ¹⁰ Hagerstown in an unmarked police vehicle. Around 5:00 a.m., he saw “an object laying in the roadway” about two hundred feet from him, “directly in [his] travel lane.... ” “[A]ssum[ing] it was a trash can or something that had blown out into the middle of the road,” he turned on his emergency lights. In response, the object jumped up, revealing for the first time to the officer that what he thought was an “object” was a person. That person, who was identified as appellant, then crossed in front of a van and began to walk away.

Leaving his emergency lights on, the officer pulled over to the curb as appellant walked past. The officer then got out of his vehicle and called to appellant because, as the officer put it, he “wanted to see if he was okay.” When appellant did not respond, he “got right beside” appellant, who “appeared to be picking up his pace.” The officer could “see [that appellant] had some abrasions on his face and on his knuckles.” Grabbing appellant by his coat sleeve, Officer Zimmerer “told him to have a seat on the curb” and “began talking to him.” The officer then “tried to find out his name, ask him what was wrong with him, [and] find out where he lived.... ” But appellant “just sat there with a blank stare.” Even after a few minutes had passed, appellant remained silent and unresponsive. Although from his “mannerisms,” the officer thought appellant was “possibly under the influence of a controlled dangerous substance,” he admitted that he did not “know what was wrong with him.” He therefore told appellant that he “was going to take him ... to the hospital” and that “he would have to be handcuffed before he was placed in the cruiser.” Handcuffing appellant, the officer testified, was in accordance with departmental policy and not pursuant to an arrest. But when the officer “put [appellant’s] right hand behind his back” to place the handcuffs on him, appellant “began to struggle.” At this point, the court dismissed the jury and heard argument on the motion to suppress.

The court denied that motion, stating that appellant was properly seized under the ¹¹ police’s “community caretaking function.” The court explained that, because appellant was laying in the middle of the road and appeared injured, the officer had reason to suspect that he “was having an injury, an illness, or a medical condition, or was so under the influence that he was potentially going to injure himself or others in the future.” 1 Post-Suppression Motion Testimony After the court’s ruling, the jury was called back into the courtroom, and Officer Zimmerer resumed testifying. He recalled how, when he put appellant’s right hand behind his back to handcuff him and reached for the handcuffs, appellant “went over onto his left side” and starting “kicking his legs out like he was getting ready to ... either get to his feet or to run.” Kneeling on the sidewalk, the officer tried to hold him down but appellant continued to flail about. The officer then took out his “pepper spray” and explained to appellant that he was going to spray him if he did not put his hands behind his back. When appellant continued to resist all efforts to place him in handcuffs, Officer Zimmerer “directed a one second spray to his face.” The spray “had no effect”: Appellant continued to swing at the officer and curse him.

When the officer tried to spray him again, appellant grabbed the can and tore off the top rendering it inoperable. Appellant thereafter bit the officer on the elbow and approximately four times on the forearm and kicked the officer “in the inside of the legs and in the groin.” After other officers arrived, one of them fired a Taser stun gun at appellant. A Taser gun stun causes muscles to “go tight” for about five seconds, the officer explained, so that ¹² police can “move in and handcuff’ an individual. This procedure, the officer asserted, was “normal policy.” Ultimately, Officer Zimmerer was able to handcuff appellant and, at this point, appellant was under arrest, the officer testified, for “assaulting [him] ánd the act of resistance.” Because appellant was bleeding from a head injury he sustained in the struggle, because the hospital was only two blocks away, and because appellant was still trying to kick the officers though handcuffed, the officers decided to put him in a police cruiser and take him to the emergency room themselves rather than wait for an ambulance.

After placing the handcuffed appellant into a police cruiser, the officers drove him to Washington County Hospital. At the hospital, appellant continued to fight with the officers as well as guards and hospital personnel until he was finally restrained with leather straps. After appellant was seen at the hospital, he was taken to the Hagerstown City Police booking area where, according to Officer Jason Batistig, he tried to discard a “clear plastic baggie” containing marijuana, in the bathroom. Following the testimony of several other witnesses, appellant took the stand.

He testified that he suffered from seizures and that, in fact, he had experienced a seizure the night before his early morning arrest. After the seizure, according to appellant, he slept until 2:30 a.m. and, at about 4:30 a.m., decided to get a cup of coffee. The next thing he remembered was being at Washington County Hospital. Admitting that the marijuana belonged to him, he explained that someone had given it to him and that he had been carrying it for about five days.

At the conclusion of the trial, appellant was found guilty of second degree assault, resisting arrest, possession of marijuana, and disorderly conduct. He was sentenced to a term of three years’ imprisonment for resisting arrest; a consecutive term of one year imprisonment for possession of marijuana; and a concurrent term of sixty days for disorderly conduct. ¹³ STANDARD OF REVIEW As we previously noted, there was no separate suppression hearing in this case; the court heard the motion during trial. We therefore consider only the evidence before the court at the time of its ruling on the motion to suppress, Sellman v. State, 152 Md.App. 1, 7-8 , 828 A.2d 803 (2003), and that evidence we review in the light most favorable to the prevailing party, in this instance, the State. Conboy v. State, 155 Md.App. 353, 361 , 843 A.2d 216 (2004) (citations omitted).

But the circuit court’s legal conclusions are subject to de novo review by this Court. Dixon v. State, 133 Md.App. 654, 668 , 758 A.2d 1063 (2000) (citations omitted). Therefore, we must “ ‘make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.’ ” Id. (quoting Reynolds v. State, 130 Md.App. 304, 313 , 746 A.2d 422 (1999)).

DISCUSSION Contending that the circuit court erred in denying his motion to suppress, appellant argues that Officer Zimmerer did not detain him in accordance with his caretaking function, but instead arrested him, and, because that arrest was without probable cause, its fruits should be suppressed. Those fruits include, he claims, not only the marijuana, but also his “direct response to [the] unlawful arrest,” namely, “the evidence that he resisted Officer Zimmerer’s attempts to handcuff him,” and therefore his “convictions for resisting arrest, second degree assault, and disturbing the peace should ... be reversed.” Appellant was properly detained by police pursuant to their community caretaking function. “In essence police officers function in one of two roles: (1) apprehension of criminals (investigative function); and (2) protecting the public and rescuing those in distress (caretaking function).” Stanberry v. State, 343 Md. 720, 743 , 684 A.2d 823 (1996). The latter of the two roles — the caretaking function — permits searches of private property by police that ¹⁴ would otherwise violate the Fourth Amendment where the police have initiated the search, not to investigate crime, but to “aid persons in apparent need of assistance” or to protect property. State v. Alexander, 124 Md.App. 258, 269 , 721 A.2d 275 (1998) (Alerted to a possible break-in, police entered a house in accordance with their community caretaking function, and thus the marijuana they found was held not suppressible).

But the “single most important purpose behind the community caretaking function is to protect citizens from likely physical harm.” State v. Brooks, 148 Md.App. 374, 385 , 812 A.2d 342 (2002) (Upon receiving a domestic violence “911” call, the officer could have entered the private home without a warrant, pursuant to the community caretaking function, if, when he arrived at the location, “no on e was about an d no on e responded to his knock at the door----”). Although our appellate courts have not directly addressed the issue of whether the caretaking function extends beyond searches to seizures of persons as well, there is no basis, rooted in logic or policy, for drawing a distinction between searches and seizures for purposes of the community caretaking function. In fact, the same policy that underlies the community caretaking searches — protecting citizens from likely physical harm — justifies seizures of individuals for that same purpose. Although the United States Supreme Court has not applied the community caretaking function to seizures, lower federal courts have.

See, e.g. United States v. Garner, 416 F.3d 1208 (10th Cir.2005) (holding that detaining an intoxicated man “slumped over” in a field was proper under the police’s community caretaking function); United States v. King, 990 F.2d 1552 (10th Cir.1993) (concluding that an officer’s initial detention of a motorist at an accident site to advise him of hazardous conditions and to ask him to stop honking his horn was proper pursuant to the community caretaking function); United States v. Rideau, 949 F.2d 718 (5th Cir. 1991), rev’d en banc on other grounds, 969 F.2d 1572 (5th Cir.1992) (observing that officers’ “stop” of a man wearing dark clothing and standing and stumbling in a road at night was proper under the caretaking function; in fact, the officers ¹⁵ “would have been derelict in their duties had they not stopped [him] to check on his condition”). 2 United States v. Garner, 416 F.3d 1208 (10th Cir.2005) is particularly instructive on this point as it is factually similar to the case at bar and provides a useful three-prong test for determining whether such detention falls within this function. In Gamer, police were informed that a man was unconscious in a “half-sitting, half-slumped-over position” in a field near an apartment complex for several hours. Garner, 416 F.3d at 1211 .

When the officer arrived at the field, he found Garner in precisely that position in a field. Id. As the officer approached, Garner got up and began to walk away but stopped when he encountered a wall blocking his path. Id.

The officer told him to sit down so that the fire department personnel, who had just arrived, could examine him. Id. Garner complied but “appeared nervous,” was “looking around,” saying that “he didn’t want any trouble,” and “moving his hands in and out of his pockets.” Id. After being examined by the fire department personnel, Garner started to walk away again, but he sat back down at the officer’s request.

Id. The officer asked him his name and ¹⁶ date of birth, which Garner provided. Id. Another officer then arrived and asked Garner why he was at the apartment complex, why he “was so nervous,” and whether he had been taking drugs.

Id. Gamer replied that he did not know why he was there, that he had “smoked some dope prior that day,” and that he had “some warrants.” Id. After confirming that he did, in fact, have “outstanding warrants” the officer directed Garner to put his hands behind his back. Id.

When Garner attempted to flee, the officers tackled him. Id. A struggle ensued, but Garner was eventually handcuffed. Id.

A search of his pants pockets uncovered burglary tools and a handgun. Id. Charged with a handgun violation, Garner moved to suppress the evidence found by the officers, arguing that the police lacked reasonable suspicion to support his initial detention before the fire department personnel examined him and that, after they completed their examination, the police lacked reasonable suspicion to continue his detention. Id.

The district court denied the motion, finding that Garner’s behavior “provided reasonable suspicion to warrant detaining [him] to investigate a possible public intoxication offense and to determine whether [he] was suffering from some medical problem.” Id. at 1212 . The United States Court of Appeals for the Tenth Circuit agreed, concluding that Garner was initially detained by