Sizer v. State , 456 Md. 350 ( 2017 )

Jamal Sizer v. State of Maryland, No. 1, September Term, 2017. Opinion by Greene, J.
CONSTITUTIONAL LAW – FOURTH AMENDMENT – REASONABLE
SUSPICION
The Court of Appeals held that the hearing court erred in suppressing evidence that was
seized after a Terry stop because the hearing court did not consider the totality of the
circumstances. On the basis that an officer has reasonable suspicion that criminal activity
is afoot, an officer may conduct a Terry investigatory stop. Terry v. Ohio, 392 U.S. 1, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1969). When reviewing whether reasonable suspicion exists,
a hearing court must apply the totality of the circumstances test, such that no one factor in
the analysis is dispositive. The Court of Appeals held that where officers observed a group
of individuals openly drinking what appeared to be an alcoholic beverage and one of them
threw a bottle to the ground, the officers had reasonable suspicion to investigate a potential
open container violation and to determine who threw the bottle. The defendant’s flight
from the group upon the officers’ approach should have been considered as one factor
among others in the totality of the circumstances analysis.
CONSTITUTIONAL LAW – FOURTH AMENDMENT – EXCLUSION OF THE
EVIDENCE – ATTENUATION DOCTRINE
As explained by the United States Supreme Court recently in Utah v. Strieff, -- U.S. --, 136
S. Ct. 2056, 195 L. Ed. 2d 400 (2016), to remove the taint from evidence obtained as a
result of an illegal stop or search and seizure, the attenuation doctrine is the appropriate
law to apply to determine admissibility of evidence when the defendant is arrested pursuant
to the discovery of a pre-existing arrest warrant.
Circuit Court for Howard County
Case No. 13-K-15-056103
Argued: September 6, 2017 IN THE COURT OF APPEALS
OF MARYLAND
No. 1
September Term, 2017
______________________________________
JAMAL SIZER
v.
STATE OF MARYLAND
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Greene, J.
Adkins and Hotten, JJ., concur and dissent.
______________________________________
Filed: November 28, 2017
In the case before us, we are asked to consider the constitutionality of the stop and
the subsequent search incident to the arrest of Petitioner, Jamal Sizer. On the evening of
November 20, 2015, five or six officers of the Howard County Police Department
Pathways Patrol Unit, a bicycle patrol unit, observed Mr. Sizer and others congregating in
a public parking lot, drinking from what appeared to be an open alcohol container. The
officers described the group as “loud and disorderly.” The officers observed a bottle being
thrown and heard it hit the ground, but could not see who threw the bottle. The officers
approached the group to investigate who in the group threw the bottle. Mr. Sizer fled upon
the officers’ approach. A chase ensued and ended with the seizure of Mr. Sizer, which led
to the discovery that he possessed a .38 caliber revolver in his backpack.
Contemporaneously with the seizure of Mr. Sizer, an officer recognized Mr. Sizer as
having an outstanding arrest warrant. Subsequently, pursuant to the discovery of the
outstanding warrant, Mr. Sizer was arrested and taken to the local police precinct, where
an officer searched Mr. Sizer incident to his arrest and recovered a baggie containing
twenty-seven pills of oxycodone, a controlled dangerous substance, hidden in his sock.
Mr. Sizer filed a motion to suppress the firearm and the pills recovered from his
person, and after a hearing, the Circuit Court for Howard County granted his motion. The
State appealed, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12-
302(c)(4) (1973, 2013 Repl. Vol., 2016 Supp.). In a reported opinion, the Court of Special
Appeals reversed the judgment of the Circuit Court, holding that the stop was
constitutional. State v. Sizer, 230 Md. App. 640, 658, 149 A.3d 706, 717 (2016). The
intermediate appellate court held in the alternative that, assuming arguendo that the stop
was unlawful, the evidence recovered would have been admissible under the independent
source doctrine because Mr. Sizer was arrested on a valid pre-existing warrant that was
independent of the illegal stop. Id. at 669, 149 A.3d at 723. A concurring member of the
three-judge panel, Judge Kathryn Graeff, concluded that, assuming arguendo that the stop
was illegal, the evidence that was recovered from Mr. Sizer would have been admissible
under the attenuation doctrine, rather than the independent source doctrine, in light of this
Court’s decisions in Myers v. State, 395 Md. 261, 909 A.2d 1048 (2006), Cox v. State, 397
Md. 200, 916 A.2d 311 (2007), and the United States Supreme Court’s decision in Utah v.
Strieff, -- U.S. --, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016). Id. at 680–81, 149 A.3d at
730.
We review the issue of whether the officers had reasonable suspicion to stop Mr.
Sizer. We hold that the officers had reasonable suspicion to conduct a stop when they
witnessed what appeared to be criminal activity occurring immediately before the
investigatory stop. In the alternative, we hold that, even assuming the stop was unlawful,
the evidence recovered from Mr. Sizer would be admissible in evidence because the
attenuation doctrine would apply, pursuant to the Supreme Court’s reasoning in Strieff.
For reasons stated in this opinion, we shall affirm the judgment of the Court of
Special Appeals to the extent that it held that the officers had reasonable suspicion to stop
Mr. Sizer. We also, alternatively, affirm the judgment of the intermediate appellate court
and adopt the reasoning of the concurring opinion, penned by Judge Graeff, with respect
to the application of the attenuation doctrine.
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I.
Initial Stop
The relevant undisputed facts are taken from testimony presented at the suppression
hearing. On the evening of November 20, 2015, five or six officers, from the Howard
County Police Department Pathway Patrol Unit (“Patrol Unit”), on routine patrol, biked
the footpaths that “lead all throughout Columbia, [Maryland].” While on the footpath,
officers in the Patrol Unit observed a group of individuals “play fighting and passing
around an alcoholic beverage back and forth.” The Patrol Unit suspected that the beverage
was alcohol because it was in a brown paper bag and the group’s body language was
“consistent with individuals drinking.” The officers, from 25-35 yards away from the
group, observed a bottle being thrown and heard it hit the ground, but could not see who
threw the bottle. At that point, the officers approached the group to investigate. When the
officers were approximately five feet away, Mr. Sizer fled on foot, away from the officers.
Officer Andrew Schlossnagle, one of the officers in the Patrol Unit, gave immediate
chase and “physically took [Mr. Sizer] to the ground.” As Mr. Sizer was being tackled to
the ground, he revealed that he was carrying a handgun on his person. Within seconds of
the takedown, another officer from the Patrol Unit recognized Mr. Sizer as the subject of
an outstanding arrest warrant. At that point Mr. Sizer was arrested and taken to the police
satellite station in the Village Center pursuant to the officers’ belief that he was the subject
of a pre-existing warrant. At the satellite station, the officers confirmed the existence of
the warrant and performed a search of Mr. Sizer incident to his arrest. The officers
recovered a .38 caliber handgun from Mr. Sizer’s backpack and twenty-seven pills of
3
oxycodone, a controlled dangerous substance, from Mr. Sizer’s sock. Additional facts will
be discussed as needed.
Suppression Hearing
Mr. Sizer moved to suppress the weapon and the pills, arguing that the evidence was
obtained pursuant to an unlawful stop. At the suppression hearing, members of the Patrol
Unit testified that the Owen Brown Village Center was a “high” or “higher crime area,”
compared to other parts of Columbia, Maryland. The State argued that Mr. Sizer’s flight
in a high crime area was enough to give the officers reasonable suspicion to conduct a stop
under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (“Terry stop”);
see also Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (“Terry
stop in a high crime area”).
The three testifying officers similarly characterized the Owen Brown Village Center
as a high crime area. Officer Schlossnagle testified that the Owen Brown, Long Reach,
and Oakland Mills Village Centers “tend to [have] an increase in calls for service and just
general issues. There tends to be more calls for service in that – in those congested areas.”
When asked about what types of crimes he had investigated in the Owen Brown Village
Center, the officer responded, “[W]e were tasked to Owen Brown because of the increased
calls for service and on-going trends in the area.” The Circuit Court judge interjected:
[COURT]: Is “increased calls for service” a nice way of saying “high
crime[]?”
[OFFICER SCHLOSSNAGLE]: Yes, Your Honor.
[COURT]: Thank you. I mean, just so I know what we’re talking about.
4
Officer Schlossnagle explained that at the time of the incident, there was “an
ongoing robbery series” and that “business owners . . . were complaining of quality of life
issues, [such as controlled dangerous substance] violations, loitering, drinking, where the
business centers requested an increased presence.” Officer Schlossnagle also explained
that “there was a report of a subject displaying a handgun the day before in the footpaths
and fields that abut up to the village center.” 1 He testified that “there is a network of
footpaths that leads up to the back side of [the village center].” A second officer, Corporal
James Zammillo, testified that the Owen Brown Village Center was a “high crime area” as
compared to other parts of Columbia. Corporal Zammillo explained that his assignment as
a member of the bike team patrol included “passively patrolling the ninety-plus miles of
pathway that traverses through Columbia.” Corporal Zammillo confirmed Officer
Schlossnagle’s testimony that there was “an ongoing robbery series” in the area.
A third officer, Officer Ronald Baker, the only witness called by the defendant,
testified that the patrol officers had been “traveling the pathways, and we came across the
Owen Brown Village Center, but we stopped at the entrance to the Owen Brown Village
Center via [the] pathway.” He explained that, at the time of observing the group of
1
Collectively, the testimony from two officers about the location of the handgun incident
can, at best, be described as ambiguous. On cross examination, one officer described the
incident as having been reported “that there was a handgun seen in the area the day
before[.]” On redirect, that officer testified that the handgun was displayed “near a school
and also near a community center and a library[.]” Another officer testified that “there was
an individual reportedly armed with a handgun and pointing it in the area [] passing the
parking lot of the Howard County Library off Cradlerock.”
5
individuals, he recognized one individual whom he knew had been banned from the Owen
Brown Village Center:
[STATE]: Is Mr. Davis banned from the -- I believe it’s the Owen Brown
Village Center?
[OFFICER BAKER]: Yes, he is.
[STATE]: And you indicated -- did you indicate you were waiting for him,
to see if he would enter where he was banned from?
[OFFICER BAKER]: Yes.
[STATE]: And where specifically was that?
[OFFICER BAKER]: That particular area we were at, to the best of my
knowledge, that parking lot isn’t part of the village center. So, we was [sic]
watching him and the group to see if they were going to enter the banned
part of the village center.
Officer Baker also testified that when the officers were about five feet away, the group
noticed the officers. Officer Baker testified that his uniform consisted of a badge and the
word “Police” on the front of the jacket in neon lettering. Two other officers testified with
a similar description of their uniform. Later, in Officer Baker’s testimony, he stated that it
appeared that Mr. Sizer ran as soon as Mr. Sizer observed the officers:
[STATE]: How far away were you from this group of suspects -- subjects
when you believed they noticed you?
[OFFICER BAKER]: Well, as we approached, probably about five feet when
they turned around to see us.
[STATE]: And as soon as they noticed you, did Mr. -- did one of the suspects
run?
[OFFICER BAKER]: Yes.
[STATE]: And did you write in your report that as soon as the suspect
observed officers . . . Is that correct?
[OFFICER BAKER]: Yes.
* * *
[STATE]: You indicated in your report that the subject ran as soon as he
recognized you were there.
[OFFICER BAKER]: It appeared that way; yes.
6
The officers testified that they were concerned with the group’s general
disorderliness and possible open container violations. None of the officers testified that
they believed the group was connected to the “ongoing robbery series,” or that they
suspected any member of the group was the individual who had displayed a gun on the
previous night.
After the three officers testified, the hearing judge first analyzed whether Mr. Sizer’s
flight was legally sufficient to conduct a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968). The hearing judge found all three testifying officers “to be
truthful and credible” and that they had “testified today without embellishment.” She
found that “somebody [in] the group they cannot be sure whether it was Mr. Sizer or not -
- threw a bottle. The police were concerned, understandably, and approached the group.”
The hearing judge found that “there had been a complaint made of someone brandishing
or displaying a handgun in the parking lot of the Owen Brown Cradlerock Library, and
there was, understandably, concern. In general, the area is considered a high or higher-
crime area in Columbia.” Nevertheless, the hearing judge suppressed the evidence, and, in
doing so, indicated that she questioned whether “all the rules [were] followed[.]” The
hearing judge explained, “[T]he fact that Mr. Sizer ran, in and of itself, based on the
particular scenario that’s being given here today, is not sufficient.” Further, the hearing
judge concluded that the pre-existing arrest warrant did not attenuate the taint of the
unconstitutional stop.
7
Procedural History
The State appealed the Circuit Court’s decision to suppress the evidence. The Court
of Special Appeals reversed the suppression of the weapon and the pills, and held that given
the totality of the circumstances, the stop was reasonably justified. Sizer, 230 Md. App. at
658, 149 A.3d at 717. The Court of Special Appeals alternatively held that had the stop
not been constitutional, the evidence would not have been suppressed due to Mr. Sizer’s
pre-existing arrest warrant, although the three-judge panel disagreed as to the reason for
non-suppression of the evidence. Id. at 669, 149 A.3d at 723.
Mr. Sizer petitioned this Court for certiorari, which we granted. Sizer v. State, 452
Md. 3, 155 A.3d 890 (2017). In the interest of clarity, we have condensed Mr. Sizer’s
questions for certiorari into two questions: Did the arresting officers have reasonable
suspicion to stop Mr. Sizer, and if the arresting officers did not have reasonable suspicion
to stop and detain Mr. Sizer, was the suppression of the evidence justified?2
2
Mr. Sizer’s petition for certiorari raised the following questions:
(1) Where the police illegally stop a person, discover a valid, pre-existing arrest
warrant, and seize evidence from the person during a search incident to arrest,
must the admissibility of that evidence be determined based on an application
of the “attenuation factors,” as held in Utah v. Strieff, 136 S. Ct. 2056 (2016),
Cox v. State, 397 Md. 200 (2007), and Myers v. State, 395 Md. 261 (2006),
or may a court, as the Court of Special Appeals did in this case, reject the
attenuation doctrine and find that such evidence will always be admissible
because the arrest warrant constitutes an “independent source”?
(2) Did the hearing judge correctly rule that the discovery of a valid, pre-existing
arrest warrant did not attenuate the connection between the illegal
“takedown” of Petitioner and the evidence seized from him shortly
thereafter?
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II.
Standard of Review
When reviewing a hearing judge’s ruling on a motion to suppress evidence under
the Fourth Amendment, we consider only the facts generated by the record of the
suppression hearing. Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129, 1135 (2007).
We view the evidence and all reasonable inferences drawn therefrom in the light most
favorable to the party prevailing on the motion, in this case, Mr. Sizer. Id. We review the
hearing judge’s findings for clear error. Id.
Finally, we review the hearing judge’s legal conclusions de novo, making our own
independent constitutional evaluation as to whether the officer’s encounter with the
defendant was lawful. Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999). In
other words, our plenary review of the record for error requires application of the facts
under a totality of the circumstances analysis.
(3) Where a person is under no obligation to interact with the police, does flight
to avoid that interaction, by itself, justify a Terry stop; and if so, does it still
justify the stop where there is evidence that flight was provoked by the
threatening or startling actions of police officers?
(4) Did the hearing judge correctly rule that the police violated Petitioner’s
Fourth Amendment rights where, inter alia, six officers patrolling the
footpaths of Columbia on unmarked bicycles after dark, who testified that,
especially at night, people do not immediately recognize them as police, rode
towards a loud group of people to investigate the improper disposal of a glass
bottle, the group first noticed the officers when they were five feet away and
was visibly “startled,” and the only observation officers made regarding
Petitioner before tackling him was that he immediately ran upon noticing the
six bicyclists riding towards him?
9
III.
Parties’ Contentions
Mr. Sizer’s arguments generally focus on the officers’ consideration of Mr. Sizer’s
flight in what the officers characterized as a high crime area. He asserts that the officers
did not have a “particularized and objective basis” to support reasonable suspicion for the
stop. Mr. Sizer correctly acknowledges that the United States Supreme Court has not
imposed a bright-line rule that flight in a high crime area is always sufficient to generate
reasonable suspicion of criminal activity. Mr. Sizer postulates, however, that if this Court
affirms the suppression court’s decision, it will effectuate a bright-line rule that neither the
Supreme Court nor this Court has endorsed. Mr. Sizer relies on the Supreme Court’s
decision in Wardlow for his contention that flight is merely a display of a citizen’s
constitutional “right to ignore the police and go about his business.” Illinois v. Wardlow,
528 U.S. 119, 125, 120 S. Ct. 673, 676, 145 L. Ed. 570, 577 (2000). Finally, Mr. Sizer
urges us to hold that flight should be given minimal weight in a totality of the circumstances
analysis.
The State contends that Mr. Sizer’s flight was merely one of many factors that the
officers considered before attempting to conduct an investigatory stop. The State describes
these factors as Mr. Sizer’s flight, his presence in a high crime area, the group’s general
disorderliness, the suspected open container violation, and the improper disposal of a glass
bottle. The State implicitly concedes that the officers did not have a particularized
suspicion to stop Mr. Sizer at the moment they approached the group. Instead, the State
argues that at the moment the officers approached the group, they had observed enough
10
suspicious activity to warrant further investigation based on the suspected littering and the
passing around of an apparent open alcoholic container.
Fourth Amendment Terry Stop
The Fourth Amendment prohibits “unreasonable searches and seizures.” Generally,
when the government has violated a defendant’s Fourth Amendment rights, courts are
required to suppress evidence obtained as a result of an unconstitutional search or seizure.
Nardone v. United States, 308 U.S. 338, 340–41, 60 S. Ct. 266, 267, 84 L. Ed. 307, 311
(1939); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391–92, 40 S. Ct. 182,
182–83. 64 L. Ed. 319, 321 (1920); Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct.
341, 346, 58 L. Ed. 652, 657 (1914). The exclusionary rule is “ordinarily . . . the
appropriate remedy for a violation of the Fourth Amendment.” Myers v. State, 395 Md.
261, 278, 90 A.2d 1048, 1058 (2006). Where there is a valid, pre-existing and untainted
arrest warrant, however, an exception to the exclusionary rule applies and the evidence
obtained in violation of the Fourth Amendment is admissible under the attenuation
doctrine. Strieff, -- U.S. at --, 136 S. Ct. at 2063, 195 L. Ed. 2d at 410.
Fourth Amendment jurisprudence, as it pertains to stops and seizures, operates along
an escalating plane that begins with “unparticularized suspicion[s] or hunch[es]” and
crescendos at probable cause. Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. at 909
(internal quotation marks omitted). Reasonable suspicion exists somewhere between
unparticularized suspicions and probable cause. See Alabama v. White, 496 U.S. 325, 330,
110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990). “And in determining whether the
officer acted reasonably in such circumstances, due weight must be given, not to his
11
inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable
inferences which he is entitled to draw from the facts in light of his experience.” Terry,
392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. at 909.
Reasonable suspicion “has been defined as nothing more than ‘a particularized and
objective basis for suspecting the particular person stopped of criminal activity.’” Stokes
v. State, 362 Md. 407, 415, 765 A.2d 612, 616 (2001) (citing United States v. Cortez, 449
U.S. 411, 417–18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 628–29 (1981)) (internal quotation
marks omitted); see also Bost v. State, 406 Md. 341, 356, 958 A.2d 356, 365 (2008).
Moreover, reasonable suspicion is a “common sense, nontechnical conception that
considers factual and practical aspects of daily life and how reasonable and prudent people
act.” Bost, 406 Md. at 356, 958 A.2d at v365, (quoting Stokes v. State, 362 Md. 407, 415,
765 A.2d 612, 616 (2001)). The reasonable suspicion standard “‘does not allow [a] law
enforcement official to simply assert that innocent conduct was suspicious to him or her.’”
Crosby v. State, 408 Md. 490, 508, 970 A.2d 894, 904 (2009) (citing Bost v. State, 406 Md.
341, 357, 958 A.2d 356, 365 (2008)). “Rather, the 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.” Id.; see Derricott v. State, 327 Md. 582, 591, 611 A.2d
592, 597 (1992).
When explaining the degrees of suspicion necessary for reasonable suspicion, the
Supreme Court has explained that it is a lesser degree of suspicion than probable cause.
Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 301, 309 (1990).
Specifically:
12
Reasonable suspicion is a less demanding standard than probable cause not
only in the sense that reasonable suspicion can be established with
information that is different in quantity or content than that required to
establish probable cause, but also in the sense that reasonable suspicion can
arise from information that is less reliable than that required to show probable
cause.
Id. (internal citations omitted).
There is no universal starting point when it comes to our analysis of a Fourth
Amendment violation. We decide where along the plane to begin our analysis depending
on the circumstances before us. Here, our analysis begins at reasonable suspicion. We
recognize that it is “importan[t] . . . not [to] focus[] on any set list of facts that must be
present for reasonable suspicion to exist, but rather to examine the totality of the
circumstances to determine whether an officer could reasonably suspect that criminal
activity is afoot.” State v. Holt, 206 Md. App. 539, 558, 51 A.3d 1, 12 (2012), aff'd, 435
Md. 443, 78 A.3d 415 (2013).
Cartnail explains the two analytical techniques used in assessing the totality
of the circumstances:
The idea that an assessment of the whole picture must yield a particularized
suspicion contains two elements, each of which must be present before a stop
is permissible. First, the assessment must be based upon all the
circumstances. The analysis proceeds with various objective observations,
information from police reports, if such are available, and consideration of
the modes or patterns of operation of certain kinds of lawbreakers. From
these data, a trained officer draws inferences and makes deductions—
inferences and deductions that might well elude an untrained person.
The process does not deal with hard certainties, but with probabilities.
* * *
13
The second element contained in the idea that an assessment of the whole
picture must yield a particularized suspicion is the concept that the process
just described must raise a suspicion that the particular individual being
stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the
Court in Terry v. Ohio . . . said that, “[t]his demand for specificity in the
information upon which police action is predicated is the central teaching of
this Court's Fourth Amendment jurisprudence.”
Cartnail v. State, 359 Md. 272, 288, 753 A.2d 519, 527–28 (2000) (quoting United States
v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 698, 66 L. Ed. 2d 621, 629 (1981)) (some
internal quotations omitted).
The Totality of the Circumstances Analysis
Both parties agree that our totality of the circumstances analysis must focus on
reasonable suspicion, but they dispute whether the factors rise to the level of reasonable
suspicion. Petitioner contends that the totality of the circumstances do not rise to
reasonable suspicion, even if flight is considered in the Court’s analysis. To the contrary,
Respondent argues that even if flight is not considered the officers had reasonable suspicion
to stop Mr. Sizer. Petitioner draws our focus to the unprovoked flight factor to refute the
officers’ reasonable suspicion, whereas Respondent focuses our attention on the high crime
area factor as a means of justifying the officers’ reasonable suspicion surrounding the stop.
Because the totality of the circumstances analysis “does not deal with hard certainties,” we
determine that an individual’s unprovoked flight or presence in a high crime area, or both,
are individual factors that may contribute to the reasonable suspicion calculus. Id.
In Wardlow, which both parties rely on to advance their opposing views, the United
States Supreme Court discussed the weight to be given unprovoked flight in a high crime
area as one factor in the totality of the circumstances analysis. Illinois v. Wardlow, 528
14
U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). In Wardlow, a team of eight officers,
in a four car caravan, travelled through a Chicago neighborhood known for “heavy
narcotics trafficking.” Id. at 124, 120 S. Ct. at 676, 145 L. Ed. at 576. The defendant,
Wardlow, held an opaque bag in his hand, and upon noticing the last car in the police
caravan, fled on foot from the outside area where he stood. Id. at 122, 120 S. Ct. at 675,
145 L. Ed. at 575. Two officers chased him on foot, and when they finally caught him,
they conducted a pat-down and search for weapons. Id. The opaque bag he held contained
a .38 caliber handgun. Id. The suppression hearing judge denied Wardlow’s motion to
suppress the handgun, the Illinois Appellate Court reversed, and the Illinois Supreme Court
affirmed the intermediate appellate court’s conclusion that the evidence should be
suppressed. Id.
The United States Supreme Court reversed the decision of Illinois’ highest court as
to suppression of the evidence. Wardlow, 528 U.S. at 126, 120 S. Ct. at 677, 145 L. Ed. at
577. The Supreme Court held that flight in a high crime area was relevant in a totality of
the circumstances analysis. It opined that:
An individual's presence in an area of expected criminal activity, standing
alone, is not enough to support a reasonable, particularized suspicion that the
person is committing a crime. But officers are not required to ignore the
relevant characteristics of a location in determining whether the
circumstances are sufficiently suspicious to warrant further investigation.
Accordingly, we have previously noted the fact that the stop occurred in a
“high crime area” among the relevant contextual considerations in a Terry
analysis.
Id. at 124, 120 S. Ct. at 676, 145 L. Ed. at 576 (internal citations omitted) (emphasis
added). Specifically, the Supreme Court explained:
15
In this case, moreover, it was not merely respondent’s presence in an area of
heavy narcotics trafficking that aroused the officers’ suspicion, but his
unprovoked flight upon noticing the police. Our cases have also recognized
that nervous, evasive behavior is a pertinent factor in determining reasonable
suspicion. Headlong flight—wherever it occurs—is the consummate act of
evasion: It is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such.
Id. (internal citations omitted).
In Bost v. State, we had occasion to consider whether a defendant’s flight in a high
crime area supplied officers with the necessary reasonable suspicion to stop him. 406 Md.
341, 348, 958 A.2d 356, 359 (2008). Officers observed Mr. Bost and a group of people
drinking alcohol and loitering on a sidewalk in a drug-trafficking area, located in
Washington, D.C., three blocks from the Maryland border. Id. at 346, 958 A.2d at 360.
As the officers approached Mr. Bost, he began briskly walking away and took flight “while
clutching his right waistband . . . .” Id. An officer pursued him on foot, under the suspicion
that he was concealing a weapon and based on the officer’s experience that Mr. Bost’s
clutching of his waistband was consistent with someone trying to conceal a weapon. Id.
Officers tackled him to the ground and then found a gun tied around his neck. Id. Officers
arrested him, and upon a search incident to the arrest, discovered $140 in cash and two,
white, rock-like substances, later determined to be crack cocaine, on his person. Id. Mr.
Bost moved to suppress the seized cocaine and weapon on the basis that the evidence was
16
seized in violation of the Maryland Uniform Act on Fresh Pursuit.3 Id. at 347, 958 A.2d at
358.
Upon review, we held that officers had reasonable suspicion to stop Mr. Bost
because he was seen in a high crime, drug-trafficking area, he took off in unprovoked flight,
and he was clutching his side, in what appeared to be an attempt to conceal a weapon. Id.
at 359–60, 958 A.2d at 360. In the case, we relied on Wardlow for the generalized
proposition that that case “had made clear that unprovoked flight is enough to support
reasonable suspicion that a crime has been committed.” Id. at 348, 958 A.2d at 360
(emphasis added). Notwithstanding our focus on unprovoked flight, in Bost we applied a
totality of the circumstances analysis, as the Wardlaw Court had done, and held that Mr.
Bost’s unprovoked flight was properly considered in the totality of the circumstances
analysis. Id. at 359, 958 A.2d at 360.
In Crosby, we emphasized the need for hearing courts to consider the totality of the
circumstances when wholly innocent actions take place in a high crime area. Crosby v.
State, 408 Md. 490, 508, 970 A.2d 894, 904 (2009). In that case, an arresting officer, at
the suppression hearing, testified that he made the decision to approach a driver in a parked
car because: the driver was in a high crime area, he pulled in and out of “parking pads,” he
was in an area where a recent homicide had occurred, he switched his left turn signal to a
3
The Uniform Act on Fresh Pursuit [Maryland Code, Criminal Procedure § 2-305 (2001,
2006 Cum. Supp.)] permits “[a] member of a state, county, or municipal law enforcement
unit of another state who enters [Maryland] in fresh pursuit and continues within
[Maryland] in fresh pursuit of a person to arrest the person on the ground that the person is
believed to have committed a felony in the other state has the same authority to arrest . . .
the person.” Bost v. State, 406 Md. 341, 345, 958 A.2d 356, 358 n.1 (2008).
17
right turn signal, and he drove in a “big loop.” Id. at 500, 970 A.2d at 899. We reversed
the Circuit Court’s denial of Mr. Crosby’s motion to suppress the evidence and held that
the factors the arresting officer relied on “[did] not constitute ingredients that [were]
sufficiently potent enough in [that] case to enrich the porridge to the constitutionally
required consistency of reasonable suspicion,” because “the combination of [innocent]
factors, viewed in their totality, [were] no more indicative of criminal activity than any one
factor assessed individually.” Id. at 511–513, 970 A.2d at 906–07.
The Hearing Judge’s Analysis of the Totality of the Circumstances
In the instant case, although we determine that the police officers had reasonable
suspicion to stop Mr. Sizer, we conclude that the suppression hearing judge erred in her
application of the totality of the circumstances analysis because she based her decision on
ambiguous testimony and identified Mr. Sizer’s flight as the dispositive factor in the
analysis. The suppression hearing judge did not properly consider other pertinent factors in
her application of the totality of the circumstances analysis.
There was no evidence at the suppression hearing that established that the parking
lot was located in the Owen Brown Village Center or established how near it was to the
Owen Brown Village Center or the area where the handgun violation had occurred. In fact,
Officer Baker testified that “to the best of [his] knowledge, that parking lot isn’t part of the
[V]illage [C]enter.” He also testified that the Patrol Unit was “waiting to see if [one of the
members of Mr. Sizer’s group] would enter where he was banned from.” Given that the
officer was waiting to see whether a certain individual would enter the banned Village
18
Center area, this individual, along with the remaining group members, including Mr. Sizer,
was not in the Owen Brown Village Center.
The suppression hearing judge did not receive any testimony regarding whether the
group was connected in any way to the Owen Brown Village Center. None of the officers
testified that the group, or any member of the group, was seen leaving or approaching the
Village Center at any time during the officers’ patrol of the pathways. The officers did not
observe anyone joining or leaving the group during their time of observation. Nor did they
testify that they observed the group demonstrating behavior consistent with the nature of
the crimes that led them to conclude that the Village Center was a high crime area.
Furthermore, none of the officers testified that they suspected any member of Mr. Sizer’s
group to be connected to the weapon violation that had been reported the previous day. As
was true for the location of the Village Center, the two officers who testified about the
handgun violation did not provide any proximal description of the area where the violation
had occurred and its relation to the parking lot where Mr. Sizer was observed.
Because we determine that the Circuit Court erred in its application of the totality
of the circumstances analysis, we need not decide whether the Circuit Court’s erred in
finding that the parking lot was a “high or higher crime area.” In her analysis, the
suppression hearing judge did not consider other pertinent factors in their totality, such as
the officers’ suspicion of an open container violation or their attempt to investigate the
littering. Instead she found that, “the fact that Mr. Sizer ran, in and of itself, based on the
particular scenario . . . [was] not sufficient” to justify the stop. The hearing judge had
sufficient facts before her to apply the reasonable suspicion test from Terry, but she
19
overlooked the import of two possible crimes that had occurred in the officers’ presence
along with Mr. Sizer’s unprovoked flight as officers approached to investigate. In other
words, her analysis abandoned consideration of the totality of the circumstances. “Under
the totality of circumstances, no one factor is dispositive.” In re David S., 367 Md. 523,
535, 789 A.2d 607, 614 (2002). Therefore, the hearing judge erred when she failed to
consider the totality of the circumstances. 4
Our Analysis of the Totality of the Circumstances
Upon our independent review of the factors that were before the hearing judge, we
hold that under the totality of the circumstances, the officers had reasonable suspicion to
stop Mr. Sizer to investigate a possible open container violation as well as the improper
disposal of a glass container, whether he was in a high crime area or not. Even Mr. Sizer
concedes that when the officers approached him they were “investigating the improper
disposal of a bottle.” Pursuant to Maryland Code, Criminal Law § 10-110 (2002, 2012
Repl. Vol., 2015 Supp. Vol.), the improper disposal of waste is a criminal misdemeanor
punishable by imprisonment or fines.5 Pursuant to the Howard County Code, Title 8,
4
According to the Concurring/Dissenting Opinion, the Majority Opinion mischaracterizes
the hearing judge’s conclusions of law. Concurrence/Dissent Slip Op. at 7. The
Concurrence/Dissent concludes that the hearing judge considered the totality of the
circumstances in her “scenario” but fails to explain what law the hearing judge applied to
the facts in order to conclude that Mr. Sizer’s flight and the “scenario” was not sufficient.
Without more, neither we, nor the Concurrence/Dissent can say precisely what the hearing
judge meant when she concluded that the “scenario” was insufficient.
5
Mr. Sizer was not charged with improper disposal of waste or with an open container
violation.
20
Subtitle 7, § 8.700 (2016), consuming or possessing alcoholic beverages on posted
commercial property or posted public parking lots is a criminal misdemeanor punishable by
imprisonment or fines. Therefore, when officers observed that a bottle was passed among
the group and then was discarded or thrown to the ground, they had reasonable suspicion to
believe that criminal activity was afoot. Mr. Sizer’s flight from the group as the officers
approached to investigate probable crimes committed in their presence shifted their focus
to Mr. Sizer, which could have reasonably heightened their suspicion that he was the
individual responsible for throwing the bottle. When Mr. Sizer ran, his flight obviously
drew the officers’ attention and intensified the officers’ investigation by shifting their focus
from the group to him as an individual. In fact, according to Officer Baker, who testified at
the suppression hearing, it appeared that Mr. Sizer ran as soon as he realized that the people
approaching were police. Thus, in conducting their investigation the officers were not
required to “simply shrug [their] shoulders and allow . . . [an apparent] criminal
[misdemeanant] to escape.” Holt v. State, 435 Md. 443, 459, 78 A.3d 415, 424 (quoting
Adams v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 616)).
Mr. Sizer asserts that “officers can ‘investigate’ whatever they want, for any reason
they want, but they cannot stop a person without reasonable suspicion that criminal activity
is afoot,” and that here the officers’ testimony was insufficient to establish reasonable
suspicion that a crime was being committed. We disagree that the investigating officers’
testimony in this case was insufficient to establish reasonable suspicion of suspected
criminal activity because Mr. Sizer overlooks the significance of the officers’ decision to
investigate based on the improper disposal of the bottle. The investigatory nature of a stop
21
does not violate the Fourth Amendment if the stop is based on a reasonable suspicion. See
Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. at 909 (“And in determining whether the
officer acted reasonably in such circumstances, due weight must be given . . . to the specific
reasonable inferences which he is entitled to draw from the facts in light of his
experience.”).
This Court has previously examined how the Supreme Court has reconciled the
tension between an individual’s right to freedom from unlawful detainment and the extent
to which an officer may conduct an investigatory stop and we recognized that the Supreme
Court held that officers may “stop and briefly detain a person for investigative purposes if
the officers have a reasonable suspicion, supported by articulable facts, that ‘criminal
activity’ may be afoot.” In re David S., 367 Md. at 532, 789 A.2d at 612 (citing Terry v.
Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1969); see United States
v. Scott, 270 F.3d 30, 41 (1st Cir. 2001) (recognizing that “[a]n individual's flight from
police combined with other observations by a police officer may support reasonable
suspicion sufficient for detention under Terry” and also acknowledging that “[i]n Wardlow
itself, the only relevant fact other than flight known to the detaining officer was the
suspect's presence in an area known for crime,” and noting that “prior behavior . . .
suggest[s] guilt more strongly than would simple presence in such an area”) (internal
citations omitted).
In summation, the officers had reasonable suspicion to investigate the group prior to
Mr. Sizer’s flight. The officers suspected that members of the group were consuming
alcohol; then the officers observed the improper disposal of a bottle. Because a bottle was
22
thrown to the ground, it logically follows that at least one member of Mr. Sizer’s group
was responsible for the improper disposal of the bottle. Mr. Sizer’s flight, however, drew
the officers’ attention away from the group and towards him individually. Based on these
circumstances, we conclude that the officers had reasonable suspicion to stop Mr. Sizer.
After being informed that he was armed with a weapon, the officers had reasonable
suspicion to frisk him.6 Therefore, we affirm the judgment of the intermediate appellate
court on the basis that upon witnessing the likelihood that criminal activity was afoot, the
officers had reasonable suspicion to approach the group and investigate an apparent open-
container violation and littering and to stop Mr. Sizer.
Application of the Attenuation Doctrine
Our primary holding is that the apprehension of Mr. Sizer after he ran from the
group that was assembled in the parking lot constituted a valid Terry stop. We hold, in the
alternative, that assuming the stop of Mr. Sizer was unlawful, the police officer’s discovery
of a valid pre-existing arrest warrant attenuated the connection between any unlawful
investigatory stop and evidence seized from Mr. Sizer during the search incident to his
6
The Concurring/Dissenting Opinion describes the stop of Mr. Sizer as a “hard take-down”
and criticizes the officer’s conduct as unreasonable. Con./Diss. Slip Op. at 10-11. To
support its contention that the take-down was unreasonable, the Concurring/Dissenting
Opinion cites to Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443
(1989). In that case, however, the Supreme Court points out that “whether [the suspect] is
actively resisting arrest or attempting to evade arrest by flight” is among the factors
considered under the objective reasonableness standard. Id. at 396, 109 S. Ct. at 1872, 104
L. Ed. 2d at 445 (emphasis added). Moreover, “[t]he calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.” Id. at 396–97, 109 S. Ct. at
1872, 104 L. Ed. 2d at 455–56.
23
arrest. Accordingly, there would be no justification for applying the exclusionary rule to
the facts of this case.
The State and Mr. Sizer concur that Utah v. Strieff would control the outcome of
this case if the stop were deemed unlawful. In its brief, the State pressed the argument that
the independent source doctrine or the attenuation doctrine would apply; however, at oral
argument, counsel for the State conceded that the attenuation doctrine was on point based
on the facts. Mr. Sizer agrees that the outstanding arrest warrant is an intervening
circumstance pursuant to Strieff; however, he bifurcates the evidence recovered from his
person to suggest that the pre-existing arrest warrant operates as an intervening
circumstance only with respect to the pills, not the revolver. Mr. Sizer argues that the
evidence of the revolver “came to light before the officers discovered a valid warrant for
Petitioner’s arrest.”
Recently, in Strieff, the United States Supreme Court applied the attenuation
doctrine when it evaluated whether a pre-existing arrest warrant sufficiently attenuated “the
causal link between the government’s unlawful act and the discovery of evidence[.]” --
U.S. at --, 136 S. Ct. at 2061, 195 L. Ed. 2d at 408. We follow the precedent of that Court,
which directs us to evaluate the three factors articulated in Brown:
First, we look to the “temporal proximity” between the unconstitutional
conduct and the discovery of evidence to determine how closely the
discovery of evidence followed the unconstitutional search. Second, we
consider “the presence of intervening circumstances.” Third, and
“particularly” significant, we examine “the purpose and flagrancy of the
official misconduct.”
24
Strieff, -- U.S. at --, 136 S. Ct. at 2062, 195 L. Ed. 2d at 408 (citing to Brown v. Illinois,
422 U.S. 590, 603–04, 95 S. Ct. 2254, 2261–62, 45 L. E. 2d 416, 427 (1975) (internal
citations omitted). In Strieff, the Supreme Court reasoned that that an outstanding arrest
warrant was “a critical intervening circumstance that is wholly independent of the illegal
stop” and therefore the illegal stop was “sufficiently attenuated by the pre-existing arrest
warrant.” -- U.S. at --, 136 S. Ct. at 2063, 195 L. Ed. 2d at 410 (internal citation omitted)
(internal quotation marks omitted); see also Myers v. State, 395 Md. 261, 290, 909 A.2d
1048, 1065 (2006); Cox v. State, 397 Md. 200, 209–10, 916 A.2d 311, 316–17 (2007).
The application of the attenuation doctrine is a fact-specific analysis that focuses on
when and the manner in which the evidence seized was obtained in relation to the unlawful
conduct. Where there is an outstanding arrest warrant, the attenuation doctrine applies
because the discovery of the warrant breaks the causal chain from any possible taint to the
evidence collected. Here, even assuming that the stop of Mr. Sizer was unlawful, the
discovery of a valid pre-existing arrest warrant as well as absence of flagrant police
misconduct, notwithstanding the close temporal proximity between the illegal seizure and
the discovery of the pistol, would result in the non-suppression of the evidence. Mr. Sizer
focuses on the closeness of the timing of the discovery of the revolver in relation to the
discovery of the outstanding arrest warrant. He argues that because his admission about
the revolver came before the discovery of the outstanding warrant, the warrant could not
attenuate the taint of the alleged unlawful stop. We disagree. We have previously held
that “the question of timing is not dispositive on the issue of taint, especially because there
was an outstanding arrest warrant between the initial stop and the subsequent search
25
incident to arrest, even though some of the evidence was discovered shortly after the illegal
stop.” Myers, 395 Md. 261, 292, 909 A.2d at 1066 (emphasis added). The “temporal
proximity” between Mr. Sizer’s alleged unlawful stop and the discovery of the revolver
favors suppression of the evidence; however, this factor is outweighed by the intervening
circumstance and the absence of flagrant police misconduct. See e.g. Cox v. State, 397 Md.
200, 218, 916 A.2d 311, 322 (2007) (holding that a two minute time lapse weighed in the
defendant’s favor but recognizing that, “[t]he temporal proximity factor must depend . . .
on other factors to which it relates, because a ‘lengthy detention can be used to exploit an
illegal arrest at least as easily as a brief detention.’” (quoting Ferguson v. State, 301 Md.
542, 550 483 A.2d 1255, 1259 (1984)). The discovery of the pre-existing warrant
sufficiently broke the causal chain between any Fourth Amendment violation alleged by
Mr. Sizer and the recovery of the evidence against Mr. Sizer. Therefore, had the stop of
Mr. Sizer been unlawful, the evidence recovered would still be admissible under the
attenuation doctrine.
Conclusion
The officers of the Patrol Unit had reasonable suspicion to investigate what
appeared to be criminal acts occurring in their presence and, thus, had reasonable suspicion
to stop Mr. Sizer to investigate whether he had improperly disposed of a bottle. The stop
was not unconstitutional. During the course of the stop, Mr. Sizer alerted the officers to
the presence of a gun, which justified the officers’ frisk of his person. The gun and the
pills should not have been suppressed because they were recovered after a lawful detention.
Alternatively, the gun and the pills would be admissible into evidence as a result of the
26
search incident to the lawful arrest of Mr. Sizer, pursuant to the discovery of the
outstanding arrest warrant. We affirm the judgment of the Court of Special Appeals, albeit
for different reasons. Accordingly, the motion to suppress should have been denied.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS IN THIS COURT TO BE PAID
BY PETITIONER.
27
Circuit Court for Howard County
Case No.: 13-K-15-056103
Argued: September 6, 2017
IN THE COURT OF APPEALS
OF MARYLAND
No. 1
September Term, 2017
JAMAL SIZER
v.
STATE OF MARYLAND
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Concurring and Dissenting Opinion by Adkins, J.,
which Hotten, J., joins.
Filed: November 28, 2017
At a suppression hearing, the State has the burden to “articulat[e] a sufficient factual
basis for the stop, and appellate courts cannot fill in blanks in the evidentiary record.” In
re Jeremy P., 197 Md. App. 1, 22 (2011). Most respectfully, I write separately because the
State did not meet its burden of showing that the totality of the circumstances created
reasonable suspicion justifying the officers’ decision to chase Mr. Sizer and use a hard
take-down. We should not resolve this case by repairing the deficiencies in the State’s
arguments and evidence to provide a sufficient factual basis for reasonable suspicion.
Despite my conclusion that this was an unreasonable seizure, the discovery of a
valid arrest warrant was a sufficiently attenuating circumstance that the evidence located
is admissible. For that reason, I dissent from the Majority’s holding that the stop was
reasonable, but concur in the alternative holding that the evidence should have been
admitted through attenuation.
REASONABLENESS OF THE CHASE AND HARD TAKE-DOWN
When evidence is obtained pursuant to a warrantless search or seizure, the State
carries the burden in a suppression hearing to justify the lawfulness of the officers’ conduct
and demonstrate that the evidence is admissible. See Grant v. State, 449 Md. 1, 30 (2015)
(“[W]ithout satisfying its burden of proof, the State did not establish that the evidence was
admissible . . . .”); see also Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971).
“[T]he officer must explain how the observed conduct, when viewed in the context of all
the other circumstances known to the officer, was indicative of criminal activity.” Crosby
v. State, 408 Md. 490, 508 (2009). A reviewing court accepts the suppression court’s
factual findings unless they are clearly erroneous. Raynor v. State, 440 Md. 71, 81 (2014).
Because Mr. Sizer’s Motion to Suppress was granted, inferences in this case should be
drawn in the light most favorable to him. Id.
Here, the Majority concludes that the hearing “judge erred in her application of the
totality of the circumstances analysis because she based her decision on ambiguous
testimony and identified Mr. Sizer’s flight as the dispositive factor in the analysis.” Maj.
Slip Op. at 18. In the Majority’s view, the hearing judge “did not consider other pertinent
factors in their totality, such as the officers’ suspicion of an open container violation or
their attempt to investigate the littering.” Id. at 18. Instead, the Majority rules that she
“abandoned consideration of the totality of the circumstances” by concluding that “‘the
fact that Mr. Sizer ran, in and of itself, based on the particular scenario . . . [was] not
sufficient,’” to find that the officers had reasonable suspicion that Mr. Sizer was engaged
in criminal activity. Id. at 19–20 (Emphasis in original).
The Majority uses this conclusion to evade the deficiencies in the State’s claims that
the officers had reasonable suspicion to detain Mr. Sizer. The State relied heavily on
Illinois v. Wardlow, 528 U.S. 119 (2000), as well as our own similar precedent, for the
proposition that unprovoked flight in a “high crime area”1 provides sufficient reasonable
suspicion to justify an investigatory detention in this case. The Majority rightfully appears
skeptical of the evidence the State supplied that suggests that this incident took place in a
“high crime” area, but avoids addressing the issue by deciding that the Circuit Court for
1
The term “high crime area” has never been defined in legal jurisprudence. See
Andrew Guthrie Ferguson & Damien Bernache, The “High Crime Area” Question:
Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable
Suspicion Analysis, 57 Am. U. L. Rev. 1587, 1590–91 (2008).
2
Howard County erred in applying the totality of the circumstances analysis. The Majority
concludes that upon a review of the factors before the hearing judge, the officers had
reasonable suspicion to detain Mr. Sizer for a possible open container violation and
improper disposal of a bottle regardless of whether or not he was in a high crime area.
Reasonable suspicion requires a determination that, under the totality of the
circumstances, officers had a “particularized and objective basis for suspecting the
particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411,
417–18 (1981) (emphasis added); see also Longshore v. State, 399 Md. 486, 507 (2007).
In evaluating the constitutionality of an investigatory detention, we consider “whether the
officer’s action was justified at its inception, and whether it was reasonably related in scope
to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392
U.S. 1, 20 (1968). The issue is, whether under the totality of the circumstances, officers
had a reasonable articulable suspicion that Mr. Sizer was engaged in criminal activity that
justified their decision to seize him, and whether that seizure was “reasonably related in
scope” to the circumstances justifying that suspicion. Id.
The tenor of the State’s arguments suggest that reviewing courts should simply
accept the “high crime” designation when officers provide general information about some
criminal activity in an area (whatever area that may be), and opine that the area is “high”
or “higher” crime. Whether an activity occurs in a high crime area can inform a police
officer’s analysis about the activity that is taking place. Bailey v. State, 412 Md. 349, 383–
84 (2010). A suspect need not be connected to previous crimes in the area, Holt v. State,
435 Md. 443, 466 (2013), but the nature of the area is relevant to reasonable suspicion
3
when the suspect’s activities appear to be the kind of criminal activity that is likely to be
occurring there. A generalized description of an area as “high crime,” without a greater
connection to the observed activities, does not support reasonable suspicion. See Bailey,
412 Md. at 384. Other Maryland cases addressing Terry stops in high crime areas
demonstrate that the nexus between the nature of the area and the observed activities is
significant in determining whether officers had reasonable suspicion. See Chase v. State,
449 Md. 283, 289 (2016) (detaining individuals for suspicion of drug trafficking based on
behavior in area known for drug trafficking); Cox v. State, 161 Md. App. 654, 671–74
(2005) (individual suspected of drug dealing had been warned away from intersection
known for heroin trafficking earlier, when officers saw him again, he fled, committing a
traffic infraction); Wise v. State, 132 Md. App. 127, 134 (2000) (suspect’s actions in
neighborhood known for drug trafficking coupled with flight after seeing officers justified
investigatory detention).
Federal precedent provides further support. In Wardlow, the suspect was in an area
of Chicago “known for heavy narcotics trafficking” and the officers expected to encounter
individuals who were involved in those activities. 528 U.S. at 124. Wardlow’s behavior
and subsequent flight triggered the officer’s suspicion that he was engaged in drug
trafficking. In United States v. Wright, 485 F.3d 45, 53–54 (1st Cir. 2007), relying on
Wardlow and other circuits’ precedent, the First Circuit identified three specific factors
relevant to the “high crime” designation, and the designation’s relationship to reasonable
suspicion. First, “the nexus between the type of crime most prevalent or common in the
area and the type of crime suspected in the instant case”; second, the “limited geographic
4
boundaries of the area”; and third, “temporal proximity between evidence of heightened
criminal activity and the date of the stop or search at issue . . . .” Id. See also United States
v. Carruthers, 458 F.3d 459, 468 (6th Cir. 2006); United States v. Bailey, 417 F.3d 873,
877 (8th Cir. 2005); United States v. Edmonds, 240 F.3d 55, 60 (D.C. Cir. 2001); United
States v. Montero-Camargo, 208 F.3d 1122, 1138–39 (9th Cir. 2000) (en banc).
Applying these factors, I conclude that the State failed to show that the Owen Brown
Village Center is a high crime area—a conclusion the Majority seems poised to reach, but
then abandons.2 Increased calls for service3 and concerned business owners do not permit
a conclusion that an area is “high crime.” An ongoing series of robberies at unknown
locations and times, as well as a single sighting of an individual with a handgun do not
suffice absent greater specificity. Even assuming that these incidents could be sufficient
for a finding that the area is “high crime,” there is no nexus between these crimes and the
activity in this case, or between these crimes and Mr. Sizer.4 For these reasons, I do not
2
The Majority points out that the group was not in the Owen Brown Village Center,
which the officers testified was a “high crime area.” The Majority also notes that the
officers did not testify that the group’s behavior was “consistent with the nature of the
crimes that led them to conclude that the Village Center was a high crime area.” The
officers’ testimony did not connect the string of robberies or the suspected gun violation to
the group. Maj. Slip Op. at 19.
3
Officer Schlossnagle admitted that increased calls for service are not necessarily
indicative of criminal activity, but only demonstrate that someone called the police.
4
Corporal Zammillo’s testimony about the satellite office is not particularly
persuasive in the “high crime” analysis. During cross-examination, he explained that there
are five satellite offices at five villages in Columbia. Mr. Sizer points out that because
there are ten villages in Columbia, half the villages have a satellite office. The presence of
this office, absent further evidence, does not support a conclusion that Owen Brown Village
is “high crime.”
5
find sufficient evidence to support the State’s contention that Wardlow is dispositive
precedent.
The Majority’s determination that the hearing judge abandoned the totality of the
circumstances appears to be a mischaracterization of the hearing judge’s conclusions of
law. The hearing judge concluded “the fact that Mr. Sizer ran, in and of itself, based on
the particular scenario that’s being given here today, is not sufficient.” The Majority
explains that this is erroneous because no single factor is dispositive in the analysis. Maj.
Slip Op. at 20. It is evident, upon review of the record that the hearing judge did apply the
totality of the circumstances analysis.
The officers observed a loud group in a parking lot from 25 to 35 yards away, and
the officers thought that some individuals in the group might be consuming alcohol.5 The
officers also testified that someone threw a bottle, but they did not know who threw it, or
even where the bottle originated in the group. They approached to determine who threw
the bottle. The State highlights these facts, as well as two others—that the group was in a
“high crime area” and that only Mr. Sizer fled when the officers approached—to argue that
the officers had sufficient reasonable suspicion to seize Mr. Sizer.6
5
The officers’ testimony is vague regarding which, if any, individuals might have
been committing alcohol violations, or indeed whether an alcohol violation was occurring.
The officers testified that some of the individuals in the parking lot “appeared to be”
drinking alcohol. Schlossnagle testified that “[t]here were bottles that appeared to be
alcohol bottles and cans . . . [A]nd a brown bag, a—bottle in a bag . . . .” Zammillo
testified that he saw “body language [that] was consistent with individuals that were
consuming alcohol; hanging around, passing a bottle back and forth.”
Mr. Sizer was seized when the officers tackled him. See California v. Hodari D.,
6
499 U.S. 621, 626 (1991) (seizure requires either physical force, or if no force, submission
6
The hearing judge considered all of these factors in reaching her decision that the
seizure was unreasonable.7 She did not doubt what the officers had observed, but the
officers never saw Mr. Sizer engaging in any of these activities. Thus, at the moment the
officers reached the group, they had no reasonable articulable suspicion that Mr. Sizer was
engaged in criminal activity. He was with a group of individuals, some of whom might
to authority). Terry stops are undisputedly seizures. See Terry v. Ohio, 392 U.S. 1, 16
(1968) (“It must be recognized that whenever a police officer accosts an individual and
restrains his freedom to walk away, he has ‘seized’ that person.”).
7
In formulating the “scenario,” the hearing judge explained:
The police testified today without embellishment. The Court
found them to be truthful and credible. The issue for the Court,
as I outlined it at the beginning, is the time-line. So as I
understand it, and from the testimony of the officers, it’s that
they’re there. They’re in a darker less lit area. They see this
group of individuals which includes the Defendant, Mr. Sizer.
That the group appears to be loitering; that the group appears
to be drinking alcohol, open containers, and that somebody of
the group—they cannot be sure whether it was Mr. Sizer or
not—threw a bottle. The police were concerned,
understandably, and approached the group. They were in
uniform. On their bright-blue jackets are their respective
names and the word “Police”, and they verbally identified
themselves as police. While they themselves had been in a
darker area, the testimony was that there was sufficient lighting
in the parking lot area to see the group.
The issue before the Court is, when Mr. Sizer ran, was it
reasonable for the police to run after him?
***
And although I can understand the heat of the moment, I can
understand the high crime area, the fact that Mr. Sizer ran, in
and of itself, based on the particular scenario that’s being given
here today, is not sufficient.
7
have been engaging in misdemeanor activities.8 The hearing judge decided that this
“scenario,” combined with Mr. Sizer’s flight, could not provide a sufficiently particularized
reasonable suspicion to detain him.
The Majority notes that the State “implicitly concedes that the officers did not have
a particularized suspicion to stop Mr. Sizer at the moment they approached the group.”
Maj. Slip Op. at 10. It is unclear whether the Majority thinks that the officers were stopping
the entire group under Terry, or whether the officers were merely accosting the group. The
Majority reasons that “Sizer’s flight from the group as the officers approached to
investigate probable crimes committed in their presence shifted their focus to Mr. Sizer,
which could have reasonably heightened their suspicion that he was the individual
responsible for throwing the bottle.” Id. at 21. The Majority places too much weight on
Mr. Sizer’s flight.
Unprovoked flight is a factor in the totality of the circumstances analysis. See
Wardlow, 528 U.S. at 125; Bost v. State, 406 Md. 341, 358 (2008); Collins v. State, 376
Md. 359, 372 (2003). Based on the evidence presented, it appears that the officers had a
8
Littering is a misdemeanor. See Maryland Code (1957, 2012 Repl. Vol., 2016
Supp.), § 10-110 of the Criminal Law Article. On brief, and at argument, the State also
suggested that officers could have reasonably suspected that Mr. Sizer was violating a
Howard County Ordinance that prohibits possessing an open container, or consuming
alcoholic beverages in posted areas. See Howard County, Maryland, Code of Ordinances
§ 8.700: Consumption and possession of alcoholic beverages in opened containers (2016).
References to laws and ordinances do not provide a particularized basis for suspecting Mr.
Sizer of wrongdoing, they only particularize the offense the officers thought might be
occurring.
8
hunch that Mr. Sizer was engaged in criminal activity because he ran at their approach.9
We do not accord weight to an “inchoate and unparticularized suspicion or ‘hunch[.]’”
Terry, 392 U.S. at 27. Officers may certainly investigate ambiguities, but they must still
be able to articulate a particularized basis for suspicion that comports with constitutional
standards.
The Majority’s analysis is unpersuasive and accords the State too much credit. The
Majority claims that Mr. Sizer “overlooks the significance of the officers’ decision to
investigate based on the improper disposal of the bottle.” Maj. Slip Op. at 21. But under
the Majority’s reasoning, and the State’s implied concession, there is no reason to suspect
Mr. Sizer was littering without placing unwarranted weight on his flight. The officers
never testified that they believed there was a connection between Mr. Sizer’s flight and the
littering or the alcohol violations. Put simply, he ran, so they chased him.
Although much of the evidence the hearing judge relied on was ambiguous, as the
Majority points out, this is not to either the hearing judge’s or Mr. Sizer’s detriment. The
State must demonstrate a sufficient factual basis for the stop. See Jeremy P., 197 Md. at
22. If the hearing judge resolved this issue based on ambiguous evidence, it is because the
State failed to satisfy its burden. Any inferences from these ambiguities should be drawn
9
Mr. Sizer’s brief suggests that he may have run because he was startled. The
officers approached out of darkness, and Officer Baker testified that the group first noticed
the officers when they were five feet away from the group. The officers testified that they
identified themselves as police during their approach, but they also described the group as
“loud.” Based on this evidence, it is not unreasonable to draw an inference that Mr. Sizer’s
flight may have not been entirely unprovoked.
9
in Mr. Sizer’s favor because the motion to suppress was granted. See Longshore, 399 Md.
at 498.
Turning to the question of the use of a hard take-down, the Supreme Court in Terry
explained that “[t]he manner in which [a] seizure and search were conducted is, of course,
as vital a part of the inquiry as whether they were warranted at all.” 392 U.S. at 28. The
Supreme Court has held that claims that “law enforcement officials used excessive force
in the course of making an arrest, investigatory stop, or other ‘seizure’” of an individual
must be analyzed under the “objective reasonableness” standard of the Fourth Amendment.
Graham v. Connor, 490 U.S. 386, 394 (1989). The Fourth Amendment permits “some
degree of physical coercion or threat thereof” in making an investigatory stop. Id. at 396.
The “reasonableness” of a seizure depends both on when it occurred and how it is carried
out. See id. at 395 (citing Tennessee v. Garner, 471 U.S. 1, 7–8 (1985)).
Whether a seizure is reasonable “requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.” Id.; see also Cty. of
Los Angeles v. Mendez, 137 S. Ct. 1539, 1546 (2017). A court must consider “whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Graham, 490
U.S. at 397.
Under the totality of the circumstances, the officers’ conduct was not reasonable.
The officers lacked a particularized basis to suspect Mr. Sizer of criminal activity. There
10
was no reason to believe that he was a threat to officer safety at the time of the chase and
tackle because he stated that he had a gun during the tackle.10 The officers seized Mr.
Sizer before they were aware that he armed. See California v. Hodari D., 499 U.S. 621,
626 (1991).
Maryland permits warrantless arrests for individuals who have committed or
attempted to commit a misdemeanor “in the presence of or within the view of the police
officer.” Maryland Code (1957, 2008 Repl. Vol.), § 2-202(a) of the Criminal Procedure
Article. If the officer has probable cause to believe that the misdemeanor is being
committed in his presence or in his view, he may arrest any person whom the officer
reasonably believes has committed the crime. Id. § 2-202(b). Assuming that throwing
the bottle was littering, or that someone in the group was consuming alcohol, the officers
did not know who committed these offenses. The officers could not reasonably believe it
was Mr. Sizer when they testified that they had not observed anyone in particular doing
those activities. See Parks v. State, 4 Md. App. 432, 434 (1968) (warrantless arrest for
littering was unlawful when officers did not see arrestee littering and there was no evidence
of a common criminal design to litter).
Finally, the nature of the suspected offenses does not suggest that a hard take-down
was reasonable. Our prior cases on the use of force in investigatory detentions have dealt
10
There was some dispute during the hearing regarding precisely when Mr. Sizer
said “I have a pistol,” and whether that statement occurred before or after Schlossnagle
tackled him. The hearing judge also found that Mr. Sizer made the statement “in the
process of Officer Schlossnagle taking him down . . . .” This factual finding was not
clearly erroneous given the speed of events and the ambiguities in timing. See Raynor v.
State, 440 Md. 71, 81 (2014).
11
with crimes that presented a threat to public safety, with identified suspects. See In re
David S., 367 Md. 523, 539 (2002) (officers saw a suspect with what appeared to be a
handgun); Lee v. State, 311 Md. 642, 661–67 (1988) (officers detained suspects in an armed
robbery who had injured an individual and were believed to be armed); Cf. Longshore, 399
Md. at 517. I am reluctant to extend our reasoning in those cases to minor misdemeanor
offenses when the officer lacks particularized suspicion that the detained individual is
engaged in criminal activity. Under the totality of the circumstances in this case, I conclude
that it was unreasonable for the officers to chase and tackle Mr. Sizer.
ATTENUATION
Although I disagree with the Majority’s conclusion that this stop was constitutional,
I concur in their alternative holding, that the officer’s unlawful conduct was attenuated by
the discovery of the arrest warrant.11 To determine whether attenuation applies, a
reviewing court considers three factors first set forth in Brown v. Illinois, 422 U.S. 590
(1975); see also Miles v. State, 365 Md. 488, 522 (2001). First, we examine the “‘temporal
proximity’ between the unconstitutional conduct and the discovery of the evidence to
determine how closely the discovery of evidence followed the unconstitutional search.”
Utah v. Strieff, 136 S. Ct. 2056, 2062 (2016) (quoting Brown, 422 U.S. at 603). Second,
we examine the intervening circumstances. Third, we “examine ‘the purpose and flagrancy
of the official misconduct.’” Id. (quoting Brown, 422 U.S. at 604).
11
I agree with the Majority that the independent source doctrine is not applicable.
Because attenuation applies, there is no reason to reach this issue.
12
Temporal Proximity
The temporal proximity factor weighs against attenuation if there is no “substantial
time” between the “unlawful act and when the evidence is obtained.” Id.; see also Cox v.
State, 397 Md. 200, 218 (2007). The officers testified that the sequence of events happened
very quickly. Mr. Sizer stated that he had a gun as he was being tackled, and the search
took place almost immediately after the officers cuffed Mr. Sizer and discovered the
warrant. Generally, an unlawful stop and near-contemporaneous discovery of evidence
will not be a sufficient lapse in time to “attenuate the taint of a presumptively illegal
stop . . . .” Cox, 397 Md. at 218. Thus, the temporal proximity factor here favors rejecting
attenuation because no substantial time elapsed. See Strieff, 136 S. Ct. at 2062; Cox, 397
Md. at 218.
Intervening Circumstances
“[A]n intervening circumstance is an event that breaks the causal connection
between the unlawful conduct and the derivative evidence.” Ferguson v. State, 301 Md.
542, 551 (1984). Even before Strieff,12 we have found that discovery of a valid arrest
warrant after an unconstitutional detention is an intervening circumstance that weighs in
favor of attenuation. See Cox, 397 Md. at 219; Myers v. State, 395 Md. 261, 227–28
(2006). The discovery of an arrest warrant that is “wholly independent of the illegal
12
The Supreme Court applied Segura v. United States, 468 U.S. 796 (1984) in its
reasoning in Utah v. Strieff, 136 S. Ct. 2056 (2016). The Court acknowledged that Segura
applied the independent source doctrine, not attenuation, but concluded that the principle
relating to a valid arrest warrant was applicable in attenuation. Strieff, 136 S. Ct. at 2062.
13
stop”13 breaks the causal chain because the warrant compels the officer to arrest the
suspect. Strieff, 136 S. Ct. at 2063.
Corporal Zammillo was compelled to arrest Mr. Sizer when he recognized him from
prior interactions and knew that he had an open warrant. See id. at 2062. Officer
Schlossnagle became aware of the gun through Mr. Sizer’s statement during an unlawful
seizure before Zammillo recognized Mr. Sizer and discovered the arrest warrant, however,
officers searched the backpack and found the gun after the warrant discovery. The
question is whether this fact affects the intervening circumstance factor such that it weighs
against attenuation.
In Cox, after detaining two individuals without reasonable suspicion, the officers
learned that Cox had an outstanding warrant for failure to appear in court on drug charges
and arrested him. 397 Md. at 205. After the arrest, the officers found marijuana on the
ground where Cox had been sitting. Id. We concluded that the presence of the warrant
favored attenuation because the valid arrest warrant gave officers probable cause to arrest
Cox before they found the marijuana. Id. at 219.
In Myers, an officer initiated a traffic stop and observed a screwdriver in plain view
that could make pry marks consistent with those found at some recent burglaries. The
officer learned that Myers had outstanding warrants from another jurisdiction and took him
into custody. A search incident to arrest revealed further evidence of burglary. 395 Md.
13
In Taylor v. Alabama, 457 U.S. 687, 692 (1982), the Supreme Court determined
that an arrest warrant filed after an unconstitutional arrest did not serve as an intervening
circumstance because the officers secured the warrant using information obtained from the
illegality.
14
at 268–69. We assumed the stop was invalid, but concluded that the arrest warrant
“sufficiently attenuated” the tainted stop such that the exclusionary rule did not apply. Id.
at 277–78. As the Majority opinion notes, we determined in Myers that the timing was not
“dispositive” because “there was an outstanding arrest warrant discovered between the
initial stop and the subsequent search incident to arrest, even though some of the evidence
was discovered shortly after the illegal stop.” Id. at 292 (emphasis added).
Mr. Sizer cites People v. Maggit, No. 335651, 2017 WL 2351500 (Mich. Ct. App.
May 30, 2017), suggesting that case supports rejecting attenuation here. In Maggit, the
Michigan Court of Appeals paid careful attention to the timing of the seizure and the
discovery of a warrant to determine whether intervening circumstances favored
suppression. Id. at *10. The court pointed out that Strieff involved a “fact pattern[] of (1)
invalid seizure; (2) discovery of a valid arrest warrant; and (3) search and discovery of
contraband . . . .” Id. The court distinguished Maggit based on the difference in the fact
pattern: “(1) invalid seizure; (2) search and discovery of contraband; and (3) discovery of
a valid arrest warrant.” Id. The court determined that the warrant in that case was not an
intervening act because it “had no effect on the actions taken by the police in this case, nor
did it have any effect on the evidence that was recovered from the defendant.” Id.
Here, the fact pattern diverges from both Strieff, Cox, and Maggit, but is consistent
with Myers: (1) An invalid seizure and some evidence; (2) discovery of an arrest warrant;
and (3) search and discovery of contraband. Like Myers, although some evidence was
obtained before the discovery of the warrant, the gun was found after the discovery of the
warrant and the arrest. Unlike in Maggit, the search was incident to a lawful arrest. In
15
Maggit, the arrest itself was unlawful, despite the later discovery of a valid warrant. See
2017 WL 2351500, at *10. I agree with the Majority that Myers sufficiently resolves the
issue. The presence of a valid unrelated arrest warrant supports attenuation, even if some
evidence is found before the arrest warrant. See 395 Md. at 292. I reach this conclusion
because there was no substantial lapse in time between the illegality and the intervening
circumstance, and the officers had not taken any significant action based on Mr. Sizer’s
statement, such as searching his bag. Thus, this factor weighs in favor of the State.
The Purpose and Flagrancy of Police Misconduct
This factor reflects the exclusionary rule’s goal of deterring police misconduct by
“favoring exclusion only when the police conduct is most in need of deterrence—that is,
when it is purposeful or flagrant.” Strieff, 136 S. Ct. at 2063. Flagrancy requires more
severe police misconduct than the mere absence of proper cause for a seizure. Id. at 2064;
see also Myers, 395 Md. at 293 (officer’s conduct was not flagrant only because the stop
was invalid).
Here, the officers accosted the group after an unknown member of the group made
an ill-advised decision to throw a bottle in the parking lot, and the officers suspected that
some members of the group might be drinking. Although they lacked suspicion that Mr.
Sizer had done anything, it was not unreasonable for the officers to approach the group.
There is no evidence in the record of a pattern of systemic police misconduct by the Howard
County Police Department. See Strieff, 136 S. Ct. at 2063; Maggit, 2017 WL 2351500, at
*10. While the officers’ decision to chase and tackle Mr. Sizer may have been an error in
judgment, given the lack of reasonable suspicion that he was engaged in criminal activity,
16
absent further evidence of misconduct, I do not conclude their conduct was purposeful or
flagrant. Thus, this factor weighs in favor of the State. The arrest warrant, therefore,
sufficiently attenuated the illegality, and the evidence of the gun should have been
admitted.14
CONCLUSION
I agree with the Majority that the evidence is admissible because the valid, unrelated
arrest warrant sufficiently attenuated the unreasonable seizure. I do not agree, however,
with the Majority’s conclusion that the seizure of Mr. Sizer was reasonable under the
totality of the circumstances. I do not suggest officers should permit individuals suspected
of committing crimes to escape. But at a suppression hearing, the State must demonstrate
that the officers had a sufficient factual basis to stop a citizen—especially when that stop
is a hard take-down. Grant, 449 Md. at 30; Jeremy P., 197 Md. App. at 22. They failed to
do so. This Court should not shoulder that burden.
Judge Hotten has authorized me to state that she joins this Concurring and
Dissenting Opinion.
14
When Mr. Sizer was being processed for detention at Booking, a corrections
officer located a bag of pills in Mr. Sizer’s sock. Schlossnagle referred to this as a “search
incident to detention” as a matter of “protocol.” This appears to be an inventory search,
which is a well-recognized exception to the Fourth Amendment warrant requirement. See
Illinois v. Lafayette, 462 U.S. 640, 645–47 (1983).
17