State v. Sizer , 230 Md. App. 640 ( 2016 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0784
September Term, 2016
STATE OF MARYLAND
v.
JAMAL RASHEED SIZER
Graeff,
Leahy,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Moylan, J.
Concurring Opinion by Graeff, J.
Filed: November 29, 2016
The wisdom undergirding this State appeal emanates from the twenty-eighth chapter
of the Book of Proverbs, Verse 1:
“The wicked flee when no man pursueth;
but the righteous are bold as a lion.”
And the Book of Proverbs begat Terry v. Ohio. And Terry v. Ohio begat the
indictment of the appellee, Jamal Rasheed Sizer, by the Grand Jury for Howard County.
When the appellee fled, Officer Andrew Schlossnagle pursued, leading to the appellee’s
being charged with the unlawful possession of a firearm with a nexus to drug trafficking.
On December 4, 2015, the appellee filed a pre-trial motion to suppress evidence taken from
his person, alleging a Fourth Amendment violation. A hearing was held on that motion on
May 26, 2016, at the close of which the motion was granted.
The State Appeal
The State filed a timely appeal on June 3, 2016. The appeal is authorized by
Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(4). Pertinent are
subsections (c)(4)(iii) and (iv):
“(iii) Before taking the appeal, the State shall certify to the court that
the appeal is not taken for purposes of delay and that the evidence excluded
or the property required to be returned is substantial proof of a material fact
in the proceeding. The appeal shall be heard and the decision rendered within
120 days of the time that the record on appeal is filed in the appellate court.
Otherwise, the decision of the trial court shall be final.
“(iv) Except in a homicide case, if the State appeals on the basis of
this paragraph, and if on final appeal the decision of the trial court is affirmed,
the charges against the defendant shall be dismissed in the case from which
the appeal was taken. In that case, the State may not prosecute the defendant
on those specific charges or on any other related charges arising out of the
same incident.”
1
(Emphasis supplied).
The record was filed with this Court on August 3, 2016. Accordingly, our decision
must be rendered no later than December 1, 2016. We heard oral argument on November
2, 2016.
Standard of Appellate Review
In Longshore v. State, 399 Md. 486, 498-99, 924 A.2d 1129 (2007), the Court of
Appeals summarized definitively the standards governing the appellate review of a
decision to suppress evidence. That standard first delineates the evidence and argument
subject to review:
“When an appellate court reviews a trial court’s grant or denial of a
motion to suppress evidence under the Fourth Amendment, it will consider
only the facts and information contained in the record of the suppression
hearing.”
399 Md. at 498. (Emphasis supplied). That limitation is easy to adhere to in the present
case, because there is nothing else to consider.
The standard then makes clear the deference the appellate court will extend to the
fact-finding of the hearing judge:
“Moreover, when there is a conflict in the evidence, an appellate court will
give great deference to a hearing judge’s determination and weighing of first-
level findings of fact. It will not disturb either the determinations or the
weight given to them, unless they are shown to be clearly erroneous.”
Id. (Emphasis supplied). In this case, the hearing judge made extensive findings of fact,
which we will recount in full detail.
2
The standard also states that when there is a conflict between the respective versions
of the evidence presented by the State and by the defense, the tilt on appellate review will
go decisively in favor of the prevailing party:
“An appellate court further will view the evidence and all reasonable
inferences drawn from that evidence in the light most favorable to the party
prevailing on the motion[.]”
Id.
In this case, the prevailing party was the appellee. In any conflict between
competing versions of the evidence, therefore, it would be the appellee’s version that we
will accept as historic fact. In this particular case, however, that potentially favorable tilt is
for the appellee an essentially empty victory. He has offered no significant1 alternative
version of the evidence toward which we might tilt. He did not testify. He essentially
presented no evidence on his own behalf. His counsel, before the hearing judge, did not
even argue any contrary interpretation of the evidence. The State’s evidence was
effectively unchallenged.
Once the evidence has been presented, however, and once the hearing judge has
made possible findings of fact, there remains the ultimate issue of determining the legal
significance of the accepted facts. On this legal issue, the appellate court will make its own
de novo determination:
1
On a peripheral issue not critical to the State’s case, there was a slight ambiguity in the
testimony of Officer Schlossnagle. Did the appellee’s declaration, “I have a pistol” occur
an instant before the officer touched the appellee or was it contemporaneous with the
touching? We will resolve that ambiguity in favor of the appellee, who was the prevailing
party at the suppression hearing.
3
“An appellate court, however, under an independent de novo review
standard, must consider the application of the law to those facts in
determining whether the evidence at issue was obtained in violation of the
law, and, accordingly, should be suppressed.”
399 Md. at 499. See also, State v. Nieves, 383 Md. 573, 581-82, 861 A.2d 62 (2004); Laney
v. State, 379 Md. 522, 533-34, 842 A.2d 773 (2004); Dashiell v. State, 374 Md. 85, 93-94,
821 A.2d 372 (2003); Stokeling v. State, 189 Md. App. 653, 661-62, 985 A.2d 175, cert.
denied, 414 Md. 332, 995 A.2d 297 (2010).2 We will announce our de novo determination
infra.
The Initial Encounter
Officer Andrew Schlossnagel and Corporal James Zammillo testified for the State.
Officer Ronald Baker was briefly called by the appellee, but his testimony coincided 100%
with that of the other officers. There were no other witnesses. With respect to their
testimony, the hearing judge made the following assessment of their credibility:
“The police testified today without embellishment. The Court found them to
be truthful and credible.”
(Emphasis supplied).
On the afternoon of November 20, 2015, at approximately 5:30 p.m., the three
testifying officers, along with two other officers, were on bike patrol near the Owen Brown
Village Center. They were all members of the Pathway Patrol Unit, informally known as
the Bike Unit. The officers described the general character and reputation of the area. They
2
For a final fine-tuning of the standard, see Morris v. State, 153 Md. App. 480, 487-90,
837 A.2d 248, cert. denied, 380 Md. 618, 846 A.2d 402 (2004); Charity v. State, 132 Md.
App. 598, 606, 753 A.2d 556, cert. denied, 360 Md. 487, 759 A.2d 231 (2000).
4
referred to the Owen Brown Village Center and its surrounding footpaths as a “high crime
area.” Corporal Zammillo, the supervisor of the Pathway Patrol Unit, testified that the
Owen Brown Village area is such a high crime area that a police satellite office was
established nearby to keep close control of it. The witnesses recounted how, on the night
before November 20, there had been reports of a person brandishing a handgun on the
footpaths around the Village Center. Because of such criminal activity, the officers had
been asked by local business owners to increase their presence in the area. With respect to
the responsibilities of the bike patrol and with respect to the characterization of the
neighborhood as a “high crime area,” the hearing judge made the following specific
findings of fact.
“[T]heir duty is to patrol the pathways of Columbia to ensure safety of the
public. That the night before, 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. There had been
a number of robberies, and the police had certainly this mind-set and were
certainly doing what they were supposed to be doing, that is, patrolling the
area.”
(Emphasis supplied).
At 5:30 p.m. in November, the parking lot area was largely dark. The approaching
officers observed between five and seven persons standing around a mini-van in the
parking lot. The group was loud and appeared to be “passing an alcoholic beverage back
and forth.” One unidentified member of the group threw a glass bottle on the ground.
Officer Baker, moreover, recognized one member of the group, a Joseph Davis, as a “repeat
offender” who was banned from the Village Center. The hearing judge made specific
5
factfindings with respect to the police observations of the group milling about the mini-
van.
“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.”
(Emphasis supplied).
Unprovoked Flight
As the group of officers approached the group of civilians, they announced their
official presence by saying, “Police. Stop. Don’t run.” They were in uniform, bright-blue
jackets with the word “Police” in prominent letters. At that point, the appellee “turned and
immediately began sprinting away.” Officer Schlossnagle along with Officer Burris took
off in immediate pursuit, repeatedly giving “multiple commands to stop running.” Because
Officers Schlossnagel and Burris were on bikes and the appellee was on foot, the pursuit
was brief. As the two officers caught up with the appellee and were about to “take him
down,” the appellee threw up his hands and yelled, “Okay, I have a pistol. I have a pistol.”
The officers wrestled the appellee to the ground and started to place him in handcuffs.
The Arrest as a Superseding Rationale
It was at that point, seconds after Officer Schlossnagle first caught the appellee and
while Officer Schlossnagle and Officer Burris were still attempting to handcuff him, that
Corporal Zammillo arrived on the scene. As the supervisor of the unit, Corporal Zammillo
6
had seen the two officers begin the chase and he, on bike, set off only seconds behind them.
Corporal Zammillo immediately recognized the appellee as someone with whom he had
had multiple prior interactions. Of critical importance, Corporal Zammillo also knew, from
his check of the Police Department’s Records Management System, that the appellee had
an active arrest warrant issued by the Howard County Sheriff’s Department. Corporal
Zammillo knew the appellee by face and name. Knowing well many of the characters in a
particular high crime area, Corporal Zammillo explained that, each day just before setting
out with his unit to patrol a particular area, he would look over the list for those with
outstanding warrants for their arrest. The appellee had outstanding arrest warrants for both
the distribution of marijuana and for the violation of probation.
Corporal Zammillo arrived on the “take down” scene just as Officers Schlossnagle
and Burris were wrestling the appellee to the ground and were in the process of handcuffing
him. Corporal Zammillo informed the appellee that there was an outstanding warrant for
his arrest and arrested him. As of the moment of that arrest, a fresh and superseding Fourth
Amendment rationale took control of the case, and the propriety vel non of the preceding
Terry stop became immaterial with respect to events that followed. As he was being
arrested, the appellee announced to the officers, “I have a piece and pills on me.”
The Frisk and the Search Incident
During his brief flight, the appellee had been wearing a backpack. As he fell to the
ground, the backpack fell with him. As soon as the handcuffs were on the appellee, the
officers looked in the backpack and immediately observed a .38 caliber revolver, along
7
with the appellee’s I.D. Because a potentially hostile crowd was gathering, the officers
immediately took the appellee and his backpack and adjourned to the nearby police satellite
office.
At the satellite office, the officers removed from the backpack the .38 caliber
revolver, loaded with five rounds of ammunition. Also recovered were four additional
rounds of ammunition. A further search at the satellite office produced from the appellee’s
sock a baggie containing 27 pills. At that point, it but remained to draw a proper legal
conclusion from this unchallenged evidentiary predicate.
The Suppression Ruling
Although the hearing judge’s factfinding was unvaryingly supportive of the
reasonableness of the police behavior through every step of the confrontation, the court’s
legal ruling turned abruptly in an opposite direction. As we examine de novo where the
legal analysis that lead to the suppression of the evidence went, in our de novo judgment,
astray, that analysis seemed to insist that a Terry stop must be based on nothing short of
the per se illegality of the suspect’s behavior. The hearing court’s analysis began:
“The issue before the Court is, when Mr. Sizer ran, was it reasonable
for the police to run after him? One could argue that it was, because why is
this guy running? But [Defense Counsel] points out, and he’s right, that
flight, in and of itself, or not sticking around for the police to investigate you
in and of itself is not illegal.”
(Emphasis supplied).
Reliance on the fact that flight is not, in and of itself, illegal sets an unduly high bar
for a Terry stop to clear. A reasonable articulable suspicion that a crime has occurred, is
8
then occurring, or is about to occur does not demand evidence legally sufficient to sustain
a criminal conviction. Nor does it demand so much as probable cause. In Butler v. State,
214 Md. App. 635, 651, 78 A.3d 887 (2013), this Court succinctly set out the appropriate
quantitative measure:
“[R]easonable suspicion requires ‘more than a mere hunch but is “a less
demanding standard than probable cause and requires a showing
considerably less than preponderance of the evidence.”’”
(Emphasis supplied; citation omitted). See also Holt v. State, 435 Md. 443, 459-60, 78
A.3d 415 (2013); Crosby v. State, 408 Md. 490, 506, 970 A.2d 894 (2009); Nathan v. State,
370 Md. 648, 660, 805 A.2d 1086 (2002); Cartnail v. State, 359 Md. 272, 285, 753 A.2d
519 (2000).
In United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 151 L. Ed. 2d 740
(2002), the Supreme Court commented on the same easily satisfied quantitative standard
for a constitutional Terry stop:
“Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a
stop, the likelihood of criminal activity need not rise to the level required for
probable cause, and it falls considerably short of satisfying a preponderance
of the evidence standard[.]”
(Emphasis supplied; citations omitted). See also Adams v. Williams, 407 U.S. 143, 145,
92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972) (“The Fourth Amendment does not require a
policeman who lacks the precise level of information necessary for probable cause to arrest
to simply shrug his shoulders and allow a crime to occur or a criminal to escape.”);
Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990); United
9
States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L.Ed.2d. 1 (1989); United States v.
Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).
As we shall point out infra, flight in and of itself may not be illegal per se, but it
may well be a constitutional justification for an investigative detention, to wit, a Terry stop,
pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
As the court’s analysis then went on to invalidate what could have been a Terry frisk
for weapons, it suggested that a police officer’s fear that a suspect might be armed and
dangerous would be rendered unreasonable if there were an unrebutted possibility that the
suspect might have a license for the gun he was carrying.
“So, the police take Mr. Sizer down, and Mr. Sizer says, in the process
of Officer Schlossnagle taking him down – says, I have basically a weapon.
And there’s no per se illegality of having a weapon. I’m assuming that the
Defendant didn’t have a permit, but I don’t know that, to carry. And so it’s
not per se illegal to have a weapon.”
(Emphasis supplied).
The hearing court’s analysis there goes astray because it fails to appreciate that a
Terry frisk is not predicated on the illegality of the suspect’s behavior in possessing a
handgun but on the very different predicate of an officer’s fear for his own safety when
confronting a suspect who the officer reasonably believes may be armed or dangerous. A
suspect with a licensed handgun is just as dangerously armed as is a suspect with an
unlicensed handgun. Licensed handguns shoot bullets that are just as deadly as are those
from unlicensed handguns. A permit to carry a handgun would no more vitiate the need for
a frisk than would the suspect’s promise not to shoot anybody with it. Even if the stopee
10
had his permit to carry a handgun pinned to the front of his shirt and even if the officer
read it before conducting the frisk, that would in no way eliminate or even diminish the
need for the frisk. Indeed, it would enhance the need. Per se illegality is simply not a
requirement for the reasonable articulable suspicion to support a Terry frisk.
As the hearing court’s analysis concluded, it seemed to reaffirm the quintessential
reasonableness of Officer Schlossnagle’s conduct even as it grudgingly held that “the rules
were not followed.”
“Officer Schlossnagle most likely, probably did – in addition to
Officer Baker and Corporal Zammillo – probably saved the public potentially
from additional crimes that evening; one could argue that. Probably did….
Do I have any doubt that the Defendant ran because he didn’t want to be
arrested, because he had, probably, an illegal weapon on his person; that he
was on probation, and that in and of itself most likely precluded him from
having any weapons on his person? Am I reasonably sure that he had illegal
drugs on his person? Of course I am. I wasn’t born yesterday. But that’s not
the issue. The issue is, were all the rules followed? 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.”
(Emphasis supplied).
The hearing court referred to “Officer Schlossnagle’s act of physically putting his
hands on the Defendant and, in the officer’s words, taking him down.” Lest there be any
suggestion there that a “hard take down” might render an otherwise good Terry stop
unreasonable, see In re David S., 367 Md. 523, 539, 789 A.2d 607 (2002):
“Several police officers conducted a ‘hard take down’ of respondent.
The officers, with their weapons drawn, forced respondent to the ground and
placed him in handcuffs. This conduct was not unreasonable because the
officers reasonably could have suspected that that respondent posed a threat
to their safety. Considering the totality of the circumstances, as they appeared
11
to the officers at the time, in order to maintain their safety, handcuffing
respondent and placing him on the ground for a brief time was reasonable
and did not convert the investigatory stop into an arrest under the Fourth
Amendment. Although this is a severe form of intrusion, we conclude that
under the circumstances, it was reasonable.”
(Emphasis supplied). See also, Lee v. State, 311 Md. 642, 661-66, 537 A.2d 235 (1988);
Elliot v. State, 417 Md. 413, 429-30, 10 A.3d 761 (2010); Bailey v. State, 412 Md. 349,
371-72 n. 8, 987 A.2d 72 (2010); Chase v. State, 224 Md. App. 631, 646-47, 121 A.3d 257,
aff’d, 449 Md. 283, 144 A.3d 360 (2015).
Unprovoked Flight as a Dispositive Terry Factor
Our de novo determination is that the constitutional protocols were scrupulously
observed. The Fourth Amendment was not offended, and the evidence should not have
been suppressed. The reasonable articulable suspicion for the Terry stop, moreover, was
by no means based merely on flight. It was far more multi-factored than that. It was based
on unprovoked flight upon the approach of the police in a high crime area. This case was
a paradigmatic replay of Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d
570 (2000) itself.
In Wardlow, even as in in the present case, a team of eight officers converged on a
Chicago neighborhood known for being a high crime area, specifically “an area known for
heavy narcotics trafficking.” Wardlow, theretofore unknown to the police, was standing
next to a building, holding an opaque bag. Wardlow, as did the appellee here, looked in the
direction of the officers, then turned, and inexplicably fled. Two officers, as in this case,
took off in pursuit. A short distance away, Officer Nolan stopped Wardlow and
12
immediately conducted a pat-down search for weapons. As part of the frisk, Officer Nolan
squeezed the opaque bag Wardlow was carrying and felt a heavy, hard object similar in
shape to a gun. He opened the bag and recovered a loaded .38 caliber handgun. Wardlow
was then arrested. 582 U.S. at 121-22.
The issue in Wardlow, as in the case now before us, was whether, pursuant to Terry
v. Ohio, the police had reasonable suspicion to justify the initial detention of the suspect
based on his flight. The trial court denied Wardlow’s motion to suppress the evidence. The
Illinois Appellate Court, however, reversed the conviction, holding that Officer Nolan did
not have reasonable suspicion to justify a Terry stop. 287 Ill. App. 3d. 367, 678 N.E.2d 65
(1997). The Illinois Supreme Court affirmed. 183 Ill. 2d 306, 701 N.E.2d 484 (1998). On
certiorari, the United States Supreme Court reversed the Illinois courts and held that the
Terry stop was, indeed, constitutional.
Prominent among the factors that the Supreme Court found to be strongly supportive
of the reasonableness of the Terry stop was the character of the neighborhood as a high
crime area.
“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. Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637,
61 L. Ed. 2d 357 (1979). 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. Adams v.
Williams, 407 U.S. 143, 144, 147–148, 92 S. Ct. 1921, 32 L. Ed. 2d 612
(1972).”
13
528 U.S. at 124. (Emphasis supplied). See also, Stokes v. State, 362 Md. 407, 415-16, 765
A.2d 612 (2001); Anderson v. State, 282 Md. 701, 707 n. 5, 387 A.2d 281 (1978).
When the character of the high crime area is then combined with unprovoked flight
upon noticing the arrival of the police, critical mass has been reached:
“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. (Emphasis supplied; internal citations omitted).
Defense counsel doggedly insisted at the suppression hearing in this case that a
citizen has a right to refuse to cooperate and is entitled “to go about one’s business.” The
Supreme Court articulately responded to just such an argument.
“[U]nprovoked flight is simply not a mere refusal to cooperate. Flight, by its
very nature, is not ‘going about one’s business’; in fact, it is just the opposite.
Allowing officers confronted with such flight to stop the fugitive and
investigate further is quite consistent with the individual’s right to go about
his business or to stay put and remain silent in the fact of police questioning.”
528 U.S. at 125. (Emphasis supplied).
Wardlow himself argued, just as the hearing judge ruled in this case, that there may
be an innocent explanation for flight. The Supreme Court explained that even innocent
behavior may nonetheless be suspicious and, under Terry, may be cognizably suspicious:
“Respondent and amici also argue that there are innocent reasons for
flight from police and that, therefore, flight is not necessarily indicative of
ongoing criminal activity. This fact is undoubtedly true, but does not
establish a violation of the Fourth Amendment. Even in Terry, the conduct
14
justifying the stop was ambiguous and susceptible of an innocent
explanation. The officer observed two individuals pacing back and forth in
front of a store, peering into the window and periodically conferring. 392
U.S., at 5–6, 88 S. Ct. 1868. All of this conduct was by itself lawful, but it
also suggested that the individuals were casing the store for a planned
robbery. Terry recognized that the officers could detain the individuals to
resolve the ambiguity. Id., at 30, 88 S. Ct. 1868.
“In allowing such detentions, Terry accepts the risk that officers may
stop innocent people. Indeed, the Fourth Amendment accepts that risk in
connection with more drastic police action; persons arrested and detained on
probable cause to believe they have committed a crime may turn out to be
innocent.”
528 U.S. at 125-26. (Emphasis supplied).
In Bost v. State, 406 Md. 341, 358, 958 A.2d 356 (2008), the Court of Appeals,
albeit dealing primarily with the Uniform Act on Fresh Pursuit, cited Illinois v. Wardlow
(“The United States Supreme Court has made clear that unprovoked flight is enough to
support reasonable suspicion that a crime has been committed.”) and quoted at great length
from it. In affirming the police in stopping a suspect in that case, the Court of Appeals set
out precisely the same factors that justify the Terry stop in the present case.
“Appellant was seen by the police in a high crime, drug trafficking
area. Appellant fled from the police and the flight was unprovoked. The
nature of the area is a factor in assessing reasonable suspicion.”
406 Md. at 359-60. (Emphasis supplied). See also, Collins v. State, 376 Md. 359, 373, 829
A.2d 992 (2003); Price v. State, 227 Md. 28, 33, 175 A.2d 11 (1961).
“A High Crime Area” Diminuendo
In an effort to deflect the impact of Illinois v. Wardlow, the appellee interposes an
interesting, if not ultimately persuasive, interpretation of “a high crime area.” He posits
15
that when the police described “a high crime area in Columbia,” they were not describing
“a high crime area per se,” as in the case of Illinois v. Wardlow’s south Chicago.3 In a burst
of relativism run rampant, the suggestion seems to be that even a relatively “high crime
area” in a generally law-abiding community might actually be less dangerous than would
be a relatively “lower crime area” of a more pervasively criminal community. The
argument would seem to be that if the police describe “the most dangerous corner in
Guilford” or “the meanest block in Homeland,” those descriptions should rack up Terry
reasonable-suspicion points far less rapidly than would those same descriptions on the
Barbary Court of San Francisco or in Hell’s Kitchen, New York.
Such parochial fine-tuning, of course, would drain the salutary rule of Illinois v.
Wardlow of virtually any precedential potency beyond the streets of south Chicago.
Supreme Court opinions, however, do not work that way. They propound general rules
capable of national application. They speak, of necessity, in broad and simple language
that can be readily understood and readily applied by the average American police officer,
be it in south Chicago or in Happy Valley, Minnesota. In describing the circumstances that
help to give unprovoked flight its investigative significance, Illinois v. Wardlow is an
invaluable contribution to Fourth Amendment law. We will not join in attempting to
trivialize it into inconsequentiality.
3
Confining our inquiry to the four corners of the suppression hearing, the record does not
demonstrate whether, as a seedbed of crime, Columbia is more or less notorious than south
Chicago.
16
Particularized and Individualized Suspicion
The appellee, however, seems to be in a state of denial about Illinois v. Wardlow.
With respect to the antecedent police observations that occurred before the appellee’s
unprovoked flight, the appellee suggests that there was “no testimony from the officers
providing individualized, objective reasonable suspicion that [the appellee] was involved
in those incidents.” The appellee may well be right but that is hardly the point. Under such
circumstances, the prudent thing for the appellee to have done would have been to stand
pat and allow the police suspicion to remain unparticularized and unindividualized. Had he
simply stood quietly by, as did his companions, he would have been immune from any
police restraint, but a guilty conscience leads to flawed judgment. It was only when the
appellee, unwisely, turned and began to flee that he turned the focus onto himself and
elevated what had only been non-particularized suspicion into highly particularized and
highly individualized suspicion. The very fact of flight evidenced consciousness of guilt.
This is the dispositive lesson of Illinois v. Wardlow.
As we seek to apply the rule of Illinois v. Wardlow to the case at hand, the critical
focus is on the flight scenario itself, not on the pre-flight circumstances. In terms of the
flight scenario, no one other than the appellant tried to run away. The appellee’s solo flight,
therefore, was by definition both “particularized” and “individualized.” In the words of
Wardlow, “headlong flight” was “not necessarily indicative of wrongdoing, but it [was]
certainly suggestive of such.” 528 U.S. at 124. Behavior that is certainly suggestive of
wrongdoing is ample justification for a reasonable Terry stop.
17
Both the Frisk and the Search Incident Were Reasonable
On the basis of Illinois v. Wardlow, we hold that the unprovoked flight of the
appellee from a high crime area upon the arrival of the police constituted reasonable
articulable suspicion to support a Terry stop for further investigation. The ensuing search
of the backpack for weapons would also qualify as a reasonable Terry frisk, if a superseding
justification had not rendered that justification redundant.
The discovery of the .38 caliber revolver as the officers looked into the appellant’s
backpack was constitutionally unassailable under either of two overlapping Fourth
Amendment theories. As the appellee was being stopped, he twice announced, “I have a
pistol.” That alone would have constituted reasonable articulable suspicion that the
appellee was armed. Accordingly, the immediate opening of the backpack would have been
constitutionally proper as a Terry frisk. The backpack itself was clearly within the reach,
lunge or grasp, to wit, the Chimel perimeter, of the stoppee. Michigan v. Long, 463 U.S.
1032, 1048-49, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). See, Williams v. State, 19 Md.
App 204, 213-14, 310 A.2d 593 (1973).
In the seconds before the backpack was opened, however, the Terry frisk rationale
was superseded by the search incident to lawful arrest rationale of Chimel v. California,
395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). Once again, the backpack itself
was clearly within the reach, lunge or grasp, to wit, the Chimel perimeter, of the arrestee.
Feaster v. State, 206 Md. App. 202, 230-31, 47 A.3d 1051 (2012). The very purpose of the
Terry frisk and one of the two purposes of the search incident to arrest, of course, are one
18
and the same, the protection of the officer. The search-incident perimeter and the frisk
perimeter are accordingly conterminous. The search that produced the .38 caliber revolver
was, like Portia’s quality of mercy, twice-blest. The search that produced the baggy of pills
from the appellee’s sock, however, must rely for its justification on the search-incident
theory alone. That, however, was all that was necessary.
A Chase is Not a Fourth Amendment Seizure
In a situation such as this, the constitutional measurement of Fourth Amendment
justification for a Terry stop takes place only at the end of a chase, when the police lay
hands on a suspect and subject him to actual detention, to wit, a Terry stop. The antecedent
chase, until it achieves its purpose, is not yet subject to Fourth Amendment analysis for it
is neither a “search” nor a “seizure.” It is a case of Fourth Amendment inapplicability and
until the Fourth Amendment is applicable, it cannot be violated. California v. Hodari D.,
499 U.S. 621, 626, 111 S. Ct. 1547, 113 l.Ed.2d 690 (1991) held squarely:
“The narrow question before us is whether, with respect to a show of
authority as with respect to application of physical force, a seizure occurs
even though the subject does not yield. We hold that it does not.
“The language of the Fourth Amendment, of course, cannot sustain
respondent’s contention. The word ‘seizure’ readily bears the meaning of a
laying on of hands or application of physical force to restrain movement,
even when it is ultimately unsuccessful. (‘She seized the purse-snatcher, but
he broke out of her grasp.’) It does not remotely apply, however, to the
prospect of a policeman yelling, ‘Stop, in the name of the law!’ at a fleeing
form that continues to flee. That is no seizure.”
(Emphasis supplied).
19
Michigan v. Chesternut, 486 U.S. 567, 575, 108 S. Ct. 1975, 100 L. Ed. 2d 565
(1988), spoke to the same effect.
“Applying the Court’s test to the facts of this case, we conclude that
respondent was not seized by the police before he discarded the packets
containing the controlled substance. Although Officer Peltier referred to the
police conduct as a ‘chase,’ and the Magistrate who originally dismissed the
complaint was impressed by this description, the characterization is not
enough, standing alone, to implicate Fourth Amendment protections.”
(Emphasis supplied; footnote omitted).
County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043
(1998), was a case in which a high-speed police chase of a motorcycle resulted in the
fleeing motorcyclist spinning off the road and being killed. Although the police may have
been liable for civil damages, no Fourth Amendment analysis was called for because the
Fourth Amendment was simply not involved.
“The Fourth Amendment covers only ‘searches and seizures,’ neither
of which took place here. No one suggests that there was a search, and our
cases foreclose finding a seizure.”
523 U.S. at 843. (Emphasis supplied). And see, Brower v. County of Inyo, 489 U.S. 593,
109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989). It may be a stingy Fourth Amendment, but it does
not proscribe unreasonable chases.
Terry Stops and Police Use of Force
Because Officer Schlossnagle’s physical “take down” of the appellee seems as if it
may have been the pivot for the hearing court’s decision to suppress the evidence, a brief
comment is in order about the police use of force in the course of a Terry stop. A Terry
stop, of course, is not a mere accosting between equals. Swift v. State, 393 Md. 139, 149-
20
52, 899 A.2d 867 (2006). Once suspicion has risen above the level of an “inchoate hunch”
and ripened into a reasonable, articulable suspicion, the police are constitutionally
authorized to detain a suspect and to question him. The suspect, in turn, is lawfully
required, within certain limitations as to time and place, to stand still and submit to the
questioning. A Terry stop is a lawful exercise of governmental authority, not a mere request
that may be disregarded. A suspect who physically resists being detained can be physically
restrained. That includes being tackled and/or being handcuffed. For a vivid description of
the restraining process of a fleeing suspect, see the Supreme Court’s recounting of the
process in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991).
And see, In re David S., 367 Md. 523, 539-40, 789 A.2d 607 (2002); Lee v. State, 311 Md.
642, 667, 537 A.2d 235 (1988). There was no improper use of force in this case. As of the
moment the appellee was wrestled to the ground, he was not free to continue running. The
officers had the lawful prerogative to “take him down.” The evidence should not have been
suppressed.
Independent Source as an Antidote
To The “Fruit of the Poisonous Tree” Doctrine
The State, moreover, enjoys the benefit of an alternative rationale. Even if, purely
arguendo, the Terry stop in this case had been unconstitutional, the .38 caliber revolver
taken from the appellee’s backpack and the plastic baggie of 27 narcotic pills taken from
the appellee’s sock should still not have been suppressed. The theory of exclusion urged
by the appellee is that those two items of evidence were only procured as a result of the
unconstitutional Terry stop, to wit, that they were the “fruit of the poisonous tree.”
21
The “Fruit of the Poisonous Tree” Doctrine traces back to Silverthorne Lumber Co.
v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920). It deals with the second
generation exclusion of indirect or derivative evidence. It was explained by Justice Holmes:
“The essence of a provision forbidding the acquisition of evidence in a
certain way is that not merely evidence so acquired shall not be used before
the Court but that it shall not be used at all. Of course this does not mean that
the facts thus obtained become sacred and inaccessible.”
251 U.S. at 392.
In Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939), it
was Justice Frankfurter who first employed the term “derivative evidence” and who coined
the felicitous label “fruit of the poisonous tree” doctrine. It was also Justice Frankfurter
who first recognized a limitation on the doctrine’s reach, as he pointed out that between
the original illegality and the ultimate derivative evidence, the “connection may have
become so attenuated as to dissipate the taint.” 308 U.S. at 341.
Over the course of the next 45 years, the Supreme Court hammered out what are
now universally recognized to be three limitations on, or exemptions from, the exclusion
of evidence based on the “Fruit of the Poisonous Tree” Doctrine. They are 1) the
Attenuation of Taint, 2) Independent Source, and 3) Inevitable Discovery. They each have
a different analytic rationale. They each have separate rules of application. Although they
all are directed toward the same end, the non-exclusion of evidence, they should not be
confused with one another. In Gibson v. State, 138 Md. App. 399, 403, 771 A.3d 536
(2001), this Court looked to the three modes of determining that exclusion was not
mandated:
22
“It has come to be recognized that there are three ways of what has
colorfully been described as ‘unpoisoning the fruit.’ Less colorfully but more
accurately, these are actually three ways of determining that the fruit was not
poisoned in the first instance.”
(Emphasis supplied).
Gibson first turned its focus on attenuation of taint. That is a theory of non-exclusion
based not on the fact that the “fruit” was not poisoned but on the idea that the poison has,
through time and circumstances, become so strained and diluted that it is no longer lethal.
Gibson explained, 138 Md. App. at 403:
“The first, presaged by Justice Frankfurter in Nardone, is the
attenuation of taint. Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct.
407, 9 L. Ed. 2d 441 (1963), rejected a ‘but for’ rule in applying the doctrine
and explained that the proper question to be answered with respect to
derivative evidence is
‘whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at
by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.’
“Tony Amsterdam, Search, Seizure, and Section 2255: A Comment,
112 U. Pa. L.Rev. 378, 390 (1964), pointed out that the underlying purpose
of the attenuation test is to mark ‘the point of diminishing returns of the
deterrence principle.’”
(Emphasis supplied).
Of the three distinct modes of determining that the exclusion of evidence is not
called for, let us jump forward to the third and last of those modalities, inevitable discovery,
before zeroing in on the one that could, arguendo, be applicable to the case now before us.
With respect to inevitable discovery, Gibson observed, 138 Md. App. at 404:
23
“A third way of determining that derivative evidence is not excludable
is a finding of ‘inevitable discovery.’ The lead case on that exemption is Nix
v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984):
“‘It is clear that the cases implementing the
exclusionary rule “begin with the premise that the challenged
evidence is in some sense the product of illegal governmental
activity.” Of course, this does not end the inquiry. If the
prosecution can establish by a preponderance of the evidence
that the information ultimately or inevitably would have been
discovered by lawful means then the deterrence rationale has
so little basis that the evidence should be received. Anything
less would reject logic, experience, and common sense.’”
(Emphasis supplied). There but remains to be examined the second species of exemption
from exclusion, the Independent Source Doctrine.
A Pre-Existing Arrest Warrant
However constitutional or unconstitutional the antecedent Terry stop of the appellee
in this case may have been, the prior existence of two warrants for the appellee’s arrest
constituted an independent source for the discovery of the .38 caliber revolver and the
plastic baggie of 27 pills taken from the appellee. Corporal Zammillo was aware of the
existence of the arrest warrants and he placed the appellee under arrest prior to the police
opening of the appellee’s backpack. As Gibson surveyed the field, it said with respect to
independent source:
“A second way of determining that evidence is not poisoned fruit,
notwithstanding a suspicious “post hoc – propter hoc” time sequence, is
when the evidence has proceeded from an independent source. Murray v.
United States, 487 U.S. 533, 537, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988),
explained that the ‘independent source’ exception applies not
‘only to evidence obtained for the first time during an
independent lawful search,’ but ‘also to evidence initially
24
discovered during, or as a consequence of, an unlawful search,
but later obtained independently from activities untainted by
the initial illegality.’”
138 Md. App. at 403-404. (Emphasis supplied).
In Segura v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984),
the police effected an unlawful entry into the defendants’ apartment. Once inside, however,
they did not search the apartment but merely secured it while other members of the police
team, without the benefit of anything observed in the unlawful entry of the apartment
proceeded to get a search warrant. Notwithstanding the fact that 19 hours went by before
the search warrant was obtained, it was only when the search warrant was executed at the
apartment that incriminating evidence was discovered in the course of the search
authorized by the warrant. The holding of the Supreme Court was very clear:
“The illegality of the initial entry, as we will show, has no bearing on
the second question. The resolution of this second question requires that we
determine whether the initial entry tainted the discovery of the evidence now
challenged. On this issue, we hold that the evidence discovered during the
subsequent search of the apartment the following day pursuant to the valid
search warrant issued wholly on information known to the officers before the
entry into the apartment need not have been suppressed as ‘fruit’ of the illegal
entry because the warrant and the information on which it was based were
unrelated to the entry and therefore constituted an independent source for the
evidence[.]”
(Emphasis supplied). The search was pursuant to the search warrant, which had never been
tainted. There was no taint to attenuate.
Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988),
followed Segura four years later and was completely compatible with it in terms of result.
The opinion by Justice Scalia, however, presented a far more cogent conceptualization of
25
independent source than had the Segura opinion. Unlike Segura, the Murray opinion did
not wander into random and unnecessary uses of the verb “attenuate.” Murray spoke only
of “independent source” as a distinct and specific exemption from exclusion and did not
use language borrowed from a very different species of exemption, to wit, the attenuation
of taint. Justice Scalia denominated independent source as a self-standing doctrine in its
own right.
“Almost simultaneously with our development of the exclusionary
rule, in the first quarter of this century, we also announced what has come to
be known as the ‘independent source’ doctrine.”
487 U.S. at 537. (Emphasis supplied). The Murray opinion, 487 U.S. at 538, attributes the
“original use of the term” independent source to Justice Holmes in Silverthorne, 257 U.S.
at 392:
“[T]his does not mean that all the facts thus obtained become sacred and
inaccessible. If knowledge of them is gained from an independent source
they may be proved like any others.”
(Emphasis supplied).
Murray, 487 U.S. at 542, goes on to explain:
“So long as a later, lawful seizure is genuinely independent of an earlier,
tainted one … there is no reason why the independent source doctrine should
not apply.”
26
The Murray opinion’s conceptualization of how the pieces of this body of law fit
together dovetails completely with this Court’s conceptualization of that same
phenomenon in Gibson v. State, supra.4
5 Wayne R. LaFave, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT §11.4(a) 236-37 (3d ed. 1996), contrasts the Independent Source Doctrine
with the Attenuation of Taint Doctrine:
“The ‘independent source’ test is a paragon of simplicity compared to
the ‘attenuated connection’ formula. As ordinarily applied, it means that if
not even the ‘but for’ test can be met, then clearly the evidence is not a fruit
of the prior Fourth Amendment violation. So stated, the ‘independent source’
limitation upon the taint doctrine is unquestionably sound.”
In Williams v. State, 372 Md. 386, 813 A.2d 231 (2002), the Court of Appeals wrote
to the same effect:
“The Silverthorne [Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.
Ct. 182, 183, 64 L. Ed. 319 (1920)] Court noted, in dicta, that even if the
government obtains knowledge of certain facts in an unlawful manner, as
long as knowledge of those facts was derived from a lawful, independent
source untainted by the initial illegality, they may be admissible…. The
exclusionary rule does not apply when the State learns of the challenged
evidence from an independent source.”
4
In Robert F. Maguire, How to Unpoison the Fruit – The Fourth Amendment and the
Exclusionary Rule, 55 JOURNAL OF CRIMINAL LAW, CRIMINOLOGY, AND POLICE SCIENCE
307, 310 (September 1964), the author notes:
“One obvious means of eliminating the unlawful search or seizure as
a tainting influence is to establish that the proffered evidence was, in fact,
discovered as the result not of the unlawful act but rather of information
lawfully known to the authorities completely independently of that act. In
such a situation one can simply say that the proffered evidence is not the
produce of the unlawful act and, hence, is untainted.”
27
372 Md. at 411. Nothing that occurred even in the course of a presumptively tainted Terry
stop contributed in any way to the preexisting probable cause that justified the issuance of
the warrant for the appellee’s arrest. The search incident was the result of that untainted
arrest.
In Myers v. State, 165 Md. App. 502, 885 A.2d 920 (2005), the suspect was
subjected to a traffic stop on a Pennsylvania highway that was ultimately held to have been
an unconstitutional stop. The stopping officer, however, was aware of outstanding warrants
for the suspect’s arrest and arrested him on the basis of those warrants. The evidence
subsequently recovered from the suspect’s car was held to be not the suppressible product
of the unlawful stop but the legitimate product of a search incident to lawful arrest. The
holding of this Court was clear that the arrest on an outstanding warrant was an independent
source for the search that followed:
“In this case before us, there was an illegal stop, but there was a
preexisting arrest warrant. The officer did not make the stop for the purpose
of enforcing the warrant, and in fact, did not know that the then-unidentified
person in the vehicle was subject to an outstanding warrant. … The
exclusionary rule does not require suppression of the evidence obtained as a
result of the search incident to a valid arrest on an outstanding warrant.”
165 Md. App. at 527-28. (Emphasis supplied). There had been strong intimations for such
a ruling in Torres v. State, 95 Md. App. 126, 129-33, 619 A.2d 566 (1993) (“The reason
for not applying the ‘fruit of the poisonous tree’ doctrine is that there is a clear break in the
chain of cause and effect.”); Brown v. State, 124 Md. App. 183, 197-202, 720 A.2d 1270
(1998).
28
On certiorari, the Court of Appeals in its Myers v. State, 395 Md. 251, 909 A.2d
1048 (2006), affirmed the decision of this Court. It held that, notwithstanding the
antecedent unconstitutional stop of the suspect, the discovery of an outstanding arrest
warrant provided the police with “an independent and intervening reason to arrest and
search” the suspect.
“Once Officer Weikert learned Myers’s identity and discovered an
outstanding warrant for his arrest, the officer gained an independent and
intervening reason to arrest and search Myers. Thus, the subsequent search
of Myers and his vehicle was separate and apart from the initial stop. We
agree with the Court in [U.S. v.] Green, [111 F.3d 515 (7th Cir. 1997),] that
a chance discovery of an outstanding arrest warrant makes a more compelling
intervening circumstance than others.”
395 Md. at 293. (Emphasis supplied; footnote omitted).
The Court of Appeals reached a similar decision in Cox v. State, 397 Md. 200, 916
A.2d 311 (2007). It did not even have to decide whether the initial stop of the defendant
had been illegal; it simply assumed so, arguendo.
“Assuming, arguendo, that the police encounter constituted an illegal stop,
we deem it more appropriate to determine the ultimate question: whether it
was proper for the trial court to grant Petitioner’s motion to suppress the
evidence.”
397 Md. at 203-04. The Court’s holding was equally straightforward:
“We shall hold that the police officer’s discovery of an outstanding warrant
for Petitioner’s arrest and Petitioner’s arrest pursuant thereto represents an
intervening circumstance sufficient to attenuate the taint of what appears to
be an illegal stop.”
Id. at 204. (Emphasis supplied).
29
In Utah v. Strieff, — U.S. —, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016), the defendant
Strieff was initially subjected to a presumptively unconstitutional Terry stop. The State of
Utah conceded that there was no reasonable suspicion to justify the Terry stop and the
Supreme Court analysis proceeded on that assumption. At the outset of the stop, Strieff
was asked for and he furnished identification. The stopping officer called that information
in to a police dispatcher, who reported back that there was an outstanding warrant for
Strieff’s arrest for a traffic violation. Strieff was arrested and then searched as an incident
of that arrest. The search revealed a baggie of methamphetamine and drug paraphernalia.
The trial court refused to suppress the evidence but the Utah Supreme Court ultimately
held that the evidence had been unconstitutionally seized. 357 P.3d 532 (2015).
The Supreme Court of the United States reversed the Utah Supreme Court. After
making reference to Segura v. United States and the Independent Source Doctrine, the
Court held:
“In this case, the warrant was valid, it predated Officer Fackrell’s
investigation, and it was entirely unconnected with the stop. And once
Officer Fackrell discovered the warrant, he had an obligation to arrest Strieff.
‘A warrant is a judicial mandate to an officer to conduct a search or make an
arrest, and the officer has a sworn duty to carry out its provision.’ Officer
Fackrell’s arrest of Strieff thus was a ministerial act that was independently
compelled by the pre-existing warrant. And once Officer Fackrell was
authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an
incident of his arrest to protect Officer Fackrell’s safety.”
136 S. Ct. at 2062-63. (Emphasis supplied).
That analysis would apply four-square to the preexisting arrest warrant for the
appellee in this case and to the search incident to that lawful arrest that produced the
30
physical evidence. The arrest warrant and arrest pursuant to that warrant was the
independent source for the search incident.
The “But For” Test Is Almost Universally Discredited
The independent source of a pre-existing arrest warrant renders the arguendo
assumption of a tainted Terry stop totally irrelevant as the originating cause of the search
incident of the backpack that followed the superseding arrest. We no longer need care
whether the antecedent Terry stop was tainted or untainted. If, arguendo, tainted, we no
longer need care whether that taint was attenuated or unattenuated, because even an
unattenuated taint would be irrelevant.
In an effort to stave off that dispositive irrelevance, the appellee interposes a classic
“but for” argument. “But for the hypothetically unreasonable Terry stop,” the argument
goes, “the police would never have been in a position to arrest the appellant and conduct
the ensuing search incident at that particular time and at that particular place.” “But for the
tainted stop, the independent superseding cause could not have superseded at that precise
moment.”
“But for” arguments, however, have been traditionally and universally rejected by
the Supreme Court, by the Court of Appeals, and by this Court. In Hudson v. Michigan,
547 U.S. 586, 592, 126 S. Ct 2159, 165 L. Ed. 2d 56 (2006), the Supreme Court was very
clear:
“[E]xclusion may not be premised on the mere fact that a constitutional
violation was a ‘but-for’ cause of obtaining evidence. Our cases show that
but-for causality is only a necessary, not a sufficient, condition for
suppression.”
31
(Emphasis supplied).
Segura v. United States, supra, was the prototypical case for the Independent Source
Doctrine. Its rejection of a “but-for” test was emphatic.
“The Court has never held that evidence is ‘fruit of the poisonous tree’
simply because ‘it would not have come to light but for the illegal actions of
the police.’ … The illegal entry into petitioners’ apartment did not contribute
in any way to discovery of the evidence seized under the warrant; it is clear,
therefore, that not even the threshold ‘but for’ requirement was met in this
case.”
(Emphasis supplied; internal citations omitted).
As early as Wong Sun v. United States, 371 U.S. at 487-8, the Supreme Court noted
that even in the early days of the exclusionary rule, it had declined to
“hold that all evidence is ‘fruit of the poisonous tree’ simply because it would
not have come to light but for the illegal actions of police.”
See also, United States v. Ceccolini, 435 U.S. 268, 276, 98 S. Ct. 1054, 55 L. Ed. 2d 268
(1978).
In Myers v. State, 395 Md. at 294, the Court of Appeals looked beyond an
unreasonable investigative stop and relied upon a superseding lawful arrest.
“The search based upon that warrant was justified as a search incident
to a lawful arrest. Accordingly, to hold otherwise would not further the goal
of deterring unlawful police activity, but would result in the application of
an unreasonable ‘but for’ test that was rejected by the Supreme Court in
Wong Sun, supra.”
(Emphasis supplied).
32
In rejecting a “but for” rationale, this Court has consistently followed suit. In Cox
v. State, 194 Md. App. 629, 5 A.3d 730 (2010), the defendant claimed that but for an illegal
detention and search, his subsequent incriminating statement would never have been made.
“He argues that this statement was the ‘fruit’ of illegal police conduct,
asserting that his arrest was based on the gun found pursuant to the illegal
detention and search, and absent his ‘unlawful arrest, he would never have
been in a position to talk to [a fellow detainee].”
194 Md. App. at 653. Writing for this Court, Judge Graeff roundly rejected reliance on a
“but for” rationale.
“For evidence to be excluded under the ‘fruit of the poisonous tree’
doctrine, ‘there must be a “cause-and-effect” relationship or nexus between
the poisonous tree and it’s alleged fruit.’ Evidence is not considered to be
‘fruit of the poisonous tree,’ however, merely because it would not have been
discovered ‘but for the illegal actions of the police. Wong Sun, 371 U.S. at
488, 83 S. Ct. 407. … Accord United States v. Ceccolini, 435 U.S. 268, 276,
98 S. Ct. 1054, 55 L. Ed. 2d 268 (1978) (‘we have declined to adopt a “per se
or ‘but for’ rule” that would make inadmissible any evidence, whether
tangible or live-witness testimony, which somehow came to light through a
chain of causation that began with an illegal arrest.”’).
194 Md. App. at 655-56. (Emphasis supplied; some internal citations and quotations
omitted).
As early as Baker v. State, 39 Md. App. 133, 383 A.2d 696 (1975), this Court has
rejected a “but for” test. In Baker, 39 Md. App. at 136-37, the defendant relied upon his
admittedly illegal arrest to urge a “but for” rejection of everything that followed from it.
“Appellant, however, contends that his illegal arrest precludes any
identification of him, so that he should in no way be connected with the
offense and must be freed. The argument advanced by appellant may be
styled as the ‘but for’ approach. ‘But for’ the illegal arrest he would not have
been caught and, ergo, could not have been identified as the culprit.”
33
(Emphasis supplied).
Quoting with approval from Commonwealth v. Garvin, 448 Pa. 258, 264, 293 A.2d
33 (1972), this Court rejected “but for” analysis.
“No law abiding society could tolerate a presumption that but for the
illegal arrest the suspect would never have been required to face his accusors.
Thus, we conclude that the only effect of the illegal arrest was to hasten the
inevitable confrontation and not to influence its outcome.”
39 Md. App. at 142. (Emphasis supplied).
In Gibson v. State, 138 Md. App. at 410-11, this Court pointed out how sweepingly
destructive a blight a “but for” exclusionary approach would inflict.
“At oral argument, however, and somewhat tentatively, the appellant
championed a more virulent strain of the ‘fruit of the poisonous tree’ doctrine
that, if ever loosed upon the law, would not contaminate a piece of fruit or
two in a single orchard but would blight and level entire forests. He argues
that BUT FOR their stopping of him on November 11, the police would
never have learned 1) his identity, 2) his lengthy history of burglary and his
parole status in New York, and 3) the fact that he lived a few blocks away
from the scene of the January 27 crime. He argues further that BUT FOR
that information, they would have had no occasion to be parked across the
street from his home during the early morning hours of February 12 and
February 14 in a position to make the observations they did after he left his
house. He argues finally that those observations are excludable ‘fruits of the
poisonous tree.’”
(Emphasis supplied).
We pointed out how the derivative evidence might be admissible under the
Attenuation of Taint Doctrine or might be admissible under the Independent Source
Doctrine, but would in no event be suppressible under a “but for” rationale.
“Even assuming, arguendo, that the stop on November 11 was bad
(we are not remotely suggesting that it was), that would not operate to bar
34
from evidence or from other uses the police observations of February 12 and
February 14.
“The admissibility of the observations would be clear whether
considered as an instance of the attenuation of the initial taint, Wong Sun v.
United States; United States v. Ceccolini, or as the product of an independent
source, Segura v. United States; Murray v. United States.”
138 Md. App. at 412. (Emphasis supplied).5
A Cautionary Analytic Note6
Although the bottom line decision of Utah v. Strieff, to wit, that the evidence
produced by the search incident to Strieff’s lawful arrest would not be suppressed, is
unquestionably correct, the Strieff analysis is at times uncomfortably shaky. There seems
to be a growing trend in the more recent caselaw generally to utilize the same analytic
approach that Streiff at times seems to employ. As the concurring opinion confirms, there
is a growing trend to utilize this analytic approach and that is the reason for this cautionary
note. The bottom-line result of non-suppression is not threatened by this trend because the
shaky analysis and a more solid analysis both push in the same direction, toward non-
exclusion. What is threatened, however, is a cogent overview and understanding of this
entire body of law. The result is fine, but the analysis is muddled. It is in a muddle,
moreover, that seems to be rapidly metastasizing.
5
The case of Missouri v. Grayson, 336 S.W.3d 138, 147 (2011), cited by the concurring
opinion is a classic example of the application of a “but for” rationale.
6
With respect to this final section of the opinion, “A Cautionary Analytic Note” and
“Conclusion,” Judge Moylan is writing for himself alone and not for the panel.
35
The culprit is a promiscuous overuse and misuse of the verb “to attenuate” and an
almost robotic misapplication of criteria from the “Attenuation of Taint Doctrine” to other
doctrines, such as “Independent Source” and “Inevitable Discovery,” where those criteria
are not at all pertinent. The word “attenuate” is being misused to refer to any reason not to
suppress evidence whereas it should properly be used to refer to only one of three possible
reasons not to suppress. The body of law that we need to conceptualize is the “Fruit of the
Poisonous Tree Doctrine.” Beginning with Silverthorne Lumber Company in 1920, that
doctrine explained why, following unconstitutional investigative behavior by the police,
the exclusion of secondary derivative evidence is a necessary deterrent to police
misbehavior, just as surely as is the exclusion of primary or direct evidence.
Beginning with Wong Sun v. United States in 1963 and Brown v. Illinois in 1975,
the law recognized a set of circumstances calling for exemption from such exclusion of
evidence. The first such exemption to be recognized was what has come to be called the
Attenuation of Taint Doctrine. In determining whether the exclusion of evidence is
appropriate or not, that doctrine examines the chain of cause-and-effect between the cause
(the tainted police behavior) and the effect (the recovery of evidence). Brown v. Illinois
itself, 422 U.S. at 602, speaks of “the causal chain between the illegal arrest and the
statements made subsequent thereto.” Where the causation is close and certain, exclusion
is appropriate. Where, on the other hand, the chain of causation is, by time or other
circumstances, long drawn out or attenuated, exclusion may not be appropriate. This is why
the criteria for measuring what has happened along that chain of cause-and-effect includes
36
such Brown v. Illinois considerations as 1) temporal proximity, 2) intervening
circumstances, and 3) purpose and flagrancy of the official misconduct. Those criteria are
measures of attenuation between the original taint and the ultimate evidence. After a certain
point, the original causation loses its potency, so that the exclusion of evidence is a case of
overkill. To get a proper conceptualization of what the Attenuation of Taint Doctrine is all
about, one should carefully follow, step by step, the protracted and oft-interrupted chain of
causation that was before the Supreme Court in Wong Sun v. United States. It is a prime
example of what attenuation means.
To picture the field as it has developed, it may be helpful to think of a genus and its
relationship to its constituent species. The broad genus we are dealing with is Exemption
from Exclusion. That genus now embraces three distinct species: 1) the Attenuation of
Taint Doctrine, 2) the Independent Source Doctrine, and 3) the Inevitable Discovery
Doctrine. When Brown v. Illinois was written in 1975, however, attenuation of taint was
the only exemption from exclusion that had been recognized. The species and the genus,
therefore, were one and the same. There was no difference between speaking specifically
about attenuation and speaking generically about the whole field of exemption. That, of
course, is why present day reliance on language from Brown v. Illinois can be treacherous.
It may describe a specific problem in inappropriately generic terms. Brown describes one
species of exemption, but it does not describe the entire genus of exemption. As of 1975,
however, Brown v. Illinois had yet no way of knowing that, because only one species
existed. The other two had not yet been recognized.
37
With Segura v. United States in 1984 and Murray v. United States in 1988, a second
species was added to the genus, the Independent Source Doctrine. With Nix v. Williams in
1984, a third species was added to the genus, the Inevitable Discovery Doctrine. These two
doctrines, however, do not involve attenuation, and attenuation criteria have no pertinence
in the examination of these doctrines. When dealing with them, therefore, one cannot rely
on Brown v. Illinois.
In actual attenuation analysis, the original tainted police activity remains the “cause”
in the still pertinent chain of cause and effect. We measure the extent to which time or
intervening circumstances have diluted or diminished the poisonous taint. LaFave, supra,
§11.4(a) at 235, points out, “attenuation refers to ‘diminution of thickness’ or of ‘density’
or of ‘force of intensity.’” In the other two doctrines, by contrast, we are not concerned
with diluting or attenuating taint because the originally tainted police activity is no longer
the cause in our new chain of causation. It has been displaced or superseded by a new and
different cause: the issuance of the arrest warrant in the independent source cases and by a
logically compelling supposition in the inevitable discovery cases.
Attenuation criteria are immaterial because in the new and superseding chains of
causation, there is no longer any taint to be attenuated. The tainted cause of a discarded
causative chain has been replaced by a new cause of a new and different causative chain, a
cause that is untainted. Two chains of causation do not intertwine; they remain distinct.
One chain of causation may have lead to a Terry frisk, but a completely different chain of
causation lead to the search incident. They need not rise and fall together and they should
38
not be conflated. To conflate the two would mean that the search incident could not be
deemed valid unless the frisk could also be deemed valid. We should only talk about
attenuating taint, therefore, when we are literally dealing with the Attenuation of Taint
Doctrine and not when we are dealing with the Independent Source Doctrine or the
Inevitable Discovery Doctrine.
A superseding cause or an independent source, moreover, is by no means the same
thing as “an intervening circumstance” that is a familiar factor in attenuation analysis. An
intervening circumstance is something that happens within or along the original chain of
causation. Webster’s Third New International Dictionary (4th ed. 1976), at p. 1183, gives
as definition 3 for “intervene”: “to come in or between by way of modification.” It is
internal. “A (the bad Terry stop) leads to B which leads to C which leads to D (the recovery
of evidence).” B and C are intervening circumstances that tend to interrupt movement along
the cause-and-effect chain and thereby to dilute or weaken the force of the original taint.
With the Independent Source Doctrine, by contrast, we look to a different and untainted
cause as the starting point of an independent and distinct chain of causation. Webster’s
Third New International Dictionary (4th ed. 1976), at p. 2295, gives as definition 4 for
“supersede”: “to take the place of.” Wong Sun, 371 U.S. at 487, explained that “the
exclusionary rule has no application because the Government learned of the evidence from
an independent source.” Why then do we even speak of attenuating taint when there is no
taint to attenuate?
39
Why, it might be asked, did these three very different species of exemptions from
exclusion ever get grouped together in the first place? It was obviously because of the
seductive power or siren song of the irresistible logical fallacy of “Post hoc, ergo propter
hoc” – “After this; therefore, because of this.” “The recovery of the evidence occurred after
the chase; therefore, it must have occurred because of the chase!” It is a beguiling time
sequence, but it is fallacious. The Attenuation of Taint Doctrine, indeed, calls for analysis
under such a “post hoc” framework. The Independent Source Doctrine and the Inevitable
Discovery Doctrine, on the other hand, do not. A preexisting arrest warrant is an
independent source, and there is nothing that needs to be attenuated.
Although the two phenomena might occur at roughly the same moment in real time
in a given investigative narrative, an “intervening circumstance,” on the one hand, and an
“independent source” or “superseding cause,” on the other hand, are critically different and
must not be confused with each other. An “intervening circumstance” is an event within a
tainted chain of causation and is a factor in measuring the extent to which the taint has been
diluted or attenuated. An “independent source” or “superseding cause,” by contrast, is not
an event within that tainted chain of causation. It is an overriding event that renders the
tainted chain of causation immaterial. That chain of causation no longer matters. It has
been displaced by an entirely different chain of causation that was never tainted in the first
place and, therefore, needs no attenuation. An “independent source” is not an “intervening
circumstance.”
40
Conclusion
The word “attenuate” is being casually misused to cover every variety of exemption
from the exclusion of evidence under the Fruit of the Poisonous Tree Doctrine, whereas it
is properly pertinent to only one of the three distinct modes of exemption. If, therefore, the
caselaw robotically picks up attenuating-taint criteria from one species of exemption from
exclusion and illogically imposes those criteria on a very different species of exemption,
HANDLE WITH EXTREME CAUTION. The practical result may not be at risk, but the
cogency of our analysis is.
ORDER OF SUPPRESSION
REVERSED AND CASE
REMANDED FOR TRIAL;
COSTS TO BE PAID BY
APPELLEE.
41
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 784
September Term, 2016
______________________________________
STATE OF MARYLAND
v.
JAMAL RASHEED SIZER
______________________________________
Graeff,
Leahy,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Concurring Opinion by Graeff, J.
______________________________________
Filed: November 29, 2016
I concur in the judgment only. I agree with much of the Majority Opinion, i.e., that
the police had reasonable suspicion to detain appellant, and even if they did not and the
initial detention was unlawful, suppression of the evidence obtained was not warranted
because the discovery of the arrest warrant purged the taint of any illegal detention. I write
separately because, although I agree that the judgment should be reversed, I respectfully
do not agree with the conclusion that the independent source doctrine applies in this case.
As the Majority notes, there are three methods of “purging the taint” of unlawful
police conduct that provide exceptions to the exclusionary rule:
First, the independent source doctrine allows trial courts to admit evidence
obtained in an unlawful search if officers independently acquired it from a
separate, independent source. See Murray v. United States, 487 U.S. 533, 537
(1988). Second, the inevitable discovery doctrine allows for the admission of
evidence that would have been discovered even without the unconstitutional
source. See Nix v. Williams, 467 U.S. 431, 443-444 (1984). Third, . . . is the
attenuation doctrine: Evidence is admissible when the connection between
unconstitutional police conduct and the evidence is remote or has been
interrupted by some intervening circumstance, so that “the interest protected
by the constitutional guarantee that has been violated would not be served by
suppression of the evidence obtained.” Hudson[ v. Michigan, 547 U.S. 586,
593 (2006)].
Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (parallel citations omitted). Accord Cox v.
State, 421 Md. 630, 652 (2011); Williams v. State, 372 Md. 386, 409 (2002). “These
exceptions aim to balance the interests of society in deterring unlawful police conduct with
the interest of ensuring juries receive all probative evidence of a crime.” Williams, 372
Md. at 410.
I am not persuaded that the independent source doctrine applies to the circumstances
of this case. That doctrine applies when the evidence seized is independent of the initial
illegality. See Segura v. United States, 468 U.S. 796, 814 (1984) (although police
unlawfully entered apartment, evidence seized in subsequent search pursuant to a warrant
was admissible because “[n]one of the information on which the warrant was secured was
derived from or related in any way to the initial entry”). Here, without the initial stop, the
police would not have been in a position to arrest appellant pursuant to the warrant.
The Supreme Court of Missouri addressed a similar scenario in State v. Grayson,
336 S.W.3d 138 (Mo. 2011). In that case, Grayson was illegally stopped and detained. Id.
at 146, 148. The court rejected the State’s argument that drug evidence nevertheless was
properly admitted pursuant to the independent source doctrine:
As the United States Supreme Court noted in Nix [v. Williams, 467
U.S. 431 (1984)], the purpose of the exclusionary rule is to ensure that “the
prosecution is not to be put in a better position than it would have been if no
illegality had transpired.” Id. at 443. Conversely, the reason for the
exceptions is to ensure that “the prosecution is not put in a worse position
simply because of some earlier police error or misconduct.” Id.
Here, Officer Lambert obtained the bag of methamphetamine by
taking advantage of the direct chain of events arising from the initial
illegality perpetrated on Mr. Grayson. Had Mr. Grayson not been detained
while driving innocently and further detained after Officer Lambert
ascertained that he was not Terry Reed, then Officer Lambert never would
have been in a position to arrest Mr. Grayson and later discover the bag of
methamphetamine while inspecting the patrol car’s backseat after
transporting Mr. Grayson to jail. While the state may have properly arrested
Mr. Grayson on the outstanding warrant at some point, it is not the arrest on
the warrant but the conviction of possession of methamphetamine found in
the patrol car some time after the arrest that is objected to here. Here, the
“prosecution was put in a better position than it would have been if no
illegality had transpired.” Nix, 467 U.S. at 443.
Grayson, 336 S.W.3d at 150-151 (footnote and parallel citations omitted).
2
I agree with that analysis. I disagree with the conclusion of the Majority that, if the
initial stop was illegal, the independent source doctrine would apply to prevent exclusion
of the evidence.
I would apply the attenuation doctrine in this case. That is the rationale followed
by the United States Supreme Court and the Maryland Court of Appeals in circumstances
similar to the facts of this case. See Strieff, 136 S. Ct. at 2061-63 (applying the attenuation
doctrine and holding that “the evidence discovered on [defendant’s] person was admissible
because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant”);
Cox v. State, 397 Md. 200, 212-22 (2007) (same); Myers v. State, 395 Md. 261, 285, 294
(2006) (same).
Pursuant to the attenuation doctrine, the following facts must be considered:
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.”
Strieff, 136 S. Ct. at 2062 (citations omitted).
In the present case, although the temporal proximity weighed in favor of
suppression, the intervening circumstance of the valid arrest warrant and the lack of
evidence of flagrant police misconduct weighs against suppression of the evidence seized.
I would conclude, as did the Court of Appeals in Cox, 397 Md. at 220, that “the arrest
pursuant to the outstanding warrant sufficiently attenuate[d] any taint caused by the
3
arguably illegal stop.” Accordingly, the gun and drug evidence discovered on appellant’s
person should not have been suppressed.
4