Goodwin v. State , 235 Md. App. 263 ( 2017 )

HEADNOTE:
Patrick A. Goodwin v. State of Maryland, No. 2436, September Term 2016.
REASONABLE SUSPICION; PROTECTIVE SEARCH; AUTOMOBILE; FLOOR MAT
The Supreme Court in Michigan v. Long, 463 U.S. 1032, 1049 (1983), held that the police
may conduct a protective search of “the passenger compartment of an automobile, limited
to those areas in which a weapon may be placed or hidden,” if the police possess a
reasonable belief based on “specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant the officers in believing that the
suspect is dangerous and the suspect may gain immediate control of weapons.”
The police had reasonable, articulable suspicion that appellant was armed and dangerous
when they initially saw appellant in a high crime area, engaging in activity suggesting a
drug transaction, and when they stopped his vehicle, he acted suspiciously and displayed
furtive movements.
The search did not exceed the permissible scope of a protective search to ensure officer
safety. When the police have reasonable, articulable suspicion that a weapon may be found
on the floor of a vehicle, a protective search to ensure that no weapon is hidden there may
include lifting the floor mat.
Circuit Court for Frederick County
Case No. 10-K-16-058943
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2436
September Term, 2016
______________________________________
PATRICK A. GOODWIN
v.
STATE OF MARYLAND
______________________________________
Meredith,
Graeff,
Arthur,
JJ.
______________________________________
Opinion by Graeff, J.
______________________________________
Filed: December 21, 2017
Patrick Alan Goodwin, appellant, was convicted in the Circuit Court for Frederick
County, pursuant to an agreed statement of facts, of one count of possession of a controlled
dangerous substance. The court imposed a sentence of four years, all suspended, with three
years of supervised probation.
On appeal, appellant presents two questions for this Court’s review,1 which we have
consolidated as follows:
Did the circuit court err in denying appellant’s motion to suppress because
the stop and frisk of his vehicle and his person were unconstitutional?
For the reasons set forth below, we shall affirm the judgment of the circuit court.
1
Appellant presents the following two questions:
I. Did the trial court err in denying Mr. Goodwin’s motion to suppress
because: (A) the warrantless search of Mr. Goodwin’s vehicle was not
supported by reasonable articulable suspicion that he was armed and
dangerous, where the only alleged furtive movements were slowly
stopping the vehicle and momentarily disappearing from view while
pulling over or (B) the act of lifting the vehicle’s floor mat to search
for weapons, when there was no evidence that a weapon appeared to
be hidden under the floor mat or that a pat-down of the floor mat
would have been futile, exceeded the permissible scope of a Terry
vehicle frisk?
II. Did the trial court err in denying Mr. Goodwin’s motion to suppress
because: (A) the State failed to show the constitutionality of the stop
of Mr. Goodwin by failing to produce the alleged arrest warrant,
which was the sole basis for the stop or (B) the State failed to show a
legal basis for continuing to detain Mr. Goodwin after executing the
purpose of the stop – arresting Mr. Goodwin’s passenger?
FACTUAL AND PROCEDURAL BACKGROUND2
At approximately 10:00 p.m. on June 24, 2016, Officers Paul Malatesta and Kyle
Jones, members of the Frederick City Police Department, were on assignment as part of
the “street crimes unit,” which focuses on “high crime areas, drug activity and gang
activity.” They were conducting surveillance of the Windsor Gardens Apartments, an area
well-known by law enforcement for the sale and use of drugs, as well as gang-related
activity.
The officers observed appellant parked in a vehicle outside the apartments. Another
individual, later identified as Craig Walker, walked back and forth from the vehicle to one
of the buildings in the complex multiple times. The officers did not observe any direct
“hand-to-hand” exchange of drugs, but Officer Malatesta testified that Mr. Walker’s
actions gave them the impression that he was the “middleman” in brokering a drug deal.
After Mr. Walker entered appellant’s vehicle, and they left the complex, the officers
followed the vehicle in their marked patrol car. They recognized Mr. Walker, who was
seated in the front passenger seat, as someone on the department’s outstanding warrant list.
The officers confirmed with dispatch that Mr. Walker had an outstanding “contempt-of-
court warrant for failing to appear for fingerprinting related to a criminal case,” and they
decided to initiate a traffic stop to apprehend Mr. Walker.
2
Because the only issue presented is the propriety of the ruling on the motion to
suppress, our discussion of the facts is limited to the facts presented during the suppression
hearing. See Sizer v. State, __ Md. __, No. 1, Sept. Term, 2017, slip op. at 9 (filed Nov.
28, 2017) (We review a denial of motion to suppress evidence based “only [on] the facts
generated by the record of the suppression hearing.”).
-2-
Both officers testified that appellant had not violated any traffic laws or committed
any infractions warranting a traffic stop. Officer Malatesta testified that they had no
justification for stopping the car other than to effectuate the arrest of Mr. Walker.
After the police activated the patrol car’s emergency lights, appellant proceeded to
slow the car, but he did not immediately stop or pull the car over for about “3 to 400 yards.”
Once the car stopped, it then proceeded “to roll a little bit further,” giving the appearance,
based on Officer Malatesta’s experience, that appellant was “attempting to buy time.” The
street was lit by streetlight, and there was “not much traffic,” so appellant could have pulled
the vehicle over safely.
As appellant pulled the car over, both officers noticed him bend down near the
floorboard toward the inside of the vehicle, completely disappearing from the officers’
view for several seconds before coming back into view. Officer Jones testified that, based
on his experience, “[g]enerally, you don’t see someone on a routine stop duck out of view
as if they’re either retrieving something or concealing something.”
Officers Malatesta and Jones approached the vehicle, and they asked appellant to
exit and stand near the rear of the vehicle. Additional officers arrived on the scene to assist
and effectuate the arrest of Mr. Walker for the warrant.
Based on appellant’s furtive movements, the officers suspected that weapons could
be in the vehicle. Officer Jones conducted a frisk of the “lunge-and-grab area” of the
vehicle where appellant was seated, and the area toward which the officers saw him bend.
He described the events as follows:
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[Officer Jones]: Based on the movements of the driver, when Officer
Malatesta and I made contact, Officer Malatesta asked the driver to step out
of the vehicle, primarily for the concern that he was retrieving a weapon, and
then while he was doing that, other officers arrived to deal with the
passenger, Mr. Walker --
[The State]: Yes.
[Officer Jones]: -- then I conducted a Terry frisk of the actual vehicle in the
reach-, lunge-and-grab area of the driver based on those movements.
[The State]: Is this happening kind of simultaneously, Officer Malatesta gets
him out and you get right in to search the vehicle?
[Officer Jones]: Yeah. It’s, it’s all very, very quick.
***
[The State]: And you stated that you saw the [appellant] initially duck down
towards the right of the car, to the floorboard. Can you please outline for the
Court the exact area of the car that you frisked?
[Officer Jones]: The exact area was the seat, the driver’s seat; the driver’s
door pocket; under the driver’s seat; to the side of the driver’s seat, on both
sides; the cup holder/center area; and then under the floor mat, because that
was as far down, as you can check.
On cross-examination, defense counsel asked Officer Jones: “Now, you were
looking under the floor mat? … And that’s a flat piece of rubber?” Officer Jones replied:
“It’s either rubber or carpet, typically – . . . in a car, yes.” Officer Jones also noted that
people sometimes have “hides” in the floor, i.e., a hole in the floorboard of the vehicle used
to hide firearms. He further stated that he looked under the floor mat for a gun or any
weapon, including one that did not “result in a bulge [] visible to the eye.”
-4-
When Officer Jones lifted the vehicle’s floor mat, he saw a single syringe, the size
of one used to receive a shot.3 There was residue on the syringe, which the officers believed
was heroin. The police then placed appellant under arrest and conducted a search of the
vehicle and appellant’s person. From the vehicle, they recovered a spoon and straws, and
from a wallet on appellant’s person, they recovered two strips of Suboxone Film, which is
a prescribed medicine used to treat opioid addiction.4
Appellant filed a motion to suppress, arguing that the stop and frisk were warrantless
and presumed to be illegal. Specifically, counsel argued that the frisk of appellant’s car
was improper.
At the suppression hearing, Officers Malatesta and Jones testified regarding the
events that occurred that evening, as discussed supra. When Officer Malatesta began to
testify about the stop of the vehicle based on the warrant for Mr. Walker, defense counsel
objected on the ground that counsel had “never seen a copy of the warrant.” The court
asked whether appellant’s counsel specifically requested the document, to which counsel
replied: “It’s a general discovery demand. I think it’s fairly standard to produce the warrant
that’s the basis for a stop. I think it’s required under what is, Your Honor, I think it was
Duggins v. State.”5 The court overruled the objection. The State did not produce a copy
3
The parties referred to the item under the floor mat as a needle or syringe. For
purposes of this opinion, we will refer to it as a syringe.
4
Suboxone film is a prescription medicine used to treat opioid dependence.
SUBOXONE, https://perma.cc/F2A9-34NR (last visited Nov. 30, 2017).
5
Duggins v. State, 7 Md. App. 486 (1969).
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of the warrant at the suppression hearing, nor did appellant challenge the authenticity of
the warrant.
At the conclusion of the testimony, defense counsel argued that the warrantless stop,
arrest, and search violated the Fourth Amendment. He asserted that there may have been
justification for the stop, but that was questionable without the warrant. He argued that,
once the situation with Mr. Walker was “resolved,” there was no reason for any interaction
with appellant. Moreover, counsel asserted, the search of the vehicle was not a frisk, but
rather, it was “literally picking up the floorboards to see if there’s potentially hidden
compartments that we have no reason to, to think exist.” Counsel asked the court to
suppress “each and every one of the things recovered – the needle that’s originally
recovered and then, also, the straw, spoon, [and] the Suboxone that were recovered after a
more in-depth search.”
The State argued that the police saw appellant in a high crime area engaging in
suspicious activity that, in light of their experience and training, indicated involvement in
a drug transaction. The police officers followed the vehicle and decided to stop it to arrest
the passenger, who had an open warrant. Appellant then engaged in evasive, furtive
movements. The State argued that, under these circumstances, the police had reasonable
suspicion to conduct a protective frisk of the area where appellant was reaching down.
The circuit court ultimately denied appellant’s motion to suppress. It noted that the
police saw appellant at Windsor Gardens, a high-crime area, engaging in actions consistent
with drug activity. The officers then saw Mr. Walker, who had an open warrant for a failure
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to be fingerprinted.6 At that point, the police “knew they had an obligation to execute the
warrant,” and they stopped the vehicle.
The court then discussed appellant’s furtive actions after the officers engaged the
emergency lights on their vehicle. It stated that the officers had reason to question appellant
regarding what transpired at Windsor Gardens. It noted: “Meantime, Mr. Walker was taken
from the vehicle by other officers.”
Turning to the frisk that ensued, the court noted that “the biggest concern for these
officers was when they saw [appellant] do that reaching down to his right.” The court
continued:
What they saw that did cause them difficulty was when he leaned over
and out of sight to his right, and certainly, we all know from whatever
vehicle, some have consoles, some don’t, but there’s plenty of room to hide
a weapon or at least move it out of sight, under a seat, next to a seat, in the
console, on the floorboards, whatever. That gave them sufficient reason to
be concerned as to what, what might be there given that there had been –
now, again, given that you put that together with the fact that there had been
a transaction which was suspicious and that weapons are often used in
connection with those transactions.
So to be clear, they had to get [appellant] -- they got [appellant] out
of the vehicle, which the Defense acknowledges was appropriate. Then they
had a reason to examine that, briefly examine that vehicle, in terms of
weapons, for what actions they observed of [appellant]; and, when Officer
Jones did that, he found the syringe under the floor mat.
6
The court stated that, had the warrant been for appellant, it would have agreed
with defense counsel “in terms of the requirement to turn it over, but given it was for the
passenger [Mr. Walker], I overrule your objection as far as the [State] not providing it.”
The court’s comments indicate that it construed defense counsel’s objection regarding the
failure to produce the warrant as a discovery issue, not as a basis to challenge the
constitutionality of the stop.
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Now, what I note was - - and up to this point, I certainly, I’m not even,
have not had any difficulty with this at all -- I noted that he examined a
limited area. It was just that area I described, whether it be a console, I think
he mentioned cup holders, sides of the seats, the seat itself, and the
floorboards, . . . his examination wouldn’t necessarily be limited to a firearm,
a handgun. It could be a knife, and it’s dark. Although he has a flashlight –
and, frankly, I’m familiar with the area -- there are some streetlights. I don’t
think it was inappropriate for him to lift the floor mat in terms of a thorough
search.
When it’s all taken together, given the context of the observations
made at Windsor Gardens, the actions of [appellant] and the procedure of the
stop, I think that it was appropriately done and I’ll deny the motion to
suppress.
DISCUSSION
Appellant contends that the circuit court erred in denying his motion to suppress
because his encounter with the police violated his Fourth Amendment rights in several
ways. First, he argues that the warrantless stop was unconstitutional because (a) the State
“failed to produce the alleged warrant for Mr. Walker,” and (b) it “failed to provide a legal
basis for [his] continued detention following Mr. Walker’s arrest.” Second, he alleges that
the alleged Terry frisk of the vehicle was unconstitutional because (a) the police did not
have reasonable suspicion to believe that he was armed and dangerous, and (b) the search
of the floor mat exceeded the scope of a proper the frisk.
Before addressing the specific contentions, we note the framework in which we
review these contentions. In Bowling v. State, 227 Md. App. 460, 466-67 (quoting Taylor
v. State, 224 Md. App. 476, 486-87 (2015)), cert. denied, 448 Md. 724 (2016), this Court
set forth the proper standard of review of a motion to suppress:
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We review a denial of a motion to suppress evidence seized pursuant to a
warrantless search based on the record of the suppression hearing, not the
subsequent trial. State v. Nieves, 383 Md. 573, 581, 861 A.2d 62 (2004). We
consider the evidence in the light most favorable to the prevailing party, here,
the State. Gorman v. State, 168 Md. App. 412, 421, 897 A.2d 242 (2006)
(Quotation omitted). We also “accept the suppression court’s first-level
factual findings unless clearly erroneous, and give due regard to the court’s
opportunity to assess the credibility of witnesses.” Id. “We exercise plenary
review of the suppression court’s conclusions of law,” and “make our own
constitutional appraisal as to whether an action taken was proper, by
reviewing the law and applying it to the facts of the case.” Id.We noted in Bowling that, when reviewing a claim that a police encounter violates
the Fourth Amendment, we must keep in mind that “‘the underlying command of the
Fourth Amendment is always that searches and seizures be reasonable,’” and “‘what is
reasonable depends on the context within which a search takes place.’” Id. at 467 (quoting
State v. Alexander, 124 Md. App. 258, 265 (1998)) (emphasis omitted). With those
principles in mind, we address appellant’s contentions.
I.
The Initial Stop
A.
Failure to Produce the Arrest Warrant
Appellant contends that the State failed to show a constitutional basis for the initial
stop because it failed to produce the arrest warrant related to Mr. Walker. He asserts that
“the State effectively asked the trial court to assume a valid arrest warrant existed without
proving it,” and therefore, “the State cannot meet its burden in this way.”
-9-
The State contends that it was not required to produce the warrant to establish the
legality of the traffic stop. It asserts that, because appellant did not challenge the validity
of the arrest warrant as a basis for its motion to suppress, the State had no obligation to
produce the warrant. In any event, the State asserts that the officers had a good faith belief
that an open warrant existed for Mr. Walker, and therefore, the good faith exception to the
exclusionary rule applies.
After reviewing the arguments of counsel below, we conclude that this issue is not
preserved for review because it was not adequately presented to the circuit court. See
Fitzgerald v. State, 384 Md. 484, 504-06 (2004) (argument not raised at suppression
hearing not properly before appellate court). Accord Harmony v. State, 88 Md. App. 306,
317 (to preserve an issue for review, “[a] party must bring his argument to the attention of
the trial court with enough particularity that the court is aware first, that there is an issue
before it, and secondly, what the parameters of the issue are.”).
In discussing the police encounter here, defense counsel’s reference to the stop was
as follows:
There may have been a justification for stopping. I maintain, Your Honor,
that under Duggins that without a copy of the, of the warrant - - that even
that is questionable, whether they actually had a justification to stop. We
don’t know. The best evidence would have been the actual copy of the
warrant - - but even if we’re going to say that they were allowed to stop the
car, they were allowed to stop the car and they were allowed to get Mr.
Walker out, certainly -- he had an arrest warrant – then they were to let
[appellant] go.
This argument hinted at the argument made on appeal, i.e., that the stop itself was
unconstitutional because the police did not produce the warrant for Mr. Walker, but it did
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not clearly state that argument. See Sifrit v. State, 383 Md. 116, 136 (2004) (declining to
require “trial courts to imagine all reasonable offshoots of the argument actually presented
before them before making a ruling.”). Accordingly, this issue is not preserved for
appellate review, and we decline to address it.7
B.
Prolonged Detention
Appellant next contends that, even if the initial stop was lawful, his continued
detention after Mr. Walker was arrested was unconstitutional because the reason for the
initial traffic stop “evaporated.” He asserts that the reasonableness of a stop is based on its
purpose, and once the officers arrested Mr. Walker, the purpose of the stop was fulfilled,
and any further actions by the officers constituted a “second stop” requiring a separate
justification, which the State failed to show.
The State contends that this contention is not preserved for this Court’s review
because appellant failed to argue below, as he does on appeal, that the stop “evolved into
an unconstitutional detention” after Mr. Walker was arrested. In any event, the State argues
that the contention fails on the merits because there was only a single continuous stop. It
7
We do note that, in Duggins v. State, 7 Md. App. 486, 490 (1969), upon which
appellant relies, this Court held that, where the State relied on an arrest warrant to justify
an arrest, and the defendant argued that it may not have been completed, and therefore, was
legally defective, the court could not determine the legality of the arrest based solely on
the testimony of the officers. That is a completely different situation from that involved
here, where the police had information, from police sources, that an arrest warrant existed
for a person traveling in the car. Appellant cites no case holding that, under this
circumstance, the police must produce the warrant for the court to find that the stop was
constitutional.
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further asserts that the frisk of the car and appellant occurred simultaneously to the arrest
of Mr. Walker, and therefore, they in “no way prolonged the stop.”
We begin with the State’s preservation argument. Although defense counsel below
did not articulate the argument exactly the same way as appellant does on appeal, he did
argue that, once Mr. Walker was arrested there was “no reason for [the police] to keep
interacting with” appellant. Under that circumstance, we conclude that he sufficiently
preserved the issue for this Court’s review, and we will address it on the merits.
Appellant is correct in his assertion that once the purpose of a valid stop has been
fulfilled, a continuation of the encounter that “implicates the Fourth Amendment is
constitutionally permissible only if either (1) the driver consents to the continuing intrusion
or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal
activity is afoot.” Ferris v. State, 355 Md. 356, 372 (1999). Where appellant goes astray,
however, is in his assertion that there was a second stop in this case.
Here, the record indicates that the arrest of Mr. Walker occurred at the same time as
the frisk of the vehicle. Officer Malatesta testified that he took appellant to the rear or the
side of the vehicle so that Officer Jones could do “the quick pat-down of the vehicle,” and
at the “same time,” the “other officers were arriving and taking Mr. Walker out to arrest
him.” He explained that by the time the arrest of Mr. Walker was completed, they had
found the syringe in the vehicle. Similarly, Officer Jones testified that Officer Malatesta’s
actions in asking appellant to step out of the vehicle happened “kind of simultaneously”
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with his search of the vehicle, and during that time, “other officers arrived and were dealing
with the passenger, Mr. Walker.”
Accordingly, the record does not support appellant’s argument that there was a
second stop after the purpose of the stop, Mr. Walker’s arrest, was completed. Rather, the
record indicates that the search of the vehicle occurred simultaneously with Mr. Walker’s
arrest.8 We thus turn to the validity of the frisk of the vehicle.
II.
Terry Frisk
Appellant contends that the search of the vehicle was unconstitutional for two
reasons. First, he argues that the police did not have reasonable, articulable suspicion that
he was armed and dangerous. Second, he asserts that the search exceeded the scope of a
permissible Terry frisk. As explained below, we are not persuaded.
A.
Suspicion Armed and Dangerous
The Court of Appeals recently discussed the Fourth Amendment guarantee against
unreasonable searches and seizures, noting that what makes a search or seizure reasonable
“‘depends on a balance between the public interest and the individual’s right to personal
security free from arbitrary interference by law officers.’” Sellman v. State, 449 Md. 526,
8
The circuit court did not directly address this argument, most likely because of the
lack of specificity with which it was made. It did appear to credit the officer’s testimony
regarding the timing of events, however, noting that the officers got out of their vehicle to
resolve the issue with appellant, and “[m]eantime, Mr. Walker was taken from the vehicle
by other officers.”
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540 (2016) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)). The general rule
is that “‘searches conducted outside the judicial process, without prior approval by judge
or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few
specifically established and well-delineated exceptions.’” Arizona v. Gant, 556 U.S. 332,
338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). Accord Barrett v.
State, __ Md. App. __, No. 530, Sept. Term, 2016, slip op. at 5-6 (filed Nov. 29, 2017).
The exception relied upon here is reasonable suspicion to conduct a protective frisk.
In Terry v. Ohio, 392 U.S. 1, 27 (1968), the United States Supreme Court held that,
when the police are investigating a person at close range, they are permitted to conduct a
frisk of the person upon reasonable suspicion that the person is armed and dangerous.
Noting that it would be “unreasonable to require that police officers take unnecessary risks
in the performance of their duties,” id. at 23, the Court held that a police officer could
conduct
a reasonable search for weapons for the protection of the police officer,
where he has a reason to believe that he is dealing with an armed and
dangerous individual, regardless of whether he has probable cause to arrest
the individual for a crime. The officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonable prudent man in the
circumstances would be warranted in the belief that his safety or that of
others was in danger.
Id. at 27. Such a search, however, must be “reasonably related in scope to the justification
for [its] initiation,” and therefore, it must be “confined in scope” to a search likely to
determine the existence of weapons. Id. at 29.
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In Michigan v. Long, 463 U.S. 1032, 1047 (1983), the Supreme Court extended this
ruling to vehicles, noting that “investigative detentions involving suspects in vehicles are
especially fraught with danger to police officers.” The Court noted several dangerous
scenarios, i.e., the person being investigated could break away from the police and retrieve
a weapon from his automobile, or if the person is not arrested and permitted to reenter the
vehicle, he or she will then have access to weapons in the vehicle. Id. at 1051-52. The
Court held that, when the police stop a person in a vehicle, a protective search of
the passenger compartment of an automobile, limited to those areas in which
a weapon may be placed or hidden, is permissible if the police officer
possesses a reasonable belief based on “specific and articulable facts which,
taken together with the rational inferences from those facts, reasonably
warrant” the officers in believing that the suspect is dangerous and the
suspect may gain immediate control of weapons.
Id. at 1049 (quoting Terry, 392 U.S. at 21).
The Court of Appeals recently discussed the nature of the reasonable suspicion
requirement to justify a frisk, stating as follows:
When reviewing whether reasonable suspicion exists, “[t]he test is the
‘totality of the circumstances,’ viewed through the eyes of a reasonable,
prudent, police officer.” The test is objective: “the validity of the stop or the
frisk is not determined by the subjective or articulated reasons of the officer;
rather, the validity of the stop or frisk is determined by whether the record
discloses articulable objective facts to support the stop or frisk.” Reasonable
suspicion requires an officer to have “specific and articulable facts which,
taken together with rational inferences from the facts, reasonably warrant
intrusion.” In other words, “[t]he officer has reason to believe that an
individual is armed and dangerous if a reasonably prudent person, under the
circumstances, would have felt that he was in danger, based on reasonable
inferences from particularized facts in light of the officer’s experience.”
Sellman, 449 Md. at 542 (internal quotations omitted).
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The Court further explained that, in looking at the totality of the circumstances,
the court . . . must not parse out each individual circumstance for separate
consideration. In making its assessment, the court should give due deference
to the training and experience of the law enforcement officer who engaged
the stop at issue. Such deference allows officers to draw on their own
experience and specialized training to make inferences from and deductions
about the cumulative information available to them that might well elude an
untrained person. To be sure, [a] factor that, by itself, may be entirely neutral
and innocent, can, when viewed in combination with other circumstances,
raise a legitimate suspicion in the mind of an experienced officer.
Id. at 543 (quoting Crosby v. State, 408 Md. 490, 507-08 (2009)). Accord Norman v. State,
452 Md. 373, 387, cert. denied, 138 S. Ct. 174 (2017).
Appellant contends that the police here did not have reasonable suspicion that he
was armed and dangerous, arguing that he “was in the wrong place at the wrong time by
unwittingly giving a ride to a passenger with an alleged outstanding arrest warrant for
failure to complete court-ordered fingerprinting.” He notes that, although the officers
suspected that he had been involved in a drug transaction, they stated that they did not have
reasonable suspicion to stop him based on their observations at Windsor Gardens
apartments, and he argues that a generalized connection between drugs and guns does not
amount to reasonable suspicion that a person is armed and dangerous to justify a Terry
frisk.
In determining whether Officers Malatesta and Jones had reasonable, articulable
suspicion that appellant was armed and dangerous, supporting a frisk of the vehicle, we
must view the totality of the circumstances. In this regard, it is significant that the appellant
came to the attention of the police while they were conducting surveillance of the Windsor
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Gardens apartments, a high-crime area known for drugs and drug-related crime.
Appellant’s conduct, sitting in his vehicle while another individual, Mr. Walker, traversed
back and forth between appellant’s vehicle and one of the apartment buildings, indicated
to the officers, based on their experience, that drug activity was occurring. Although the
observations at Windsor Gardens were not the basis for the stop, and although a drug
transaction by itself may not automatically provide reasonable suspicion that the person is
armed, see Norman 452 Md. at 412, it is a factor that the police may consider. See Bost v.
State, 406 Md. 341, 360 (2008) (“[g]uns often accompany drugs.”); Dashiell v. State, 374
Md. 85, 101 n.4 (2003) (although not determinative, evidence of drug trafficking “‘may be
a factor in a totality determination of whether the officers possessed the requisite
reasonable suspicion to fear for their safety.’”). Officer Jones testified that the suspicion
of drug activity, as well as the knowledge that weapons are routinely associated with drug
activity, were factors leading to the protective search of the vehicle for a weapon.
When the officers activated their emergency lights to stop the vehicle, based on Mr.
Walker’s open arrest warrant, appellant acted suspiciously. He did not immediately stop
the vehicle, and when he did, the car continued to roll, giving the officers the impression
that appellant was “attempting to buy time.” Moreover, as the vehicle stopped, appellant
bent toward the floor area of the car, disappearing from the officers’ view, which caused
the officers to be concerned that appellant was reaching for or concealing a weapon. These
furtive movements supported the officers’ suspicion that appellant was armed and
dangerous. See United States v. Nash, 876 F.2d 1359, 1360-61 (1989) (suspect’s “furtive
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gesture,” including “reaching toward floor,” suggested that suspect was hiding a gun and
supported a limited search of the vehicle, including lifting the jacket “tucked under
defendant’s lap and stretched out to the floor of the front seat.”), cert. denied, 493 U.S.
1084 (1990); State v. Dilyerd, 467 So.2d 301, 304-05 (Fla. 1985) (reasonable to search
passenger area after passenger made furtive movements by leaning toward floorboard).
See also State v. Flowers, 734 N.W.2d 239, 252 n.13 (Minn. 2007) (suspect’s furtive
movement, and failure to immediately comply with attempt by police to stop him, gave
officers reasonable suspicion to believe he was armed and dangerous).
The Court of Appeals’ analysis in Chase v. State, 449 Md. 283 (2016), is instructive.
In that case, the police observed Chase and a companion in a car in a “known high drug
area,” engaging in conduct that led the officers to believe drug activity was taking place.
Id. at 290-91. As the officers approached, the driver and occupant of the vehicle engaged
in furtive movements, including reaching under the seat. Id. at 292. The Court held that
the police had reasonable suspicion that Chase was armed and dangerous based on the
officers’ observation of behavior “consistent with the hiding of illegal drugs as well as
‘furtive’ movements that suggested weapons could have been secreted in the vehicle.” Id.
at 307-08. The Court’s conclusion in that case is consistent with our conclusion in this
case.9
9
The issue in Chase was whether the officers acted reasonably in asking Chase to
exit the vehicle and handcuffing him while they investigated the situation. Because the
issue revolved around whether the officers had reasonable suspicion to believe Chase was
armed and dangerous, it is analogous to the issue presented here.
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Appellant argues that the officers’ suspicion of a drug transaction was insufficient
to justify the frisk because “the suspicion that drugs may be present in the vehicle cannot
alone give rise to a reasonable suspicion that the suspect may be armed and dangerous.”
In support appellant relies on Norman, in which the Court of Appeals held that the odor of
marijuana emanating from a vehicle does not, by itself, provide reasonable suspicion that
the occupants of the vehicle are armed and dangerous. 452 Md. at 412. The Court held
that a frisk was proper only if, “in addition to the odor of marijuana, another circumstance
or other circumstances are present giving rise to reasonable articulable suspicion that an
occupant is armed and dangerous.” Id. at 425. Significantly, the Court identified
circumstances that could give rise to reasonable suspicion that a person was armed and
dangerous, including that the person “made furtive movements . . . or otherwise behaved
suspiciously.” Id. at 426-27.
Here, the totality of the circumstances includes, not only evidence suggesting that
appellant had been involved in a drug transaction, but also his furtive movements
suggesting to the police that he was retrieving or concealing a weapon. Under these
circumstances, there was reasonable suspicion to believe that appellant was armed and
dangerous, and therefore, it was reasonable under the Fourth Amendment for the officers
to conduct a protective frisk.
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B.
Scope of the Terry Frisk
Appellant next contends that, even if the police had reasonable suspicion to conduct
a Terry frisk of his vehicle, the search exceeded its permissible scope. He asserts that,
pursuant to Long, 463 U.S at 1049, 1051, the police were only entitled to conduct a
“limited” search for weapons, using the least intrusive means to determine if a weapon was
in the vehicle, and therefore, the officers were permitted to conduct, “[a]t most, a cursory
pat-down of the floor mat.”
The State disagrees. It contends that, in light of appellant’s “conduct in relation to
the floor of his car,” Officer Jones was entitled to lift the floor mat to determine whether
appellant had secreted a weapon there.
As indicated, the rationale for allowing a protective frisk is that, when a police
officer has reasonable suspicion that a person is armed and dangerous, it would “be clearly
unreasonable to deny the officer the power to take the necessary measures to determine
whether the person is in fact carrying a weapon and to neutralize the threat of physical
harm.” Terry, 392 U.S. at 24. The scope of a protective search of the passenger
compartment of a vehicle, however, is “limited to those areas in which a weapon may be
placed or hidden” and to areas where the suspect “may gain immediate control of the
weapons.” Long, 463 U.S. at 1049.
The reasonableness of a protective search for weapons must be assessed on a case-
by-case basis. McDowell v. State, 407 Md. 327, 340 (2009) (quoting State v. Smith, 345
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Md. 460, 468 (1997)). The permitted scope of a protective search, therefore, is “whatever
is necessary to serve the purpose of that search,” i.e., ensuring officer safety. Ames v. State,
231 Md. App. 662, 679 (2017).
Here, Officer Jones testified that he saw appellant duck down toward the floorboard.
Thus, the area he searched included “the driver’s seat; the driver’s door pocket; under the
driver’s seat; to the side of the driver’s seat, on both sides; the cup holder/center area; and
then under the floor mat.” According to Officer Jones, those areas were “within the lunge,
reach, and grab” of appellant as he “ducked down” in the driver’s seat.
This search did not exceed the scope of a reasonable protective search to ensure
officer safety. As the Supreme Court has noted, an officer confronted with the situation
which Officer Jones faced must make a “‘quick decision as to how to protect himself and
others from possible danger.’” Long, 463 U.S. at 1052 (quoting Terry, 392 U.S. at 28). See
also Graham v. Connor, 490 U.S. 386, 396-97 (1989) (“[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.”).
Where appellant made furtive movements and ducked down toward the floorboard, it was
reasonable for Officer Jones to check that area of the vehicle, including lifting the floor
mat by the driver’s seat to determine if a weapon was hidden there. See United States v.
Paulino, 850 F.2d 93 (2d Cir. 1988) (protective search, which included lifting rubber mat
on floor of vehicle, was reasonable under the Fourth Amendment); People v. Colyar, 996
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N.E.2d 575, 586-87 (Ill. 2013) (upholding protective search of passenger compartment of
vehicle, which revealed handgun under floor mat).
We are not persuaded by appellant’s argument that the decision of the Court of
Appeals in McDowell requires a different conclusion. In that case, the police initiated a
traffic stop and then observed McDowell reach underneath his seat and behind his seat into
a gym bag. 407 Md. at 331. The officer ordered McDowell to exit the vehicle and to open
the bag, which revealed drugs. Id. at 331-32.
The Court of Appeals held that, to show that a protective frisk of the bag was
reasonable, the State had to show that the officer used the “least intrusive means” to
determine if the suspect is armed and dangerous. Id. at 341.10 The Court held that, if there
was no showing that a pat-down of a container would not suffice to determine if it contained
a weapon, opening the container exceeded the scope of a proper protective search. Id. The
Court stated:
When the container is subjected to a more intrusive search in lieu of a pat-
down, the State can sustain its burden of proof that the search was reasonable
either by having the officer explain why it was necessary to conduct that
search or by demonstrating from the container itself that a pat-down would
not have revealed the presence or absence of a weapon.
10
We note that, in City of Ontario v. Quon, 560 U.S. 746, 763 (2010), the Supreme
Court stated that it had “repeatedly refused to declare that only the ‘least intrusive’ search
practicable can be reasonable under the Fourth Amendment.” (quoting Vernonia School
Dist. 47J v. Acton, 515 U.S. 646, 663 (1995)).
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Id. Because the police officer in McDowell did not explain why a pat-down of the gym
bag would not have been effective, the Court held that the drugs discovered should have
been suppressed. Id. at 341-42.
McDowell does not control here because a floor mat is not a container. A container
is defined as “a receptacle (as a box or jar) for holding goods.” Merriam-Webster’s
Collegiate Dictionary 269 (11th ed. 2003). The gym bag in McDowell fell within this
definition; the floor mat in this case does not.
We hold that when the police have reasonable, articulable suspicion that a weapon
may be found on the floor of a vehicle, a protective search to ensure that no weapon is
hidden there may include lifting the floor mat. The protective search here did not exceed
its scope, and the circuit court properly denied the motion to suppress.
JUDGMENT OF THE CIRCUIT
COURT FOR FREDERICK
COUNTY AFFIRMED. COSTS TO
BE PAID BY APPELLANT.
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