Pyon v. State , 222 Md. App. 412 ( 2015 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0897
September Term, 2014
ANDREW J. PYON
v.
STATE OF MARYLAND
Kehoe,
Friedman,
Moylan, Charles E., Jr.
(Retired, Specially Assigned),
JJ.
Opinion by Moylan, J.
Filed: April 6, 2015
Should the Fourth Amendment be implicated in this case, it was not satisfied. The
dispositive threshold question before us, therefore, is whether the Fourth Amendment was
even implicated. An encounter between a law enforcement official and a private citizen is
a phenomenon that is, like Caesar's Gaul, divided into three parts. Such encounters, of
course, actually cover a wide spectrum embracing infinite factual variations. For purposes
of Fourth Amendment analysis, however, that wide spectrum has been conveniently
sectioned off into three constitutional categories, two of which involve the Fourth
Amendment and one of which does not. Before we presume to examine the specimen at
hand, we must be sure we are using the proper microscope. It behooves us briefly to survey
the respective microscopes.
Three Levels of Police-Citizen Encounters
As a teaching aid, the 24-karat opinion is Swift v. State, 393 Md. 139, 899 A.2d 867
(2006). Judge Raker, 393 Md. at 149-51, there set out the three levels on which a police-
citizen encounter may occur.
"It is well established that the Fourth Amendment guarantees are not
implicated in every situation where the police have contact with an individual.
... Many Courts have analyzed the applicability of the Fourth Amendment in
terms of three tiers of interaction between a citizen and the police. ... The most
intrusive encounter, an arrest, requires probable cause to believe that a person
has committed or is committing a crime. ... The second category, the
investigatory stop, is less intrusive than a formal custodial arrest and must be
supported by reasonable suspicion that a person has committed or is about to
commit a crime and permits an officer to stop and briefly detain an individual.
...
"The least intrusive police-citizen contact, a consensual encounter, ...
involves no restraint of liberty and elicits an individual's voluntary
cooperation with non-coercive police contact."
(Citations omitted).
An Arrest of the Person
The most coercive of the police-citizen encounters is that involved when the officer
actually places the citizen under arrest. Self-evidently the Fourth Amendment applies and
self-evidently the Fourth Amendment must be satisfied. The Fourth Amendment justification
required for such a severe Fourth Amendment seizure of the person has always been nothing
less than probable cause. Swift v. State, 393 Md. at 150. The Supreme Court spoke of the
standard in Dunaway v. New York, 442 U.S. 200, 208, 99 S. Ct. 2248, 60 L. Ed. 2d 824
(1979):
"The standard of probable cause thus represented the accumulated
wisdom of precedent and experience as to the minimum justification necessary
to make the kind of intrusion involved in an arrest 'reasonable' under the
Fourth Amendment."
See also Florida v. Royer, 460 U.S. 491, 499, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).
The present case does not remotely involve this highest level of police-citizen
encounter. During that phase of the encounter pertinent to our present analysis, the appellant
was clearly not under arrest and the issue of probable cause as a justification is utterly
immaterial. Our exclusive concern is with the lower two levels of police-citizen encounter.
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A Terry Stop (An Investigative Stop)
The intermediate level of police-citizen encounter is generally referred to as a Terry
stop (from the seminal "stop and frisk" case of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968)), although frequently it is described as an "investigative stop." It is a
lesser Fourth Amendment intrusion than a full-scale arrest. Because it is a Fourth
Amendment intrusion upon a citizen's otherwise unfettered freedom, however, it accordingly
requires a Fourth Amendment justification, albeit a lesser justification than is required for
an arrest. Swift, 393 Md. at 150, described both its coercive attributes and its required
justification:
"A police officer may engage in an investigatory detention without
violating the Fourth Amendment as long as the officer has a reasonable,
articulable suspicion of criminal activity. ... A Terry stop is limited in duration
and purpose and can only last as long as it takes a police officer to confirm or
to dispel his suspicions. ... A person is seized under this category when, in
view of all the circumstances surrounding the incident, by means of physical
force or show of authority a reasonable person would have believed that he
was not free to leave or is compelled to respond to questions. Factors that
might indicate a seizure include a threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the person, the
use of language or tone of voice indicating that compliance with the officer's
request might be compelled, approaching the citizen in a nonpublic place, and
blocking the citizen's path."
(Emphasis supplied) (citations omitted).
The above two levels of police-citizen encounter involve, respectively, greater and
lesser Fourth Amendment seizures of the person. Both levels, therefore, require Fourth
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Amendment justification in order to qualify as reasonable, probable cause in the one case
and Terry-level reasonable articulable suspicion in the other.
A Mere Accosting (A Consensual Encounter)
A mere accosting, by dramatic contrast, falls below the Plimsoll line of Fourth
Amendment applicability. It is simply the police-citizen subset of the voluntary and
consensual social intercourse that occurs regularly between citizen and citizen. It is beneath
the Fourth Amendment radar. If one citizen may approach another and engage in
conversation, a police officer is self-evidently free to do no less. Lest he attract the scrutiny
of the Fourth Amendment, however, he must be careful to do no more. Swift, 393 Md. at
151, described this sub-constitutional level of police-citizen encounter:
"Encounters are consensual where the police merely approach a person
in a public place, engage the person in conversation, request information, and
the person is free not to answer and walk away. The guarantees of the Fourth
Amendment are not implicated in such an encounter unless the police officer
has by either physical force or show of authority restrained the person's liberty
so that a reasonable person would not feel free to decline the officer's requests
or otherwise terminate the encounter."
(Emphasis supplied) (citation omitted).
In Ferris v. State, 355 Md. 356, 373 n.4, 735 A.2d 491 (1999), the Court of Appeals
had similarly described the consensual encounter as:
"[S]imply the voluntary cooperation of a private citizen in response to non-
coercive questioning by a law enforcement official. Because an individual is
free to leave at any time during such an encounter, he is not 'seized' within the
meaning of the fourth amendment."
(Emphasis supplied) (citations omitted).
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In Graham v. State, 146 Md. App. 327, 366, 807 A.2d 75 (2002), this Court spoke
in a similar vein:
"The classic Supreme Court opinions explicating the phenomenon of
accosting are Immigration and Naturalization Service v. Delgado, 466 U.S.
210, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984); Florida v. Royer, 460 U.S. 491,
103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); and United States v. Mendenhall,
446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). From the beginning,
the accosting cases undertook to disabuse bench and bar of the notion that the
police need special Fourth Amendment justification even to approach and to
talk to citizens. There has never been a suggestion that a police officer enjoys
a greater than ordinary right to approach and talk. The message, rather, is that
the police officer enjoys no less a right."
(Emphasis supplied).
It is, moreover, clear that a mere accosting or consensual encounter, should it stay
scrupulously within its limits, does not implicate the Fourth Amendment and does not,
therefore, require any Fourth Amendment justification. See, Swift, 393 Md. at 151.
A Border Line Is Not a Border Zone
The present case lies perplexingly close to the line between the Terry-stop and the
mere accosting. That line is in this case the dispositive boundary between Fourth
Amendment applicability and Fourth Amendment inapplicability. It is frequently, as it is in
this case, a line that can be factually ambiguous. Nonetheless, it is a line and not a zone.
The Fourth Amendment is either applicable or inapplicable. There is no halfway. The State
will not, therefore, be heard to say, "Even if we lacked full Terry-level reasonable suspicion,
we had some suspicion. We came close. Therefore, it was not unreasonable to enjoy at least
some police prerogatives beyond the ordinary, even if not the full complement thereof." In
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a decision that must, of doctrinal necessity, be binary, the Fourth Amendment applies either
in full measure or not at all. Except in horseshoes, close does not count.
The threshold of Fourth Amendment applicability, moreover, is a legal question
calling for a de novo determination. As to it, we are not deferential.
As we straddle this elusive border between a mere accosting and an investigative
stop, we encounter a not uncommon instance of police behavior that seeks to exploit the
benefits of being on both sides of the border at the same time. We spoke of this creative
shape-shifting in Graham v. State, 146 Md. App. 327, 337, 807 A.2d 75 (2002):
"[T]here emerges with unmistakable clarity a picture of a police procedure
that is ... a wolf in sheep's clothing. The innocuous surface trappings are all
those of a mere accosting, something long sanctioned by the Supreme Court
as an everyday occurrence that does not even catch the eye of the Fourth
Amendment. The underlying reality, however, is a borderline investigative
procedure whereby the police seek to enjoy the full Fourth Amendment
benefits of ... a Terry-stop ... without paying the attendant Fourth Amendment
dues."
(Emphasis supplied).
The Conviction
On May 28, 2014, the appellant, Andrew J. Pyon, was convicted in the Circuit Court
for Howard County in a non-jury trial of the unlawful possession of less than 10 grams of
marijuana. He was ordered to pay a fine of $500.
The conviction was for a violation of Maryland Code, Criminal Law Article, § 5-601,
which prohibits, inter alia, the possession of a controlled dangerous substance. Marijuana
is a controlled dangerous substance. Chapter 193 and 194 of the Acts of 2012, effective as
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of October 1, 2012, were the controlling law at the time of the appellant's initial stop by the
police and at the time of the appellant's trial. The then-new provision had reduced the
maximum penalty for the possession of less than 10 grams of marijuana from imprisonment
for one year and/or a fine of $1,000 to a maximum imprisonment of 90 days and a
maximum fine of $500.1
The laboratory report introduced into evidence showed that the bag of plant material
recovered from the glove compartment of the vehicle in which the appellant was a passenger
contained 3.37 grams of marijuana. Notwithstanding the relative lack of gravity of the
conviction before us, the Fourth Amendment issue will be examined as if we were reviewing
a conviction for murder in the first degree.
The Contentions
The appellant raises the following two contentions:
1. that the trial judge erroneously denied his motion to suppress the
marijuana seized from the glove compartment of the car in which he
was a passenger; and
2. that the evidence was not legally sufficient to support the conviction
for possession of marijuana.
1
Section 5-601 has since been amended by ch. 158, of the Acts of 2014, effective
October 1, 2014, and now provides that for a first violation of the section, the use or
possession of less than 10 grams of marijuana is "a civil offense punishable by a fine not
exceeding $100." Section 5-601.1 also provides that the police shall issue a citation for such
a violation rather than arrest the violator.
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The Suppression Motion
In this case, we are not dealing with a self-contained suppression hearing but rather
with a suppression motion in the context of the trial itself. In reviewing that ruling, we will
confine our examination to the evidence and argument bearing on the motion to suppress,
just as, had there been a pre-trial suppression hearing, we would confine ourselves to the
evidence and argument offered at that hearing.
The only witness to testify on the motion to suppress was Officer Sally Kimmett of
the Howard County Police Department. On the very early morning of Friday, December 14,
2013, Officer Kimmett was on duty in her marked police cruiser. From the radio dispatch
operator, she received a call to proceed to the vicinity of 6518 Overheart Lane in East
Columbia. She did so and arrived there within less than 10 minutes. She placed her reception
of the call from "dispatch" at approximately 11 minutes after midnight.
We will pass over (but just for the moment) the substance of the dispatch call that
sent Office Kimmett to the neighborhood of 6518 Overheart Lane and focus exclusively on
what she saw and did upon her arrival at that location. Officer Kimmett saw and first
focused upon a gray Honda SUV that was unoccupied. She then noticed a second Honda in
the general area and re-directed her attention to it. It is that second Honda that concerns us
in this case. It was parked and its engine was off.
-8-
As Officer Kimmett, in her marked police cruiser, approached the second parked
Honda, it is clear that she maneuvered her cruiser in such a way as to block, at least partially,
any potential egress by the Honda. The geography, however, is a trifle ambiguous:
"[DEFENSE COUNSEL]: And where did you park?
"A. The co-Defendant's vehicle was parked in and I came around, there's
a circle there and I came around and I came up this way. So it was I
would say [cater-corner].
"Q. So you were directly behind them?
"A. No.
"Q. This is them parked in and this would be me coming around the circle
and parking here.
"[THE STATE]: For the record indicating if we're looking at a clock face,
4:00, 5:00.
"A. That's correct.
"Q. So it's your testimony that if they wished to, the co-Defendant could
have left the parking lot?
"A. They could have backed out, that's correct."
(Emphasis supplied).
Any further inquiry about backing out was short-circuited:
"Q. Okay, in your opinion were they free to leave at that the time that you
approached their vehicle?
"[THE STATE]: Objection, her opinion's irrelevant.
"THE COURT: Sustained."
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It was also clear that Office Kimmett got out of her cruiser and walked quickly
toward the Honda just as the driver began to get out of the Honda.
"Q. Did you – how did you approach the vehicle?
"A. I walked up to it.
"Q. And in what manner did you approach quickly, slowly?
"A. The driver began to get out so I approached quickly because I wasn't
sure what he was going to do."
(Emphasis supplied).
Office Kimmett requested the driver to produce his driver's license.
"Q. Did you say anything to him?
"A. Not that I recall besides can I have your driver's license.
"Q. And you were by yourself at this point?
"A. That's correct."
(Emphasis supplied).
The driver of the Honda was the appellant's ultimate co-defendant, James Chinham.
To that point, Officer Kimmett had noted nothing to indicate the presence or use of
marijuana (or of any other criminal activity).
"Q. And when you first approached my client's – or I'm sorry, the co-
defendant's vehicle, you didn't see anybody smoking marijuana?
"A. No.
"Q. You didn't see any fire or anybody lighting anything?
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"A. No.
"Q. And when you approach the vehicle you didn't notice any smoke that
was present?
"A. Not that I recall."
(Emphasis supplied).
It was as she was examining Chinham's driver's license that Officer Kimmett first
observed the appellant sitting in the right front passenger seat of the Honda. Her instinctive
response was to call for "back-up."
"Q. Where did Officer James Wintjen come from?
"A. I had requested back up when I observed that there were multiple
subjects in the vehicle.
"Q. And where were you when you called for the back up?
"A. I called for the back up once I had gotten Mr. Chinham's ID and saw
that there was someone else in the vehicle.
"Q. You did this by your mobile communication on your person rather than
one in the car, correct?
"A. That's correct, yes.
"Q. How long did it take Officer James Wintjen to approach? Or to get to
the scene?
"A. Not very long at all, I don't remember an exact time."
(Emphasis supplied).
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Once Office Wintjen had arrived on the scene, Officer Kimmett walked around to the
front passenger's window and asked the appellant to produce his driver's license or other
identification.2
As the appellant then handed his license to Officer Kimmett, she testified that she
detected the odor of raw marijuana coming from the passenger's side of the vehicle.
"Q. What conversation or what did you do concerning [the appellant]?
"A. I again asked him for – or I asked him for his driver's license.
"Q. And did he give it to you?
"A. He did.
"Q. As he gave you his driver's license, did anything occur that triggered
your training?
"A. Yes.
"Q. What was that?
"A. I detected an odor of marijuana.
"Q. Where was the odor of marijuana coming from?
"A. The vehicle.
"Q. Do you know what part of the vehicle?
2
The record does not reveal whether the passenger window, as Officer Kimmett
approached it, was open or closed. From the fact that the encounter under review took place
at shortly after midnight in the middle of December (plus the lack of evidence that anyone
in the car had been smoking), an inference would seem to have been permissible that the
window was closed. In any event, the burden was on the State to justify warrantless activity.
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"A. The passenger compartment.
"Q. Where were you standing when you smelled the odor of marijuana?
"A. Next to the passenger's side of the vehicle."
(Emphasis supplied).
Officer Kimmett ordered the appellant to get out of the car. Both the appellant and
Chinham were ordered to stand on the sidewalk as both officers conducted a warrantless
Carroll-Doctrine search of the Honda.3 From the glove compartment, they recovered the
baggie containing what turned out to be 3.37 grams of marijuana.
Bracketing the Target
Our concern in this case is with a very narrow window of time. Our focus is on the
status of the encounter between Officer Kimmett, on the one hand, and the appellant and
Chinham, on the other, between the moment that Officer Kimmett parked her cruiser cater-
corner to the Honda and the moment that she detected the smell of marijuana emanating
from the passenger side of the vehicle. The significance of what happened before and what
happened afterward is not subject to serious dispute. Our exclusive concern is whether,
during that brief interval, we are looking at a Terry-stop, subject to Fourth Amendment
3
Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) held that
a warrantless search of an automobile is reasonable if the police have probable cause to
believe that evidence of a crime will be found in the automobile. What is now universally
called the Carroll-Doctrine is one of the classically recognized exceptions to the warrant
requirement.
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conditions, or at a voluntary and consensual exchange of conversation free of all such
barnacles.
Before zeroing in on that ultimate target, however, it behooves us briefly to dispose
of the "before" and the "after," pointing out why neither is the occasion for any serious
dispute.
No Fourth Amendment Justification
First, the "before." In terms of what Officer Kimmett knew as she parked her police
cruiser cater-corner to the Honda in which the appellant was seated, it is beyond dispute that
she had no Terry-level reasonable suspicion that the Honda and its occupants had
committed, were then committing, or were about to commit any crime generally or any
traffic offense specifically. Absent that predicate, there was no basis for any Fourth
Amendment intrusion of the most minimal sort.
In terms of a traffic offense, there was no evidence that the Honda had even been
driving, let alone evidence that it had been involved in any traffic infraction. For all we
know, the Honda was legally parked and its two occupants were sitting quietly inside it.
There was, moreover, no evidence of any structural defect – no excessively tinted windows,
no hanging tail pipe, no loose or missing license tag, etc. As far as the traffic laws were
concerned, the Honda and its occupants were clean. As far as more generic crimes were
concerned, the Honda and its occupants were also untouchable.
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If the Honda and its occupants were subjected to any official restraint, the Fourth
Amendment was thereby implicated. The Fourth Amendment fountainhead, of course, is
Terry v. Ohio. At the most fundamental level, the gears of the Fourth Amendment are
engaged "whenever a police officer accosts an individual and restrains his freedom to walk
away[.]" 392 U.S. at 16.
Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 135 L. Ed. 2d 911
(1996), described the reasonable suspicion standard that must be satisfied to justify such
restraint:
"We have described reasonable suspicion simply as 'a particularized and
objective basis' for suspecting the person stopped of criminal activity[.]"
United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981),
was emphatic not only about the Terry standard but about the fact that it applies to all
seizures of the person, including those involved in brief investigatory stops.
"The Fourth Amendment applies to seizures of the person, including
brief investigatory stops such as the stop of the vehicle here. An investigatory
stop must be justified by some objective manifestation that the person stopped
is, or is about to be, engaged in criminal activity."
(Emphasis supplied) (citations and footnote omitted).
United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989),
described the standard for a Terry-stop:
"The officer, of course, must be able to articulate something more than
an 'inchoate and unparticularized suspicion or "hunch."' [Terry v. Ohio, 392
U.S. 1] at 27, 88 S. Ct., at 1883. The Fourth Amendment requires 'some
minimal level of objective justification' for making the stop."
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(Citation omitted). The question is whether Officer Kimmett had any Terry-level
justification as she first approached the Honda.
A Worthless Tip Pointing In The Wrong Direction
What had been communicated to Officer Kimmett's mind as she drove to 6518
Overheart Lane that night was sketchy in the extreme. The so-called radio dispatch was of
"drug activity in the area." Officer Kimmett then knew absolutely nothing about the
provenance of the tip:
"[DEFENSE COUNSEL]: Why were you asked to go there?
"A. We received a call for drug activity in the area.
"Q. Do you know where that call came from?
"A. I'm not sure the exact person but it came through Howard County
Dispatch.
"Q. Did you get the name of the person who reported the call?
"A. I did not."
(Emphasis supplied).
The Supreme Court has made it abundantly clear that an anonymous tip, unverified
by independent police observation, is not a credible basis for a Fourth Amendment intrusion.
The tip that was dismissed as woefully inadequate in Florida v. J.L., 529 U.S. 266, 271, 120
S. Ct. 1375, 146 L. Ed. 2d 254 (2000), was no more insubstantial than the one given to Officer
Kimmett in this case:
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"The tip in the instant case lacked the moderate indicia of reliability
present in White and essential to the Court's decision in that case. The
anonymous call concerning J.L. provided no predictive information and
therefore, left the police without means to test the informant's knowledge or
credibility. That the allegation about the gun turned out to be correct does not
suggest that the officers, prior to the frisks, had a reasonably basis for
suspecting J.L. of engaging in unlawful conduct: The reasonableness of
official suspicion must be measured by what the officers knew before they
conducted their search. All the police had to go on in ths case was the bare
report of an unknown, unaccountable informant who neither explained how
he knew about the gun nor supplied any basis for believing he had inside
information about J.L. If White was a close case on the reliability of
anonymous tips, this one surely falls on the other side of the line."
(Emphasis supplied). See generally, Carter v. State, 143 Md. App. 670, 678-80, 795 A.2d
790 (2002).
The tip in this case, moreover, was twice bereft. For starters, it was without a shred
of credibility. Quite aside from that fatal flaw, it did not even point to the appellant or to
James Chinham or to the Honda in which they were sitting. The tip mentioned two black
males in a Toyota Corolla. When Officer Kimmett arrived at the scene, there was no Toyota
Corolla there. If it had been there, it was gone. The tip also mentioned a gray Honda SUV,
but said nothing with respect to it. Officer Kimmett saw a Honda SUV at the scene that she
believed was the one mentioned in the tip, but it was unoccupied. Her testimony about the
tip and her arrival at the scene was:
"Q. Officer, when you first got that call to service, it was a call about two
black males in a Toyota Corolla?
"A. Correct.
"Q. And also about a silver – I'm sorry, a gray Honda SUV, correct?
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"A. Correct.
"Q. And when you got to the scene you observed that same Honda SUV
but it was unoccupied, correct?
"A. Correct."
(Emphasis supplied).
Officer Kimmett redirected her focus to the Honda in which the appellant was sitting
essentially on the basis of nothing but guesswork. Whereas the tip, moreover, had expressly
referred to two black males, the appellant was Asian American. The Honda itself was "kind
of a hybrid" and "appeared that it may have been an SUV." Was it or was it not an SUV?
The record does not tell us. The best that Officer Kimmett could offer was that "perhaps the
caller got it wrong."
"Q. Okay, so it wasn't actually my client's car that was part of the
description for the call to service?
"A. Not necessarily, the client or it wasn't your client's car, it was Mr.
Chinham's car, which is I believe kind of a hybrid and it appeared that
it may have been an SUV. Perhaps the caller got it wrong.
"Q. But there was a gray Honda SUV in the proximity?
"A. That's correct, yes."
(Emphasis supplied). If, indeed, "the caller got it wrong," is Officer Kimmett then competent
to confect an alternate dispatch fleshed out by her own imagination?
In sum total, that was not so much as an "inchoate hunch," let alone a Terry-level
reasonable and articulable suspicion. Our conclusion, therefore, is that if the Fourth
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Amendment is implicated, that is, if the police-citizen encounter was a Terry-stop rather than
a mere accosting, the Fourth Amendment was not remotely satisfied and the physical
evidence should have been suppressed. The State recognizes this as surely as do we. The
heart of its argument is:
"The least intrusive police-citizen contact, a consensual encounter ...
involves no restraint of liberty and elicits an individual's voluntary
cooperation with non-coercive police contact. Encounters are consensual
where the police merely approach a person in a public place, engage the
person in conversation, request information, and the person is free not to
answer and walk away. A consensual encounter need not be supported by any
suspicion and because an individual is free to leave at any time during such
an encounter, the Fourth Amendment is not implicated; thus, an individual is
not considered to have been 'seized' within the meaning of the Fourth
Amendment."
(Emphasis supplied). The State's argument is that we are dealing with a mere accosting.
All in the Same Boat
As part of our "before" analysis, of course, it would not necessarily be fatal to the
State's case that the Fourth Amendment was in a general sense implicated when Officer
Kimmett parked her police cruiser cater-corner to the Honda and approached the driver to
ask for identification. The State might still challenge the appellant's Fourth Amendment
standing. The appellant, after all, was a mere passenger (or sedentary occupant) in the Honda
and it might be further necessary to establish that he, as well as James Chinham (the driver),
had been seized within the contemplation of the Fourth Amendment.
Brendlin v. California, 551 U.S. 249, 127 S. Ct. 1400, 168 L. Ed. 2d 132 (2007)
mercifully relieves us of all uncertainty on that score. In a unanimous opinion, the Supreme
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Court held unequivocally that when an automobile is stopped within the contemplation of
the Fourth Amendment, not only has the driver been subjected to a Fourth Amendment
seizure of his person but all of the passengers in the vehicle have similarly been seized.
Justice Souter's opinion for the Court was sure:
"The law is settled that in Fourth Amendment terms a traffic stop
entails a seizure of the driver 'even though the purpose of the stop is limited
and the resulting detention quite brief.' ... And although we have not, until
today, squarely answered the question whether a passenger is also seized, we
have said over and over in dicta that during a traffic stop an officer seizes
everyone in the vehicle, not just the driver. See, e.g., ... Whren [v. United
States, 517 U.S. 806,] 809-10, 116 S. Ct. 1769[, 135 L. Ed. 2d 89 (1996)]
('Temporary detention of individuals during the stop of an automobile by the
police, even if only for a brief period and for a limited purpose, constitutes a
"seizure" of "persons" within the meaning of [the Fourth Amendment]')."
(Emphasis supplied) (citations omitted).
In Brendlin, the police had no adequate justification to stop the vehicle. The Supreme
Court of California had held, however, that the unconstitutional stop of the vehicle and
driver did not constitute a stop of the passenger. The United States Supreme Court
emphatically disagreed.
"The State concedes that the police had no adequate justification to pull
the car over ... but argues that the passenger was not seized and thus cannot
claim that the evidence was tainted by the an unconstitutional stop. We
resolve this question by asking whether a reasonable person in Brendlin's
position when the car stopped would have believed himself free to 'terminate
the encounter' between the police and himself. We think that in these
circumstances any reasonable passenger would have understood the police
officers to be exercising control to the point that no one in the car was free to
depart without police permission."
551 U.S. at 256-57. (Emphasis supplied) (citation omitted).
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Arizona v. Johnson, 555 U.S. 323, 332, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009),
reaffirmed the Brendlin holding:
"Brendlin held that a passenger is seized, just as the driver is, 'from the
moment [a car stopped by the police comes] to a halt on the side of the road.'
A passenger therefore has standing to challenge a stop's constitutionality."
(Citations omitted). See also, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 54
L. Ed. 2d 331 (1977); Maryland v. Wilson, 519 U.S. 408, 413, 117 S. Ct. 882, 137 L. Ed. 2d
41 (1997).
If the Fourth Amendment was violated by the prolonged detention of the Honda in
this case, the appellant, as one of its occupants, had unquestionable Fourth Amendment
standing to raise the suppression issue.
Sir Isaac Newton and Traffic Stops
There might arguably be a second impediment to proceeding with a Fourth
Amendment analysis. The argument might be made that cases involving the stopping of an
automobile, along with its driver and its passengers, are inapposite because in this case the
police never actually "stopped" the Honda but simply approached it after it was already
stopped. We see no Fourth Amendment difference, however, between bringing a moving
vehicle to a stop in the first instance and potentially prolonging a stop already in progress
in the second instance.
According to the laws of Newtonian physics, one may distinguish between 1) a body
in motion coming to rest when acted upon by a force and 2) a body already at rest remaining
- 21 -
at rest when acted upon (perhaps redundantly) by a force. According to Fourth Amendment
law, by contrast, the two phenomena are indistinguishable, if the force in question is a police
officer and if the body acted upon is an automobile. Constitutionally, it is a distinction
without a difference. In either scenario, the automobile and all of its occupants are
immobilized. As a linguistic convenience, we will in this opinion use the term "stop" to refer
to the force or show of authority that results in an already stopped vehicle remaining stopped
as well as to the force or show of authority that results in a moving vehicle coming to a halt.
The State in its brief seeks to distinguish an automobile passenger in a car that is
moving from a passenger in an automobile that is not in any sense moving.
"Based on these facts, the motions court made an explicit determination
that Officer Kimmett 'didn't stop that car, she was just walking towards that
car,' and 'it's clear that the officer was approaching that vehicle that had
already stopped.'"
As long as the passenger is presently being restrained by force or show of authority,
we see no doctrinal significance in whether he had theretofore been moving or not. The
defendant in Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), was
in a posture similar to the one occupied by the appellant in this case. The defendant there
was seated in the right front-passenger seat of a car that was legally parked at 2:15 a.m. in
a "high crime area" of Bridgeport, Connecticut. The police sergeant who was approaching
the vehicle had been told by a reliable informant that the defendant had a loaded revolver
in his waistband.
- 22 -
"After calling for assistance on his car radio, Sgt. Connolly approached
the vehicle to investigate the informant's report. Connolly tapped on the car
window and asked the occupant, Robert Williams, to open the door. When
Williams rolled down the window instead, the sergeant reached into the car
and removed a fully loaded revolver from Williams' waistband."
407 U.S. at 145. (Emphasis supplied).
The Supreme Court found the ultimate "Terry-frisk" to have been reasonable.
Because a justifiable Terry-stop is an indispensable antecedent to the legitimacy of a
subsequent Terry-frisk, however, it was necessary to find that there had, indeed, been an
antecedent "stop", notwithstanding the fact that the defendant had not been moving. Justice
Rehnquist analyzed Sergeant Connolly's approach to the seated defendant in terms of its
having been a "brief stop."
"A brief stop of a suspicious individual, in order to determine his identity or
to maintain the status quo momentarily while obtaining more information, may
be most reasonable in light of the facts known to the officer at the time."
407 U.S. at 146. The Supreme Court held that there had been a reasonable "forcible stop"
as the necessary predicate for the subsequent frisk.
"So long as the officer is entitled to make a forcible stop,1 and has reason to
believe that the suspect is armed and dangerous, he may conduct a weapons
search limited in scope to this protective purpose.
"1 Petitioner does not contend that Williams acted voluntarily in
rolling down the window of his car."
407 U.S. at 146. (Emphasis supplied).
In his dissenting opinion, Justice Brennan also analyzed Sergeant Connolly's
approach to the seated defendant as a "forcible stop."
- 23 -
"The crucial question on which this case turns, as the Court concedes,
is whether, there being no contention that Williams acted voluntarily in rolling
down the window of his car, the State had shown sufficient cause to justify
Sgt. Connolly's 'forcible' stop."
407 U.S. at 151 (Brennan, J., dissenting) (emphasis supplied).
Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999), is a precise case in point. It
involved, as in this case, the detention of a motorist who was already stopped rather than the
stopping of a motorist who was then moving. To be sure, there had been an earlier traffic
stop on the highway but that stop had officially been terminated and a fresh analysis began
at ground zero. Ferris, who at that point was free to leave, was seated behind the steering
wheel of his parked vehicle when the second police–citizen encounter, calling for a separate
analysis, began.
"[B]ecause the traffic stop had ended there, Ferris was lawfully free to drive
away, as Trooper Smith himself acknowledged in his own testimony. ...
"The more difficult question we must answer in this case is whether
Trooper Smith's questioning of Petitioner after he had issued the traffic
citation and had returned the driver's license and registration documents
constituted a detention, and hence raises any Fourth Amendment concerns, or
was merely a 'consensual encounter,' thus implicating no constitutional
overview."
355 Md. at 373-374. (Emphasis supplied) (citations and footnotes omitted).
Both Munafo v. State, 105 Md. App. 662, 673-75, 660 A.2d 1068 (1995) and Snow
v. State, 84 Md. App. 243, 248-49, 578 A.2d 816 (1990), also involved situations wherein
second and independent analyses had to be made of the Fourth Amendment detention of
- 24 -
motorists in cars that were already fully stopped before the circumstances calling for fresh
analysis even came into play.
Indeed, if the Fourth Amendment applies to a passenger in a moving vehicle, on the
one hand, and to a pedestrian on the street, on the other hand, it is not exempted from
applying to a passenger (or occupant) of a stationary car at some intermediate point between
the two more familiar applications. There is no eye in the hurricane of Fourth Amendment
applicability. If the constructive "stop" of the Honda did not pass constitutional muster in
this case, the appellant was properly positioned to raise that issue. As we have already held,
moreover, if the Fourth Amendment was, indeed, implicated, it was not satisfied. All that
remains to be determined is whether we are dealing with a Terry-stop (an investigative stop),
so as to implicate the Fourth Amendment, on the one hand, or a mere sub-constitutional
accosting (a consensual encounter), on the other.
The Proof of Guilt Was Legally Sufficient
Before finally zeroing in on the ultimately dispositive question of the status of the
police-citizen encounter in this case, it is convenient to complete the "before and after"
analysis. Assuming, arguendo, that there had been no Fourth Amendment violation up to
the moment when Officer Kimmett first detected the smell of raw marijuana, the conviction
would in that case be unassailable. It is well-settled law that the smell of marijuana by a
trained drug-smelling dog can establish the probable cause necessary for a warrantless
Carroll-doctrine search of an automobile. Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834,
- 25 -
160 L. Ed. 2d 842 (2005). See also, Wilkes v. State, 364 Md. 554, 586-87, 774 A.2d 420
(2001); State v. Ofori, 170 Md. App. 211, 221-24, 906 A.2d 1089 (2006); Carter v. State,
143 Md. App. 670, 674, 795 A.2d 790 (2002); State v. Funkhouser, 140 Md. App. 696, 711,
782 A.2d 387 (2001). Although a much rarer phenomenon, the human smell of raw
marijuana has the same evidentiary impact as does the canine smell. Johnson v. United
States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948); Ford v. State, 37 Md.App. 373, 379,
377 A.2d 577 (1977) ("We have no doubt ... that knowledge gained from the sense of smell
alone may be of such character as to give rise to probable cause for a belief that a crime is
being committed in the presence of the officer.").
In this case, Officer Kimmett testified that she was trained to detect the smell of raw
marijuana and that she smelled it as she stood by the open window at the front passenger
door of the Honda. The trial judge, as was his fact-finding prerogative, believed Officer
Kimmett's testimony. His finding in that regard, therefore, was not clearly erroneous. Armed
with the necessary probable cause, the two officers conducted a warrantless Carroll-doctrine
search of the Honda and found a baggie of what turned out to be marijuana in the glove
compartment.
The appellant, to be sure, was only one of the two persons in the car, and the
appellant was not the driver. The evidence, nonetheless, was legally sufficient to support a
permissible inference that the appellant and the driver were in joint constructive possession
of the marijuana. Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769
- 26 -
(2003), was decided by a unanimous Supreme Court. The defendant Pringle was a front-seat
passenger in a car stopped by the police in Baltimore County, Maryland that was then
searched by them. From the glove compartment, immediately behind which Pringle had been
sitting, the police recovered $763 in cash. From between a back seat armrest and the back
seat, the police recovered five glassine baggies of cocaine. In the car in addition to Pringle
was the driver and another passenger who had been sitting in the back seat. Each of the three
occupants denied any knowledge of the cocaine.
The Court of Special Appeals affirmed the trial judge's denial of Pringle's suppression
motion. 141 Md. App. 292, 785 A.2d 790 (2001). A divided Court of Appeals reversed,
holding that the evidence was not sufficiently particularized to point to Pringle who was a
mere passenger. Pringle v. State, 370 Md. 525, 805 A.2d 2016 (2002). The Supreme Court
in turn reversed the Court of Appeals. Chief Justice Rehnquist, 540 U.S. at 372, wrote for
the Supreme Court:
"We think it an entirely reasonable inference from these facts that any
or all three of the occupants had knowledge of, and exercised dominion and
control over, the cocaine. Thus, a reasonable officer could conclude that there
was probable cause to believe Pringle committed the crime of possession of
cocaine, either solely or jointly."
(Emphasis supplied).
In looking at this issue of legal sufficiency, we are resolving the appellant's second
contention in the State's favor. Should the argument be made that the second contention
would be moot if the first contention is decided in the appellant's favor and the conviction
- 27 -
reversed, we hasten to point out that issue of legal sufficiency would not necessarily be moot
because of possible double jeopardy implications. It is always possible that, notwithstanding
a reversal, the State might wish to try the appellant again. Should the reversal of the
conviction be based only on a procedural flaw in the trial, the State would be fully entitled
to proceed with a retrial. State v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896).
Should the reversal, on the other hand, be based, even in part, on the legal insufficiency of
the proof of guilt, double-jeopardy principles would bar a retrial. Burks v. United States, 437
U.S. 1, 95 S. Ct. 2141, 57 L.Ed.2d 1(1978). It would not be so barred in this case.
To the further possible argument that if we held that the marijuana should have been
suppressed, that it should not, therefore, figure in the legal sufficiency computation, we
hasten to respond that that is not the case. Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285,
102 L. Ed. 2d 265 (1988) made it very clear that an appellate court, reviewing the legal
sufficiency of evidence at a trial, must weigh sufficiency on the basis of all the evidence that
was actually admitted and not simply the evidence that was determined, in hindsight, to have
been properly admitted. The Supreme Court explained, 488 U.S. at 40-42:
"It is quite clear from our opinion in Burks that a reviewing court must
consider all of the evidence admitted by the trial court in deciding whether
retrial is permissible under the Double Jeopardy Clause – indeed, that was the
ratio decidendi of Burks, ... and the overwhelming majority of appellate courts
considering the question have agreed.
"The basis for the Burks exception to the general rule is that a reversal
for insufficiency of the evidence should be treated no differently than a trial
court's granting a judgment of acquittal at the close of all the evidence. A trial
court in passing on such a motion considers all of the evidence it has admitted,
- 28 -
and to make the analogy complete it must be this same quantum of evidence
which is considered by the reviewing court."
(Emphasis supplied) (citation and footnote omitted).
The evidence in this case was legally sufficient to support the conviction, and the
State has the option, should it decide to pursue it, to seek a retrial.
The Generative Rationale of a Mere Accosting
We now return to the question that we have thus far deferred, that of whether this was
a mere accosting or a Terry-stop. All encounters between a police officer and a citizen do
not rise to the level of Fourth Amendment notice. This was recognized as early as Terry v.
Ohio, 392 U.S. 1, 19 n. 16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968):
"Obviously, not all personal intercourse between policemen and citizens
involves 'seizures' of persons. Only when the officer, by means of physical
force or show of authority, has in some way restrained the liberty of a citizen
may we conclude that a 'seizure' has occurred."
(Emphasis supplied).
What has now come to be the universally recognized dividing line between the
police-citizen encounters that implicate the Fourth Amendment and those that do not is
Justice Stewart's statement for the Court in United States v. Mendenhall, 446 U.S. 544, 553-
54, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980):
"We adhere to the view that a person is 'seized' only when, by means
of force or a show of authority, his freedom of movement is restrained. Only
when such restraint is imposed is there any foundation whatever for invoking
constitutional safeguards. The purpose of the Fourth Amendment is not to
eliminate all contact between the police and the citizenry, but 'to prevent
arbitrary and oppressive interference by enforcement officials with the privacy
- 29 -
and personal security of individuals.' As long as the person to whom questions
are put remains free to disregard the questions and walk away, there has been
no intrusion upon that person's liberty or privacy as would under the
Constitution require some particularized and objective justification.
...
"We conclude that a person has been 'seized' within the meaning of the
Fourth Amendment only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to
leave."
(Emphasis supplied) (citations and footnote omitted).
Florida v. Royer, 460 U.S. 491, 502, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983), spoke
to the same point:
"[L]aw enforcement officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public place, by asking
him if he is willing to answer some questions, by putting questions to him if
the person is willing to listen, or by offering in evidence in a criminal
prosecution his voluntary answers to such questions."
Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991), made
it clear, however, that a mere accosting can lose its initially consensual character and thereby
engage the gears of the Fourth Amendment:
"Our cases make it clear that a seizure does not occur simply because
a police officer approaches an individual and asks a few questions. So long as
a reasonable person would feel free 'to disregard the police and go about his
business,' the encounter is consensual and no reasonable suspicion is required.
The encounter will not trigger Fourth Amendment scrutiny unless it loses its
consensual nature."
(Emphasis supplied) (citations omitted).
- 30 -
Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 215, 104 S. Ct.
1758, 80 L. Ed. 2d 247 (1984), also affirmed that the circumstances surrounding a police-
citizen encounter can transform it from one that is voluntary and consensual into one
implicating the Fourth Amendment:
"What has evolved from our cases is a determination that an initially
consensual encounter between a police officer and a citizen can be
transformed into a seizure or detention within the meaning of the Fourth
Amendment, 'if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.'"
(Emphasis supplied) (citations omitted).
In Swift v. State, 393 Md. 139, 152, 899 A.2d 867 (2006), Judge Raker confirmed
that a police-citizen encounter is a "fluid situation" that can readily begin as a consensual
encounter but then escalate into a Terry-stop as accumulating indications of domineering
police behavior are added to the equation.
"An encounter has been described as a fluid situation, and one which
begins as a consensual encounter may lose its consensual nature and become
an investigatory detention or an arrest once a person's liberty has been
restrained and the person would not feel free to leave."
(Emphasis supplied).
The reason for recognizing a police officer's prerogative to ask questions of citizens
is clear. The officer is a citizen as well as an officer. He enjoys the same rights as do other
citizens. In his concurring opinion in Terry v. Ohio, 392 U.S. at 32, Justice Harlan wrote of
"the liberty (again, possessed by every citizen) to address questions to other persons[.]" In
- 31 -
his separate concurring opinion, Justice White, 392 U.S. at 34, referred to the same general
right inhering in all citizens:
"There is nothing in the Constitution which prevents a policeman from
addressing questions to anyone on the streets. Absent special circumstances,
the person approached may not be detained or frisked but may refuse to
cooperate and go on his way."
(Emphasis supplied).
This Court spoke to this very point in Graham v. State, 146 Md. App. 327, 366, 807
A.2d 75 (2002):
"From the beginning, the accosting cases undertook to disabuse bench and bar
of the notion that the police need special Fourth Amendment justification even
to approach and to talk to citizens. There has never been a suggestion that a
police officer enjoys a greater than ordinary right to approach and talk. The
message, rather, is that the police officer enjoys no less a right. The officer
possesses the same privilege as anyone else to approach a stranger and to ask,
1) 'What time is it?', 2) 'How do I get to Camden Yards?', or 3) 'Would you
like to buy a ticket to the Policeman's ball?'"
(Emphasis supplied). To that extent, the police officer is not disenfranchised.
Our analytic point of departure is that a police officer, in talking to people, enjoys the
same prerogative as does every other citizen, neither more nor less. He enjoys no special or
additional authority arising out of the fact that he is a police officer. The fundamental
character of a mere accosting is that it is egalitarian and not authoritarian. The citizen
addressed is free to ignore the officer and to walk away. If the citizen does not feel free to
do so, the encounter, by definition, loses its character as a voluntary and consensual one.
This parity between the officer and the ordinary citizen may be helpful to remember when
- 32 -
we assess, on an ad hoc basis, whether an officer on a given occasion may have strayed
beyond the boundaries of a mere accosting.
"Both parties to such mutual and voluntary exchanges stand as equals
of each other. Neither is in a dominant role. It is inconceivable that one
civilian would ever approach another and ask, 'Can you tell me how to get to
Camden Yards, and, by the way, would you mind if I frisk you before you
begin to tell me?' It is inconceivable that one civilian would approach another
and ask, 'Can you, please, tell me what time it is and, by the way, would you
mind sitting down there on the curb before you tell me? I don't want you
suddenly to run away.'"
146 Md. App. at 366. (Emphasis supplied).
To Run with the Hare and Hunt with the Hounds
Particularly in the unsettled borderland of police-citizen encounters, the police, quite
understandably, would like to enjoy the prerogatives of Fourth Amendment authority
without having to pay their Fourth Amendment dues. They naturally want the best of all
possible worlds. They desire, simultaneously, to run with the hare and hunt with the hounds.
The issue in this case is clear. From the moment that Officer Kimmett first parked her
police cruiser cater-corner to the rear of the Honda to the time that she received the
appellant's driver's license at the front passenger window, were the Honda and its occupants
being subjected to an investigative stop or were Officer Kimmett and the two young men
simply engaging in a mutually voluntary and consensual conversation? The State maintains
that the encounter was only the latter and that the young men's compliance with the officer's
direction was simply voluntary consensual behavior. The State's argument, therefore, is that
the Fourth Amendment does not even apply.
- 33 -
The litmus test is indisputably that of whether the appellant and James Chinham
during this critical period of time would or would not have felt free to leave. More precisely
of course, the test is not whether the appellant and Chinham subjectively felt free to leave,
but whether, under those circumstances, a reasonable person would, objectively, have felt
free to leave. No single factor is dispositive in one direction or the other. The objective
appraisal must be made by looking at the totality of the circumstances.
The appraisal made in Ferris v. State, 355 Md. at 373-84, is a good model to follow.
For the critical appraisal in Ferris, the police wished to enjoy the relaxed and Fourth
Amendment-free atmosphere of a voluntary and consensual encounter but the Court of
Appeals held that the confrontation was, in fact, a coercive one. The Court, 355 Md. at 377,
catalogued some of the innumerable factors that might enter into such an appraisal.
"Although the inquiry is a highly fact-specific one, courts have
identified certain factors as probative of whether a reasonable person would
have felt free to leave. These factors include: the time and place of the
encounter, the number of officers present and whether they were uniformed,
whether the police removed the person to a different location or isolated him
or her from others, whether the person was informed that he or she was free
to leave, whether the police indicated that the person was suspected of a
crime, whether the police retained the person's documents, and whether the
police exhibited threatening behavior or physical contact that would suggest
to a reasonable person that he or she was not free to leave."
(Emphasis supplied) (citation omitted).
Swift v. State, supra, was also a case wherein the State sought the benefit of a "mere
accosting" modality but where the Court of Appeals overruled the trial court and the Court
of Special Appeals and held that the police-citizen encounter was a coercive one calling for
- 34 -
Fourth Amendment justification. The opinion of the Court, 393 Md. at 152, gave its
description of the dividing line between the two modalities.
"Consensual encounters, therefore, are those where the police
merely [emphasis in original] approach a person in a public place, engage the
person in conversation, request information, and the person is free not to
answer and walk away. ... Fourth Amendment protections are implicated,
however, when an officer, by either physical force or show of authority, has
restrained a person's liberty so that a reasonable person would not feel free to
terminate the encounter or to decline the officer's request."
A. The Blocking of the Honda By the Police Cruiser
In terms of "whether the police exhibited threatening behavior," it is hard to
characterize Officer Kimmett's initial vehicular approach as anything other than aggressive
and intimidating. As an overture to a friendly and mutually consensual conversation, why
not park quietly and unobtrusively behind the Honda and against the curb? To position the
police cruiser cater-corner to the rear of the Honda, thereby blocking at least partially its
egress, would thereby say something to a reasonable person about his freedom to leave. If
that freedom to leave was not obliterated, it was at least compromised.
That is simply not the discreet way for a party wishing to engage in conversation with
another party to approach the encounter. It was, to say the least, aggressive and assertive
behavior. It was indisputably an unfriendly gesture. Our job is to assess, objectively, what
such behavior would have said to a reasonable person about Officer Kimmett's intentions.
Swift v. State, 393 Md. at 153, referenced Michigan v. Chesternut, 486 U.S. 567,
575, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988), in identifying one of the coercive factors as
- 35 -
the "operation of a car in an aggressive manner to block a defendant's course or otherwise
control the direction or speed of a defendant's movement."
B. The Time and Place of the Encounter
The confrontations in the present case and in Ferris were, in terms of time and place,
completely unlike the confrontations in Florida v. Royer, 460 U.S. at 493-94, and United
States v. Mendenhall, 446 U.S. at 555, which took place in broad daylight in the middle of
busy concourses of major airports. In holding that the encounter in Ferris was an
investigative stop and not a mere accosting, the Court of Appeals considered as a significant
factor that the encounter took place at "1:30 a.m. on a dark, rural interstate highway." The
opinion noted:
"The situation faced by Ferris was markedly different from that of a person
passing by or approached by law enforcement officers on the street, in a public
place, or inside the terminal of a common carrier."
355 Md. at 378. The Court of Appeals, 355 Md. at 383, went on:
"Finally, we note the geographic and temporal environment of the
encounter: late at night on the side of a presumably desolate, rural interstate
highway. The time and location of the encounter would have been unsettling
to a reasonable person in Ferris's position. Consequently, the physical
environment of the encounter between Trooper Smith and Ferris heightened
the coerciveness of the encounter."
(Emphasis supplied).
In Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 100 L. Ed. 2d 565
(1988), the Supreme Court also spoke of this factor:
- 36 -
"[W]hat constitutes a restraint on liberty prompting a person to conclude that
he is not free to 'leave' will vary, not only with the particular police conduct
at issue, but also with the setting in which the conduct occurs."
(Emphasis supplied).
The time and place of the encounter was also a factor in Swift v. State, 393 Md. at
155. The Court of Appeals there quoted with approval from the dissenting opinion of Judge
Meredith when the case was before the Court of Special Appeals.
"Swift was accosted at 3:00 in the morning on an otherwise deserted street by
a uniformed officer who had blocked Swift's path with his marked police car
and whose 'request' for a search was made under circumstances that would
have made it difficult for any person to say 'no'."
(Emphasis supplied).
The confrontation in this case took place shortly after midnight on a lonely residential
street apparently with no other persons abroad in the neighborhood. It was a circumstance
that could well have been more threatening than reassuring. It may not have been a
dispositive factor in and of itself, but it was nonetheless a piece of the larger mosaic.
C. The Number of Uniformed Officers
Ferris took note of the fact that in that roadside encounter, "there were two uniformed
officers present." 355 Md. at 378-79. The Court of Appeals, 355 Md. at 383, further noted,
"the presence of two uniformed law enforcement officers increased the coerciveness of the
encounter." (Emphasis supplied). In this case, once Officer Wintjen arrived on the scene,
there were also two officers at the scene, both in uniform. At that point, moreover, there
were presumably two marked police cruisers on the scene. The accumulation of officers and
- 37 -
vehicles might well have suggested to a reasonable citizen that he was not free to walk or
drive away without police permission. One can only conjecture what Officer Kimmett would
have done in this case had either Chinham or the appellant, without a word, presumed to
walk or drive away.
D. The Peremptory Request for Driver's Licenses
After partially blocking the Honda with her police cruiser, Officer Kimmett
immediately approached Chinham as he was alighting from his vehicle and asked him to
produce his operator's license. That would be a completely appropriate procedure, of course,
following a legitimate investigative stop, but it is hardly a conducive introduction to a
request for mutually consensual conversation. As a request for a truly voluntary
conversation, one would expect an, "Excuse me," or a, "Pardon me for interrupting, but I
would like to ask you a few questions if you are willing to talk to me." It is very difficult for
us to conceive that an objective observer would view Officer Kimmett's request that
Chinham produce his driver's license as a prelude to a consensual conversation. Officer
Kimmett's approach to Chinham contrasts sharply with the more genteel approach of the
officers in Florida v. Royer, 460 U.S. at 493-94, which the Supreme Court held to have been
proper, at least at that early stage of the Royer encounter.
"As Royer made his way to the concourse which led to the airline boarding
area, the two detectives approached him, identified themselves as policemen
working out of the sheriff's office, and asked if Royer had a 'moment' to speak
with them; Royer said 'Yes.'"
(Emphasis supplied).
- 38 -
As part of an actual investigative stop, even a demand (let alone a request) for
identification would be appropriate. Short of a Terry-stop, however, the police are not
permitted to ask for a driver's identification. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct.
1391, 59 L. Ed. 2d 660 (1979) made this very clear:
"[E]xcept in those situations in which there is at least articulable and
reasonable suspicion that a motorist is unlicensed or that an automobile is not
registered, or that either the vehicle or an occupant is otherwise subject to
seizure for violation of law, stopping an automobile and detaining the driver
in order to check his driver's license and the registration of the automobile are
unreasonable under the Fourth Amendment."
(Emphasis supplied).
The peremptory request to see the driver's license in this case was essentially
indistinguishable from the behavior of the stopping officer in Swift v. State, who upon
stopping Swift asked him for ID. Upon receiving the ID, the officer immediately got on the
police radio and checked for outstanding warrants. The Court of Appeals, 393 Md. at 149,
again alluded to Judge Meredith's dissent as he noted the essentially confrontational
character of the request for ID and the warrant check.
"Judge Meredith dissented. Concluding that no reasonable person in Swift's
position would have felt free to ignore Deputy Dykes, and that any reasonable
person in those particular circumstances would have felt constrained to wait
for the results of the radio warrants check rather than simply ignore the deputy
and walk away, [he noted that] petitioner had been seized without justification
under the Fourth Amendment."
(Emphasis supplied).
- 39 -
The request for identification, as Swift v. State noted, 393 Md. at 157, is a pertinent
factor in the coercion equation:
"Merely asking for identification does not create a seizure. Nor does a
warrants check necessarily convert a consensual encounter into a detention or
a seizure. A warrants check, however, is a circumstance that must be viewed
in light of all of the other facts surrounding the encounter between Deputy
Dykes and petitioner."
(Emphasis supplied).
Officer Kimmett had no justification for asking to see the driver's license of either
Chinham or the appellant. Her behavior constituted a Fourth Amendment seizure of their
persons without any Fourth Amendment justification for such a seizure.
E. A Traffic Stop Can Be Per Se Intimidating
Every action taken by Officer Kimmett in this case indicated that she was following
routine police procedures for the conduct of a traffic stop or other investigative stop. She
positioned her cruiser vis-á-vis the Honda as would be done in a traffic stop. She approached
the driver and asked for his license just as would be done in a routine traffic stop.
As we now assess the level of the encounter and the effect that it might objectively
have on the mind of a reasonable citizen subjected to such a stop, the Supreme Court's
observation in Berkemer v. McCarty, 468 U.S. 420, 436, 104 S. Ct. 3138, 82 L. Ed. 2d 317
(1984), about the impact of a traffic stop is enlightening:
"[A] traffic stop significantly curtails the 'freedom of action' of the driver and
the passengers, if any, of the detained vehicle. Under the law of most States,
it is a crime either to ignore a policeman's signal to stop one's car or, once
having stopped, to drive away without permission. Certainly few motorists
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would feel free either to disobey a directive to pull over or to leave the scene
of a traffic stop without being told they might do so."
(Emphasis supplied) (citation and footnotes omitted).
All of the Supreme Court cases that describe the right of an officer to ask questions
of a citizen without implicating the Fourth Amendment immediately hasten to add that the
citizen is equally free to decline to answer the question or simply to ignore the question and
to walk away. As Officer Kimmett approached Chinham in this case and asked for his
driver's license, it is inconceivable that Chinham would have felt free to respond, "It is none
of your business," to have turned on the Honda's ignition switch, and to have started to drive
away. Without such a feeling of freedom, however, he was "seized" for Fourth Amendment
purposes, and so was the appellant.
Although the State now contends on appeal, as it did at trial, that the encounter in
this case was nothing but a mere accosting with no accompanying Fourth Amendment
baggage, we note, in defense of Officer Kimmett's behavior, that she never seemed to be
engaging in what she believed to be a voluntary and consensual encounter but behaved,
rather, as if she was engaged in a full-blown Fourth Amendment-implicated traffic stop or
other investigative stop from start to finish. That is, moreover, the message that would,
objectively speaking, have been reasonably understood by a reasonable man. The State's
present position that this was a mere accosting seems to have been an afterthought for trial
purposes.
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Office Kimmett behaved precisely as a well-trained officer should in the conduct of
a traffic stop or other investigative stop. In that context, her actions were proper. Her only
problem is that she had no Fourth Amendment justification for conducting a Terry-stop
sanctioned by the Fourth Amendment. Conduct that is impeccable in making a traffic stop
may, it must be stressed, be completely inappropriate when the officer is presuming to
engage in a voluntary and consensual mere accosting. Unlike in the case of easements in real
property law, there is in a mere accosting no dominant position and no servient position.
Both parties are equal. In this case, however, Officer Kimmett's role was definitely the
dominant one, as the appellant and Chinham were definitely cast in servient roles.
F. Informing a Citizen of the Right to Leave
In holding that Ferris had been subjected to a full-blown Terry-stop and not to a mere
accosting, the Court of Appeals also gave weight to the fact that the stopping officer had
never informed Ferris that he was free to depart. Such advice is not required but whether it
is given or not is nonetheless one of the factors to be considered as part of the totality. The
Court of Appeals observed:
"[F]ollowing the conclusion of the underlying traffic stop, Trooper Smith
never informed Ferris that he was free to depart. ... '"[K]nowledge of the right
to refuse consent is one factor to be taken into account"' in determining the
voluntariness, and thus constitutional validity of a defendant's purported
consent. Consequently, an officer's failure to advise a motorist that he or she
could refuse, or was free to leave, remains a factor to be considered."
355 Md. at 379-80. (Emphasis supplied) (citations and footnote omitted).
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Swift v. State, 393 Md. at 157, also noted that the failure of the police to advise a
citizen that he is free to leave is very definitely a factor in the larger analysis:
"Although Deputy Dykes never told petitioner that he was free to leave,
that factor does not, in and of itself, determine that a seizure has occurred;
however, it is a factor that we consider within the totality of the circumstances
analysis as to whether he was in fact seized."
(Emphasis supplied).
In holding that the police-citizen encounter in that case was only a mere accosting that
did not involve a Fourth Amendment seizure of the person, the Supreme Court in United
States v. Mendenhall, 446 U.S. at 558-59, gave heavy significance to the fact that the
detainee was twice expressly advised that she was free not to accede to the police request
for a consensual search.
"[I]t is especially significant that the respondent was twice expressly
told that she was free to decline to consent to the search, and only thereafter
explicitly consented to it. Although the Constitution does not require 'proof
of knowledge of a right to refuse as the sine qua non of an effective consent
to a search,' such knowledge was highly relevant to the determination that
there had been consent. And, perhaps more important for present purposes, the
fact that the officers themselves informed the respondent that she was free to
withhold her consent substantially lessened the probability that their conduct
could reasonably have appeared to her to be coercive."
(Emphasis supplied) (citations omitted).
In Florida v. Royer, 460 U.S. at 503, by contrast, the failure to give such advice was
a factor in deciding that Royer had been seized:
"Royer was never informed that he was free to board his plane if he so chose,
and he reasonably believed he was being detained."
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(Emphasis supplied).
In this case, of course, neither the appellant nor Chinham was ever advised that he
was free to leave the scene. If this had been intended to be (as it probably was) a true traffic
stop or other investigative stop, such advice would not have been correct and would not
have been called for. In deciding which type of encounter we are dealing with, however, the
absence of such advice, albeit only a factor, is a significant factor. In this case, moreover,
all of the factors are pointing in the same direction.
G. Acquiescence Is Not Necessarily Consent
In this case, both the appellant and Chinham complied with whatever Officer
Kimmett asked them to do. When an officer is in a dominant position and a citizen is in a
servient position, however, acquiescence is by no means the same as voluntary consent. In
Swift v. State, 393 Md. at 158, the Court of Appeals noted:
"Under the circumstances presented herein, we conclude that petitioner
yielded to the authority of the police and did not voluntarily consent to Deputy
Dyke's requests."
(Emphasis supplied). Thus the appellant's acquiescence is not a factor to be considered in
assessing whether he felt free to leave.
H. The Call For Back-Up
In terms of whether the appellant felt free to leave his seat in the Honda, the pièce de
résistance is Officer Kimmett's call for "back-up." In assessing the tone and mood of a
police-citizen encounter, a call for reinforcements is quintessentially confrontational. In a
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voluntary and consensual conversation between equals, what possible need would either
party have for back-up? It belies the very rationale of a mere accosting.
Officer Kimmett testified that as she was receiving Chinham's driver's license, she
noticed the appellant sitting in the front passenger seat. Immediately upon becoming aware
that she was outnumbered, she froze the scene and called for back-up. She testified that she
did not remember how long it took for Officer Wintjen to arrive on the scene but that it was
"not very long at all." Inevitably, however, it took some discernable amount of time.
It was not until Officer Wintjen had arrived on the scene that Officer Kimmett felt
comfortable in walking over to the passenger's side of the Honda and asking for the
appellant's driver's license. What happened in that awkward interim as the threesome
awaited the arrival of Officer Wintjen? Did three people just freeze in place and stare at each
other? The purpose of a mere accosting, of course, is for the police to engage in a
conversation and to ask questions of a citizen. If this was, indeed, an accosting that had such
a purpose, why did not Officer Kimmett begin the conversation while they were all standing
or sitting there, waiting for the back-up to arrive? What incidentally was the intended
purpose of the conversation? We are afforded no suggestion.
The State's response, of course, is that calling for back-up and waiting for back-up
is simply a necessary precaution for officer safety. That may be true, in the case of a Terry-
stop but the State has expressly disclaimed this as a Terry-stop. Our response to the need for
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such a precautionary tactic is what we said in similar circumstances in Graham v. State, 146
Md. App. 327, 367, 807 A.2d 75 (2002):
"It is, of course, reasonable for a police officer on the street to act with
tactically wise precaution at all times. No one gainsays that. The unavoidable
consequence of such sound tactics, however, is the inevitable risk that the
well-advised use of precautionary tactics may, by way of direct proportion,
bring an encounter within the notice of the Fourth Amendment. The fiction
is that one can enjoy the prerogative of police status without assuming the
concomitant burden, but one comes with the other. Sound tactics are
eminently sound, but they do have a price."
(Emphasis supplied).
What the State finds difficult to acknowledge is that it wants this to have been a
Terry-stop for the limited purpose of justifying police protective measures but wants it not
to have been a Terry-stop in terms of requiring the Terry-level of justification. It wants the
best of both worlds.
The Fourth Amendment recognizes a critical distinction between the police stopping
of an individual based on a reasonable suspicion that that person may be engaged in criminal
conduct and the police approaching a citizen when there is no legally cognizable reason to
believe that that person has committed any criminal infraction. Invoking the mantra of police
protection will not be allowed to obscure that critical difference. In the crime-related context
of a Terry-stop, including a traffic stop, the police are permitted (nay, encouraged) to
"control the scene." Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331
(1977); Maryland v. Wilson, 518 U.S. 408, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997); Brendlin
v. California, 551 U.S. 249, 127 S. Ct. 1400, 168 L. Ed. 2d 132 (2007); Arizona v. Johnson,
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555 U.S. 323, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009). The desirability of controlling the
scene necessitates the assertion of police authority. The Supreme Court language about the
desirability of the "police controlling the scene," significantly, was not uttered in the context
of a mere consensual accosting.
In the mere accosting, by dramatic contrast, the citizen enjoys just as much control
over the scene as does the officer. Either may terminate the encounter and walk away
without the permission of the other. Neither exercises control over the other, which means
that neither controls the scene. The officer does not enjoy the benefit of Fourth Amendment-
sanctioned authority (even in the name of police protection) unless the officer possesses the
Fourth Amendment justification of reasonable articulable suspicion that he may be dealing
with a criminal. The exercise of police authority requires a Fourth Amendment predicate.
You don't get one without the other.
In a truly egalitarian accosting where both parties enjoy equal rights, what
precautionary measures for instance, might the citizen take? Call for back-up? Frisk the
police officer? Order the officer to alight from his vehicle? In a true consensual accosting,
neither party, of course, may do any of these things. When the circumstances do not obligate
the officer to make a Fourth Amendment-implicated intrusion in the first instance, the
available precautionary and protective measure is both obvious and unoffending. It is simply
to avoid the gratuitous encounter if it seems too threatening.
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What, moreover, would the impact of this surrealistic freezing of the action have been
on a reasonable person's perception of his freedom to get out of the car and walk away? If
back-up were needed to make it safe for Officer Kimmett even to approach the appellant,
would the appellant have felt free to get out of the Honda and to walk around to the other
side of it? Would the appellant have been permitted to go anywhere that might have
positioned him behind Officer Kimmett? The very circumstances that caused her to call for
back-up would have compelled her to forbid the appellant from getting behind her. Police
routinely seize the weather gauge when confronting a suspect. To call this eery tableau,
frozen for some dramatic fragment of time, a voluntary and consensual encounter is unreal.
The appellant and Chinham were locked in place at police command, explicit or implicit. To
pretend it was anything else is a charade.
If in Swift v. State the citizen felt compelled to wait for the result of the warrant
check, the appellant here was similarly compelled to wait for the arrival of back-up? The
appellant's presence at the scene, after all, was the very reason for calling for back-up. Part
of Judge Meredith's dissent that Swift, 393 Md. at 155, quoted with approval, was:
"The implied requirement that Swift was to wait for the results of the
warrant check adds weight to the other circumstances suggesting that Swift
was not free to go about his business."
(Emphasis supplied).
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The Totality of the Circumstances
Looking at all of the circumstances, we do not hesitate to hold that the appellant, as
Officer Kimmett moved around to his passenger window and requested his driver's license,
was being subjected to a Fourth Amendment seizure of his person without the required
Fourth Amendment justification. Officer Kimmett's smell of raw marijuana at that time and
place was the fruit of that poisonous tree. The physical evidence should have been
suppressed.
We hasten to reaffirm that we are not being critical of Officer Kimmett's behavior.
It is clear to us that she approached the scene as if she were conducting a Terry-level
investigative stop and not a mere accosting. Her actions were in complete accord with what
an officer's actions should be in conducting a Terry-stop. The flaw, of course, is that a
Fourth Amendment predicate had not been established for conducting such a Terry-stop. The
State's effort to justify the encounter as something less than an investigative stop is an
afterthought.
Conclusion
It is constitutionally permissible, and indeed desirable, that the police react in a
professionally authoritarian fashion and exercise firm control over the scene of a police-
citizen encounter, whenever the police have at least a Terry-level reasonable suspicion that
a crime (including a traffic offense) has occurred. Where, on the other hand, such Fourth
Amendment justification is lacking, such authoritarian behavior may be completely
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inappropriate. As far as intellectual honesty is concerned, moreover, it is with ill grace that
the police should behave in an authoritarian manner but then pretend that the encounter was
innocuously egalitarian. It is necessary to recognize the level of police-citizen encounter that
is called for in a given situation and then to adapt the police behavior accordingly. One size
does not fit all. Overly authoritarian police behavior can ipso facto transform what might
otherwise be an innocuously consensual police-citizen conversation into a full-fledged
constitutional encounter.
JUDGMENT REVERSED; COSTS
TO BE PAID BY HOWARD COUNTY.
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