In re D.S.

IN RE: D.S.

No. 2061

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

January 21, 2021

Circuit Court for Anne Arundel County

Case No. C-02-JV-19-506

UNREPORTED

Fader, C.J. Beachley, Woodward Patrick L. (Senior Judge, Specially Assigned), JJ.

Opinion by Beachley, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

After seventeen-year-old D.S., appellant, encountered police outside a barbershop in a strip mall, a search of his person yielded 26 vials of crack cocaine. The Circuit Court for Anne Arundel County, sitting as a juvenile court, denied D.S.'s motion to suppress that evidence, rejecting his argument that police obtained the evidence pursuant to an unconstitutional stop and search.

In this appeal, D.S. challenges that ruling and the resulting adjudication that he was involved in conduct that, if performed by an adult, would constitute criminal possession of cocaine with intent to distribute, and possession of paraphernalia. In doing so, D.S. implores us to adopt a "reasonable Black teenager" standard in evaluating whether officers seized him within the meaning of the Fourth Amendment. In D.S.'s view, a reasonable Black teenager would not have felt free to leave under the circumstances of this case.

We need not adopt D.S.'s "reasonable Black teenager" standard to conclude that no reasonable person would have felt free to leave based on the totality of the circumstances. Accordingly, we hold that D.S. was subjected to an unlawful seizure, and that the evidence seized pursuant to that seizure must be suppressed as fruit of the poisonous tree. Accordingly, we reverse the decision of the suppression court, and vacate D.S.'s adjudication.

BACKGROUND

Our summary of the record focuses on the suppression hearing conducted as part of the exceptions and disposition hearing on November 25, 2019. See Thornton v. State, 465 Md. 122, 139 (2019) (noting that, in reviewing a court's ruling on a motion to suppress, "we consider only the facts generated by the record of the suppression hearing" (citingSizer v. State, 456 Md. 350, 362 (2017))). The State only presented testimony from one of the four detectives present during the encounter with D.S.

Around noon on August 7, 2019, Anne Arundel County Detective Glenn Wright was on "regular patrol" in the Brooklyn Park area, driving "an unmarked grey Chevrolet Caprice" with Detective Smith.¹ Both were dressed in "BDU pants,² a t-shirt, and a tac vest with Police and [a] badge on it." Each carried a service weapon and a taser, which were visible outside their clothing.

As part of their assignment to the Northern District Tactical Patrol Unit, the two detectives "directly deal[t] with community complaints" regarding "quality of life issues" such as "theft from autos, burglaries, robberies, CDS complaints, and so on." According to Detective Wright, members of this unit do not receive calls for service, but instead "proactively patrol looking for various violations such as trespassing, loitering, traffic violations." As of August 7, 2019, Detective Wright had been assigned to this unit for "a couple of months." That day, two other detectives assigned to the unit were also out patrolling the same vicinity, dressed in the same attire and carrying the same weapons.

Detectives Wright and Smith went to the Brooklyn Park Shopping Plaza, which is "one of the larger shopping centers in the area" with "[a]ssorted different shopping stores[,]" "food places[,]" and "a barbershop." Typically, "[t]here are more calls forservice there and complaints there." Previously, Detective Wright had been to the "strip mall" for "[d]ifferent complaints" including "robberies, shoplifting, loitering, CDS complaints, anything and everything." In terms of experience, Detective Wright had conducted "50 to 100" drug investigations at the Brooklyn Park Shopping Plaza during his seven years on patrol and two years with the Tactical Unit. There were "posted signs" stating that "loitering" was not allowed at the shopping plaza.

As Detectives Wright and Smith "drove through" the shopping center, they "observed a subject that [they] recognized as Anthony Godbolt standing out loitering in the area after being told that he was no longer allowed at that shopping center." According to Detective Wright, "[w]e had told him unless he was conducting business not to be standing out front of businesses due to CDS complaints we've had with him in the past." Detective Wright explained that he had received information from confidential sources that Mr. Godbolt "distributes" drugs and testified that "[w]e have done now multiple search warrants on his home and have locked him up for distribution."

When Detective Wright first "pulled into the shopping center and saw Mr. Godbolt" "just standing in front of the barbershop," D.S., whom Detective Wright did not know, was with Mr. Godbolt. Detectives Wright and Smith "parked [their] vehicle and went to approach" Mr. Godbolt. The other patrol team in their unit arrived "[l]ess than a minute" later because "[t]hey generally follow behind" as the two units "patrol together." The two officers in that vehicle parked "two car lengths away" then immediately exited their vehicle to join Detectives Wright and Smith.

On direct examination, Detective Wright testified that when Mr. Godbolt and D.S. "were in front of the barbershop, we were probably the next door over. It's a strip mall type of location." Although the detectives did not have lights or sirens visible on their unmarked vehicle, Mr. Godbolt and D.S. "immediately entered the barbershop located there." The detectives did not order them to stop.

As the two entered the barbershop, the four detectives "continued walking towards it." When the detectives "got to the front door of the barbershop[,]" D.S. and Mr. Godbolt "were both being escorted out by an employee who [they] later found out was the owner of the shop." The owner "was physically moving them out of the store and telling them to leave." Mr. Godbolt and D.S. were only in the shop for "[a] few seconds."

Once outside the barbershop, Detective Wright began speaking to Mr. Godbolt, but not D.S., who stood directly to Mr. Godbolt's left. The four officers were standing "[a] couple of feet" away from D.S. as the encounter unfolded:

[PROSECUTOR]: If you can set up the scene for me a little bit here. Where was everyone standing?

[DETECTIVE WRIGHT]: So right in front of the barbershop. So the barbershop's door is located to the right side of the business -- the front right. And then it's windows. So there in front of the windows.

[PROSECUTOR]: When you spoke with Mr. Godbolt, what happened?

[DETECTIVE WRIGHT]: During the course of the conversation I asked him for permission to search his person.

[PROSECUTOR]: Did you address any questions to [D.S.] at this point?

[DETECTIVE WRIGHT]: No.

[PROSECUTOR]: What happened when you asked Mr. Godbolt if you could search his person?

[DETECTIVE WRIGHT]: He consented.

[PROSECUTOR]: What, if anything, occurred with [D.S.] at that point?

[DETECTIVE WRIGHT]: At that point I heard him say, you can check my pockets.

[PROSECUTOR]: At this point in time was [D.S.] detained in any way?

[DETECTIVE WRIGHT]: No.

[PROSECUTOR]: Had you addressed any questions to him?

[DETECTIVE WRIGHT]: I had not, no.

[PROSECUTOR]: Had you spoken to him in any way?

[DETECTIVE WRIGHT]: I had not, no.

[PROSECUTOR]: Had you blocked his passage?

[DETECTIVE WRIGHT]: I had not, no. . . .

[PROSECUTOR]: If [D.S.] tried to leave at that point what would have happened?

[DETECTIVE WRIGHT]: We probably would have figured out if the owner from the shop wanted to charge for trespassing or anything. But probably we'd just let him go.

[PROSECUTOR]: When [D.S.] said, you can check my pockets, what did you do?

[DETECTIVE WRIGHT]: After I was done searching Mr. Godbolt I proceeded to check [D.S.'s] pockets. . . .

[PROSECUTOR]: . . . . What happened? When you checked his pockets what did you find?

[DETECTIVE WRIGHT]: There was nothing in his pockets but I detected a bulge inconsistent with normal human anatomy in the inside of the pocket closer to his skin.

[PROSECUTOR]: When you say closer to his skin where do you mean?

[DETECTIVE WRIGHT]: It was in the crease between his groin and thigh.

[PROSECUTOR]: And when you say a bulge, what did it feel like?

[DETECTIVE WRIGHT]: It felt like a plastic bag containing several smaller objects.

[PROSECUTOR]: Did you ask [D.S.] anything at this point?

[DETECTIVE WRIGHT]: I asked him what that object was.

[PROSECUTOR]: And what, if anything, did he say?

[DETECTIVE WRIGHT]: He said that he was getting a hard-on. . . .

[PROSECUTOR]: And did this feel like what he declared it to be?

[DETECTIVE WRIGHT]: No.

[PROSECUTOR]: What happened next?

[DETECTIVE WRIGHT]: I asked him to turn around, face the window, and spread his legs so I could better search that area.

[PROSECUTOR]: And why did you do that?

[DETECTIVE WRIGHT]: Just to get a better feel on the area because from what I could just feel through the pockets I knew it was something that wasn't supposed to be there.

[PROSECUTOR]: Did you have any -- based on your knowledge, training, and experience did you have any idea what it may be?

[DETECTIVE WRIGHT]: I believed it to be CDS, yes.

[PROSECUTOR]: And why did you believe that?

[DETECTIVE WRIGHT]: Through my training, knowledge, and experience I know that dealers and users of CDS will typically conceal their CDS in the groin area in order to avoid detection from law enforcement.

As Detective Wright "tried to search the area" where he felt the suspected CDS, D.S. began "moving around and wouldn't comply with just staying still so that" the search could be completed. Detective Wright testified that, at the point when D.S. obstructed his ability to complete the search, D.S. "was detained." D.S. was then...