Lockard v. State

247 Md.App. 90

233 A.3d 228

Dwayne Scott LOCKARD

v.STATE of Maryland

No. 3289, Sept. Term, 2018

Court of Special Appeals of Maryland.

July 29, 2020

Argued by: Marc A. DeSimone, Jr. (Paul B. DeWolfe, Public Defender on the brief), Baltimore, MD, for Appellant.

Argued by: Menelik Coates (Brian E. Frosh, Attorney General on the brief), Baltimore, MD, for Appellee.

Panel: Nazarian, Beachley, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Beachley, J.

We are called upon in this case to etch another inscription upon a monument of criminal procedure jurisprudence: Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant, Dwayne Scott Lockard, asks whether the suppression court erred in concluding that "police had reasonable suspicion to perform a ‘ Terry search’ of Mr. Lockard's person after observing, and removing, a closed folding knife from his pocket where there was no other indication that Mr. Lockard was armed or otherwise dangerous."¹ We conclude that the police did not have reasonable articulable suspicion that Lockard was armed and dangerous as required to support a lawful Terry frisk. We shall therefore hold that the Circuit Court for Frederick County erred in denying Lockard's motion to suppress the controlled dangerous substances the police seized from him as a result of the unlawful frisk.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 11:20 p.m. on July 23, 2018, Frederick County Deputy Douglas Story was on patrol in his marked police cruiser when he observed a Ford Escort traveling westbound on Interstate 70 near Middletown, Maryland. Deputy Story stopped the Ford Escort because it was following another vehicle too closely.

Before exiting the vehicle, Deputy Story ran the vehicle's registration and determined that the owner, Jenna Clark, had been charged with possession of heroin only two weeks earlier. Deputy Story then approached the vehicle and identified Ms. Clark as the driver and Lockard as the front seat passenger. During the course of the stop, Deputy Story noticed that Ms. Clark had track marks on her left forearm, which he believed were indicative of intravenous drug use. The track marks were "scabbed a little," which suggested they were "pretty recent." Ms. Clark's arms and hands were shaking when she handed over her identifying information. Ms. Clark told him that she was coming from the Rosemont area in Frederick, but Deputy Story knew this to be false because he had recently seen this same vehicle on Interstate 70 east of Frederick near New Market.

After Ms. Clark and Lockard both provided their identifying information, Deputy Story went back to his patrol vehicle in order to run warrant and license checks, and call for a K-9 unit. Because Deputy Story discovered that Ms. Clark potentially had an open warrant in Washington County, he detained her pending verification that the warrant was still active.

Shortly thereafter, the K-9 officer, Corporal Adkins, and two other officers, including Maryland State Trooper First Class Frye, arrived on the scene.² Corporal Adkins, who had been employed with the Frederick County Sheriff's Office since 2005 and assigned as a canine officer since 2013, testified that he and his K-9 partner, Rango, responded to the scene of the traffic stop at around 11:24 p.m. Because Corporal Adkins prefers to conduct canine scans of unoccupied vehicles, he ordered both Ms. Clark and Lockard to exit the vehicle prior to the canine scan. At the hearing on Lockard's motion to suppress, Corporal Adkins described the events as follows:

[THE STATE]: Okay. Once you had the front seat male passenger identif[ied] as Mr. Lockard step out of the vehicle, what happened next?

[CORPORAL ADKINS]: I instructed him to walk to the back towards other deputies and a trooper who was on scene. As he was doing so, I noticed that there was a knife in his pocket.

[THE STATE]: Okay. And upon observing that, what did you do?

[CORPORAL ADKINS]: I relayed my observations, it was something to the effect of, hey, Frye, who was, it was Trooper First Class Frye who was on scene, he's got a knife in his pocket.

[THE STATE]: Okay. And what did, what did you observe about the -- what did you observe to know that there was a knife in his pocket?

[CORPORAL ADKINS]: I just saw like the, the hammer portion sticking out of the top of the pocket like something that you would use to flip the knife open with.

[THE STATE]: And upon making that observation, you said you yelled at Trooper Frye, or advised Trooper Frye of it. What, if anything, did you, what, if anything, did you observe after that, okay?

[CORPORAL ADKINS]: Trooper Frye went ahead and removed the knife --

[THE STATE]: Okay.

[CORPORAL ADKINS]: -- for the time, time being.

According to Corporal Adkins, the knife was "sticking partially out" of Lockard's pocket when he relayed the information to Trooper Frye. As noted, Trooper Frye promptly secured the knife, which was described as a silver "folding knife" with the blade folded or closed.³ Corporal Adkins then articulated the primary reason for the frisk, stating, "I wanted to, at that point, based on that knife, I felt like I should, I wanted to be able to make sure he didn't have any further weapons on him[.]" Corporal Adkins asked Lockard if he would consent to a pat-down for weapons, and Lockard then "faced away from [Corporal Adkins] and held his hands in the air." Corporal Adkins interpreted Lockard's action as impliedly consenting to the request. On cross-examination, defense counsel inquired about the reason for the frisk:

[DEFENSE COUNSEL]: You indicated you believed you needed to conduct a frisk for weapons for Mr. Lockard once he was outside of the vehicle, correct?

[CORPORAL ADKINS]: I didn't say I needed to. I asked him if I could. I didn't, you know, I didn't need to. If I needed to, if I had to, I would have. If I had reasonable, articulable suspicion, I would have just searched or frisked him.

(Emphasis added).

On redirect examination, Corporal Adkins stated that Lockard's possession of the knife raised a concern that "[i]f there's one weapon, there could be more," and "if he had a knife, what's saying that there couldn't be something, another weapon on his person along with that knife?" Regarding Lockard's demeanor, Corporal Adkins indicated that Lockard was neither threatening nor aggressive. Deputy Story characterized Lockard as "polite and cooperative."

Corporal Adkins explained that he commenced the frisk at Lockard's waistband because "[t]hat's a place that's easy to conceal a weapon. Usually there's a belt or the tightness of the pant will allow somebody to slip a weapon in that will hold the weapon there, kind of securing it without a holster." He continued:

So, when I do that, I, I've been trained that it's not, I'm not looking for narcotics or anything like that. I'm solely feeling in the area, feeling the defendant for any weapons on his person that could harm me. So, basically, I'm only looking for weapons on the person. I'm not going in the pockets, I'm not manipulating objects unless I believe they're [sic] a weapon or anything like that.

Corporal Adkins then testified:

So, as I am conducting my frisk for weapons, I am, my, I started, I believe, in the front. As I'm sliding my fingers across the waistband to feel for any objects that are weapons, my, I, as I'm dragging my hand, I immediately feel what I recognize was a bag with individual capsules in it, a significant account.

Based on his "training and experience in dealing with narcotics," Corporal Adkins believed that the large number of capsules concealed in Lockard's waistband gave him probable cause to arrest Lockard.⁴ After securing Lockard with handcuffs, Corporal Adkins removed from Lockard's waistband a plastic bag containing suspected heroin capsules.

After hearing argument, and after noting that the State abandoned any argument that Lockard consented to the frisk, the court denied the motion to suppress. The suppression court found, in pertinent part, as follows:

However, I do find that the officers had reason and justified and [sic] asking Mr. Lockard to vacate or exit the vehicle and that is for them to conduct the, I'll call it the canine scan of the vehicle.

When he did that, they observed, and is walking back, they observed the handle of the knife or part of the knife protruding from his pocket. Certainly, it was recovered from him with no objection from Mr. Lockard, nothing inappropriately there. But his having one weapon on him, when you, that gives the officers a reasonable, articulable suspicion that there might be other weapons and, therefore, I do find that a Terry search is appropriate and a pat-down is appropriate.

In this case, Officer Adkins testified, or Deputy Adkins testified that he knows what he can and cannot do. He was not searching for drugs. But when he comes upon drugs, or what he believes to be drugs with the packaging, and he's doing an appropriate search along the waistband, which is where he usually goes first for weapons, which is appropriate, it doesn't mean you, that's not the, that will be the only place, but that's where you go first is the waistband area, and he feels what he believes to be contraband based upon his feel and touch, I find nothing wrong with that in this case. And I, therefore, find that the seizure was appropriate and the motion to suppress is denied.

After waiving his right to a jury trial, Lockard pleaded not guilty on an agreed statement of facts. The court found Lockard guilty of possession of fentanyl with intent to distribute. Consistent with the State's recommendation for sentencing, the court sentenced Lockard to a term of twenty years’ imprisonment with all but twelve suspended, to be followed by three years’ supervised probation. This appeal followed.

DISCUSSION

Lockard contends that the motions court erred in denying his motion to suppress because, once police seized the knife from his pocket, a further search for weapons was unreasonable....