Mack v. State

MAURICE MACK v. STATE OF MARYLAND

No. 1627

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

June 5, 2018

CRIMINAL LAW - TERRY SEIZURE

FACTS: Responding to an anonymous tip from a 911 caller that two African-American men were selling drugs from a silver Honda at a certain location, two police officers, in separate patrol cars observed a car with two passengers, one being appellant, matching that description at that location, with the car's motor running. The officers parked their cars in a way that precluded the Honda from being moved. A subsequent investigation, including observation of the two men and furtive conduct on their part, led to a frisking of the men, discovery of narcotics on one of them, a full search of the car, and discovery of a handgun. The trial court denied appellant's motion to suppress the gun.

HELD:

(1) The immobilization of the Honda prior to any encounter with the passengers constituted a seizure for purposes of Terry v. Ohio. The passengers were not free to leave the scene or terminate the ensuing encounter.

(2) At that point, the officers had no knowledge of criminality on appellant's part other than the anonymous tip. Confirmation that a silver Honda with two African-American men in it at the location was insufficient, under Florida v. J.L. and Navarette v. California, to constitute reasonable articulable suspicion that appellant was engaging, or had engaged, in criminal activity warranting such a seizure.

(3) Under Maryland law, 911 calls are recorded and, at least with respect to calls from land lines, the location and phone from which the call was made also is recorded, which can, but does not necessarily, give an enhanced reliability to the information.

(4) When the State is relying on an anonymous 911 call to provide probable cause or reasonable articulable suspicion, it should, when possible, produce the recording of the call, or explain the absence thereof, so that the court can have the ability to hear what actually was said in order to make a determination of the credibility of the information.

Circuit Court for Baltimore City

Case No. 117142015

REPORTED

Eyler, Deborah S., Fader, Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.

Opinion by Wilner, J.

After trial on an agreed statement of facts, appellant was convicted in the Circuit Court for Baltimore City of unlawful possession of a regulated firearm, for which he was sentenced to imprisonment for five years without the possibility of parole. His sole complaint in this appeal is that the trial court erred in denying his motion to suppress the handgun - the regulated firearm - recovered by the police in the course of what he contends was an unlawful search of his vehicle. We find merit in his complaint and shall reverse the judgment.

The underlying facts, as presented at the hearing on appellant's motion to suppress, are largely undisputed. The evidence came from the testimony of two Baltimore City police officers - Charles Faulkner and Horace McGriff - and video recordings taken from the body cameras that Officer Faulkner and another City police officer, whom we know only as Officer White, were wearing.

Officers Faulkner and White responded to a report from the police dispatch unit that two African-American men, one wearing a blue jacket or coat and the other a gray jacket, were selling drugs from a silver Honda Accord in the 5500 block of Ready Avenue. Faulkner was aware that (1) that block of Ready Avenue, a narrow one-way street, was a "high drug, crime area" to which he had responded to calls numerous times, and (2) the dispatch report emanated from a 911 call that the dispatch unit said was anonymous - that the caller did not give his/her name or any identifying information. Faukner and White, in separate cars, arrived at the 5500 block simultaneously and saw a silver Honda, with two African-American men sitting in it. The Honda's motor wasrunning. Knowing from experience that "usually when we have calls like that, most people will try to drive off" and that, in that area, "most people who are known for selling drugs do carry weapons," Faulkner parked his vehicle directly in front of the Honda and White parked his vehicle directly behind it, intending to block and effectively blocking the Honda from being moved.

Officer Faulkner, who initially was near the driver's side of the Honda, walked in front of the car to the passenger side. As he did, he observed through the front windshield that (1) appellant was wearing a gray jacket, and (2) both men were dipping their shoulders down to the lower part of the seat. From his ten years of training and experience as a police officer, Faulkner was aware that "an armed person would usually dip their hands down to the lower part of the seat, underneath the seat, to either grab a weapon or put one away." He felt that the men's actions were consistent with that and, as a result, he believed that they may be armed. After speaking with the occupants and receiving appellant's driver's license, Faulkner ordered the passenger out of the car and began to frisk him for weapons. Officer White removed appellant and began a frisk of him.

At that point, Sergeant McGriff arrived. With 24 years of experience as a police officer, McGriff also was aware that the 5500 block of Ready Avenue was a "highly narcotic infested area." He was aware as well that the call that brought him there was "a very specific call" regarding the individuals in the Honda and what they were doing. Also of significance to him was that appellant was wearing a "puff coat" despite the fact that the outside temperature that day was above fifty degrees, that when it was that warmpolice officers are allowed to wear short sleeve shirts, and that he was wearing one. Based on his training and experience, he testified that "[d]uring warm weather, usually puff coats are worn to secure detection of firearms, drugs, give an additional coverage in their personal lives."

As Officer White was frisking appellant, Sergeant McGriff noticed a small piece of plastic hanging outside appellant's underwear which, from McGriff's experience, he believed was part of "a sandwich bag which most likely had narcotics in it."¹ He alerted Officer White and, as McGriff suspected, a ziplock bag of suspected drugs was found. Upon that discovery, another officer who had arrived on the scene searched the car and found the handgun that appellant sought to suppress.

As he does here, appellant contended that the mere blocking of his car by Officers Faulkner and White constituted an unlawful seizure under Terry v. Ohio, 392 U.S. 1 (1986). The unlawfulness, he argued, arose from the fact that the only basis for the stop was the anonymous tip that was relayed through the police dispatch unit and that the U.S. Supreme Court had declared in Florida v. J.L., 529 U.S. 266 (2000), and this Court and the Court of Appeals had confirmed in subsequent cases, that an anonymous tip, without more, is insufficient to justify even a Terry seizure, much less a Terry frisk or a full-blown search. The hearing judge found those cases distinguishable and, in part for that reason, denied the motion to suppress.

DISCUSSION

As noted, there is no genuine dispute as to the facts as stated above. The only issue before us is one of law, which we resolve de novo. The issue raised is in two parts - whether the effective immobilization of appellant's car, from which all else flowed, constituted an unlawful seizure mandating suppression of the gun, and if not, whether the tip, coupled with what the officers learned after they reached the Honda and its two occupants, sufficed to allow the car to be searched. Because we find that the immobilization of the car constituted an unlawful seizure of appellant, we need not address the second part of the issue.

Encounters between the police and members of the public whom they may suspect of criminal wrongdoing run a gamut with innumerable variations, but, as explained in Pyon v. State, 222 Md. App. 412 (2015), they have generally been placed into three categories for Fourth Amendment purposes. First, there is the arrest, which is the most significant form of seizure of the person and requires, for its validity, probable cause to believe that the person is committing or has committed an offense for which an arrest is permissible.

The intermediate category is the Terry stop, sometimes referred to as an investigatory stop. As Judge Moylan pointed out in Pyon, it constitutes "a Fourth Amendment intrusion upon a citizen's otherwise unfettered freedom," but it is of lesserduration than an arrest and for a different purpose. It does not require probable cause but only a "reasonable, articulable suspicion of criminal activity" and "may only last as long as it takes a police officer to confirm or dispel his [or her] suspicions." Pyon, 222 Md. App. at 420.

The most innocuous category is an "accosting," sometimes referred to as a "consensual encounter." It involves situations "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." Id. at 421. Fourth Amendment guarantees are not implicated in such an encounter, said the Pyon Court, "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." Id. at 421-22 (quoting from Swift v. State, 393 Md. 139, 151 (2006), but emphasis in Pyon).

Though acknowledging that appellant's vehicle "could not move because it was blocked," the trial court regarded that immobilization as simply initiating what it referred to as "a field investigation based on the anonymous tip" and focused on what the police observed when approaching the Honda on foot and engaging with the passengers. It did not pay sufficient attention, however, to the consequence of...