Mitchell v. State

JAMES MITCHELL v. STATE OF MARYLAND

No. 0561

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

April 9, 2021

Circuit Court for Baltimore City

Case No. 118311009

UNREPORTED

Graeff, Reed, Gould, JJ.

Opinion by Reed, J.

Concurring Opinion by Graeff, 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.

James Mitchell ("Appellant") was convicted of possession of a firearm while being a prohibited person and wearing, carrying, or transporting a handgun following a two-day trial before a jury for the Circuit Court for Baltimore City. The jury acquitted Appellant of other related charges, including: (1) possession with intent to distribute cocaine, (2) possession of cocaine, (3) possession of firearm in relation to drug trafficking, and (4) possession of ammunition while being a prohibited person. Appellant was sentenced to five years' incarceration without the possibility of parole and then noted this timely appeal. Appellant presents the following question for our review:

I. Did the Circuit Court err in denying Appellant's motion to suppress the handgun?

For the following reasons, we answer in the affirmative and reverse the circuit court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 10, 2018, Officer Luis Garcia of the Baltimore Police Department ("BPD") was on patrol at Mondawmin Mall in the Western District of Baltimore City. Officer Garcia observed Appellant, noting a large object hanging from the right pocket of Appellant's slim fitted cargo shorts. The object appeared to slide back and forth as Appellant walked with a stiff arm in an effort to "make sure that whatever was there [in his pocket] wasn't moving." Officer Garcia also observed Appellant tap the object in his right pocket as if to "make sure it was still there." Based on his observations, Officer Garcia believed that Appellant "possibly could have been armed."

Appellant had walked into Last Stop, a retail store in the mall, when Officer Garcia first approached him. As he walked toward Appellant and the other people in the store Officer Garcia stated: "What's going on guys? How you all doing?" According to Officer Garcia, Appellant "[b]laded to the opposite side," as if to conceal something. When probed by the suppression judge about what he meant by "bladed," Officer Garcia explained that Appellant had turned around. Officer Garcia's body worn camera ("BWC") showed that Appellant was faced forward toward the store's cash register then turned his head back when Officer Garcia spoke. Appellant then continued to walk forward, facing the cash register. Officer Garcia reached out for Appellant's arm and immediately handcuffed him, saying: "Hey come here man. Man, cover over here. Relax. Relax for a minute. Put your hands in the air."

Once handcuffed, Officer Garcia frisked Appellant's right pants pocket. The BWC depicts Officer Garcia squeezing and manipulating the object in Appellant's pants pocket for a couple seconds. Appellant asked Officer Garcia, "You want to see my ID?" to which Officer Garcia responded, "You got your ID with you? Where is that?" Appellant answered, "In my back pocket in my wallet." Officer Garcia retrieved Appellant's wallet and put it on the store counter. He asked, "You don't got anything on you, man?" to which Appellant gave an inaudible response. Officer Garcia frisked Appellant's right pocket for a second time, squeezing and manipulating the object. As he frisked Appellant's pocket, Officer Garcia asked whether the object was "[c]igarettes or something?" He then expanded the scope of his frisk to Appellant's front waistband and groin area. OfficerGarcia squeezed an item on Appellant's hip then lifted his shirt revealing a handgun in Appellant's waistband.

Officer Garcia placed Appellant under arrest and continued to search his person when other unit officers arrived. Officers also retrieved a host of suspected narcotics, including marijuana, Xanax, and crack cocaine. Appellant was subsequently charged with (1) possession of a firearm while being a prohibited person; (2) possession of a firearm after a disqualifying conviction; (3) possession of ammunition while being a prohibited person; (4) wearing, carrying, or transporting a handgun on person; (5) wearing, carrying, or transporting a loaded handgun on person; (6) using, wearing, carrying, or transporting a firearm in relation to a drug trafficking crime; and other related drug possession offenses. The court held a suppression hearing upon defense counsel's motion to suppress the handgun that Officer Garcia retrieved during the frisk. Officer Garcia was the only testifying witness.

During the suppression hearing, Officer Garcia testified that he suspected that the object was a gun "[b]ecause guns are usually heavy, they will move back and forward...if you got it loose in your pocket, once you are walking, it will swing." When asked by the suppression judge, "what makes you think it was a gun and not a telephone," Officer Garcia answered, "[w]ell usually if you've got a phone in your pocket, you're going to relax, act normal, not try to, you know, make sure it's there, not do, like, a security check of your phone...." Based upon these observations, Officer Garcia believed that Appellant was carrying a gun. Consequently, the circuit court found that the frisk was based on reasonable articulatable suspicion and denied Appellant's motion to suppress the handgun.

STANDARD OF REVIEW

In matters concerning a trial court's ruling on a motion to suppress evidence, we limit our review to the motion court's record. Carter v. State, 243 Md. App. 212, 224 (2019). We accept the factual finding of the motion court, unless proven to be clearly erroneous, and we view the evidence in the light most favorable to the party that prevailed at the hearing. Id. However, if the trial court's ruling concerns a mixed question of law and fact, we draw our own conclusions de novo. Any evidence found to be the product of an unlawful search is inadmissible and generally must be suppressed. See Bailey v. State, 412 Md. 349, 369 (2010).

DISCUSSION

A. Parties' Contentions

In bringing this appeal, Appellant contends that Officer Garcia's frisk transgressed Terry's Fourth Amendment boundaries in three separate respects. His arguments and the State's responses are set forth below:

1. The frisk was not predicated on a Terry stop.

Relying on Ames v. State, 231 Md. App. 662 (2017), Appellant argues that Officer Garcia's frisk was unconstitutional because it did not derive from an investigative stop. In Ames, we explained that "[a] Terry frisk is neither a self-contained nor free-standing police prerogative," rather it is "a mere adjunct of a Terry stop that does not exist outside the universe of the Terry stop." Id. at 676. In other words, "[a] Terry stop is an indispensable prerequisite to a Terry frisk." Upon this premise, we explained that:

A vigilant officer may not observe the passing parade of life go by, develop reasonable Terry-level suspicion that certain members of the passing parade are armed, and presume to frisk them. It is only when duty requires an officer to go in harm's way that the additional protection becomes necessary. Short of that point, the officer is adequately protected simply by staying out of harm's way. The police cannot, in a word, get to Beta without passing through Alpha.

Id. at 676. Appellant argues that Officer Garcia's frisk derived from the kind of "passing parade" observation described in Ames and that Officer Garcia skipped over the required precursor to a Terry frisk. To the contrary, the State argues that Appellant was subjected to a valid Terry stop when Officer Garcia told him to "come here...put your hands in the air," and handcuffed Appellant. Moreover, the State argues that "[the] stop was justified, as Officer Garcia had reasonable suspicion that [Appellant] was carrying a handgun, in violation of Maryland law."

2. The Frisk.

Officer Garcia testified that he observed Appellant, with a stiff arm, tap what appeared to be a "bulge" or "real heavy object" swinging back and forth from Appellant's right shorts pocket as if to make sure the object was still there. Based on his observation, Officer Garcia believed that Appellant "might have a gun in his pocket." Appellant contends that Officer Garcia's testimony did not establish reasonable articulable suspicion to justify the Terry frisk and cites three cases to support his argument.

The first case is Ransome v. State, 373 Md. 99 (2003). In Ransome, the Court of Appeals held that no reasonable suspicion existed, where officers testified that Ransome was in a "high-crime area," had a large bulge in his front pocket, looked at an unmarked police car, and appeared nervous as officers approached him. In holding so, the Courtdeemed that the officer's actions "crossed the line," and the Court took judicial notice of the fact that "most men do not carry purses, they, of necessity, carry innocent personal objects in their pants pockets—wallets, money clips, keys, change, credit cards, cell phones, cigarettes, and the like—objects that, given the immutable law of physics that matter occupies space, will create some sort of bulge." Considering these norms, the Court reasoned that:

If the police can stop and frisk any man found on the street at night in a high-crime area merely because he has a bulge in his pocket, stops to look at an unmarked car containing three un-uniformed men, and then, when those men alight suddenly from the car and approach the citizen, acts nervously, there would, indeed, be little Fourth Amendment protection left for those men who live in or have occasion to visit high-crime areas.

Id. at 111. Appellant argues that his present appeal is similar to Ransome in that Officer Garcia's frisk was based on a mere hunch,...