Moore v. State

WILLIAM MOORE v. STATE OF MARYLAND

No. 20

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

October 29, 2018

Circuit Court for Baltimore City

Case No. 117186004

UNREPORTED

Beachley, Fader, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Thieme, 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.

Appellant, William Moore, was indicted in the Circuit Court for Baltimore City, Maryland, and charged with illegal possession of a regulated firearm after having been convicted of a felony, and related offenses. After his motion to suppress evidence was denied, appellant entered a not guilty plea on an agreed statement of facts and was convicted of possession of a regulated firearm after having been convicted of a felony. He was sentenced to ten years, all but five years mandatory suspended, to be followed by two years' supervised probation. In this timely appeal, appellant asks us to address the following question:

Did the trial court err in denying Appellant's motion to suppress the handgun and other illegal items recovered from his person based on a Terry stop and frisk based on bare bones information given the police by a confidential informant?

For the following reasons, we shall affirm.

BACKGROUND

On June 12, 2017, a confidential informant told Baltimore City Police Officer Joshua Rutzen that there was an individual armed with a handgun in the 1500 block of Pennsylvania Avenue of Baltimore City. The informant told the officer that there was "an unknown black male wearing a red t-shirt and white and red sneakers in the block, armed with a handgun, and the gun was in his rear pants pocket."

Knowing that the area was an open-air drug market with a reputation for violence, including both non-fatal and fatal shootings, Officer Rutzen recruited a few other police officers to canvass the area with him. When he arrived, Officer Rutzen saw someone fitting the description, later identified at the hearing as appellant. Appellant was sitting on a milkcrate on the sidewalk amongst a group of individuals. Accompanied by other officers, Officer Rutzen approached appellant on foot, and took a position behind him, "due to the information that the gun was in his back pocket." At that point, Officer Rutzen placed his hands on appellant and "raised his shoulders and elbows back so that his arms were as far - farther away from the back pocket area where I had the information that the gun was located[.]" Appellant was then handcuffed. Asked whether appellant was under arrest at that time, Officer Rutzen replied:

No, he wasn't under arrest. He was detained just due to the prior information. We wanted to safely conduct the weapons pat down, so I placed him in handcuffs, kind of lifted his elbows back so he wouldn't really have access to his back pockets.

Officer Rutzen then watched as Officer Carlos Orozco patted appellant down for weapons. Officer Orozco testified at the hearing that he started his patdown on appellant's back, working from his waistline up, and then repeated the procedure on appellant's front. It was while patting appellant down in the back that Officer Orozco "felt a hard object" that was "pretty consistent, based on my training and experience, that it was possibly a weapon." After continuing with the pat down to see if there were any other weapons on appellant's person, Officer Orozco then pulled a Raven MP-25, .25 caliber semiautomatic handgun from appellant's left back pants pocket.¹

Asked about the confidential informant who provided the information concerning appellant, Officer Rutzen agreed that this informant, who was assigned a confidentialinformant number and was normally paid $500 for such a tip, was "[c]redible, very credible" and "[v]ery reliable." The informant usually provided tips to Officer Rutzen concerning guns and had provided information that led to approximately four or five handgun arrests before this incident, as well as another four or five after the incident. Officer Rutzen also explained that, whenever he received a tip from this informant, "I tend to believe him. I'm going to investigate." Officer Rutzen was also asked about the informant's accuracy and testified that "[i]t's accurate every time" and that "[i]f we don't recover a handgun, it's usually because of a flaw in the way we approached the situation." Officer Rutzen elaborated: "he's given me information before where we haven't recovered a handgun, but then, later on, he'll be - like, I'm not in constant communication as I'm going to grab the person or stop the person. So he'll be like, oh, they handed it off to so and so right before you showed up, something like that."

On cross-examination, Officer Rutzen agreed that he acted solely based on the information provided by the confidential informant and that he did not see appellant engaging in any other behavior that would indicate that he was armed and dangerous. He agreed he did not see appellant selling drugs and appellant was not a suspect in any violent crimes in that area. However, Officer Rutzen maintained that he believed he had reasonable articulable suspicion that appellant was armed based on the tip from his confidential informant and that this information was enough to justify a pat down for weapons. The officer also agreed that appellant was detained and not free to leave once he was placed in handcuffs. On redirect examination, Officer Rutzen maintained that appellant was handcuffed for purposes of officer safety.

Relying primarily on Adams v. Williams, 407 U.S. 143 (1972), the State argued that there was reasonable articulable suspicion for the stop and frisk based on the confidential informant's tip.² In response, appellant argued this was not a valid stop under Terry v. Ohio, 392 U.S. 1 (1968), and that, in fact, he was arrested when the officers placed him in handcuffs, and the arrest was not supported by probable cause. After the State responded that the officers were entitled to handcuff appellant momentarily for purposes of officer safety, the court denied the motion to suppress, finding, in pertinent part, as follows:

So this apparent - this appeared to have - the CI had first-hand knowledge. The CI had previously provided reliable information and the description of this person was accurate and the location of this person was accurate in the sense that when the police officers reached the 1500 block of Pennsylvania Avenue, they actually, and according to the video, thought they saw him, but he didn't - that person didn't match the description and went on further to find an individual in the 1500 block matching specifically the information. And so at that point, they had a reasonable, articulable suspicion to approach for a Terry frisk.

This Court and Maryland courts have long indicated and recognized the inherent dangers of officers in investigatory stops upon a reasonable suspicion that the suspect is engaged in an activity and [has] weapons. The CI, giving reliable information, the CI giving a description of the individual in the location is, what this Court believes, sufficient enough information that this individual could've been armed and dangerous.

And handcuffing an individual, as we know, has been well established as an upheld [sic] as a specific way by police officers - a specific way that police officers can use for officer safety, and this police officer, the first police officer, as well as the other police officer, Officer Rutzen and the officer - former officer both indicated that the handcuffs were done for officer safety, were placed on the individual for officer safety.

And so I do not believe that that, at that point, was an arrest because the articulation was that the CI - that he was, in fact, armed, and two, thatthe police officers believed that the information that was provided by the CI that he was armed and indicated that they did it for officer safety and he was detained, but not at that point under arrest.

The pat down was proper, as the former police officer indicated there was no manipulation of the body. There was no manipulation of anything, that the pat down was proper and sufficient, that they did feel what they believed to be a handgun at that point. The handgun was taken out and the weapon was, in fact, and all of the other paraphernalia, which I believe was marijuana, that was found after that was also obtained legally.

And so for those reasons, the motion to suppress is denied. All right.

DISCUSSION

Appellant maintains that the court erred in denying the motion to suppress because the tip provided by the confidential informant was not specific enough to justify a stop and frisk. [Brief of Appellant at 7] The State responds that the court properly denied the motion to suppress. [Brief of Appellee at 4] We agree.

The Court of Appeals has provided our standard of review:

Appellate review of a motion to suppress is "limited to the record developed at the suppression hearing." Moats v. State, 455 Md. 682, 694 (2017). "We view the evidence and inferences that may be drawn therefrom in the light most favorable to the party who prevails on the motion," here, the State. Raynor v. State, 440 Md. 71, 81 (2014). "We accept the suppression court's factual findings unless they are shown to be clearly erroneous." Id. We give "due weight to a trial court's finding that the officer was credible." Ornelas v. United States, 517 U.S. 690, 700 (1996). "[W]e review legal questions de novo, and where, as here, a party has raised a constitutional challenge to a search or seizure, we must make an independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case." Grant v. State, 449 Md. 1, 14-15 (2016) (quoting State v. Wallace, 372 Md. 137, 144 (2002)).

State v....