State v. Sizer, 0784, Sept. Term, 2016

• Citation: 149 A.3d 706,230 Md.App. 640
• Decision Date: 29 November 2016
• Docket Number: No. 0784, Sept. Term, 2016,0784, Sept. Term, 2016
• Parties: State of Maryland v. Jamal Rasheed Sizer
• Court: Court of Special Appeals of Maryland

230 Md.App. 640

149 A.3d 706

State of Maryland

v.Jamal Rasheed Sizer

No. 0784, Sept. Term, 2016

Court of Special Appeals of Maryland.

November 29, 2016

Carrie J. Williams (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellant.

Helki Philipsen (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellee.

Graeff, Leahy, Charles E. Moylan, Jr. (Senior Judge, Specially Assigned), JJ.

Moylan, J.

The wisdom undergirding this State appeal emanates from the twenty-eighth chapter of the Book of Proverbs, Verse 1:

“The wicked flee when no man pursueth;

but the righteous are bold as a lion.”

And the Book of Proverbs begat Terry v. Ohio. And Terry v. Ohio begat the indictment of the appellee, Jamal Rasheed Sizer, by the Grand Jury for Howard County. When the appellee fled, Officer Andrew Schlossnagle pursued, leading to the appellee's being charged with the unlawful possession of a firearm with a nexus to drug trafficking. On December 4, 2015, the appellee filed a pre-trial motion to suppress evidence taken from his person, alleging a Fourth Amendment violation.

A hearing was held on that motion on May 26, 2016, at the close of which the motion was granted.

The State Appeal

The State filed a timely appeal on June 3, 2016. The appeal is authorized by Maryland Code, Courts and Judicial Proceedings Article, § 12–302(c)(4). Pertinent are subsections (c)(4)(iii) and (iv):

“(iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final.

“(iv) Except in a homicide case, if the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken. In that case, the State may not prosecute the defendant on those specific charges or on any other related charges arising out of the same incident.”

(Emphasis supplied).

The record was filed with this Court on August 3, 2016. Accordingly, our decision must be rendered no later than December 1, 2016. We heard oral argument on November 2, 2016.

Standard of Appellate Review

In Longshore v. State, 399 Md. 486, 498–99, 924 A.2d 1129 (2007), the Court of Appeals summarized definitively the standards governing the appellate review of a decision to suppress evidence. That standard first delineates the evidence and argument subject to review:

“When an appellate court reviews a trial court's grant or denial of a motion to suppress evidence under the Fourth Amendment, it will consider only the facts and information contained in the record of the suppression hearing.”

399 Md. at 498, 924 A.2d 1129. (Emphasis supplied). That limitation is easy to adhere to in the present case, because there is nothing else to consider.

The standard then makes clear the deference the appellate court will extend to the fact-finding of the hearing judge:

“Moreover, when there is a conflict in the evidence, an appellate court will give great deference to a hearing judge's determination and weighing of first-level findings of fact. It will not disturb either the determinations or the weight given to them, unless they are shown to be clearly erroneous.”

Id.(Emphasis supplied). In this case, the hearing judge made extensive findings of fact, which we will recount in full detail.

The standard also states that when there is a conflict between the respective versions of the evidence presented by the State and by the defense, the tilt on appellate review will go decisively in favor of the prevailing party:

“An appellate court further will view the evidence and all reasonable inferences drawn from that evidence in the light most favorable to the party prevailing on the motion[.]”

Id.

In this case, the prevailing party was the appellee. In any conflict between competing versions of the evidence, therefore, it would be the appellee's version that we will accept as historic fact. In this particular case, however, that potentially favorable tilt is for the appellee an essentially empty victory. He has offered no significant¹ alternative version of the evidence toward which we might tilt. He did not testify. He essentially presented no evidence on his own behalf. His counsel, before the hearing judge, did not even argue any contrary interpretation of the evidence. The State's evidence was effectively unchallenged.

Once the evidence has been presented, however, and once the hearing judge has made possible findings of fact, there remains the ultimate issue of determining the legal significance of the accepted facts. On this legal issue, the appellate court will make its own de novo determination:

“An appellate court, however, under an independent de novo review standard, must consider the application of the law to those facts in determining whether the evidence at issue was obtained in violation of the law, and, accordingly, should be suppressed.”

399 Md. at 499, 924 A.2d 1129. See also, State v. Nieves, 383 Md. 573, 581–82, 861 A.2d 62 (2004) ; Laney v. State, 379 Md. 522, 533–34, 842 A.2d 773 (2004) ; Dashiell v. State, 374 Md. 85, 93–94, 821 A.2d 372 (2003) ; Stokeling v. State, 189 Md.App. 653, 661–62, 985 A.2d 175, cert. denied, 414 Md. 332, 995 A.2d 297 (2010).² We will announce our de novo determination infra.

The Initial Encounter

Officer Andrew Schlossnagel and Corporal James Zammillo testified for the State. Officer Ronald Baker was briefly called by the appellee, but his testimony coincided 100% with that of the other officers. There were no other witnesses. With respect to their testimony, the hearing judge made the following assessment of their credibility:

“The police testified today without embellishment. The Court found them to be truthful and credible.”

(Emphasis supplied).

On the afternoon of November 20, 2015, at approximately 5:30 p.m., the three testifying officers, along with two other officers, were on bike patrol near the Owen Brown Village Center. They were all members of the Pathway Patrol Unit, informally known as the Bike Unit. The officers described the general character and reputation of the area. They referred to the Owen Brown Village Center and its surrounding footpaths as a “high crime area.” Corporal Zammillo, the supervisor of the Pathway Patrol Unit, testified that the Owen Brown Village area is such a high crime area that a police satellite office was established nearby to keep close control of it. The witnesses recounted how, on the night before November 20, there had been reports of a person brandishing a handgun on the footpaths around the Village Center. Because of such criminal activity, the officers had been asked by local business owners to increase their presence in the area. With respect to the responsibilities of the bike patrol and with respect to the characterization of the neighborhood as a “high crime area,” the hearing judge made the following specific findings of fact.

“[T]heir duty is to patrol the pathways of Columbia to ensure safety of the public. That the night before, there had been a complaint made of someone brandishing or displaying a handgun in the parking lot of the Owen Brown Cradlerock Library, and there was, understandably, concern. In general, the area is considered a high or higher-crime area in Columbia. There had been a number of robberies, and the police had certainly this mind-set and were certainly doing what they were supposed to be doing, that is, patrolling the area.”

(Emphasis supplied).

At 5:30 p.m. in November, the parking lot area was largely dark. The approaching officers observed between five and seven persons standing around a mini-van in the parking lot. The group was loud and appeared to be “passing an alcoholic beverage back and forth.” One unidentified member of the group threw a glass bottle on the ground. Officer Baker, moreover, recognized one member of the group, a Joseph Davis, as a “repeat offender” who was banned from the Village Center. The hearing judge made specific factfindings with respect to the police observations of the group milling about the mini-van.

“They're in a darker, less lit area. They see this group of individuals which includes the Defendant, Mr. Sizer. That the group appears to be loitering; that the group appears to be drinking alcohol, open containers, and that somebody of the group—they cannot be sure whether it was Mr. Sizer or not—threw a bottle. The police were concerned, understandably, and approached the group. They were in uniform. On their bright-blue jackets are their respective names and the word “Police,” and they verbally identified themselves as police. While they themselves had been in a darker area, the testimony was that there was sufficient lighting in the parking lot area to see the group.”

(Emphasis supplied).

Unprovoked Flight

As the group of officers approached the group of civilians, they announced their official presence by saying, “Police. Stop. Don't run.” They were in uniform, bright-blue jackets with the word “Police” in prominent letters. At that point, the appellee “turned and immediately began sprinting away.” Officer Schlossnagle along with Officer Burris took off in immediate pursuit, repeatedly giving “multiple commands to stop running.” Because Officers Schlossnagel and Burris were on bikes and the appellee was on foot, the pursuit was brief. As the two officers caught up with the appellee and were about to “take him down,” the appellee threw up his hands and yelled, “Okay, I have a pistol. I have a pistol.” The officers wrestled the appellee to the ground and started to place him in handcuffs.

The Arrest as a Superseding Rationale

It was at that point, seconds after Officer...