Aguilar v. State

• Decision Date: 01 September 1990
• Docket Number: No. 1543,1543
• Citation: 594 A.2d 1167,88 Md.App. 276
• Parties: , 60 USLW 2222 Luis Alberto AGUILAR, v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 276

88 Md.App. 276

594 A.2d 1167, 60 USLW 2222

Luis Alberto AGUILAR, v. STATE of Maryland.

No. 1543, Sept. Term, 1990.

Court of Special Appeals of Maryland.

Sept. 4, 1991.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Submitted before MOYLAN, GARRITY and BLOOM, JJ.

GARRITY, Judge.

Over twenty years ago the United States Supreme Court, in the case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), created what is now known as the stop and frisk exception to the Fourth Amendment warrant requirement. At the time the exception was first recognized it was considered by legal writers to have only limited application. Over the years the exception's application has been broadened so that automobiles and even homes are subject to a police search under the exception. In the case before us we are asked to decide whether the scope of a Terry search extends to allowing a police officer to remove a suspect's underclothing.

Early in the evening of July 27, 1989, a group of Montgomery County policemen, headed by Sergeant James Snow and Officer Don Inman, executed a search warrant. The warrant authorized the police to search the ground floor apartment of Ms. Jamie McKinley, which was located on North Van Buren Street in Rockville, Maryland. A group of policemen, together with a SWAT Team, arrived at the apartment around 7:30 p.m. They arrested Ms. McKinley and took her to the police station. They then conducted an extensive search of her apartment. In the course of the search they found drugs and drug paraphernalia used for consuming drugs.

Around 9:00 p.m., while the police were still conducting their search, Luis Alberto Aguilar, the appellant, pushed open one of the sliding glass doors to the apartment and made an apparently uninvited entry into the apartment. Sergeant Snow testified that the police were startled by appellant's entry. Appellant wore no shirt, and was attired only in jeans and tennis shoes. He was described as having "a wide-eyed look in his eyes." When he first entered he did not say anything, but just looked around the room. Sergeant Snow approached appellant and asked him what he was doing. Appellant did not respond; instead, he said, "I am looking for Jamie." The sergeant asked appellant to describe Jamie, but appellant could not do so.

At that point Officer Inman approached and asked appellant for identification. Appellant did not respond. The officer then asked appellant if he were armed. Appellant still did not reply, so the officer "patted [appellant] down." The officer did not feel anything during the pat-down, so he asked appellant again whether he was armed. Appellant continued to remain silent. What happened next was explained by Officer Inman in his direct testimony:

[OFFICER INMAN]: I asked him to unbuckle his pants and he took his hands and he fumbled with his belt. It didn't seem like he was doing what I told him to do.

I unbuckled his pants and pulled his pants down and I pulled his underwear out and down and at that time a plastic baggie that was concealed in his underwear fell to the ground.

[PROSECUTOR]: Did you reach into his underwear?

[OFFICER INMAN]: No, I didn't.

* * * * * *

[PROSECUTOR]: I asked you what happened next.

[OFFICER INMAN]: The bag fell to the floor and I reached down and picked it up, saw what it was and he was placed under arrest and then he was strip searched.

* * * * * *

[PROSECUTOR]: Why did you pull his underwear back?

[OFFICER INMAN]: I perceived him as a threat to me and the other officers there.

[PROSECUTOR]: Why?

[OFFICER INMAN]: I thought that there was a very good chance that he had some sort of weapon concealed in his pants that I couldn't see or feel with the pat-down.

[PROSECUTOR]: What circumstances gave rise to that fear?

[OFFICER INMAN]: His total unresponsive attitude towards us when asked who he was, why he was there, for I.D., and for my request to unbuckle his pants. It just seemed like every time we said something and he made no response, I felt that he was going over something with his mind, he was going to do something. I have seen that countless times. He seemed to be calculating something. I didn't know what it was.

The officer went on to explain that the reason he believed appellant might be armed was because I have been a policeman for 17 years and I have seen countless times where people have hidden weapons within their pants, within their underwear, taped to their legs, razor blades, even guns down in the groin area inside your underwear. It is something that is hammered into us regularly, especially in the narcotics unit and it is something that we are very concerned about and something that we do every time with everybody.

The bag which fell out of appellant's pants contained a large quantity of cocaine.

A trial judge in the Circuit Court for Montgomery County after hearing this evidence convicted appellant, Luis Alberto Aguilar, of possession of cocaine with intent to distribute.

Appellant argues in this Court that his conviction should be reversed because the cocaine was recovered from him pursuant to an illegal search. The circuit court ruled that the search was valid under the Terry doctrine. We are now asked to decide whether the trial judge was correct.

In Terry v. Ohio, supra and the companion case of Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the Supreme Court ruled that police officers may stop persons when the police have specific articulable facts which, taken together with rational inferences from those facts, create reasonable suspicion that the person has been or is about to be involved in criminal conduct. In addition, if an officer "perceives conduct which reasonably leads him to believe that the person ... may be armed and dangerous," the police may frisk the person for weapons. Payne v. State, 65 Md.App. 566, 570, 501 A.2d 484, cert. denied 305 Md. 621, 505 A.2d 1342 (1986).

Appellant concedes that the stop effected in this case was legal. He argues that the subsequent search was illegal for two reasons: first, because the police did not observe anything which justified them in believing he was armed and dangerous; and second, because even if they did have a basis for believing he was armed and dangerous, the search which the police conducted exceeded the scope allowed by law.

We shall first consider whether the facts justified the police officer's belief that appellant was armed and dangerous (and therefore subject to an appropriate frisk). As an initial matter, we note that a valid stop does not in itself constitute justification for a frisk. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), and Snow v. State, 84 Md.App. 243, 250, 578 A.2d 816 (1990). In order for a search to be valid under the Terry exception, the searching officer must perceive "conduct which reasonably leads him to believe that the person whom he has confronted may be presently armed and dangerous." Payne v. State, supra 65 Md.App. at 570, 501 A.2d 484. Stated another way, the police, before they are permitted to conduct a Terry search, must have a reason to believe both that the suspect is armed and that the suspect has an inclination to use his weapon to harm the police or other nearby persons.

Before we consider whether the police in this case had a reasonable basis for believing that appellant was armed and dangerous, we set forth the test by which we shall measure the evidence.

The law requires us to make our own independent determination of the constitutional effect of the facts which were found by the lower court. Ciriago v. State, 57 Md.App. 563, 573, 471 A.2d 320, cert. denied, 300 Md. 152, 476 A.2d 721 (1984). However, the lower court is responsible to evaluate the credibility of witnesses and to make "first level fact-finding." We give great weight to those determinations and are permitted to reject them only if the testimony relied upon by the lower court is inherently improbable. Borgen v. State, 58 Md.App. 61, 472 A.2d 114 (1984), and Jordan v. State, 72 Md.App. 528, 534, 531 A.2d 1028 (1987). In applying this test here, we accept the circuit court's fact findings. The findings relevant to the question before us are as follows. First, the circuit court judge found that appellant entered the apartment unannounced and with no explanation for doing so. His attire and general behavior, coupled with the fact that he said he was looking for Jamie, strongly suggested that he was involved in some way with the use and/or sale of drugs. Secondly, the circuit court found as a fact that appellant failed to respond to the officers' questions. The trial judge found that the combination of this evidence reasonably led the police to suspect that appellant was involved with drugs. In addition, the circuit court found that the police officers, by virtue of their training and experience, knew that people who are involved in the drug culture frequently carry concealed weapons. The circuit court went on to rule that these findings justified the search. We accept the circuit court's first level facts. Using those facts as our basis, we now make our own constitutional appraisal of whether the circuit court was correct in ruling that the search was valid.

The first question we consider is whether the police were justified in believing that they were entitled to conduct any type of search of appellant. The test by which we answer this question is whether the evidence showed that the police "perceived conduct which reasonably [led them] to believe that the person whom [they] have confronted may be presently armed and dangerous." Payne v. State, supra 65 Md.App. at 560, 501 A.2d 484. The facts established the...