Allen v. State

• Decision Date: 01 September 1989
• Docket Number: No. 1879,1879
• Citation: 584 A.2d 1279,85 Md.App. 657
• Parties: Michael Anthony ALLEN v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

Page 657

85 Md.App. 657

584 A.2d 1279

Michael Anthony ALLEN v. STATE of Maryland.

No. 1879 Sept. Term, 1989.

Court of Special Appeals of Maryland.

Jan. 30, 1991.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Former Public Defender, on the brief), Baltimore, for appellant.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Argued before GARRITY, ALPERT and CATHELL, JJ.

GARRITY, Judge.

The appellant, Michael Anthony Allen, was convicted in the Circuit Court for Baltimore City (Arabian J.) of unlawfully wearing or carrying a handgun in violation of Md.Code (1957, 1987 Repl.Vol.) Art. 27, § 36B. Having failed to persuade the trial court to suppress evidence seized from him, Allen presents the following question for our consideration:

Did the trial court, in light of the Supreme Court's holding in Alabama v. White, --- U.S. ----, 110 S.Ct. 2412 (1990), properly deny appellant's motion to suppress after the court found the challenged evidence was seized pursuant to information furnished by an anonymous source who accurately stated appellant was armed with a gun and described his appearance and whereabouts?

FACTS

At approximately 2:51 p.m. on October 5, 1989, Sergeant Michael Harding, a nineteen year veteran of the Baltimore City Police Department, received a radio transmission that an anonymous person had reported that a black male, who was wearing a gray jacket, beige coat, and blue jeans, was at the corner of Biddle and Homewood Streets and armed with a gun. Another Baltimore City Police Officer, Michael Dunn, who was also cruising in the area, confirmed the description given in the anonymous caller's report. Officer Dunn testified that within the last four years that particular area, specifically Homewood and Biddle, has been the source of numerous complaints about drugs and the site of many shootings, at least eight of which had resulted in homicides.

When Officer Harding arrived at the Homewood and Biddle area, about four minutes after having received the call, a helicopter unit on the scene directed his attention to a man wearing a grey jacket and blue jeans. Officer Harding determined that the man did not have a gun, although he was intoxicated and had a wine or liquor bottle concealed in his coat. ¹ While Officer Harding was returning to his car, he noticed the appellant, who was about seventy-five feet away, walking northbound on Homewood, away from the intersection. When Harding spotted the appellant, he immediately advised the other police units in the area that he had "a guy matching the description of the person with the gun. He is on Homewood. He is turning westbound on Mura Street." Officer Harding testified that he observed the appellant to be wearing a gray hooded sweatshirt under a beige jacket, which was either tan-suede or leather, and blue jeans.

Officer Dunn, a sixteen-year veteran of the Baltimore City police, was driving north on Homewood when he received Harding's report. Turning left into the westbound lane of Mura Street, Dunn identified the appellant as "fitting the description" in the anonymous caller's report. ² Remaining in his police car, Dunn followed Allen a short distance on Mura and stopped approximately five or six feet behind Allen. Dunn then alighted from the car, and ordered Allen to stop and put his hands on the wall. Allen made no unusual movements and immediately complied.

Asked to relate his intention when approaching the appellant, Officer Dunn stated:

My intention was not to arrest him at that point, it was a mere stop and frisk.

* * * * * *

At this point, it was for safety reasons for myself and for the other officer responding, to see if the person did have a gun. Since he fit the description, there was reasonable belief that he was possibly armed.

* * * * * *

At that time I approached him, kept my right hand on my gun, since I had the holster unsnapped, put my left foot in between his foot and with my left hand I reached around him and patted his outer clothing in the front area of his waistband.

Finding nothing in this area, which Dunn described as a place commonly used for carrying a gun due to its being "easily reached and accessible," Dunn took the following action:

After I placed my hand in the front of the waistband area, I simply moved my hand in one motion around and when I got to his back, on the left side I felt a hard object, felt like a pistol grip and at that point there I drew my gun out of my holster, stuck it to his head and told him "Don't move."

Dunn then recovered the gun and arrested Allen.

Allen's motion to suppress the evidence obtained from the stop and frisk was denied on the ground that the anonymous tip furnished the police with reasonable articulable suspicion to justify a Terry stop. Allen's Fourth Amendment challenge contends that the quality and quantity of information provided by the anonymous caller was not sufficiently reliable to furnish the police with reasonable articulable suspicion for the stop and frisk.

I. Investigatory Stop

In Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968), the Supreme Court established "narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." To pass constitutional muster, a stop of this nature must be founded upon "specific articulable facts" which would lead a reasonable police officer at the inception of the stop to conclude that a brief detention of the individual is appropriate. Id. at 21-22, 88 S.Ct. at 1879-80. The Supreme Court has delineated the general contours of the quality and quantity of evidence required to show reasonable articulable suspicion by way of contrast to that required to show probable cause:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

Alabama v. White, --- U.S. ----, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990) (emphasis added). ³

We now turn to the issue of whether the anonymous caller's tip justified a Terry stop or was so "completely lacking in indicia of reliability [that it] would either warrant no police response or require further investigation before a forceable stop of a suspect would be authorized." Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972). In reviewing the trial court's determination, our role is to ensure that the trial court had a substantial basis for concluding that articulable suspicion existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983). We hold that the trial court did not err in finding that Officer Dunn had reasonable, articulable suspicion for making an investigatory Terry stop.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court was confronted with an anonymous telephone tip in the probable cause context. Although the Court emphasized the relevance of the informant's veracity, reliability, and basis for knowledge, the Court held that the challenged police conduct must be viewed in light of the "totality of circumstances." Id. at 230-31, 103 S.Ct. at 2328-29. In applying the totality of circumstances test to an investigatory stop in Alabama v. White, --- U.S. ----, 110 S.Ct. 2412, 2414-17, 110 L.Ed.2d 301 (1990), the Court confirmed what we previously had determined in Millwood v. State, 72 Md.App. 82, 87-94, 527 A.2d 803, cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988), that is, "that an anonymous tip may furnish reasonable articulable suspicion for an investigatory stop under Terry."

In White, an anonymous person telephoned the police and related that Vanessa White would be leaving an apartment at a certain time in a particular vehicle and that she would have cocaine in her possession. The officers verified the description of the vehicle and observed White, empty-handed, leaving an apartment. After they stopped the vehicle en route to the destination the caller predicted, the officers conducted a consensual search and discovered marijuana in an attache case in White's vehicle. After arresting her, they found cocaine in White's purse. Reversing the judgment of the court below, the Supreme Court concluded that "the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion...." White, 110 S.Ct. at 2416. Holding that, under the totality of the circumstances, an anonymous tip may be sufficient indicia of reliability to justify an investigatory stop, the Court reasoned that the information provided by the tipster was reliable because the "significant aspects of the caller's predictions were verified" before the stop was made. White, 110 S.Ct. at 2417. In tailoring the totality of circumstances test to the investigatory stop situation, the Court stated, "if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if it were more reliable." Id. at 2416. The Court noted, however, that the information, as corroborated, was adequate for an investigatory stop, although it would not have been sufficient for an arrest or full search. Id.

Absent sufficient corroboration, an investigatory stop based upon an anonymous tip raises the prospect of unjustifiable governmental intrusion into an individual's life by expanding the Terry exception to the probable cause requirement of the Fourth...