Anderson v. State

• Decision Date: 07 June 1978
• Docket Number: No. 130,130
• Parties: Alvin Leon ANDERSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 701

282 Md. 701

387 A.2d 281

Alvin Leon ANDERSON v. STATE of Maryland.

No. 130.

Court of Appeals of Maryland.

June 7, 1978.

Robert S. Sherman, Baltimore, for appellant.

F. Ford Loker, Jr., Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

DIGGES, Judge.

The petitioner, Alvin Leon Anderson, protests the pretrial denial of his motion to suppress evidence, the introduction of which resulted in his conviction in the Criminal Court of Baltimore of a handgun violation. Md.Code (1957, 1976 Repl.Vol.), Art. 27, § 36B(b). The handgun was discovered when police officers investigating a robbery committed six days earlier by two black males, one tall and one short, without any preliminary inquiry stopped and frisked two black males, one of whom the petitioner was three to five inches shorter than the other. The two when stopped were walking in a neighborhood allegedly frequented by one of the robbers, and had looked back several times at an unmarked police car which had just cruised past them. Since this intrusion by the police was "based on nothing more substantial than inarticulate hunches," Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), it was unreasonable, exceeding the very narrow exception to the probable cause requirement allowed by Terry in street confrontations between a citizen and a policeman investigating observed suspicious behavior; the handgun recovered from Anderson in the course of the search should thus have been excluded from evidence at his trial.

The relevant facts have been agreed upon by the parties pursuant to Maryland Rule 828 g and may be briefly stated. On August 25, 1976, Officer Claude Merritt of the Baltimore City Police Department interviewed one Edward Royster, a victim of one of a number of robberies that had occurred in the area of the Mondawmin Shopping Center. Royster said that he had been robbed almost a week before by a "Mutt and Jeff" team of two black males, the smaller of whom had a chrome-plated pistol which he had carried inside a paper bag, and that one of the men "hung around" Warwick and North Avenues in Baltimore City. At about 12:30 p. m. that day, Officer Merritt and two other policemen, all in plain clothes, were cruising that area in an unmarked car, and observed a group of black males standing on a street corner one block south of the intersection of Warwick and North Avenues. As the officers were driving past, two of the men, one taller than the other, left the group and walked in a northerly direction, looking back a number of times toward the unmarked police car and in the general direction of the group they had just left. Officer Merritt turned the car around and pulled up next to the petitioner and his companion; the three officers got out of the car "to stop and frisk the (petitioner)." Officer Merritt then noticed for the first time that Anderson was holding a brown paper bag, which one of the officers told him to put down on the car; when he complied the policemen heard a metallic thump or click. After the pat-down, Officer Merritt opened the paper bag and found a chrome-plated revolver, whereupon he placed petitioner under arrest. No inquiries of any kind were addressed to the petitioner before he was frisked, though Officer Merritt testified that he did tell Anderson the reason for stopping the pair i. e., that they fit the description of the robbers being sought.

As it developed, the petitioner and his companion were not in fact the persons who had robbed Mr. Royster, as the police very shortly discovered; however, Anderson was tried and convicted on the handgun charge by Judge Grady, sitting without a jury. The judge refused to suppress the gun and paper bag seized at the time of petitioner's arrest, concluding that the police had a reasonable ground to believe the two men could be involved in the Royster robbery and that they were thus legitimately stopped for an interview; given that the police had "some reason to believe" the paper bag had concealed a weapon in the Royster case, the metallic noise which occurred when the bag was put down engendered probable cause for believing that the petitioner was carrying a weapon. The Court of Special Appeals, in an unreported per curiam opinion, affirmed the conviction, though its reasoning took a somewhat different tack. That court concluded that the frisk prior to questioning was permissible under Terry (a question the trial court found irrelevant), since the police, when they saw two men "fitting the description in the specified area, and one of them was carrying a paper bag," ¹ were "completely justified in believing the men were armed." The Court went on to reason that because the paper bag was within the "lunge, reach, or grasp" of the petitioner, the search of the bag was also permissible. We granted certiorari.

Since our resolution of the petitioner's contention that the forcible stop here "under any theory of law . . . was unreasonable" ² is bounded by the principles announced by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we turn first to a perusal of that decision. Terry dealt with the very narrow question of whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons when there is no probable cause to arrest him. 392 U.S. at 15, 88 S.Ct. 1868. Answering that question in the negative, the Court preliminarily rejected the notion that such investigatory detentions were not governed by the fourth amendment to the Federal Constitution. The Court observed that "whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person," id. at 16, 88 S.Ct. at 1877, and that exploration of the outer surfaces of a person's clothing is a "serious intrusion upon the sanctity of the person . . . and . . . not to be undertaken lightly." Id. at 16-17, 88 S.Ct. at 1877. The central inquiry is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Id. at 19, 88 S.Ct. at 1878. In determining whether the intrusion was justified at its inception, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S.Ct. at 1880. The reasonableness of an intrusion is to be assessed against an objective standard whether "the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate." Id. at 21-22, 88 S.Ct. at 1880.

In Terry, there was no question of the propriety of the officer's taking steps to investigate the accused's suspicious behavior, ³ and the crux of the case was the justification for the search in the course of that investigation. Id. at 23, 88 S.Ct. 1868. That justification was provided by the officer's reason to believe he was dealing with an armed and dangerous individual who thus posed a threat to his safety while he was investigating. Id. at 27-28, 88 S.Ct. 1868. Under those circumstances, a limited search of the suspect's outer clothing for weapons was permissible. The Court's holding was very narrowly circumscribed:

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. (Id. at 30, 88 S.Ct. at 1884.)

This language makes clear that the real thrust of Terry is directed at instances in which there is reasonable suspicion that someone is about to commit or has just committed a crime. See Adams v. Williams, 407 U.S. 143, 153, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (Brennan, J., dissenting). Indeed the majority in Terry noted: "(W)e deal here with an entire rubric of police conduct necessarily swift action predicated upon the on-the-spot observations of the officer on the beat which historically has not been, and as a practical matter could not be, subjected to the warrant procedure." 392 U.S. at 20, 88 S.Ct. at 1879 (emphasis added). The rationale underlying Terry is hardly so potent where, as here, the crime is six days old and there is no perceptible reason why further surveillance and investigation could not be undertaken, rather than immediately precipitating a street encounter with its concomitant danger to the officers and intrusion upon the personal security of citizens. Notably, Mr. Justice Harlan suggested in a companion case decided the same day as Terry that an important factor to be taken into account in determining whether there are reasonable grounds for a forcible intrusion is whether there is any need for immediate action. Sibron v. New York, 392 U.S. 40,...