Boyer v. State, 031319 MDSCA, 777-2017

Docket Nº:777-2017
Opinion Judge:SHARER, J.
Judge Panel:Meredith, Leahy, Sharer, J., Frederick (Senior Judge, Specially Assigned), JJ.
Case Date:March 13, 2019
Court:Court of Special Appeals of Maryland




No. 777-2017

Court of Special Appeals of Maryland

March 13, 2019

Circuit Court for Baltimore City No. 117013017

Meredith, Leahy, Sharer, J., Frederick (Senior Judge, Specially Assigned), JJ.



Following denial of his motion to suppress evidence seized (a handgun) at the time of his arrest, Dewayne Boyer, entered into a conditional guilty plea to possession of a firearm by a disqualified person.1 Thus, the sole question before us, as posed by Boyer, is: Did the trial court err in denying his motion to suppress?

Finding no errors in the suppression court's findings of fact or conclusions of law, we shall affirm.


Boyer came to the attention of Baltimore City police officers at about 10:30 p.m. on December 19, 2016, at the Mondawmin Mall in Baltimore City. According to police, he was seated in the driver's seat of a car, with the motor running, and his sneakers off. As the Mall had closed 30 minutes earlier, and the area known to police as a high crime area, police approached the vehicle to speak with the driver. In all, there were six police officers present in two police cars - one marked and one unmarked. Officer Leon Riley, the first officer to approach the car, and accompanied by his Sergeant, detected the odor of marijuana. Based on that odor, he requested that Boyer get out of the car.

The officers testified that Boyer "stalled" in response to the request, but conceded that when approached, Boyer did not have shoes on. They further testified that Boyer contorted his body in an unusual manner, keeping his right side turned away from them. Throughout, he did not make eye-contact with the officers.

Both Riley and Officer Nelson Flores were qualified by the court as experts. As to Riley, the court ruled, without objection: The Court will accept [Officer Riley] as an expert, with regard to the motion only at this time, in the characteristics and identification of persons who may be in possession of a handgun. And also will be able to express opinions. But he better [] have some facts with regard to the area of expertise.

As to Flores, the court ruled, over Boyer's objection: "He's an expert in the field of characteristics of an armed person."

Riley testified that, as a result of Boyer's actions, "it became clear to me that he possibly had a gun on his person." Flores testified similarly. As Boyer got out of the car, Riley asked him, "Mind if I check you out?" In response, Boyer raised only his left arm. A pat-down of Boyer's right side pocket followed, resulting in the discovery of a handgun.

At the suppression hearing, Boyer, through counsel, took the position that he was arrested at the scene without probable cause, arguing that the officer's body camera video belied their testimony of furtive movement.[2] The State argued that the initial approach to Boyer's car was a Terry stop "based on reasonable articulable suspicion that criminal activity was afoot, given the totality of the circumstances," and that "Boyer's continuing behavior, concealing his right side, avoiding eye contact with police, and stalling as he got out of his car, gave rise to an additional basis to conduct a frisk." (Citations omitted).

On appeal, Boyer asserts that he "was seized when the police used two cars to block him in, shined a spotlight into his car, and when five police officers in tactical vests approached [his] car, surrounded it, and then ordered [him] out of the car." (Internal citation omitted).

The Motions Court Ruling

The motions court made thorough and extensive findings of fact and ruled as follows: The Court thanks both parties for presenting their cases in the manner in which they did. Pursuant to the testimony and the evidence that the Court heard and the argument of Counsel, we will go back to the non-technical concept of probable cause as defined in Collin v. State, 322 Md. 765.

The Court of Appeals explained that probable cause, as it's frequently stated, is a non-technical conception of a reasonable ground for belief of guilt. A finding of probable cause requires less evidence than is necessary to sustain a conviction but more evidence than would merely arouse suspicion.

And the Court's determination of non-technical common sense evaluation of the totality of the circumstances in a given situation in light of the facts found to be credible. Probable cause as a whole would lead a reasonably cautious person to believe that a crime had been or is being committed by the person arrested.

And to justify the arrest, the...

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