Carter v. State, 0891

• Citation: 795 A.2d 790,143 Md. App. 670
• Decision Date: 03 April 2002
• Docket Number: No. 0891,0891
• Parties: Dominique CARTER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

795 A.2d 790

143 Md. App. 670

Dominique CARTER v. STATE of Maryland.

No. 0891, Sept. Term, 2001.

Court of Special Appeals of Maryland.

April 3, 2002.

David M. Goldstein, Ellicott City, for appellant.

Shannon E. Avery, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Marna McLendon, State's Atty. for Howard County, Ellicott City, on the brief), for appellee.

Argued before KENNEY, KRAUSER, CHARLES E. MOYLAN, Jr. (Retired, specially assigned), JJ. CHARLES E. MOYLAN, Jr., Judge, Retired, Specially Assigned.

This case involves the Fourth Amendment law of "stop and frisk" pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). More precisely, it involves only the "stop" aspect of "stop and frisk" law. There was no frisk and the law governing frisks is not implicated in any way. See Gibbs v. State, 18 Md. App. 230, 239, 306 A.2d 587, cert. denied, 269 Md. 759 (1973), for the differences in the respective purposes of the two police procedures and their respective justifications.

The appellant, Dominique Carter, was convicted in the Circuit Court for Howard County by Judge James B. Dudley, sitting without a jury, of possession of marijuana with intent to distribute within 1000 feet of an elementary school and related charges. On this appeal, he raises the single contention that at a pretrial suppression hearing, Judge Raymond J. Kane, Jr., erroneously failed to suppress physical evidence on Fourth Amendment grounds. We shall confine our review, therefore, to that evidence brought out at the suppression hearing. Cartnail v. State, 359 Md. 272, 282-83, 753 A.2d 519 (2000).

At approximately 7:47 p.m. on December 17, 2000, the van in which the appellant was sitting and all of its occupants were subjected to a Terry-stop. At 8:25 p.m., a K-9 officer and a trained drug-sniffing dog arrived at the scene. The dog scanned the vehicle and "alerted" to the presence of drugs.

From that point on, there is no question about the Fourth Amendment proprieties. The dog "alert" supplied the probable cause for a warrantless search of the van. As we stated in State v. Funkhouser, 140 Md.App. 696, 711, 782 A.2d 387 (2001):

When a qualified dog signals to its handler that narcotics are in a vehicle, moreover, that is ipso facto probable cause to justify a warrantless Carroll Doctrine search of the vehicle.

See also Wilkes v. State, 364 Md. 554, 586-87, 774 A.2d 420 (2001); Gadson v. State, 341 Md. 1, 8, 668 A.2d 22 (1995); Timmons v. State, 114 Md.App. 410, 417, 690 A.2d 530 (1997); In Re Montrail M., 87 Md. App. 420, 437, 589 A.2d 1318 (1991); Snow v. State, 84 Md.App. 243, 248, 578 A.2d 816 (1990).

The marijuana found on the floorboard behind the passenger's seat, where the appellant had been sitting, supplied the probable cause for the warrantless arrest of the appellant. Folk v. State, 11 Md. App. 508, 511-12, 275 A.2d 184 (1971). The appellant, indeed, admitted that the marijuana was his.

Our concern is only with the time period from 7:47 p.m. to 8:25 p.m. Our concern in that regard is twofold. Our first inquiry will be whether articulable suspicion existed for the initiation of the Terry-stop. Our second concern will be whether a detention of 35-40 minutes exceeded in its duration the permissible scope of a Terry-stop.

A False Trail:

The Irrelevance of Arrest Law

In terms of the initial justification for the police intrusion, the appellant attempts to transmute a Terry-stop into an arrest and thereby to raise significantly the bar of reasonableness that the State must clear from the level of articulable or reasonable suspicion up to the level of probable cause. Involved in this case, however, is a Terry-stop, pure and simple. There is, to be sure, a Fourth Amendment hurdle to be cleared, but a less intimidating one than that proposed by the appellant.

For his alchemy of turning base metal into gold, of turning a Terry-stop into an arrest, the appellant relies on for his philosopher's stone the case of United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The only transmutation he achieves, however, is that of representing Mendenhall as something it never was. The appellant asserts that in Mendenhall "the Court distinguished arrest from a mere traffic or Terry stop."

The Supreme Court did no such thing. Mendenhall did not concern the law of arrest. What it distinguished was a Terry-stop, which requires Fourth Amendment justification, from a mere accosting, which does not. The Supreme Court explained, 446 U.S. at 553-54, 100 S.Ct. 1870:

We adhere to the view that a person is "seized" only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized objective justification.

(Emphasis supplied).

The conclusion in Mendenhall was that a Terry-stop had not occurred and that the Fourth Amendment was not, therefore, involved so as even to require satisfaction.

On the facts of this case, no "seizure" of the respondent occurred. The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent's identification and ticket. Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official.

446 U.S. at 555, 100 S.Ct. 1870 (emphasis supplied).

What the appellant attempts to do is to equate 1) a Fourth Amendment "seizure of the person" and 2) the denial by the police of the citizen's "freedom to leave" with the status of being arrested. Mendenhall, however, describes those conditions as the classic indicia of a Terry-stop. An arrest involves more. Citing Terry v. Ohio as its authority, Mendenhall explained the circumstances that turn a mere accosting into a Terry-stop.

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. See Terry v. Ohio. 446 U.S. at 554, 100 S.Ct. 1870 (emphasis supplied). Sylvia Mendenhall was stopped, but she was not arrested.

United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), was also a "stop and frisk" case and nothing more, notwithstanding the fact that the stopping officer

approached Hensley's car with his service revolver drawn and pointed into the air. He had Hensley and a passenger seated next to him step out of the car.

469 U.S. at 224, 105 S.Ct. 675. And see United States v. Oates, 560 F.2d 45, 57 (2d Cir.1977) ("While it is clear that Oates and Daniels were not at that point free to do as they pleased, it can no longer be questioned that, although every arrest is a form of detention, the converse is not true.").

The appellant solemnly insists that he "was not free to leave." Of course, he wasn't. That's why this was a Terry-stop requiring the Terry level of Fourth Amendment justification. Had he been free to leave, this would have been a mere accosting and the Fourth Amendment would not even have been implicated. Under Terry, a stopee's freedom of movement is most definitely restricted under the command of the law. If he attempts to leave after being ordered, perhaps at gunpoint, to stop, he may be shot or otherwise forcibly restrained. Such consequences, notwithstanding the appellant's urging to the contrary, do not ipso facto transform a Terry-stop into an arrest.

Although the appellant would understandably like to set the bar of police justification at the higher probable cause level, we hold that it rests only at the articulable or reasonable suspicion level. Indeed, the entire rationale for "stop and frisk" law is that these lesser seizures of the person, not amounting to a full-scale arrest, are permitted on a predicate less substantial than probable cause. That is why they are severely limited in scope. The lesser justification only permits a lesser intrusion. Alfred v. State, 61 Md.App. 647, 659, 487 A.2d 1228 (1985). As Chief Judge Murphy pointed out for this Court in Pryor v. State, 122 Md.App. 671, 679, 716 A.2d 338, cert. denied, 352 Md. 312, 721 A.2d 990 (1998):

It is well settled ... that the forcible stop of a motorist may be based on reasonable articulable suspicion that is insufficient to establish probable cause.

Articulable Suspicion

For the Terry Stop

Having settled the level of justification required, we hold that articulable or reasonable suspicion did exist in this case for the initial Terry-stop of the...