Cox v. State

• Decision Date: 08 February 2007
• Docket Number: No. 39, September Term, 2006.,39, September Term, 2006.
• Citation: 397 Md. 200,916 A.2d 311
• Parties: Artavius Donnell COX v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

916 A.2d 311

397 Md. 200

Artavius Donnell COX v. STATE of Maryland.

No. 39, September Term, 2006.

Court of Appeals of Maryland.

February 8, 2007.

Allison E. Pierce, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for petitioner/cross-respondent.

Steven L. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent/cross-petitioner.

Argued before BELL, C.J., RAKER,^* WILNER, CATHELL, HARRELL, BATTAGLIA, and GREENE, JJ.

GREENE, J.

In this case, we must determine whether Artavius Donnell Cox ("Petitioner") was entitled to have suppressed, as evidence at his trial, a quantity of marijuana that the police found on the ground near him, after an arguably illegal stop. The drugs seized in this case were recovered after the police obtained information that there existed an outstanding warrant for Petitioner's arrest. We are asked to review two issues. First, whether a police encounter, in which a uniformed officer approached Petitioner on the street claiming that he "loosely fit" the description of the perpetrator of a recent string of robberies, asked Petitioner for identification, and ran a check on his identification, constituted an illegal stop in violation of the Fourth Amendment of the United States Constitution. In addition, whether a police officer's subsequent discovery of an outstanding arrest warrant represented an intervening circumstance,¹ such that if the stop were illegal, the arrest on the warrant attenuated the taint of the illegal stop.

We need not address the first issue because that question is not dispositive to our analysis of whether Petitioner's motion to suppress should be granted or denied. Assuming arguendo, that the police encounter constituted an illegal stop, we deem it more appropriate to determine the ultimate question: whether it was proper for the trial court to grant Petitioner's motion to suppress the evidence. Although the State did not specifically contend, at the suppression hearing, that Petitioner's arrest constituted an intervening circumstance sufficient to attenuate the taint of the stop, the issue and the State's contention on appeal that the arrest pursuant to a warrant was lawful is, nonetheless, preserved for appellate review. We shall hold that the police officer's discovery of an outstanding warrant for Petitioner's arrest and Petitioner's arrest pursuant thereto represents an intervening circumstance sufficient to attenuate the taint of what appears to be an illegal stop. Accordingly, we shall affirm the judgment of the Court of Special Appeals and hold that the Circuit Court erred in granting Petitioner's motion to suppress the evidence.

FACTUAL BACKGROUND

On April 6, 2005, Sergeant Jeff Bryant was patrolling the Lancaster neighborhood in Waldorf, Maryland, driving a marked police car and wearing a police uniform, because there had been a series of robberies, the last of which had occurred on the previous day. The victim of that robbery had described the perpetrators as "two teen-age black males."

At approximately 11:05 a.m., Sergeant Bryant noticed Petitioner and a man, later identified as Mr. Martin, walking towards him, on the sidewalk, adjacent to Lancaster Circle. Sergeant Bryant testified that the men appeared to be avoiding him. The men then left the sidewalk and walked onto another street. Sergeant Bryant was not sure whether the men saw him before changing their route. The Sergeant advised another officer that he intended to stop the men.

Sergeant Bryant circled in his car, met with a second officer at a specified interception point, and then stopped Petitioner and Martin. Two other officers appeared "a couple minutes later." Sergeant Bryant got out of his vehicle, identified himself, and approached the men. He "asked the gentlemen for identification, explained to [them] that [the police] were having a problem with robberies of the citizens of the area and that the [] two gentlemen loosely fit the description of those suspects." Both Petitioner and Martin provided their Virginia identification cards to Sergeant Bryant. While remaining with the men, Sergeant Bryant "ran that information through the agency radio asking for a local MILES and NCIC check of wanted status. . . ." Sergeant Bryant further testified, at the suppression hearing, that while checking Petitioner's identification, Petitioner was not free to leave but Sergeant Bryant did not know if he would have chased Petitioner if Petitioner had run away.

After about two minutes, Sergeant Bryant received a code "Sam Roberts," which meant that he should secure his radio (so that the men could not hear it) because at least one of the individuals about whom he had inquired had an outstanding warrant. In response, Sergeant Bryant told both men to sit on the ground with their hands on their heads and awaited confirmation as to which man had the outstanding warrant. Soon thereafter, Sergeant Bryant received confirmation that it was Petitioner who had an open warrant for failing to appear in court on drug charges. The Sergeant then placed Petitioner in handcuffs. One of the other officers on the scene, Officer Gotschall, then noticed a plastic baggie of marijuana lying on the ground. Sergeant Bryant testified that the marijuana was not on the ground before he asked Petitioner and Martin to sit down and place their hands on their heads.

On May 2, 2005, the State charged Petitioner with various drug-related offenses, including possession of marijuana and possession of a controlled dangerous substance with intent to distribute. On May 11, 2005, Petitioner filed a motion to suppress the marijuana on the grounds that it was unlawfully obtained.

The Circuit Court for Charles County heard testimony and argument on August 12, 2005. At the hearing, the State argued that Petitioner was arrested pursuant to an outstanding warrant and cited Gibson v. State, 138 Md.App. 399, 771 A.2d 536 (2001), a case in which the intermediate appellate court explained the fruit of the poisonous tree doctrine and also explained the three ways in which to dissipate the taint. The State did not use the words "attenuation," "taint" or "intervening cause" in its argument. The Circuit Court granted the motion to suppress on September 8, 2005 because it found that the encounter between Petitioner and Sergeant Bryant constituted a stop, and that the Sergeant did not have "an objective manifestation that the person stopped [wa]s or [wa]s about to be engaged in criminal activity. . . . There [wa]s no indication that they were possessing or about to be engaged in marijuana activity or CDS activity."

The State appealed to the Court of Special Appeals, arguing that (1) Petitioner was not illegally detained, and that (2) even if he was, the evidence should still not be suppressed because the arrest warrant constituted an intervening circumstance that attenuated the illegality of the detention. Petitioner argued that the State failed to preserve for appellate review the latter argument. In an unreported opinion, filed on March 29, 2006, the intermediate appellate court reversed the judgment of the Circuit Court. That court found that the stop of Petitioner was actually a mere accosting because it was both "consensual and voluntary." The intermediate appellate court agreed with Petitioner, as to the second point, because it perceived that the State argued only two points at the trial level: that the encounter was consensual and that Petitioner's identity was not suppressible. The court determined that neither point preserved an argument based on the attenuation doctrine. As a result, the Court of Special Appeals determined that the marijuana should not have been suppressed, and, because the police encounter was consensual, the Fourth Amendment was not implicated.

Petitioner filed a petition for writ of certiorari² in this Court and the State filed a conditional cross-petition.³ We granted both petitions. Cox v. State, 393 Md. 477, 903 A.2d 416 (2006).

DISCUSSION

A. The Legality of the Police Encounter

The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures. It states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV. Because of this constitutional protection, police officers must have, at a minimum, reasonable, articulable suspicion that a person is involved with, or has committed, criminal activity before they can lawfully seize that individual. Ferris v. State, 355 Md. 356, 374-75, 735 A.2d 491, 500-01 (1999). Officers may, however, question an individual, absent reasonable, articulable suspicion, if the encounter is consensual and voluntary. Id. The Fourth Amendment is therefore not implicated "simply because a police officer approaches an individual and asks a few questions." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991). Likewise, police officers

do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.

Stanberry v. State, 343 Md. 720, 742, 684 A.2d 823, 834 (1996) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319 1324, 75 L.Ed.2d 229, 236 (1983)). Whether "a particular encounter constitutes a seizure, or whether the...