Davis v. State
| Decision Date | 08 October 2019 |
| Docket Number | No. 2385,2385 |
| Parties | TURRELL DAVIS v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore City
Case No.: 118115008
UNREPORTED
Nazarian, Beachley, Salmon, James P. (Senior Judge, Specially Assigned), JJ.
Opinion by Beachley, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
In this appeal, we review the constitutionality of a protective frisk conducted during a traffic stop, resulting in the discovery of a handgun on the person of appellant Turrell Davis. After the Circuit Court for Baltimore City denied his motion to suppress evidence of the gun, appellant entered a conditional guilty plea to possession of a regulated firearm after a disqualifying conviction. He was sentenced to fifteen years' incarceration, with all but five years suspended, to be served without the possibility of parole.
Appellant contends that the gun evidence should have been suppressed because it was recovered during an illegal pat-down, arguing that he "was just a passenger in a car that was pulled over for running a red light." Applying Thornton v. State, 465 Md. 122 (2019), we hold that the court erred in denying appellant's motion to suppress the gun evidence because the State did not establish reasonable articulable suspicion for the Fourth Amendment frisk.
Before trial, appellant moved to suppress evidence of the gun on the ground that it was obtained pursuant to an unconstitutional stop and frisk. At the suppression hearing, defense counsel abandoned his challenge to the legality of the stop, focusing on the reasons for removing appellant from the passenger seat in order to conduct a pat-down.1 The State presented testimony from two of the three officers who conducted the traffic stop, video from the body cameras worn by the two testifying officers, and an aerial map showing thelocation of the stop.
Baltimore City Police Detective Jamal Brunson testified that around 3:00 p.m. on March 26, 2018, he was on "proactive enforcement" in the "tri-district area[,]" which encompasses the Southwest, Western, and Southern Districts. He characterized this as a "high-crime, high-drug . . . area" that experiences "a high level of violence" where "four to five different drug organizations" operate. In March 2018 alone, this area was the scene of approximately fourteen handgun-related arrests, nine non-fatal shootings, and three homicides.
The detective described his duties that day as "essentially, just conduct[ing] protective enforcement, meaning car stops[.]" While patrolling with two partners, Officer Mark Gurbelski and Officer Shank,2 Detective Brunson observed a gray Honda Accord with "heavily tinted" windows traveling "at a high rate of speed." After stopping for a red light at an intersection, the vehicle turned left while the light was still red.
Detective Brunson activated his emergency lights and siren. The Honda slowed and stopped on a side street. While pulling his vehicle behind the Honda, Detective Brunson activated his body camera, which has a thirty-second audio delay.
On direct examination, Detective Brunson testified that as the Honda pulled over, he saw the "left and right shoulders of both of the driver and the passenger . . . moving up and down[,]" and "there was a lot of movement going on inside the vehicle[.]" DetectiveBrunson's body camera recorded his observation that there was "lots of movement" inside the Honda. He testified that he was unsure what the occupants were "reaching for," but in his experience the amount of movement inside the Honda was "unusual," and it heightened his concern for "officer safety for himself and his partners."
After Officer Shank made the initial approach to the driver, Detective Brunson approached the Honda. The detective recognized appellant, who was the only passenger. Detective Brunson previously encountered appellant at least "ten times" "in reference to CDS investigations in that same area." These interactions included "several arrests . . . , chases, other things[.]"
After license, tag, and registration information was called in to dispatch, Detective Brunson was advised that there were no pending matters involving the driver and that the Honda was not reported stolen.
Based on the movements he observed while the Honda was responding to his signal to pull over, Detective Brunson decided that he was going to frisk the occupants. When the prosecutor asked whether anything else factored into this decision, Brunson answered:
Just for officer safety purposes, like I said. Not knowing what those movements led to -- were leading to, it's just for officer safety, just to pull them out just to conduct a weapons pat down for both individuals.
After inquiring about Brunson's knowledge of the area, the prosecutor asked again whether anything else "factored into" his decision to frisk the occupants, prompting this answer:
Just the [sic] where the vehicle was coming from and th[e] area in which we conducted the stop, and just the nature of the, I'd say, the high drug and high, you know, violent crimes in that area.
The prosecutor then played a portion of Brunson's body camera video recording, which showed the officers standing between the bumpers of the Honda and their patrol vehicle at the time the dispatcher "cleared" the license and vehicle. When asked why the officers gathered behind the Honda, the detective explained that they were discussing "how [they] were going to handle the situation," and that they agreed to get the occupants out of the car to "[j]ust conduct weapons pat-downs." When Officer Gurbelski patted down appellant, he discovered a handgun.
On cross-examination, Detective Brunson testified that the tint on the Honda's windows was so dark that he "couldn't see a silhouette" "at all." "All [he] just saw was a black window[.]" While appellant and the driver were being searched by the other officers, Detective Brunson searched the area around where the driver had been sitting, "where his hands would be[,]" "[b]ecause of the furtive movements [he] observed."
On direct examination, Officer Gurbelski testified that he was in the front passenger seat of the marked patrol vehicle on "proactive enforcement" with Detective Brunson and Officer Shank. After Detective Brunson observed a traffic violation and initiated a stop, Officer Gurbelski saw the passenger's and driver's heads moving back and forth and their shoulders dipping down. According to Officer Gurbelski, "the vehicle was shaking due to the amount of movement inside of the vehicle." Characterizing these as "furtive movements," the officer explained that they were "indicative of someone who is attemptingto hide an item" from view. The officer's "greatest concern" in terms of what might be concealed was "any kind of weapon, a knife, a handgun, anything that can be used to harm [him] or one of [his] partners."
Officers Gurbelski and Shank went to the Honda while Detective Brunson called dispatch for the license and registration information. Officer Gurbelski testified that he recognized appellant because he sees him "frequently" in patrolling that area. On a previous occasion, the officer had arrested appellant after "a lengthy foot chase."
When asked why he frisked appellant, Officer Gurbelski responded that, "prior to approaching the vehicle, we observed a substantial amount of movement in the vehicle between both of the occupants, so much so that the vehicle itself was moving." When asked whether there were "any other reasons" to justify the pat-down, Gurbelski answered:
In conducting the pat-down, Officer Gurbelski "began with a quick sweep around the waistband to see that nothing was visibly exposed[,]" then proceeded to search appellant's "jacket on the right side[.]" Appellant "moved" repeatedly, so that Officer Gurbelski "had to basically start over . . . . to make sure that [he] didn't miss anything due to the movements." When the officer felt "the handle of the firearm in his waistband[,]" he handcuffed appellant and removed a loaded handgun.
On cross-examination, defense counsel asked why the Honda was stopped. Officer Gurbelski answered that Detective Brunson After Officer Gurbelski retrieved the driver's license and registration, he joined the other two officers in a discussion behind the Honda. When the dispatcher reported that "the car [was] registered to the driver, that the driver's license [was] good and that there[] [was] nothing wrong with the car [,]" the three officers discussed the "furtive movements" as the car came to a stop. "[B]ased off of the observations that [they] had made . . . , [they] decided yes, this is reasonable articulable suspicion to pull these gentlemen out of the vehicle and then conduct a weapons pat-down for safety." When he frisked appellant, "[t]he gun was in his right side waistband."
Defense counsel argued that the State failed to establish reasonable suspicion that appellant was armed and dangerous because the officers embellished the movements. Pointing to discrepancies in the officers' testimony, counsel compared Detective Brunson's testimony that the tinting was "so dark" that he could not see the occupants' silhouettes to his claim that he saw the occupants moving through the car windows. Similarly, defense counsel argued that the body camera videos contradicted Officer Gurbelski's assertion that there was so much movement in the car that it was "shaking violently."
With respect to appellant's background, defense counsel argued there was nothing in evidence that could lead the officers to...
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