Gibbs v. State, 690

• Decision Date: 03 July 1973
• Docket Number: No. 690,690
• Parties: Harry T. GIBBS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 230

18 Md.App. 230

306 A.2d 587

Harry T. GIBBS v. STATE of Maryland.

No. 690.

Court of Special Appeals of Maryland.

July 3, 1973.

Certiorari Denied Sept. 1, 1973.

Luther C. West, Baltimore, for appellant.

Arrie W. Davis, Asst. Atty. Gen., with whom where Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. for Baltimore City and Mark Van Bavel, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Argued before MORTON, MOYLAN and GILBERT, JJ.

MOYLAN, Judge.

The appellant, Harry T. Gibbs, was convicted in the Criminal Court of Baltimore by Judge Richard M. Pollitt, sitting without a jury, of two counts of armed robbery and one count of possession of a deadly weapon. Upon this appeal, he raises three contentions:

(1) That the trial judge abused his discretion in denying his motion for a continuance to produce a critical defense witness;

(2) That a .22 caliber Omega revolver, admitted into evidence against him, was unconstitutionally seized; and

(3) That the court did not have jurisdiction over the robberies.

We will consider first the search and seizure question.

On July 26, 1971, the Hilton House Bar, located at 3133 W. North Avenue in Baltimore City, was held up by three men at gunpoint. The barmaid, Daisy Porter, and a customer, James Fleming, were both robbed. Two witnesses to the robberies made in-court identifications of the appellant as one of the robbers. One other piece of incriminating evidence was a .22 caliber Omega revolver taken from the appellant by Officer Ronald Stewart on October 5, 1971, some ten weeks after the robbery. It was the seizure of that revolver which the appellant claims was unconstitutional.

The State candidly admits, as indeed it must, that there was no probable cause for Officer Stewart to arrest the appellant prior to searching him on October 5. The search, and subsequent seizure, palpably cannot qualify as 'incidental to a lawful arrest.' We are faced with the clean question of whether the police conduct on October 5 was reasonable, and therefore constitutional, under the 'stop and frisk' doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 LEd.2d 889 (1968), and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.ed.2d 917 (1968). ¹

On October 5, Officer Stewart was a member or the Control Staff Squad and operated in plain clothes. He described the area, of which the 3400 block of Virginia Avenue is a part, as 'an area known to have a lot of assaults and robberies in the street, there's a lot of narcotics traffic in the area, there's a lot of crime, a high crime area.' Officer Stewart testified that he saw the appellant and 'one other Negro male about 11:30 that morning.' He did not describe precisely where they were or anything at all about what they were doing. When asked whether he had made any other observations of the appellant and the other Negro male between that time and 3:45 p. m., he replied, 'I saw them off and on up until the time I approached them.' Again, no details of any sort were furnished. The critical confrontation came at 3:45 p. m. It was precipitated by Officer Stewart's observations of the appellant and two other men standing on the corner of the 3400 block Virginia Avenue. The officer was in plain clothes. He alighted from his unmarked vehicle and approached the three men. Two of them ran. Officer Stewart described his approach to the appellant in the following terms:

'. . . Mr. Gibbs, the Defendant, had his back turned toward me, he hadn't seen me approach. I approached, identified myself as a police officer. I asked Mr. Gibbs for his idenitification to see if he lived in this area.

Q. What, if anything, did Mr. Gibbs do?

A. Mr. Gibbs had no identification, and he didn't-he tried to run, but I grabbed his arm.'

Officer Stewart then 'frisked' the appellant and recovered the .22 caliber Omega revolver, fully loaded, from the appellant's hip pocket.

In Terry, the Supreme Court expressly recognized that it was attempting to strike a delicate balance between the necessity for some flexibility in permitted police behavior in the investigation and in the prevention of crime, on the one hand, and the rights of citizens to be free from unreasonable governmental intrusion, on the other hand. ² The Supreme Court lucidly described the Scylla and the Charybdis between which it would attempt to chart its perilous course. It recognized first the practical needs of police routine:

'. . . (I)t is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess. For this purpose it is urged that distinctions should be made between a 'stop' and an 'arrest' (or a 'seizure' of a person), and between a 'frisk' and a 'search.' Thus, it is argued the police should be allowed to 'stop' a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power to 'frisk' him for weapons.' 392 U.S. 10, 88 S.Ct. 1874.

It juxtaposed the liberties of the citizens:

'. . . The heart of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly developed system of judicial controls to enforce upon the agents of the State the commands of the Constitution. Acquiescence by the courts in the compulsion inherent in the field interrogation practices at issue here, it is urged, would constitute an abdication of judicial control over, and indeed an encourangement of, substantial interference with liberty and personal security by police officers whose judgment is necessarily colored by their primary involvement in 'the often competitive enterprise of ferreting out crime.' . . . This, it is argued, can only serve to exacerbate police-community tensions in the crowded centers of our Nation's cities.' 392 U.S. 11-12, 88 S.Ct. 1874, 1875.

Terry rejected the notion that the 'stop'-even though falling short of the 'technical arrest'-and the 'frisk'-even though something less than a 'full-blown search'-do not come within the purview of the Fourth Amendment. ³ It made it clear that the 'stop' is a seizure of the person within the contemplation of the Fourth Amendment:

'It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime-'arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he had 'seized' that person.' 392 U.S. 16, 88 S.Ct. 1877.

Terry made it equally clear that the 'frisk' is a search within the contemplation of the Fourth Amendment:

'And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a 'search.' Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a 'petty indignity.' It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.' 392 U.S. 16-17, 88 S.Ct. 1877.

The Supreme Court went on to recognize, however, that because the 'stop' is more limited in scope than an arrest and because the 'frisk' is more limited in scope than the full-blown search, such actions, though not to be undertaken arbitrarily, may be reasonable within the contemplation of the Fourth Amendment upon a predicate less substantial than 'probable cause.' Terry made it clear that 'stop and frisk' rationale was to be judged not by the Warrant Clause of the Fourth Amendment, but rather by the Reasonableness Clause. It said, at 392 U.S. 20, 88 S.Ct. 1879:

'If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether 'probable cause' existed to justify the search and seizure which took place. However, that is not the case. . . . (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. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.'

The quantitative measure of reasonableness is variously labeled-'suspicion,' 'reasonable suspicion,' 'reason to believe.' Terry makes it very plain, however, that the officer is not entitled to act on 'his inchoate and unparticularized suspicion or 'hunch" but only on 'the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.' 392 U.S. 27, 88 S.Ct. 1883. Terry insists that at some point it must be insured that 'the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.' The requirement is clear that although the policeman may act upon less than probable cause, he must be able to articulate specific facts justifying each intrusion:

'(I)n justifying the particular intrusion 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 intrustion, . . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a...