Graham v. State

• Decision Date: 06 September 2002
• Docket Number: No. 1246,1246
• Citation: 807 A.2d 75,146 Md. App. 327
• Parties: Robert GRAHAM v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

807 A.2d 75

146 Md. App. 327

Robert GRAHAM v. STATE of Maryland.

No. 1246, September Term, 2001.

Court of Special Appeals of Maryland.

September 6, 2002.

Peter F. Rose, Assistant Public Defender, Brian J. Palmer, Law Student Admitted Under Rule 16 (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.

Devy Patterson Russell, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Patricia Jessamy, State's Attorney for Baltimore City on the brief), Baltimore, for appellant.

Argued before MURPHY, C.J., CHARLES E. MOYLAN, JR., and RAYMOND G. THIEME, JR. (retired, specially assigned), JJ. MOYLAN, Judge.

Although the transcript of the suppression hearing, which is all we are going to look at on this appeal, is, from the formality of the introductions to the rendition of the judge's ruling, a bare forty pages in length, and although the testimony of a single police officer, which is all we are going to evaluate (and, indeed, all that we, if properly disciplined, are entitled to evaluate), is confined within seventeen of those pages, the appeal presents us with a bountiful smorgasbord of closely intertwined Fourth Amendment issues.

Involved are such items as 1) determining the proper factual context for appellate review of a suppression ruling; 2) the allocation of the burden of proof with respect to the reasonableness of a warrantless search or seizure; 3) a mere accosting versus an unconstitutional seizure of the person as the context for evaluating a question of subsequent consent; 4) the true Fourth Amendment significance of a "frisk" or pat-down; 5) the required justification for a Terryfrisk; 6) the dubious notion of a consensual pat-down; 7) the "fruit of the poisonous tree" doctrine; 8) the attenuation of taint; 9) both the voluntariness and the scope of an ostensibly consensual automobile search; and 10), perhaps most significantly, the pro's and con's of "the field interview" as a constitutional term of art.

Out of this series of interdependent Fourth Amendment sub-analyses, there emerges with unmistakable clarity a picture of a police procedure that is, at least as employed in this case, a wolf in sheep's clothing. The innocuous surface trappings are all those of a mere accosting, something long sanctioned by the Supreme Court as an everyday occurrence that does not even catch the eye of the Fourth Amendment. The underlying reality, however, is a borderline investigative procedure whereby the police seek to enjoy the full Fourth Amendment benefits of both a Terrystop and a Terryfrisk without paying the attendant Fourth Amendment dues. Contributing to the camouflaging process is the linguistic recasting of an accosting into something called the "field interview." Behind that reassuring mask, however, frequently lurks what is, in actuality, a stop-and-frisk. A stop-and-frisk by any other name is still a stop-and-frisk.

The Present Case

The appellant, Robert Graham, was convicted in a non-jury trial in the Circuit Court for Baltimore City of the possession of cocaine with the intent to distribute it. His single appellate contention is that the trial judge erroneously failed to grant his pretrial motion to suppress the fruits of an unconstitutional search and seizure.

Selecting the Appropriate Appellate Story Line

Before launching into a statement of background facts, it behooves us to make a conscious decision as to what sort of a drift we want those facts to take. At the very least, we probably have a choice of factual narratives that are 1) State-biased, 2) defense-biased, or 3) neutral. Contrary to the instinctive assumption, "neutral" may be, for most appellate purposes, the least desirable choice. An explanatory observation would seem to be in order.

A perennial problem for appellate lawyers and appellate judges alike is that of constructing an appropriate version of the facts of a case. The subtle problem is that, except for a case that has proceeded on an agreed statement of facts, there is no version of the facts that is necessarily appropriate for all purposes. As with the classic Japanese film "Rashamen," there are almost always widely varying accounts of what happened out there on the street or out there in the forest, and one version is not to be preferred over another until we know the purpose for which the selection must be made. Which version should be pulled from the shelf on a particular occasion depends on what we are going to use it for.

In a criminal case, there are almost always no less than three versions of what happened. Subject only to the limitation that there must be some minimal support by way of admissible evidence, there is 1) an extreme version most favorable to the defendant; 2) an extreme version most favorable to the State; and 3) at some intermediate point between those two extremes, a more likely version of what probably really happened.

Ironically, that third version—the attempt to approximate ultimate truth—is, generally if not universally speaking, not appropriate grist for the appellate mill. It is the subject matter of persuasion, as a matter of fact, and not of production, as a matter of law. It is the exclusive province of the fact finders, a province wherein appellate courts do not enter, but only patrol the borders. It is the broad playing field whereon the resolution of factual questions may take unpredictable bounces and where appellate referees do not presume to second-guess those bounces. It is the arena where the fact finders are free to assess credibilities, to weigh evidence, and to feel and to sense what likely happened, as a matter of fact. Jones v. State, 343 Md. 448, 465, 682 A.2d 248 (1996).

It was of this more reasonable and more tempered, but sometimes immaterial, version of the facts that we spoke in Moosavi v. State, 118 Md.App. 683, 692, 703 A.2d 1302 (1998), reversed on other grounds, Moosavi v. State, 355 Md. 651, 736 A.2d 285 (1999):

This hypothetical version of how we would probably have viewed the evidence and of how the trial judge apparently viewed the evidence, of course, has no appellate significance. It is, after all, a neutral or intermediate version of the evidence. As such, it might have interest for an historian but not for an appellate court. It is only the two most slanted versions of the evidence that have operative legal significance for purpose of appellate review.

(Emphasis supplied).

Appellate concern is, rather, with the two extreme versions—not with the playing field but with the respective end zones, where forfeitures are declared as a matter of law. It is here that even best-case scenarios are sometimes deemed so inadequate, in terms of naked production, as to be disqualified, as a matter of law, from entry onto the fact-finding playing field. That monitoring of legal sufficiency is the only proper function of the legal referees with respect to fact-finding.

Sometimes, depending of course upon the issue, the appellate court and the trial court alike are enjoined to take that extreme version of the facts most slanted in favor of the defendant. Of such a version we also spoke in Moosavi, 118 Md.App. at 692, 703 A.2d 1302:

Had the questions in issue been such things as whether the defendant had generated a genuine jury issue, to wit, a prima facie case, with respect to, e.g., entrapment, self-defense, or mitigation or whether there had been enough evidence to support a defense-requested jury instruction, the appellate court and the trial judge alike would then have looked to that extreme version of the facts most slanted in favor of the defendant.

See, e.g., Sparks v. State, 91 Md.App. 35, 43-44, 603 A.2d 1258 (1992)

. When a trial judge grants a motion to suppress and the State appeals, it is the extreme version of the facts slanted in favor of the defendant that provides the context for appellate analysis.

The opposite extreme is that which is tilted as far as possible in favor of the State. Although in Fraidin v. State, 85 Md.App. 231, 241, 583 A.2d 1065 (1991), we were discussing the standard by which to assess the legal sufficiency of the State's evidence, what we there said about the slant that must be placed on the facts is pertinent to any occasion when an appellate court must employ that version of the facts most favorable to the State.

The appellant's brief and especially his reply brief are almost strident in their outrage at the State's brief for putting a decidedly pro-prosecutorial "spin" or "twist" on evidence which was hotly disputed and subject to arguably diametric interpretations. On the issue of legal sufficiency, however, both the state and the appellant are enjoined to apply just such a "spin." The slant is required as a matter of law. Of all possible versions of events that would be permitted a fact finder, it is, of course, the most partial one permitted by logic and law which we adopt when assessing the legal sufficiency of the State's case. Fact finding impartiality has nothing to do with measuring a prima facie case.

(Emphasis supplied). Such a narrative tilt is mandatory when reviewing the denial of a motion to suppress.

Reviewing a trial judge's decision either to grant or to deny a motion to suppress evidence, we are required to accept, as presumptively true, that version of the evidence, and all inferences that can reasonably be squeezed therefrom, most favorable to the prevailing party. The leading summary of what is properly before a reviewing court on an issue concerning pretrial suppression was made by Judge Karwacki in In re Tariq A-R-Y, 347 Md. 484, 488, 701 A.2d 691 (1997):

In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing and do not consider the evidence admitted at trial. Gamble v. State, 318 Md. 120, 125, 567 A.2d 95, 98 (1989); Herod v. State, 311 Md. 288, 290, 534 A.2d 362, 363 (1987); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749, 755 (1987).

Even within that...