In re David S.

• Decision Date: 22 January 2002
• Docket Number: No. 2,2
• Citation: 367 Md. 523,789 A.2d 607
• Court: Maryland Court of Appeals
• Parties: In re DAVID S.

789 A.2d 607

367 Md. 523

In re DAVID S.

No. 2, Sept.Term, 2001.

Court of Appeals of Maryland.

January 22, 2002.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Md., on brief), Baltimore, for petitioner/cross-respondent.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for respondent/cross-petitioner.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ RAKER, Judge.

This case involves a stop and frisk, governed by the teachings of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. We granted the State's Petition for Writ of Certiorari to determine whether cocaine taken from the person of David S. was seized in violation of the Fourth Amendment of the United States Constitution. In making this determination, we must decide whether the police had a reasonable basis to believe that David S. was armed, and, if they did, whether the seizure of David S. was tantamount to an arrest requiring probable cause.

On April 28, 1999, the State's Attorney for Montgomery County filed a delinquency petition in the District Court of Maryland, Juvenile Division, alleging that David S., respondent, was delinquent in that he possessed a controlled dangerous substance with the intent to distribute. David S. filed a motion to suppress the drugs seized by the police. Following a hearing on the motion, the District Court found the search lawful and denied the motion to suppress. The parties then proceeded before the court on a "not guilty/agreed upon statement of facts." The court adjudged David S. to have committed a delinquent act within the meaning of Maryland Code § 3-801(j) of the Courts and Judicial Proceedings Article (1957, 1998 Repl.Vol., 2001 Supp.), and placed him on probation.

David S. noted a timely appeal to the Court of Special Appeals. The intermediate appellate court reversed the judgment. In re David S., 135 Md.App. 363, 762 A.2d 970 (2000). Before that court, David S. argued that the police stop, frisk, and ultimate search and seizure of the contents of the black plastic bag seized from his waistband violated the Fourth Amendment and, thus, the trial court should have suppressed the fruits of the search. The court held that, although reasonable suspicion existed to justify a stop and frisk of David S. under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, "[t]o order him to the ground and place him in handcuffs, however, required probable cause, which the officer failed to demonstrate." In re David S., 135 Md.App. at 369, 762 A.2d at 973. The court further held that the officer's conduct in lifting up David S.'s shirt to expose a black bag and exploring the contents of the bag exceeded the "strictly circumscribed" search permitted as a protective frisk by Terry. Id. at 369-70, 762 A.2d at 973.

The State's Petition for Writ of Certiorari presents the following question: whether the Court of Special Appeals erred in concluding that the cocaine found on the person of respondent had been seized in violation of the Fourth Amendment. See In re David S., 363 Md. 205, 768 A.2d 54 (2001). We also granted respondent's conditional cross-petition, which presented two questions: (1) Did the courts below err in concluding that the police had a reasonable basis to believe that respondent was armed; and (2) did the trial judge err in refusing to allow defense counsel to establish at the suppression hearing that the officer knew the object he grabbed was not a handgun as soon as he touched it. Id.

I.

We review the motion to suppress based upon the record of the suppression hearing, giving all favorable inferences to the State. See Wilkes v. State, 364 Md. 554, 569, 774 A.2d 420, 429 (2001)

.¹ We review findings of fact under the clearly erroneous standard, but review under a de novo standard whether, under those facts, there was reasonable suspicion to make a warrantless search. Stokes v. State, 362 Md. 407, 413-14, 765 A.2d 612, 615 (2001); Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999). We make our "own independent constitutional appraisal, by reviewing the law and applying it to the peculiar facts of the particular case." Jones v. State, 343 Md. 448, 457, 682 A.2d 248, 253 (1996).

On the evening of March 30, 1999, Cpl. Rich Segalman, a twelve-year veteran of the Rockville City Police Department, participated in surveillance of a house on Moore Drive. Police believed the site was an open air drug market. At about 8:00 p.m., Cpl. Segalman saw Pedro Hall, a person he believed to be a drug dealer, engage in what appeared to be a drug transaction. Cpl. Segalman radioed to other officers, who began to close in, but someone or something caused Hall to run inside the home and the other people present to disperse. Soon after, the police focused their attention on a different home located on Ashley Avenue.

At about 8:30 p.m., Cpl. Segalman observed Hall and David S. walking up Ashley Avenue. The two individuals stopped in front of an abandoned transformer building, which had been boarded up for several months. A "no trespassing" sign was nailed to a tree about five feet from the building. David S. walked behind the building, while Hall crouched down in front of the building and looked around. A few minutes later, David S. came out from behind the building, showed an object to Hall, and then stuffed the object into the front waistband of his trousers. Cpl. Segalman, who was standing about twenty feet from Hall and David S., testified that, based on his extensive experiences with drug arrests and training in narcotics, he believed David S. had placed a handgun in his waistband.

When Hall and David S. began to walk toward Moore Drive, Cpl. Segalman radioed Officer Malko, who stopped the two individuals. Cpl. Segalman and his partner, Officer Bortillo, then arrived at the scene of the stop. Hall and David S. were standing when Cpl. Segalman arrived. Cpl. Segalman and Officer Bortillo forced Hall and David S. to lay on their stomachs on the ground and then placed handcuffs on them. In addition to the above named officers, Officer Peale was also present. The officers drew their guns on the suspects. According to the officers, Hall and David S. were very cooperative and did not struggle. Cpl. Segalman then rolled David S. over onto his back, touched the area of his waistband, and felt a hard object. Believing the object was a gun, Cpl. Segalman pulled out David S.'s tucked-in shirt and observed a black object protruding from his waistband. He then grabbed the object, removed it from David S.'s waistband, noted that it was wrapped in a black plastic bag, opened the bag, and found cocaine.²

II.

It is the State's position that the stop and frisk of David S. was lawful. The State, as petitioner, argues that the Court of Special Appeals misconstrued the facts and misapplied settled Fourth Amendment law in ruling that the search of David S. was unlawful. The State maintains that the stop was reasonable and that the permissible scope of a Terry stop and frisk was not exceeded by the officer effecting a hard or forceful take down and handcuffing David S. In conclusion, the State asserts that the officer did not exceed the permissible scope of a Terry frisk when he took the hard object from David S.'s waistband.

In response, David S. argues that the Court of Special Appeals correctly held that "to order him to the ground and place him in handcuffs ... required probable cause, which [the police officers] failed to demonstrate." In re David S., 135 Md. App. at 369, 762 A.2d at 973. Therefore, the absence of probable cause requires suppression of the evidence seized. He also argues that the Court of Special Appeals and the trial court erred in holding that the police had reasonable suspicion to justify an investigative stop and frisk. In his cross-petition, David S. argues that the trial court erroneously restricted his examination of Cpl. Segalman, thereby denying him the opportunity to establish that the officer exceeded the scope of a Terry frisk.

At the outset, it is important to note that the only question before this Court is whether the conduct of the police officers violated the Fourth Amendment of the United States Constitution. No issue of State law has been presented to us, nor has any State authority been cited as grounds to grant the suppression motion. Before this Court, as well as the lower courts, David S. argued only "that the stop, frisk, and ultimate search and seizure of the contents of the black plastic bag violated the Fourth Amendment and, thus, any fruits of the unconstitutional search must be suppressed." In re David S., 135 Md.App. at 366, 762 A.2d at 971.

III.

The Fourth Amendment, applicable to the States through the Fourteenth Amendment, provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. CONST. amend. XIV. The Fourth Amendment is not, however, a guarantee against all searches and seizures, but only those that are unreasonable. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985).

Over thirty years ago, in Terry v. Ohio, the Supreme Court held that a police officer may stop and briefly detain a person for investigative purposes if the officer has reasonable suspicion, supported by articulable facts, that criminal activity "may be afoot." Terry, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d 889; see also Quince v. State, 319 Md. 430, 572 A.2d 1086 (1990)

.

Reasonable suspicion is a less demanding standard than probable cause. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). In Stokes v. Maryland, 362 Md. 407, 765 A.2d 612 (2001), we observed that reasonable suspicion has been defined by the Supreme Court as follows:

"While there is no litmus test to define the

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