Jordan v. State, 63

• Decision Date: 08 October 1987
• Docket Number: No. 63,63
• Parties: Thomas R. JORDAN v. STATE of Maryland. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 528

72 Md.App. 528

531 A.2d 1028

Thomas R. JORDAN v. STATE of Maryland.

No. 63 Sept. Term 1987.

Court of Special Appeals of Maryland.

Oct. 8, 1987.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Norman L. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and Carolyn Starks, Asst. State's Atty. for Baltimore City, on brief), Baltimore, for appellee.

Submitted before WEANT, BISHOP and ALPERT, JJ.

ALPERT, Judge.

Thomas R. Jordan, appellant, was charged with unlawfully transporting a handgun. Prior to trial, he moved to suppress the handgun. A suppression hearing was held before Judge David Ross, sitting in the Circuit Court for Baltimore City.

The arresting police officer, Richard Grisholm, testified that on July 8, 1986, at 1:21 p.m., he "received a call from Communications to respond to the 500 block of North Payson Street for a narcotics activity." Officer Grisholm responded in uniform in a marked police car. He testified that when he reached the intersection of Payson Street and Edmondson Avenue, he observed appellant walking across Edmondson Avenue. Appellant glanced in Officer Grisholm's direction "3 or 4 times" and "was holding a bag against his left side." Grisholm testified that it appeared that appellant "was trying to conceal it on the left side of his leg at thigh level." Grisholm, therefore, got out of his patrol car and approached appellant, who was standing about fifteen to twenty feet away. According to Grisholm's testimony, appellant then asked, "You want me?". Officer Grisholm then "said something to the effect I would like to speak to you for a minute." What next took place was described by Officer Grisholm as follows:

A. I started toward him. He started toward me, he raised the bag which he had been carrying, up with both hands and pointed it at my upper torso area, and I noticed that he was looking down at the bag and glancing at me and again down at the bag, and he was manipulating something from the back of the bag. We were still closing on each other. We got to between several feet while this was going on, and I became fearful of the contents of the bag.

Q. Why were you afraid?

A. I have recovered a number of guns in bags just like that.

Q. Okay.

A. And the manner in which he was grabbing it and manipulating it, I was thinking, gun in the bag, and it could have been trying to fire it.

* * *

Q. How would you describe the emotion that you felt?

A. I thought I was about to be shot or hurt in some manner.

Q. Okay. After you grabbed the bag, then what happened?

A. I grabbed the bag, and I felt it, and I could feel there was a hard object, possibly a gun in it, and I pivoted him and grabbed him with my left hand and threw him away from me, over the hood of the radio car, and pinned him down. At that time, my back-up units started to park behind me. I checked the bag and found the gun inside the bag.

Q. And then, what happened? At what point was the defendant placed under arrest after that?

A. Yes. When I saw the bag, or when I saw the gun inside the bag, he was placed under arrest.

When asked why he never drew his service revolver or ducked instead of snatching appellant's bag from him, Officer Grisholm replied:

It was just a reaction. It was the only thing that was left to do. It was like there, and I just lunged for it and grabbed it. It may--I think it turned out it was the right move, but under other circumstances, it may not have been.

Appellant's version of the events that transpired on July 8, 1986 differs from Officer Grisholm's testimony. According to appellant, he was walking on Edmondson Avenue when he and Officer Grisholm "exchanged glances." Appellant testified that, at the time, he assumed that the officer was attracted by the jewelry he was wearing. ¹ He then flagged down a cab. Before the cab departed, however, Officer Grisholm pulled his patrol car behind the cab whereupon appellant asked, "Do you want me?". Appellant asserted that Officer Grisholm "replied in the affirmative, asked what was in the bag he was carrying, snatched the bag, and open [sic] it." Throughout his testimony, appellant denied that he tried to conceal the bag or that he raised the bag and pointed it at Officer Grisholm.

After the hearing, Judge Ross dismissed the motion to suppress, stating:

Well, the motion to suppress is denied. I agree that the story is not without its unusual aspects, but the burden is what is more likely so than not so, and the officer gave all the appearances of testifying honestly and his story is not that different from the defendant's story.

The only question is, what happened with the hands, and the defendant, in a rather weak way, sort of tried to explain, well, maybe I was swinging it with one hand in front of me, but there is no--more likely so than not so that this officer honestly felt that he was being threatened by what was in that bag, and he took steps necessary to protect himself in the circumstances, resulting in recovery of the bag, which I see no distinction between patting down a bag that was acquired in the way this was acquired, and patting it down to see what it is, than patting down the individual, except that the bag was separated from the individual, but once having been confronted with the threat and taking reasonable steps to protect himself, I think it is not unreasonable to feel the bag, and having felt the bag, determined, and determined that it could be a handgun, to open the bag and confirm then and there that it was.

The case then proceeded on an agreed statement of facts. At the close of the trial, the trial judge found appellant guilty of unlawfully transporting a handgun.

The sole issue appellant raises on appeal is whether the trial court erred in denying appellant's motion to suppress the handgun. Appellant asserts three reasons in support of his contention of error.

1. The officer did not have a reasonable belief that appellant was armed and dangerous.

2. Assuming that the seizure of the bag was lawful, the warrantless search of the bag was improper.

3. The warrantless search of the bag was prohibited by Art. 27, Sec. 36D.

We will address each of these arguments in turn.

I. Protective Search

Appellant's first argument is that Officer Grisholm did not have a reasonable belief that appellant was armed and dangerous. Rather, appellant asserts that the officer's actions were based on "his inchoate and unparticularized suspicion or hunch." Appellant cites Whitmire v. State, 61 Md.App. 548, 487 A.2d 686 (1985) in support of his contention.

In Whitmire, the police stopped Ronald Jerome Whitmire based on information relayed by radio bulletin. The police directed him to exit the stopped vehicle and place his hands on the car roof. The police then patted him down. During the pat down search, the police officer felt a hard cylindrical object in his trouser pocket that subsequently was discovered to be a roll of dimes. A rosary and assorted papers were removed from Whitmire's other pockets during the search. In addition, while checking Whitmire's vehicle for weapons, the police discovered a pewter disk, screwdrivers and a flashlight. Whitmire was then placed under arrest for burglary and theft of goods worth less than $300. The goods recovered were identified by the burglary victim as belonging to her. Id. at 551, 487 A.2d 686.

Prior to trial, Whitmire sought to have the evidence recovered from his person suppressed as the fruits of an illegal search. The right to conduct a limited search for weapons was not contested by Whitmire. Instead, he argued that "after the frisk, the officer conducted a general exploratory search for evidence rather than a limited search for weapons." After considering the arresting officer's testimony, ² the court concurred with Whitmire's assertion that the officer's explanation that he was conducting the search to look for weapons was mere subterfuge. The court explained that, "Absent a reasonable belief that appellant was armed, the seizure of the bag was not warranted under Terry." Id. at 552, 487 A.2d 686 (emphasis in original). ³

It is clear then that Whitmire is inapposite to the case sub judice. It is the function of the trial court to "evaluate the reasonableness of a particular search or seizure in light of the particular circumstances." Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Whitmire, the court found that the officer's testimony explaining the reason for his extensive weapons search was less than credible. See 61 Md.App. at 552, 487 A.2d 686. In the case at bar, however, the trial judge concluded that "the officer gave all the appearances of testifying honestly and his story is not that different from the defendant's."

While an appellate court is required to make its own independent determination of the constitutional effect of the facts found by the lower court, Ciriago v. State, 57 Md.App. 563, 573, 471 A.2d 320, cert. den., 300 Md. 152, 476 A.2d 721 (1984), in evaluating the credibility of witnesses, the appellate court "must give great weight to the findings of the trial judge with respect to those first level facts." Borgen v. State, 58 Md.App. 61, 79, 472 A.2d 114 (1984). A review of the evidence indicates that the trial court's finding that Officer Grisholm reasonably believed appellant was armed and dangerous is amply supported and not clearly erroneous. As we explained in Borgen:

An appellate court can reject the testimony of a witness credited by the triers of the fact only when the testimony is inherently improbable. There must exist a physical impossibility that the statements of the witness are true or their falsity must appear without resorting to inferences or deduction. The appellate court may not substitute its judgment with respect to the credibility of a witness for that of the jury and trial judge on the ground...