Jr. v. State Of Md..

• Decision Date: 14 September 2010
• Docket Number: No. 0334, Sept. Term, 2009.,0334, Sept. Term, 2009.
• Citation: 193 Md.App. 687,1 A.3d 488
• Parties: Terry Keith EPPS, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

193 Md.App. 687

1 A.3d 488

Terry Keith EPPS, Jr.

v.STATE of Maryland.

No. 0334, Sept. Term, 2009.

Court of Special Appeals of Maryland.

May 28, 2010.

Reconsideration Denied Sept. 14, 2010.

COPYRIGHT MATERIAL OMITTED.

Marc A. DeSimone, Jr. (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.

Daniel J. Jawor (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: ZARNOCH, WRIGHT and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

MOYLAN, J.

May the State (or in this case the trial court) switch Fourth Amendment theories after a suppression hearing has been, in all but the formal filing of its ruling, wrapped up? Theoretically, if all conditions are favorable, it is possible, but it is an unusual procedure that is generally frowned upon. We frown upon it here.

Round One

The appellant, Terry Keith Epps, Jr., was convicted by a Harford County jury on June 27, 2006, of the possession of cocaine with the intent to distribute and with the possession of marijuana. In initially appealing those convictions, the appellant's only contention was that a pretrial suppression hearing had erroneously failed to rule that the drugs had been seized from him in violation of the Fourth Amendment.

That suppression hearing had taken place on May 3, 2006. The appellant had been a passenger in a car subjected to a traffic stop, for traveling at 60 miles per hour in a 50-mile-per-hour zone, on April 20, 2005. The car had been driven by the appellant's brother, Stephon David Epps, who was also charged with driving on an expired license and with failing to produce a registration card for the vehicle. The evidence consisted of the testimony of 1) Deputy Sheriff Jeffrey Gerres, who made the initial traffic stop and then centered his attention primarily on the driver, Stephon Epps; and 2) Deputy Sheriff Javier Moro, who responded to the scene almost immediately as a back-up officer and who then directed his attention primarily to the appellant, who was a front-seat passenger.

The appellant was ultimately asked to lift his shirt and, as he did, Deputy Moro observed “a small, clear plastic baggie to be protruding from the top of his pants.” The appellant was still seated in the car as this took place. The deputies recovered the baggie and it, in turn, was found to contain both a small bag of marijuana and 13 small bags of cocaine. The Fourth Amendment issue was, as it still is, how the initial traffic confrontation proceeded to the point of the appellant's lifting his shirt.

As the evidence was fully developed and then argued before the suppression hearing judge, the doctrinal road not taken was the one mapped out by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It would have required the State to establish, en route, 1) reasonable articulable suspicion for the initial stop of the appellant, 2) compliance with the scope limitations of a Terry stop, 3) reasonable articulable suspicion that the appellant might be armed, and 4) compliance with the scope limitations of a Terry frisk. Although some of the testimony of the two deputies might have had, allusively, some bearing on one or more of those four requirements, the State eschewed any reliance on that constitutional theory and sought, instead, to establish that the appellant's lifting of his shirt was a voluntary consensual act, free of any constitutional barnacles, an act done in a context wherein the Fourth Amendment did not even apply. That doctrinal route was followed by the suppression hearing judge, as he denied the appellant's motion:

I find there was a valid traffic stop for speeding, that Deputy Moro arrived as a back-up officer. He observed conduct on the part of the defendant causing concern about weapons. That conduct is undisputed. It was also observed by Deputy Gerres.

Deputy Moro asked the defendant if he had weapons, and the defendant said no. I don't think there's anything wrong with that question in the context of the situation.

I find that he asked the defendant if he would lift his shirt. The defendant voluntarily complied with that. The baggie was seen. So I find that there's no illegal search. Therefore, the motion to suppress will be denied.

(Emphasis supplied).

Following the denial of his motion to suppress, the appellant was tried by a jury and convicted. On his first appeal to this Court, he contended, inter alia, that his motion to suppress had been erroneously denied.

First Appeal to This Court

This Court filed its unpublished opinion in the case of Epps v. State, No. 2342, September Term, 2006, on March 19, 2008 (“ Epps I ”). We reversed the suppression ruling. We remanded “the case to the circuit court for the limited purpose of determining whether the evidence seized as a result of the search should have been suppressed in light of” Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). The only Fourth Amendment issue before this Court was, just as the only issue decided by the suppression hearing had been, whether the appellant's lifting of his shirt was an act of voluntary consent.

In assessing the voluntariness of consent, the legal status of the person ostensibly giving such consent is a critical factor for the judge to consider. Is the individual totally free of any official restraint, as in a true mere accosting situation, so that the Fourth Amendment is completely inapplicable? Or is he subject to some official restraint (a Terry stop or an arrest)? If the latter, is it a reasonable and constitutional restraint or an unreasonable and unconstitutional one? All other conditions being precisely the same, the constitutional status of the consenter can well be dispositive of the voluntariness of the consent. This Court spoke of the significance of the status factor in the voluntariness equation in Graham v. State, 146 Md.App. 327, 350-51, 807 A.2d 75 (2002):

A critical factor bearing on voluntariness is the legal status of the appellant as of the moment the consent was requested and ostensibly given. If the appellant either 1) was not subject to any Fourth Amendment detention of his person or 2) was subject to lawful detention, the voluntariness standard of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), would apply. Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). If, on the other hand, the appellant was being subjected to unlawful restraint, the ostensible consent would be the tainted fruit of that Fourth Amendment violation. United States v. Mendenhall, 446 U.S. 544, 558, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (“Because the search of the respondent's person was not preceded by an impermissible seizure of her person, it cannot be contended that her apparent consent to the subsequent search was infected by an unlawful detention.”); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Ferris v. State, 355 Md. 356, 373-84, 735 A.2d 491 (1999). The

circumstances surrounding and preceding the ostensible granting of consent,

therefore, loom large in our analysis.

(Emphasis supplied).

Chief Judge Krauser's opinion for the Court in Epps I operated on the assumption that the suppression hearing judge had deemed the appellant to be free of any Fourth Amendment restraint and involved, therefore, in nothing more than a mere accosting. See Swift v. State, 393 Md. 139, 899 A.2d 867 (2006). Judge Krauser quoted from the ruling of the hearing judge in that regard:

[The] Maryland Court of Appeals says [appellant was] free to get out of that car and go. We presume that everybody but the courts should know all the laws. My recollection is the citizen is presumed to know all of the law.

(Emphasis supplied). The Epps I opinion then drew a sharp distinction between 1) the appellant's position that he had been seized within the contemplation of the Fourth Amendment and 2) the State's position that the encounter did not even involve the Fourth Amendment.

[A]ppellant contends that the circuit court erred in denying appellant's motion to suppress because appellant was subject to Fourth Amendment seizure at the time that he complied with Deputy Moro's “request” that he lift his shirt, rendering his compliance involuntary. In response, the State argues that appellant voluntarily complied with Deputy Moro's request, and that the encounter was a “consensual non-constitutional event.”

(Emphasis supplied).

In addressing that distinction, Epps I quoted with approval from Perkins v. State, 83 Md.App. 341 345, 574 A.2d 356 (1990), where this Court had earlier stated:

In assessing voluntariness, it is necessary to be alert not only to heavy-handed and overtly coercive investigative techniques but also to “subtly coercive police questions” and to “the possibly vulnerable subjective state of the person who consented.”

(Emphasis supplied). Whether the person being confronted by the police is or is not at that moment seized within the contemplation of the Fourth Amendment is a significant factor bearing on “the possibly vulnerable subjective state” of that person and on the consequential quality of any ostensible consent. ¹

Between the suppression hearing of May 3, 2006, and our opinion in Epps I filed on March 19, 2008, the significant intervening event had been the promulgation by the Supreme Court of Brendlin v. California on June 18, 2007. That opinion was the catalyst for our decision in Epps I. Brendlin held squarely that when the police effect a traffic stop, a passenger in the stopped vehicle has been subjected to a Fourth Amendment seizure of the person just as surely as has the driver. See also Arizona v. Johnson, 555 U.S. ----, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). Brendlin, therefore, clarified the constitutional status of the appellant in this case as of the moment he was requested (or directed) to lift his shirt. He had, indeed, been seized within the contemplation of...