Moody v. State

Decision Date27 January 2020
Docket NumberNo. 1003,1003
CourtCourt of Special Appeals of Maryland

Circuit Court for Baltimore City

Case No. 118052006


Berger, Leahy, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Leahy, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

In the Circuit Court for Baltimore City, Carlos Moody, appellant, pleaded guilty to possession of a regulated firearm after having been convicted of a disqualifying felony, but maintained the right to appeal the denial of his pre-trial motion to suppress physical evidence. The trial court sentenced Mr. Moody to five years in prison without the possibility of parole, after which he timely noted this appeal asking us to consider whether the stop, search, and seizure of his person, which resulted in the recovery of the firearm, violated his Fourth Amendment rights. For the reasons that follow, we affirm the judgment of the trial court.

Hearing on Motion to Suppress

Prior to trial, Mr. Moody filed a written motion to suppress physical evidence, based on an alleged illegal stop, search, and seizure. The following factual background is drawn from the evidence and arguments presented to the suppression court on June 27, 2018.

On the evening of January 27, 2018, Baltimore City Police Department Officer Eric Winston was on patrol with Officer James Deasel and Sergeant Frank Friend in the 1300 block of Cambria Street—an area known for drug sales and shootings. The officers were assigned to the District Action Team ("DAT") to "search for people carrying guns[ and] people that are distributing drugs" in high crime areas. From the front passenger seat of their marked patrol vehicle, Officer Winston observed Mr. Moody walking eastbound on Cambria Street, to the left of the vehicle.

Mr. Moody looked in the direction of the patrol vehicle and, upon seeing the police car behind him, increased his pace. He was carrying a cell phone and a bag. OfficerWinston also observed "a rounded bulge" on Mr. Moody's right side under his untucked-in shirt. Officer Winston testified to why, based on his training and experience, he believed Mr. Moody was "definitely armed with a handgun":

[STATE]: And then once you saw that initial aspect of the shirt, what did that mean to you then?
[WINSTON]: At that point with the shirt, almost like hooking the bottom of the - butt of the handgun, at that point, I was like yeah he's definitely armed with a handgun. So I exited the vehicle to stop Mr. Moody.
[STATE]: And, why to you [sic] did you know he was definitely armed?
[WINSTON]: Um, I mean, he wasn't doing any security checks or anything like that but just the way that the shirt, shirt wraps around the butt of a gun. Normally, it would be just a free flowing, straight down. Even if it was a - say a cell phone, a cell phone is rectangle [sic]. It doesn't get that rounded shape and look.

Officer Deasel instructed Mr. Moody to stop.1 Instead, Mr. Moody increased his pace, again.

When Officer Winston exited the vehicle, he told Mr. Moody to "hold on," but Mr. Moody kept repeating, "no, I'm home." He then turned his right side away from Officer Winston and stepped over a waist-high fence into the yard of a residence, even though there was a gate approximately five feet away and there was wood and debris on the other sideof the fence where he crossed it.2 Just then Officer Winston grabbed Mr. Moody's shirt. Mr. Moody pulled away and went down on the ground "on his right side, still concealing that right side[.]" When the officers stood Mr. Moody up, they saw the handle of a firearm in the right side of Mr. Moody's waistband and recovered a loaded .38 Taurus revolver.3

The State introduced Officer Winston's body camera footage of the encounter, and the court admitted the recording as State's Exhibit 1.4

At the close of the testimony, defense counsel argued that the officers reacted to a hunch that Mr. Moody was carrying a firearm based on an "innocuous bulge" at his waist that could have been a pack of cigarettes or a cell phone holster. The fact that the officers were right did not excuse a Fourth Amendment violation. Counsel asserted that Mr. Moody did nothing more than walk down the street toward his girlfriend's house and decline to stop when asked to do so by the police officer, as was his right. The fact that her client walked away from the police officers did not justify the stop because "under Terry,5 you can walk away from the police."

The prosecutor, conceding that Mr. Moody was stopped once Officer Winston grabbed his shirt, countered that the officers had reasonable, articulable suspicion that Mr. Moody was involved in a crime. He called attention to Officer Winston's testimony that, through the thin fabric of Mr. Moody's shirt he saw a bulge that was "consistent with a weapon," based on his training and experience. The prosecutor pointed out that it was likely not a cell phone because the bulge was round and Mr. Moody already had a cell phone in his hand. He maintained that the way Mr. Moody's shirt caught on the object in his waistband was "to [Officer Winston] [an] indication that [it] was a handgun." Other circumstances that justified the stop, the prosecutor argued, included: 1) when falling to the ground, Moody turned on his right side, as if to conceal the gun, and continued to keep the right side of his body "shielded" from the officers; 2) the events took place in a high crime area; and 3) Mr. Moody sped up his walking pace when he saw the marked police vehicle and eventually went over a fence to avoid the officers, which was arguably indicative of flight to avoid apprehension. The totality of the circumstances indicated that the officers reasonably believed that a crime was afoot, which supported the permissibility of a Terry stop.

In reply, defense counsel asserted: "[a] hunch alone does not justify a Terry stop, period." Alternatively, counsel argued that the stop was an arrest rather than a Terry stop because "[i]n his own yard [Mr. Moody] was not free to go." She noted that Officer Winston acknowledged that Mr. Moody was not free to go once he grabbed his shirt, even though the police had not yet discovered any contraband.Circuit Court's Ruling on the Motion to Suppress

At the conclusion of the hearing, after listening to the officers' testimony and viewing the body-worn camera videos and other photographic evidence depicting the evidence seized, the judge delivered his ruling. He began by reviewing the applicable law and then explained, citing Terry v. Ohio, 392 U.S. 1 (1968), and Sellman v. State, 449 Md. 526 (2016), that "a police officer may stop and detain a person briefly for investigative purposes if the officer has reasonable suspicion supported by articulable facts that criminal activity may be afoot." Citing Alabama v. White, 496 U.S. 325 (1990), and Bost v. State, 406 Md. 341 (2008), the judge articulated the standard for reasonable suspicion: "Reasonable suspicion is a less demanding standard than the probable cause needed for an arrest. It requires merely a particularized and objective basis for suspecting the person's criminal activity."

The judge explained that he had to consider the totality of the circumstances in coming to a decision and not merely "whether the individual components of the officer[s'] concern standing alone will suffice." Further, the court noted that, "[c]onduct including nervousness that may be innocent if viewed separately can when considered in conjunction with other conduct or circumstances warrant further investigation. Conduct that appears innocuous to a lay person may be suspicious when observed by a trained law enforcement officer."

After perceiving that the defense would take issue with his next statement, the judge cited U.S v. Arvisu, 534 U.S. 266 (2002), McDowell v. State, 407 Md. 327 (2009), and Chase v. State, 224 Md. App. 631 (2015), for the proposition that an "officer who makes alawful arrest may conduct a warrantless search of the arrestee's person and the area within the arrestee's immediate control." The judge acknowledged that the defense was contesting the lawfulness of the stop in the first instance and that there was, therefore, never probable cause to seize anything nor was there a valid search incident to a lawful arrest.

The defense had argued that Mr. Moody's alleged "flight," standing alone, was not enough to amount to the reasonable, articulable suspicion of criminal activity afoot that could justify a Terry stop. The court agreed with the defense that, as this Court recently instructed in State v. Sizer, 230 Md. App. 640 (2016), "flight in and of itself is not enough." But, the court observed, in Mr. Moody's case, the circumstance surrounding the stop were far more "multi-factor":

It was based on unprovoked flight upon the approach of the police in a high crime area. . . . [T]his case was a paradigmatic replay of Illinois v. Wardlow, []528 U.S. 119. The issue in Wardlow as is the situation with the case before this Court right now is whether the police had reasonable suspicion to justify the initial detention of, in this case, Mr. Moody based on his flight.
This Court answers the question, yes, because this Court finds as fact that on January [] 26th, 2018, based on Officer Winston's observations, as follows, and I say included but not limited to, observing from the front right passenger seat of the marked patrol vehicle moving at a very slow pace . . . [p]arallel with the defendant. . . . Observing . . . the defendant, in this case, Mr. Moody, within his clothing notwithstanding that it was a[n] end of January day in winter, wearing only a top that, notwithstanding the clothing hanging over the waistband area, giving rise to an observation of

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