Pyon v. State, 0897 Sept. Term, 2014.

• Citation: 112 A.3d 1130,222 Md.App. 412
• Decision Date: 06 April 2015
• Docket Number: No. 0897 Sept. Term, 2014.,0897 Sept. Term, 2014.
• Parties: Andrew J. PYON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

222 Md.App. 412

112 A.3d 1130

Andrew J. PYON

v.STATE of Maryland.

No. 0897 Sept. Term, 2014.

Court of Special Appeals of Maryland.

April 6, 2015.

Brian M. Saccenti (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.

Christopher Mason (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: KEHOE, FRIEDMAN, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

Opinion

MOYLAN, J.

Should the Fourth Amendment be implicated in this case, it was not satisfied. The dispositive threshold question before us, therefore, is whether the Fourth Amendment was even implicated. An encounter between a law enforcement official and a private citizen is a phenomenon that is, like Caesar's Gaul, divided into three parts. Such encounters, of course, actually cover a wide spectrum embracing infinite factual variations. For purposes of Fourth Amendment analysis, however, that wide spectrum has been conveniently sectioned off into three constitutional categories, two of which involve the Fourth Amendment and one of which does not. Before we presume to examine the specimen at hand, we must be sure we are using the proper microscope. It behooves us briefly to survey the respective microscopes.

Three Levels of Police–Citizen Encounters

As a teaching aid, the 24–karat opinion is Swift v. State, 393 Md. 139, 899 A.2d 867 (2006). Judge Raker, 393 Md. at 149–51, 899 A.2d 867, there set out the three levels on which a police-citizen encounter may occur.

“It is well established that the Fourth Amendment guarantees are not implicated in every situation where the police have contact with an individual.... Many Courts have analyzed the applicability of the Fourth Amendment in terms of three tiers of interaction between a citizen and the police.... The most intrusive encounter, an arrest, requires probable cause to believe that a person has committed or is committing a crime.... The second category, the investigatory stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop and briefly detain an individual.

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“The least intrusive police-citizen contact, a consensual encounter, ... involves no restraint of liberty and elicits an individual's voluntary cooperation with non-coercive police contact.”

(Citations omitted).

An Arrest of the Person

The most coercive of the police-citizen encounters is that involved when the officer actually places the citizen under arrest. Self-evidently the Fourth Amendment applies and self-evidently the Fourth Amendment must be satisfied. The Fourth Amendment justification required for such a severe Fourth Amendment seizure of the person has always been nothing less than probable cause. Swift v. State, 393 Md. at 150, 899 A.2d 867. The Supreme Court spoke of the standard in Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) :

“The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest ‘reasonable’ under the Fourth Amendment.”

See also Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

The present case does not remotely involve this highest level of police-citizen encounter. During that phase of the encounter pertinent to our present analysis, the appellant was clearly not under arrest and the issue of probable cause as a justification is utterly immaterial. Our exclusive concern is with the lower two levels of police-citizen encounter.

A Terry Stop (An Investigative Stop)

The intermediate level of police-citizen encounter is generally referred to as a Terry stop (from the seminal “stop and frisk” case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ), although frequently it is described as an “investigative stop.” It is a lesser Fourth Amendment intrusion than a full-scale arrest. Because it is a Fourth Amendment intrusion upon a citizen's otherwise unfettered freedom, however, it accordingly requires a Fourth Amendment justification, albeit a lesser justification than is required for an arrest. Swift, 393 Md. at 150, 899 A.2d 867, described both its coercive attributes and its required justification:

“A police officer may engage in an investigatory detention without violating the Fourth Amendment as long as the officer has a reasonable, articulable suspicion of criminal activity .... A Terry stop is limited in duration and purpose and can only last as long as it takes a police officer to confirm or to dispel his suspicions.... A person is seized under this category when, in view of all the circumstances surrounding the incident, by means of physical force or show of authority a reasonable person would have believed that he was not free to leave or is compelled to respond to questions. Factors that might indicate a seizure include a threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of language or tone of voice indicating that compliance with the officer's request might be compelled, approaching the citizen in a nonpublic place, and blocking the citizen's path. ”

(Emphasis supplied) (citations omitted).

The above two levels of police-citizen encounter involve, respectively, greater and lesser Fourth Amendment seizures of the person. Both levels, therefore, require Fourth Amendment justification in order to qualify as reasonable, probable cause in the one case and Terry -level reasonable articulable suspicion in the other.

A Mere Accosting (A Consensual Encounter)

A mere accosting, by dramatic contrast, falls below the Plimsoll line of Fourth Amendment applicability. It is simply the police-citizen subset of the voluntary and consensual social intercourse that occurs regularly between citizen and citizen. It is beneath the Fourth Amendment radar. If one citizen may approach another and engage in conversation, a police officer is self-evidently free to do no less. Lest he attract the scrutiny of the Fourth Amendment, however, he must be careful to do no more.

Swift, 393 Md. at 151, 899 A.2d 867, described this sub-constitutional level of police-citizen encounter:

“Encounters are consensual where the police merely approach a person in a public place, engage the person in conversation, request information, and the person is free not to answer and walk away. The guarantees of the Fourth Amendment are not implicated in such an encounter unless the police officer has by either physical force or show of authority restrained the person's liberty so that a reasonable person would not feel free to decline the officer's requests or otherwise terminate the encounter. ”

(Emphasis supplied) (citation omitted).

In Ferris v. State, 355 Md. 356, 373 n. 4, 735 A.2d 491 (1999), the Court of Appeals had similarly described the consensual encounter as:

“[S]imply the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement official. Because an individual is free to leave at any time during such an encounter, he is not ‘seized’ within the meaning of the fourth amendment. ”

(Emphasis supplied) (citations omitted).

In Graham v. State, 146 Md.App. 327, 366, 807 A.2d 75 (2002), this Court spoke in a similar vein:

“The classic Supreme Court opinions explicating the phenomenon of accosting are Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) ; Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ; and United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). From the beginning, the accosting cases undertook to disabuse bench and bar of the notion that the police need special Fourth Amendment justification even to approach and to talk to citizens. There has never been a suggestion that a police officer enjoys a greater than ordinary right to approach and talk. The message, rather, is that the police officer enjoys no less a right. ”

(Emphasis supplied).

It is, moreover, clear that a mere accosting or consensual encounter, should it stay scrupulously within its limits, does not implicate the Fourth Amendment and does not, therefore, require any Fourth Amendment justification. See, Swift, 393 Md. at 151, 899 A.2d 867.

A Border Line Is Not a Border Zone

The present case lies perplexingly close to the line between the Terry -stop and the mere accosting. That line is in this case the dispositive boundary between Fourth Amendment applicability and Fourth Amendment inapplicability. It is frequently, as it is in this case, a line that can be factually ambiguous. Nonetheless, it is a line and not a zone. The Fourth Amendment is either applicable or inapplicable. There is no halfway. The State will not, therefore, be heard to say, “Even if we lacked full Terry -level reasonable suspicion, we had some suspicion. We came close. Therefore, it was not unreasonable to enjoy at least some police prerogatives beyond the ordinary, even if not the full complement thereof.” In a decision that must, of doctrinal necessity, be binary, the Fourth Amendment applies either in full measure or not at all. Except in horseshoes, close does not count.

The threshold of Fourth Amendment applicability, moreover, is a legal question calling for a de novo determination. As to it, we are not deferential.

As we straddle this elusive border between a mere accosting and an investigative stop, we encounter a not uncommon instance of police behavior that seeks to exploit the benefits of being on both sides of the border at the same time. We spoke of this creative shape-shifting in Graham v. State, 146 Md.App. 327, 337, 807 A.2d 75 (2002) :

“[T]here emerges with unmistakable clarity a picture of a police procedure that is ... a wolf in sheep's clothing. The innocuous surface trappings are all those of a mere accosting,

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