Simpler v. State

• Decision Date: 01 September 1989
• Docket Number: No. 33,33
• Citation: 568 A.2d 22,318 Md. 311
• Parties: Robert Lee SIMPLER v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 311

318 Md. 311

568 A.2d 22

Robert Lee SIMPLER v. STATE of Maryland.

No. 33, Sept. Term, 1989.

Court of Appeals of Maryland.

Jan. 11, 1990.

Nancy S. Forster, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for petitioner.

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, ^* JJ.

RODOWSKY, Judge.

This is a stop and frisk case. The stop was based on possession of beer by minors. The frisk of the petitioner, Robert Lee Simpler (Simpler), produced a bong. ¹ This resulted in Simpler's arrest, a search incident, and discovery of a small quantity of marijuana. After denying a motion to suppress, the Circuit Court for Cecil County convicted Simpler of possession of marijuana. Simpler appealed to the Court of Special Appeals which affirmed in an unreported opinion. We granted Simpler's petition for a writ of certiorari. As hereinafter explained, Simpler's challenge to the frisk is dispositive. Essentially, there was a lack of reasonable suspicion that Simpler was armed and dangerous when frisked.

The relevant facts are limited to those produced at the suppression hearing, see Trusty v. State, 308 Md. 658, 521 A.2d 749 (1987), which are most favorable to the State as the prevailing party on the motion. Around 8:30 P.M. on May 8, 1987, Sergeant Guy Wassmer (Wassmer) of the Cecil County Sheriff's Department was in uniform and on routine patrol in the vicinity of the Winding Brook Housing Project. Riding with Wassmer in the patrol car was a young man who was an explorer scout. Wassmer saw black smoke coming from a wooded area behind the project. In order to investigate, Wassmer and the explorer scout walked toward the smoke about one half mile on a semi-clear path through the woods. They came upon a group of four young people three males and a female, who were standing around an open fire and drinking Busch beer. Some of the individuals appeared to Wassmer to be underage.

On direct examination by the State at the hearing, Wassmer testified:

"I approached them and advised them of who I was ... and requested identification from each individual.

"Q. And in the process of obtaining identification from each individual that was there, what if any further action did you take with regard to protecting yourself and the explorer scout that was in your company?

"A. I briefly patted down each subject, except for the female.

"Q. And when it came time to pat down the Defendant Simpler, what if anything did you notice or what if anything occurred at that time?

"A. I found what I believed to be a marijuana pipe in his rear pocket with marijuana residue on it."

Wassmer seized the pipe and arrested Simpler. Wassmer then observed a jacket lying on a fallen log approximately five to eight feet from Simpler. Addressing the group generally, Wassmer asked who owned the jacket. Simpler said it was his. Wassmer testified that, in a search of the jacket, he found a plastic baggie containing marijuana. ²

On cross-examination Wassmer related that he had had only one prior contact with Simpler when Wassmer was on call with another deputy. Wassmer did not even know Simpler's last name. Simpler's ID demonstrated that he was twenty-one years of age. (Simpler's date of birth is August 4, 1965.)

When defense counsel suggested that Wassmer was actually looking for drugs when he conducted the frisks, Wassmer said:

"I had information that Mr. Simpler carried a knife. It's one of the kinds of knives that's used to cut carpet. My prior contact with Mr. Simpler, I had him in my car, and like I told you before, I didn't know his last name. But when he got into my car on a prior occasion, I asked him if he had any weapons on him, and he showed me that he had this knife that cuts carpet, carpeter's knife."

The earlier occasion when Wassmer was in Simpler's presence was "just a contact," and not a "confrontation." Although Wassmer frisked all the males and, by consent, searched the female's pocketbook, he had no information that any person in the group, other than Simpler, had ever previously carried any type of knife.

Wassmer further testified on cross-examination:

"Q. Okay. Now, you're saying you feared for your safety?

"A. Yes. I don't actually fear for my safety, but as a matter of routine caution, and departmental policy in transporting people, he would be frisked to make--

"Q. In transporting people?

"A. Yes.

"Q. And at that time he was over 21 and you had no intention of transporting him, did you?

"A. At that time, no, sir."

Wassmer issued citations for the "juvenile subjects" for possession of alcoholic beverages and arrested Simpler for possession of marijuana.

Hon. George B. Rasin, Jr., presiding at the suppression hearing, made the following findings of fact:

"So I think a step at a time, reviewing the progression of what the officer did ... was normal for a police officer to do. He made an investigation. He observed what appeared to be a violation of the law so far as juveniles were concerned. And I believe it's also somewhere a violation of either the juvenile law or the criminal law, furnishing alcohol to minors is also an offense.

"And it's normal for the officer to pat down those who were there, his training, it's normal for him if he observed something that people don't usually carry in their pockets, or if they do it's a bulky thing and the officer wants to know what it is, going in the pocket he observes something that appears to be paraphernalia. And based on his training, the inference is that he took the Defendant into custody, in effect he was arrested."

The sequence of events bears on the statutory violations on which Wassmer could have acted, but the sequence is not precisely set forth in the record. If Wassmer frisked Simpler before examining Simpler's ID, Wassmer, at the time of the frisk, could have had reasonable suspicion that Simpler was under age twenty-one and possessing alcoholic beverages in violation of Md.Code (1957, 1987 Repl.Vol.), Art. 27, § 400A. ³ If Wassmer examined Simpler's ID before the patdown, then Wassmer could have had reasonable suspicion that Simpler had obtained the beer for the juveniles in violation of Md.Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.), Art. 27, § 401. ⁴

Sections 400A and 401 are codified under the subheading, "Alcoholic Beverages--Offenses." Section 403A of that same subheading provides in relevant part as follows:

"(a) Person under 18.--Any person under the age of 18 years who violates the provisions of this subheading shall be issued a citation by a police officer authorized to make arrests and shall be subject to the procedures and dispositions provided in Subtitle 8 [Juvenile Causes] of Title 3 of the Courts and Judicial Proceedings Article.

"(b) Person 18 or older.--Any person 18 years old or older who violates the provisions of this subheading shall be issued a citation and be subject to the provisions of § 403B of this subheading."

Disposition of "Alcoholic Beverages--Offenses" is described in § 403B. "For purposes of [that] section, a violation of the provisions of [that] subheading is deemed a Code violation and is a civil offense." § 403B(a). A citation is to be issued to the person committing a Code violation. § 403B(b). The citation advises, inter alia, that the District Court of Maryland will send a summons to appear for trial to the person receiving the citation. § 403B(c)(vii). In May 1987 the maximum fine for a first offense was $100. § 403B(f). Subsection (g) provides that "[a]djudication of a Code violation is not a criminal conviction for any purpose, nor does it impose any of the civil disabilities ordinarily imposed by a criminal conviction." Under subsection (l ), however, "[t]he State's Attorney of any county may prosecute a Code violation in the same manner as prosecution of a violation of the criminal laws of this State."

Thus, when Wassmer frisked Simpler, the most serious violation by Simpler of which Wassmer might have had reasonable suspicion was a civil offense for which the maximum fine, for all that Wassmer knew at the time, was $100. ⁵ Assuming that Wassmer reasonably suspected that Simpler had obtained beer for minors, Wassmer was authorized to "stop" the persons gathered around the fire in order to obtain identification and to issue citations.

But issuance of a citation is not a custodial arrest, and the frisk in this case is not a search incident to an arrest. Here, there was no objective basis for a custodial arrest of Simpler at the time of the frisk, and there was at that time no anticipated need to transport Simpler from the scene. The arrest in this case is based on the discovery of paraphernalia (either with or without controlled dangerous substance traces) during the patdown. The question presented here is whether, under all of the circumstances, the frisk which followed the stop was constitutionally permitted.

The holding of Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, 911 (1968) is that

"where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him."

And see Michigan v. Long, 463 U.S. 1032, 1034, 103 S.Ct. 3469, 3473, 77 L.Ed.2d 1201, 1210 (1983) (a police officer may...