Sizer v. State

• Citation: 456 Md. 350,174 A.3d 326
• Decision Date: 28 November 2017
• Docket Number: No. 1, Sept. Term, 2017,1, Sept. Term, 2017
• Parties: Jamal SIZER v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

456 Md. 350

174 A.3d 326

Jamal SIZER

v.STATE of Maryland

No. 1, Sept. Term, 2017

Court of Appeals of Maryland.

November 28, 2017

Argued by Helki Philiusen, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD) on brief, for Petitioner.

Argued by Carrie J. Williams, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland, Baltimore, MD) on brief, for Respondent.

Argued by Anthony J. May, Murnaghan Appellate Advocacy Fellow, Baltimore, MD, amici curiae for Public Justice Center, American Civil Liberties Union of Maryland, and Washington Lawyers' Committee for Civil Rights and Urban Affairs.

Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Greene, J.

In the case before us, we are asked to consider the constitutionality of the stop and the subsequent search incident to the arrest of Petitioner, Jamal Sizer. On the evening of November 20, 2015, five or six officers of the Howard County Police Department Pathways Patrol Unit, a bicycle patrol unit, observed Mr. Sizer and others congregating in a public parking lot, drinking from what appeared to be an open alcohol container. The officers described the group as "loud and disorderly." The officers observed a bottle being thrown and heard it hit the ground, but could not see who threw the bottle. The officers approached the group to investigate who in the group threw the bottle. Mr. Sizer fled upon the officers' approach. A chase ensued and ended with the seizure of Mr. Sizer, which led to the discovery that he possessed a .38 caliber revolver in his backpack. Contemporaneously with the seizure of Mr. Sizer, an officer recognized Mr. Sizer as having an outstanding arrest warrant. Subsequently, pursuant to the discovery of the outstanding warrant, Mr. Sizer was arrested and taken to the local police precinct, where an officer searched Mr. Sizer incident to his arrest and recovered a baggie containing twenty-seven pills of oxycodone, a controlled dangerous substance, hidden in his sock.

Mr. Sizer filed a motion to suppress the firearm and the pills recovered from his person, and after a hearing, the Circuit Court for Howard County granted his motion. The State appealed, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12–302(c)(4) (1973, 2013 Repl. Vol., 2016 Supp.). In a reported opinion, the Court of Special Appeals reversed the judgment of the Circuit Court, holding that the stop was constitutional. State v. Sizer , 230 Md. App. 640, 658, 149 A.3d 706, 717 (2016). The intermediate appellate court held in the alternative that, assuming arguendo that the stop was unlawful, the evidence recovered would have been admissible under the independent source doctrine because Mr. Sizer was arrested on a valid pre-existing warrant that was independent of the illegal stop. Id. at 669, 149 A.3d at 723. A concurring member of the three-judge panel, Judge Kathryn Graeff, concluded that, assuming arguendo that the stop was illegal, the evidence that was recovered from Mr. Sizer would have been admissible under the attenuation doctrine, rather than the independent source doctrine, in light of this Court's decisions in Myers v. State , 395 Md. 261, 909 A.2d 1048 (2006), Cox v. State , 397 Md. 200, 916 A.2d 311 (2007), and the United States Supreme Court's decision in Utah v. Strieff, ––– U.S. ––––, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016). Id. at 680–81, 149 A.3d at 730.

We review the issue of whether the officers had reasonable suspicion to stop Mr. Sizer. We hold that the officers had reasonable suspicion to conduct a stop when they witnessed what appeared to be criminal activity occurring immediately before the investigatory stop. In the alternative, we hold that, even assuming the stop was unlawful, the evidence recovered from Mr. Sizer would be admissible in evidence because the attenuation doctrine would apply, pursuant to the Supreme Court's reasoning in Strieff .

For reasons stated in this opinion, we shall affirm the judgment of the Court of Special Appeals to the extent that it held that the officers had reasonable suspicion to stop Mr. Sizer. We also, alternatively, affirm the judgment of the intermediate appellate court and adopt the reasoning of the concurring opinion, penned by Judge Graeff, with respect to the application of the attenuation doctrine.

I.Initial Stop

The relevant undisputed facts are taken from testimony presented at the suppression hearing. On the evening of November 20, 2015, five or six officers, from the Howard County Police Department Pathway Patrol Unit ("Patrol Unit"), on routine patrol, biked the footpaths that "lead all throughout Columbia, [Maryland]." While on the footpath, officers in the Patrol Unit observed a group of individuals "play fighting and passing around an alcoholic beverage back and forth." The Patrol Unit suspected that the beverage was alcohol because it was in a brown paper bag and the group's body language was "consistent with individuals drinking." The officers, from 25–35 yards away from the group, observed a bottle being thrown and heard it hit the ground, but could not see who threw the bottle. At that point, the officers approached the group to investigate. When the officers were approximately five feet away, Mr. Sizer fled on foot, away from the officers.

Officer Andrew Schlossnagle, one of the officers in the Patrol Unit, gave immediate chase and "physically took [Mr. Sizer] to the ground." As Mr. Sizer was being tackled to the ground, he revealed that he was carrying a handgun on his person. Within seconds of the takedown, another officer from the Patrol Unit recognized Mr. Sizer as the subject of an outstanding arrest warrant. At that point Mr. Sizer was arrested and taken to the police satellite station in the Village Center pursuant to the officers' belief that he was the subject of a pre-existing warrant. At the satellite station, the officers confirmed the existence of the warrant and performed a search of Mr. Sizer incident to his arrest. The officers recovered a .38 caliber handgun from Mr. Sizer's backpack and twenty-seven pills of oxycodone, a controlled dangerous substance, from Mr. Sizer's sock. Additional facts will be discussed as needed.

Suppression Hearing

Mr. Sizer moved to suppress the weapon and the pills, arguing that the evidence was obtained pursuant to an unlawful stop. At the suppression hearing, members of the Patrol Unit testified that the Owen Brown Village Center was a "high" or "higher crime area," compared to other parts of Columbia, Maryland. The State argued that Mr. Sizer's flight in a high crime area was enough to give the officers reasonable suspicion to conduct a stop under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (" Terry stop"); see also Illinois v. Wardlow , 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (" Terry stop in a high crime area").

The three testifying officers similarly characterized the Owen Brown Village Center as a high crime area. Officer Schlossnagle testified that the Owen Brown, Long Reach, and Oakland Mills Village Centers "tend to [have] an increase in calls for service and just general issues. There tends to be more calls for service in that—in those congested areas." When asked about what types of crimes he had investigated in the Owen Brown Village Center, the officer responded, "[W]e were tasked to Owen Brown because of the increased calls for service and on-going trends in the area." The Circuit Court judge interjected:

[COURT]: Is "increased calls for service" a nice way of saying "high crime[ ]?"

[OFFICER SCHLOSSNAGLE]: Yes, Your Honor.

[COURT]: Thank you. I mean, just so I know what we're talking about.

Officer Schlossnagle explained that at the time of the incident, there was "an ongoing robbery series" and that "business owners ... were complaining of quality of life issues, [such as controlled dangerous substance] violations, loitering, drinking, where the business centers requested an increased presence." Officer Schlossnagle also explained that "there was a report of a subject displaying a handgun the day before in the footpaths and fields that abut up to the village center."¹ He testified that "there is a network of footpaths that leads up to the back side of [the village center]." A second officer, Corporal James Zammillo, testified that the Owen Brown Village Center was a "high crime area" as compared to other parts of Columbia. Corporal Zammillo explained that his assignment as a member of the bike team patrol included "passively patrolling the ninety-plus miles of pathway that traverses through Columbia." Corporal Zammillo confirmed Officer Schlossnagle's testimony that there was "an ongoing robbery series" in the area.

A third officer, Officer Ronald Baker, the only witness called by the defendant, testified that the patrol officers had been "traveling the pathways, and we came across the Owen Brown Village Center, but we stopped at the entrance to the Owen Brown Village Center via [the] pathway." He explained that, at the time of observing the group of individuals, he recognized one individual whom he knew had been banned from the Owen Brown Village Center:

[STATE]: Is Mr. Davis banned from the—I believe it's the Owen Brown Village Center?

[OFFICER BAKER]: Yes, he is.

[STATE]: And you indicated—did you indicate you were waiting for him, to see if he would enter where he was banned from?

[OFFICER BAKER]: Yes.

[STATE]: And where specifically was that?

[OFFICER BAKER]: That particular area we were at, to the best of my knowledge, that parking lot isn't part of the village center. So, we was [sic ] watching him and the group to see if they were going to enter the banned part of the village center.

Officer Baker also testified that when the officers were about five feet away, the group noticed the officers. Officer Baker testified that his uniform consisted of a badge and the word "Police" on the front of the jacket in neon lettering. Two other...