Sizer v. State
| Decision Date | 28 November 2017 |
| Docket Number | No. 1,1 |
| Parties | JAMAL SIZER v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
CONSTITUTIONAL LAW - FOURTH AMENDMENT - REASONABLE SUSPICION
The Court of Appeals held that the hearing court erred in suppressing evidence that was seized after a Terry stop because the hearing court did not consider the totality of the circumstances. On the basis that an officer has reasonable suspicion that criminal activity is afoot, an officer may conduct a Terry investigatory stop. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1969). When reviewing whether reasonable suspicion exists, a hearing court must apply the totality of the circumstances test, such that no one factor in the analysis is dispositive. The Court of Appeals held that where officers observed a group of individuals openly drinking what appeared to be an alcoholic beverage and one of them threw a bottle to the ground, the officers had reasonable suspicion to investigate a potential open container violation and to determine who threw the bottle. The defendant's flight from the group upon the officers' approach should have been considered as one factor among others in the totality of the circumstances analysis.
CONSTITUTIONAL LAW - FOURTH AMENDMENT - EXCLUSION OF THE EVIDENCE - ATTENUATION DOCTRINE
As explained by the United States Supreme Court recently in Utah v. Strieff, -- U.S. --, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016), to remove the taint from evidence obtained as a result of an illegal stop or search and seizure, the attenuation doctrine is the appropriate law to apply to determine admissibility of evidence when the defendant is arrested pursuant to the discovery of a pre-existing arrest warrant.
Circuit Court for Howard County
Case No. 13-K-15-056103
Opinion by 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) . 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 stopwas 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.
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 ofoxycodone, a controlled dangerous substance, from Mr. Sizer's sock. Additional facts will be discussed as needed.
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) ().
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 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:
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...
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