Smith v. State, 1989

• Decision Date: 01 September 1994
• Docket Number: No. 1989,1989
• Parties: William L. SMITH v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 665

106 Md.App. 665

666 A.2d 883

William L. SMITH v. STATE of Maryland.

No. 1989, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Nov. 1, 1995.

Bradford C. Peabody, Assistant Public Defender (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.

Thomas K. Clancy, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General and Stuart O. Simms, State's Attorney for Baltimore City on the brief), Baltimore, for appellee.

Submitted before CATHELL and SALMON, JJ., and JOHN J. GARRITY, Associate Judge of the Court of Appeals (Retired), Specially Assigned.

SALMON, Judge.

Appellant, William L. Smith, was convicted at a bench trial in the Circuit Court for Baltimore City of possession with intent to distribute cocaine and possession of cocaine. Appellant was sentenced to four years imprisonment for possession with intent to distribute. The possession count merged. On appeal, appellant asks whether the trial court erred in denying his motion to suppress physical evidence. For reasons hereinafter explained, we answer that question in the affirmative and reverse.

I. FACTS

The only witness who testified at the suppression hearing was Baltimore City Police Officer Sean White ("White"). His testimony was believed, in its entirety, by the trial judge. Unless otherwise indicated, all facts set forth in Part I are those testified to by White at the suppression hearing.

About 10:50 p.m. on May 22, 1994, White received a police radio broadcast. According to the tape of that broadcast, which was admitted into evidence, the dispatcher said, "I've got a group of drug dealers selling drugs and discharging their guns in the air at the corner of Mount and Presstman Streets." Shortly thereafter, the radio dispatcher advised White that the citizen who had called in the complaint said, "The person doing the discharge is wearing a striped shirt, eighteen years old, number 1 [African American] male."

The corner of Mount and Presstman Streets is near the entrance to Mountmor Court, which is a high-crime area. White regularly patrols this area and had, in the five years prior to May 22, 1994, made numerous drug and weapons arrests in Mountmor Court.

When White and several other police cruisers arrived at the corner of Mount and Presstman Streets, all was calm. White did not see anyone wearing a striped shirt. He looked, however, to his left toward the 1400 block of Mountmor Court and saw a group "of four or five" individuals standing on the curb.

The arrival of the police caused the group at the curb to disband hastily. In particular, White noted the appellant running into Mountmor Court. While running, appellant took his right hand and put an object into his rear "waistband." White could not determine the size of the object and, in fact, "could not clearly see any object at that time." White radioed other units that he had seen a suspect running into Mountmor Court and had "observed him tuck something into the back waist area of his pants."

White drove down Mount Street "to a break which leads off Mountmor Court." Once at the break, he turned into it and drove into Mountmor Court. He made this maneuver because he knew it would enable him to intercept appellant if appellant did not change course. White next got out of his cruiser and jogged to a point where he saw appellant walking toward him. White ordered appellant to put his hands up where he could see them. Appellant complied, and as he did so, other officers approached appellant from the rear.

White then did a pat-down around the outside of appellant's waist. Although White did not feel anything under appellant's clothing when he did the pat-down, he decided to "double check" by pulling at appellant's shirt "so that [he] could see the back of [appellant's] waistband." As White pulled the shirt out, a plastic bag containing twenty ziplock bags of cocaine fell to the ground. Appellant was then placed under arrest.

Except for testimony that appellant had on a shirt, that the shirt was not striped, and that appellant wore "pants," no evidence was introduced as to how appellant was dressed at the time he was apprehended. ¹ White did testify that appellant's shirt was "over the waistband," which meant, apparently, that the shirt was not tucked into appellant's pants but hung loose over the waistband of his pants.

White was an experienced and knowledgeable police officer, who was familiar with the customs and practices of drug dealers. He was also familiar with the Mountmor Court area. He had made or participated in seven hundred to eight hundred drug arrests, and of that number, fifty-five to sixty percent of the arrestees carried guns when apprehended. In White's experience, if drugs were being sold on the street, normally the seller or a confederate would stand nearby armed with a handgun. If White, while in a marked cruiser in the Mountmor Court area, approached any group, seven out of nine times the entire group would flee.

In describing the circumstances surrounding typical street-level drug activity, White explained that it is common for an individual to yell "Five O" (slang for "police") to warn others that the police are coming. The group usually then splits up to make it more difficult for the police to observe or follow them. In White's experience, the individual who has the gun moves away from the police officer, rather than toward him.

Because of the contents of the police broadcast and appellant's actions, coupled with White's experience with drug sellers, White believed that appellant had placed a handgun in his waistband. Based on this belief, White frisked appellant.

The motions judge denied appellant's motion to suppress the cocaine that fell from appellant's waistband area. In a lengthy oral opinion, the court reviewed the "stop and frisk" case law established by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. The court included in its remarks the following review:

The narrow scope of the Terry exception [to the warrant requirement] does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked ...

Nothing in Terry can be understood to allow generalized cursory search for weapons or, indeed, any search whatever for anything but weapons[.] [Citation omitted]. The purpose of this limited search is not to discover evidence of crime but to allow the officer to pursue his investigation without fear of violence and thus the frisk for weapons must be equally necessary and reasonable[.] [Citation omitted].

If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed[.] [Citation omitted] ... [I]f a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes the identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officers search for weapons. If the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view doctrine.

Applying the above principles, the court held that White's stop of appellant was constitutionally justified:

All of the facts in their context, I find as a matter of fact and as an issue of law that that confluence of facts under those circumstances were the kind of particularized facts that could be pointed to to lead the officer to a rational conclusion ... that the individual was armed sufficient for the purpose of conducting the limited pat-down that would, in fact, be known as a frisk for weapons under those circumstances.

Those facts were that there was a call for people selling drugs who were armed, even though it only focused on the individual in the striped shirt having arms. That there was a discharge of firearms which the officers did not hear. That upon reaching the location that there was a crowd dispersing, and that this particular individual was dispersing away from the officers rather than at an angle as were the others, and that not only was that all being done, but that that individual was tucking something into the back of his waist.

And in the context of that location, that call, and those observations, the officer made the conclusion that that individual had tucked a firearm there, and I cannot say that he did not have a reasonable suspicion that what was tucked was a firearm....

The court proceeded to rule that, based on the reasonable suspicion that appellant was armed, White was entitled to conduct a "limited pat-down ... for the kind of solid object that would have the same shape, weight, density, and bulk of a gun." Regarding the pulling out of appellant's shirt, the court stated:

And that upon completing that very cursory, short search, that the officer did one more thing, which was to tug at the shirt to see if tugging at the shirt would reveal the outline of a gun, and in such tugging out of the waistband, because of the way that they were tucked, fell the contraband, which the officer immediately determined was contraband and justified the arrest.

So under the circumstances that the officer had available here, I do not find that this was a situation like Ybarra versus Illinois where the mere presence of the person caused the officer to make the axiomatic conclusion, well, you know, anybody could be a danger to me, and I'd better search them all, nor was it like the situation in Alfred where the frisk was more of an afterthought after a long interrogation.

That here as the escalating pieces of the puzzle were coming into the officer's mind the officer drew the inference that the individual disappearing into Mountmor Court rather than moving in the other direction was the member of the earlier referred to group that was selling drugs, that now had the gun, even though the earlier caller had...