Snow v. State

• Decision Date: 01 September 1989
• Docket Number: No. 1713,1713
• Parties: Maurice Jerome SNOW v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 243

84 Md.App. 243

578 A.2d 816

Maurice Jerome SNOW v. STATE of Maryland.

No. 1713, Sept. Term, 1989.

Court of Special Appeals of Maryland.

Sept. 4, 1990.

Melissa M. Moore, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief, Baltimore, and John L. Scarborough, State's Atty. for Cecil County, Elkton, on the brief), for appellee.

Submitted before ROSALYN B. BELL, KARWACKI, and JAMES S. GETTY (retired), Specially Assigned, JJ.

ROSALYN B. BELL, Judge.

The Fourth Amendment states that the

"right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." ¹

Distinguishing a "stop" from an "arrest" and a "frisk" from a "search," the Supreme Court of the United States created the "reasonable suspicion" standard in order to deal "[W]here 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 ...,"

"with the rapidly unfolding and often dangerous situations [that police encounter] on city streets[.]" Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, 392 U.S. at 30, 88 S.Ct. at 1884, the Supreme Court held, inter alia:

he may "stop" the suspect and make "reasonable inquiries."

The sole issue involved in this appeal is whether the police officer had "a reasonable and articulable suspicion" to support the detention of a driver after issuing a warning ticket for speeding. The observed facts upon which the officer based the articulable suspicion were: (1) the driver's lack of eye contact with the officer; (2) driving on a major interstate route which the officer knew to be a drug route; (3) the presence of three air fresheners in the driver's car; and (4) the driver's refusal to consent to a search of his vehicle. ² We hold that the police officer may not consider the last of the four "facts" to support the "reasonable suspicion" and that the first three do not create a "reasonable suspicion" to detain a driver after the purpose of the initial stop had been fulfilled. Consequently, the evidence recovered should have been suppressed.

FACTS

Just past noon on April 4, 1989, Maurice Jerome Snow, appellant, who was driving a 1983 Chevrolet Blazer, was stopped on Interstate 95 by Trooper First Class Nicholas Paros. Paros saw the car cross the state line from Delaware into Maryland at what he believed to be an excessive rate of speed. He followed the Blazer and clocked its speed at 64.1 miles per hour in 55 mile-per-hour zone. When There is some discrepancy regarding when Paros asked Snow where he was going: Paros claims at this point, while Snow maintains that Paros asked after he gave him a warning. In any event, Snow replied that he and his passenger, Carl Davis, were coming from Philadelphia and going to northeast Washington, D.C., to see Davis's girlfriend. Paros was aware that reports showed that controlled dangerous substances were moving from the Philadelphia area to that part of Washington, D.C. Paros also noted three air fresheners hanging from the rear view mirror. Paros testified that from his experience air fresheners were "one of numerous concealment methods that smugglers use;" and that air fresheners were "sometimes ... used as a concealment method to hide odor ... for narcotics."

                stopped, Snow, produced a driver's license and temporary registration, and admitted to driving at 58 [578 A.2d 818] miles per hour.   Paros stated that Snow "seemed somewhat nervous and was not making any eye contact with me."
                

Paros at some point asked both men to exit the car and move over to the grass, but he admitted he was not sure when this occurred. Corporal Eric Danz testified, however, that when he came upon the scene he saw Paros talking to the two men seated at a table outside the car. Paros then told Danz he was going to do a drug scan. After Paros issued a traffic warning to Snow, he then requested permission to search the Blazer. Snow refused. Paros used a K-9 dog to scan or sniff the exterior of the Blazer. ³ After

                sniffing a portion of the car, the dog sat down, which according to Paros, signaled an alert that drugs were present.   Paros returned the dog to the patrol car and watched Snow and Davis while Danz searched the Blazer and recovered suspected heroin from three bags within an overnight bag in the rear of the Blazer.   Paros arrested Snow and Davis and advised them of their rights in accordance with  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).   Snow was charged with one count of smuggling heroin into the State, two counts of possession of heroin, and one count each of conspiracy to smuggle and to distribute heroin.   He was tried on an agreed statement of facts, found guilty of possession of heroin (the other counts were nolle prossed) and sentenced in the Circuit Court for Cecil County to two years with credit for 224 days, all suspended in favor of two years supervised probation.   Snow appeals, contending the trial court erred in denying his motion to suppress the evidence.   We agree with Snow and reverse the judgment
                

SEQUENCE OF EVENTS

There can be no doubt, and Snow does not contest, that the initial stop was justified, as Snow was admittedly exceeding the speed limit. But the purpose of the initial stop was fulfilled when Paros issued the warning. We agree with the State that, if Paros properly and constitutionally conducted the scan or sniff of the perimeter of the car using his trained dog, the dog's responses could be held to provide probable cause to search the interior of the car. See Florida v. Royer, 460 U.S. 491, 505-06, 103 S.Ct. 1319, 1328-29, 75 L.Ed.2d 229 (1983); Grant v. State, 55 Md.App. 1, 14-15, 461 A.2d 524 (1983), cert. dismissed, 299 Md. 309, 473 A.2d 455 (1984). But the doubt in this case focuses on the legality of Paros's detention of Snow and Davis in order to scan the vehicle after having issued the warning for speeding.

Directing our attention to that time frame, the State does not contend that Paros had probable cause to arrest Snow

                when he asked to search the car.   Rather, the State relies on the "articulable suspicion" standard first recognized in Terry v. Ohio, which is "less than probable cause, [578 A.2d 819] but more than a mere inarticulable hunch."   Gilbert & Moylan, Maryland Criminal Law:  Practice and Procedure, § 33.1 (1983)
                

Seizure

Initially, we must determine whether Snow was, in fact, seized for purposes of the Fourth Amendment. In State v. Lemmon, 318 Md. 365, 568 A.2d 48 (1990), the Court of Appeals analyzed two recent United States Supreme Court decisions in this area. The Court noted that the standard used to determine whether an individual is seized is that "whenever an officer restrains the freedom of a person to walk away, he has seized that person." Lemmon, 318 Md. at 375, 568 A.2d 48, citing Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 1380, 103 L.Ed.2d 628 (1989), quoting Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985). The Court of Appeals also stated that Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988), "declares that the test to be applied in determining whether a person has been 'seized' within the meaning of the Fourth Amendment is whether in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Lemmon, 318 Md. at 372, 568 A.2d 48.

The Case Law

Federal

The nature of Terry and the reasonable, articulable suspicion standard is such that a brief review of the cases, both federal and Maryland, is necessary. The circumstances of Terry were very different from the facts in the case at bar. In Terry, a police officer noticed two men acting suspiciously in front of a store at a time when the store was not open to the public. Moreover, the police officer had reason to Two cases involving cars, which further developed the doctrine of the intrusion based on the Terry stop, have been decided by the United States Supreme Court. In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), two police officers observed a car traveling erratically and at excessive speed. The car went off the road and landed in a ditch. The police approached and saw the suspected drunk driver standing at the rear of the vehicle. Through the open left door they saw a hunting knife on the floor of the car. The officers frisked the suspect. The frisk was upheld as a valid search to protect themselves based on the "plain view" sighting of the knife.

                fear for his own safety since he thought the suspects were carrying guns.   The Terry Court upheld the admission of the guns into evidence at the defendants' trial on that basis.   Subsequently, the Court arguably limited the impact of Terry solely to the search for weapons. 4  See Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)
                

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam), the police stopped a vehicle because its license plates had expired. They ordered the driver to get out of the car, which was considered a de minimis additional intrusion requiring no independent justification. Mimms, 434 U.S. at 111, 98 S.Ct. at 333. The subsequent patdown, however, was a separate and distinct intrusion which required separate justification. In Mimms, the patdown was justified by the "bulge" in the driver's jacket which gave rise to a reasonable and articulable suspicion that the...