State v. Blackman, 1144

• Decision Date: 01 September 1992
• Docket Number: No. 1144,1144
• Parties: STATE of Maryland v. Keith BLACKMAN. ,
• Court: Court of Special Appeals of Maryland

Page 284

94 Md.App. 284

617 A.2d 619

STATE of Maryland v. Keith BLACKMAN.

No. 1144, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Dec. 30, 1992.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellant.

No brief or appearance by appellee's counsel. Argued before WILNER, C.J., and MOYLAN and BISHOP, JJ.

MOYLAN, Judge.

The appellee, Keith Blackman, was charged by two criminal informations filed in the Circuit Court for Baltimore City with the crimes of 1) assault, 2) resisting arrest, 3) possession of cocaine with intent to distribute, 4) possession of cocaine, and 5) possession of cocaine with intent to distribute within 1,000 feet of an elementary school. The appellee moved pretrial to suppress the the physical evidence. Following a hearing on that suppression motion, the motion was granted. Pursuant to the provisions of Md.Code Ann., Cts. & Jud.Proc. § 12-302(c)(3) (1989), the State has taken this appeal.

For the reasons that follow, we reverse the ruling of the circuit court suppressing the evidence and remand the case to that court for trial.

We are dealing with a sequence of actions. A Terry -stop of the appellee, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), led to a Terry -frisk of the appellee. In resisting the frisk, the appellee shoved a police officer. That led to an arrest of the appellee for assault and battery. A search incident to that arrest revealed, in the appellee's coat pocket, the large bag of cocaine that was the subject of the suppression motion.

Like a World War II artilleryman, we are able to bracket the target of analysis to a single action in the middle of the sequence. It is agreed by all parties that the Terry -stop of the appellee was reasonable. At the far end of the sequence, it is agreed by all parties that if the shoving of the police officer was not privileged, the arrest for assault was reasonable and the search incident to that arrest was, in turn, reasonable. The single issue for decision is whether the appellee was privileged to shove the officer. As we bracket that target for further analysis, we will set the factual stage.

The Terry-Stop

At approximately 12:40 P.M. on March 2, 1992, Officers Keith Matthews and Donna Gutberlet of the Baltimore City Police Department were executing an arrest warrant on a burglary charge for Ulysses Thompson at 6220 Feroie Way. As the two officers entered the residence in an attempt to arrest Thompson, they encountered resistance from both Thompson and members of Thompson's family. Officer Matthews described the scene as "very chaotic."

In the midst of that turmoil, the appellee Blackman entered the house unannounced just as Officer Matthews was attempting to place handcuffs on Thompson. Officer Matthews had to direct Blackman to keep out of the way. Officer Gutberlet immediately advised her colleague that she recognized Blackman as someone who had been arrested for an attempted homicide in 1991. She recalled, moreover, that Blackman was the person who had actually done the shooting. Officer Matthews testified that he believed Blackman might be dangerous and that he was concerned for his own safety and that of Officer Gutberlet. He testified that, as he continued to struggle with Thompson, his primary concern was officer safety.

While Officers Matthews and Gutberlet were attempting to subdue Thompson, Officer James Stephens arrived as a "backup." Shortly thereafter, the police wagon arrived. Officer Stephens testified that, when he first heard the call for backup coming across the police radio, he could hear commotion in the background during the call. His primary concern as he responded to the scene was to determine whether any of the officers were in need of assistance.

As Officer Stephens arrived, he observed a British Sterling pull up in front of the Thompson house and observed Blackman exit the vehicle and enter the house. As Officer Stephens entered, he saw that Officers Matthews and Gutberlet were engaged in placing Thompson under arrest. He saw the appellee standing near the doorway. Officer Stephens recalled that he recognized the appellee "from being in the neighborhood, I've known him as being a drug dealer." Officer Stephens had, moreover, been to the appellee's residence just a "couple of weeks prior" in an attempt to serve an arrest warrant on the appellee. On that earlier occasion, Officer Stephens had not been successful in his effort to locate the appellee and serve the warrant upon him. As he now spotted him near the doorway of the Thompson house, he did not know whether that arrest warrant had ever been served. It was established at the suppression hearing that the arrest warrant for the appellee had been issued on January 5 and was actually served upon him on February 10. The warrant was for battery and for carrying a deadly weapon.

In an effort to ascertain the status of the arrest warrant against the appellee, Officer Stephens detained him. He asked to see the appellee's driver's license so that he could run a warrant check over the police radio. He explained that to run a warrant check, the officer must supply the suspect's name, date of birth, and, when available, an address. Officer Stephens indicated that he regularly found a driver's license a better source of such information than the suspect himself, because "a lot of times people lie to you, and they don't give you their correct date of birth and that type of thing." Officer Stephens further testified that a warrant check typically takes between ten and twelve minutes.

The hearing judge found, and both parties agree, that this was a Terry -type stop, based upon the reasonable possibility that an arrest warrant might have been outstanding for the appellee. With respect to the Fourth Amendment reasonableness of that stop, the hearing judge ruled specifically:

"As to the stop, I believe under Terry v. Ohio and the United States v. Hensley case, Officer Stephens had reasonable suspicion to believe that a crime had been committed because of the fact that he had attempted to serve an arrest warrant several weeks before. And though this was not an arrest, I think that was certainly enough to detain and to stop him while he momentarily did a warrant search, which was under 15 minutes. And it was closer, I think, to between 10 and 12 minutes, he said, that a warrant search would take to do.

So as far as the stop under Terry v. Ohio, the State conceded, and I agree, that a stop occurred. Another reason, I believe the State concedes, and the Court agrees, is that Officer Stephens candidly testified that the defendant was not free to leave the area until after he had done the warrant check because he wanted to know what--in fact, if that warrant was still there.

That's reasonable suspicion to believe that a crime has been committed in the past.

Therefore, this case is more like another 1991 Court of Special Appeals case, Aguilar v. State, 88 Md.App. 276, 594 A.2d 1167 (1991), an opinion by Judge Garrity. In the Aguilar case, the stop in that case was also conceded and, indeed, was found to be legal. And I have found the stop here to be legal. There is nothing about the stop to be illegal."

We believe that that conclusion was eminently correct.

The Terry-Frisk or Attempt Thereat

It was while this stop of the appellee by Officer Stephens was in progress that the frisk, or attempted frisk, at the hands of Officer Matthews took place. While Officer Stephens was conducting the radio check on the status of the arrest warrant, Officer Matthews finally succeeded in arresting Thompson. Officer Matthews placed Thompson in the police wagon and then was free to turn his attention to the appellee. As he did so, Officer Stephens informed him that he "thought he had a warrant for [Blackman]." At that point, Officer Matthews approached Blackman and stated that he "was going to pat him down." Officer Matthews testified that he wanted "to make sure [Blackman] didn't have any guns or any weapons on him." He stated that in his mind "officer safety was first and paramount to me and the other officers there." He further related that he believed he had "a person possibly wanted on a warrant who could have possibly been an armed felon." Blackman was wearing pants and a jacket.

As Officer Matthews was reaching out to begin the frisk, but before his hands had actually touched Blackman's person, Blackman shoved Officer Matthews' hand, pushed him back, and began to run. Blackman was caught a few feet away and arrested for assault and battery. The search incident to that arrest revealed a large bag of cocaine in his jacket pocket. In his suppression hearing testimony, the appellee candidly acknowledged that the reason he resisted the anticipated frisk was not because of any sense of offended dignity at being touched by the policeman but because he had drugs on his person.

The Legality of the Arrest

If the appellee was privileged to use force against Officer Matthews in resisting the frisk, his subsequent arrest for such use of force was unlawful, the search incident to that unlawful arrest was unreasonable, and the cocaine was properly suppressed. If, on the other hand, the use of force against Officer Matthews was not so privileged, the arrest was lawful, the search incident to that lawful arrest was reasonable, and the cocaine should not have been suppressed. We hold that the appellee was not privileged to use force against Officer Matthews under either of two alternative rationales.

A. The Standard of Judicial Review at All Levels:

The first of those reasons is that the frisk was reasonable. As we examine its reasonableness, a preliminary consideration is called for as to the nature of judicial review. There is first the question of what standard of scrutiny we, on appellate review, should apply to the decision of the...