State v. Lemmon

• Decision Date: 01 September 1989
• Docket Number: No. 61,61
• Citation: 568 A.2d 48,318 Md. 365
• Parties: , 58 USLW 2479 STATE of Maryland v. Gregory C. LEMMON. ,
• Court: Maryland Court of Appeals

Page 365

318 Md. 365

568 A.2d 48, 58 USLW 2479

STATE of Maryland v. Gregory C. LEMMON.

No. 61, Sept. Term, 1989.

Court of Appeals of Maryland.

Jan. 19, 1990.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for petitioner.

Jose Felipe Anderson, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for respondent.

Argued Before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and CHARLES E. ORTH, Jr., Judge of the Court of Appeals of Maryland (retired), Specially Assigned, JJ.

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

The right of the People to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....

Article IV, Constitution of the United States. Gregory C. Lemmon claims that the judgment against him in a criminal cause was come by in violation of this right. The journey of the claim to this Court began when the State's Attorney for the City of Baltimore informed the Circuit Court for Baltimore City that Lemmon had committed certain violations of the controlled dangerous substances laws. In contest to the charges, Lemmon alleged that articles of evidence taken from him by police authorities were obtained as the result of an illegal search and seizure in violation of his constitutional rights. He prayed the court to suppress all evidence so obtained. After a plenary hearing, the court denied the motion. Lemmon pleaded not guilty. Trial proceeded on an agreed statement of facts and the receipt in evidence of the challenged contraband. The court found him guilty of unlawfully possessing a controlled dangerous substance, diazepam (valium), with the intent to distribute and sentenced him to imprisonment in the Baltimore City Jail for a period of 30 days. ¹ Lemmon noted an appeal to the Court of Special Appeals. That court reversed the judgment. Lemmon v. State, No. 1070, September Term, 1988, filed 21 March 1989 (unreported). The State sought review by this Court. It filed a petition for the issuance of a writ of certiorari which presented two questions:

1) In light of Brower v. Inyo County, 489 U.S. ----, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), did the Court of Special Appeals err in ruling that Lemmon was "seized" for purposes of the Fourth Amendment when he was chased by police officers?

2) In light of United States v. Sokolow, --- U.S. ----, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), did the Court of Special Appeals err in concluding that the "seizure" of Lemmon was not supported by sufficient articulable suspicion?

We granted the State's petition and ordered the issuance of the writ. Inasmuch as we conclude that the answer to each question is no, we affirm the judgment of the Court of Special Appeals.

The questions presented to us arose in the framework of testimonial evidence elicited at the hearing on the motion to suppress. Three Baltimore City policemen testified on behalf of the State: Officer Darryl Kane, assigned to the Southern District Drug Enforcement Unit; Police Agent Steven Atkinson, assigned to the Drug Enforcement Unit; and Officer Bernard White, assigned to the Southern District Drug Enforcement Unit. The parties stipulated that each officer was an expert in the field of drug enforcement laws. We set out a precis of their testimony as it related to the information which triggered the activities of the police the pursuit of Lemmon, his apprehension, and the recovery of the contraband.

At the time of the incident, the officers were on duty, dressed in plain clothes, and riding in an unmarked police car. Atkinson was driving. Kane occupied the front passenger seat of the car and White the rear seat. Each had a radio, tuned to the police band, and was armed with a revolver carried in a holster. A call came over the radios. Heard simultaneously by each officer, the call announced that there was a narcotics violation occurring in the 2400 block of Kermit Court in Baltimore City. The dispatcher did not give the source of the information, stating only that he did not know the source. Kane agreed with the trial court's characterization:

[A]ll you had was a tip and that tip was basically that something was occurring. You didn't know who, you didn't know how, you just knew that some narcotics transaction was going on in that block.

White "believed" that the call specified that there was "a black male in the area selling narcotics" but the dispatcher furnished no other details.

The officers responded to the call. As they approached the 2400 block of Kermit Court, Kane and White left the car and walked toward the designated area. They saw a "black male," who proved to be Lemmon, talking to another "black male" who proved to be one William Meekins. Kane said that there was no one else in the area. White recalled that there were other "black individuals" in the area when the officers arrived on the scene. He did not know exactly how many. There were more than two but he could not say whether there were as many as eight or ten.

When the two officers were about 25 feet from the men, Kane in front, Lemmon looked in their direction and started to walk away. Kane identified himself as a police officer and said: "Come here." Lemmon "took off running." Meekins stayed put. Lemmon fled down the 2600 block of Maisel Street with Kane pursuing and White in the rear. Atkinson, in the police car, observed that Lemmon was outdistancing Kane and White. He drove the car in front of Lemmon to cut him off, but Lemmon avoided the blockade by running around the vehicle. Atkinson joined the chase on foot and was now leading the pursuit. Lemmon ran to the rear of the houses facing the 2600 block of Maisel Street. Atkinson saw him reach into his jacket pocket, pull out a "medicine type vial," and try to force it through a chain link fence. The vial bounced off the fence and fell to the ground.

When Kane saw Lemmon dart between a break in the houses toward the rear of the 2600 block of Maisel Street, he anticipated that Lemmon would return to the front of the street, so he ran along Maisel Street to intercept Lemmon. Lemmon appeared as Kane had hoped, with Atkinson close behind. The officers stopped Lemmon. In the meantime a uniformed policeman had arrived on the scene. The officers "ordered [Lemmon] to the ground," and that's where he stayed with the uniformed officer guarding him on orders from Atkinson to "detain" him while Atkinson and Kane went to recover the vial. The officers found the vial where Atkinson had seen Lemmon discard it. There were no other items in the vicinity of the vial and no one else around. Less than a minute elapsed from the time Lemmon was stopped until the vial was recovered. The vial bore no label. It contained 44 pills which Atkinson recognized as valium. Kane said that while he was pursuing Lemmon, he "heard something like pills or something shaking in Lemmon's pocket. I could hear it shaking the whole time I was running."

According to Kane, Lemmon was not "arrested" until he and Atkinson returned from recovering the vial. Kane observed: "Prior to that he was not under arrest." Lemmon was being pursued because "[w]e wanted to find out why he was running." Atkinson explained why he had joined the chase when he saw Kane pursuing Lemmon Based upon knowledge of Kane and my reason for being there, I felt a person who was running had some reason to be running from the police.

None of the officers had at any time displayed a weapon. Meekins, who had remained at the scene when the officers approached, was not arrested.

The testimony of Meekins, called by the defense, was in sharp conflict to that of the prosecution witnesses as to the initial approach of the police.

I noticed a plain car on the grass at the corner of Kermit Court and the officer, the plain clothes officer, got out of the car and was searching guys at that corner.

He knew they were officers "because they had handcuffs in their back and I know them by face." Meekins told Lemmon: "I wasn't walking towards them, let's turn around."

The next thing I know, two officers were running towards us and they had their guns out. They never identified themselves.

One of the officers said: "If you run, I'm going to shoot." Meekins stood still but Lemmon ran. One officer went in pursuit and the other, identified as White, held Meekins.

The trial judge, exercising his function of judging the credibility of witnesses, Corbin v. State, 237 Md. 486, 490, 206 A.2d 809 (1965), accepted the testimony elicited by the State. He found "no material flaw in the testimony of the officers because of [the] discrepancies." He saw "no defect in [the officers'] credibility." Meekins, however, "did not impress [the judge] as that credible of a witness." In the light of the testimony which the judge found to be credible, he concluded that a seizure of Lemmon in the constitutional sense had not occurred at the time the contraband was discarded. In other words, according to the judge, the pursuit prior to the abandonment of the contraband "had no Fourth Amendment significance." It was the abandonment that

gave the police a reasonable suspicion to take the action they took which was the temporary detainment of the defendant and at that time they had probable cause to arrest him.

Therefore, the judge denied the motion to suppress.

The Court of Special Appeals saw it differently. It concluded that a Fourth Amendment seizure of Lemmon took place when the police ordered Lemmon to "come here," whereupon he fled with them in pursuit. Thus, the attempt to stuff the vial through the fence was subsequent to the seizure. Lemmon v. State, supra, slip opinion at 7. Both the trial court and the intermediate appellate court looked to Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), in arriving at their disparate conclusions. The trial court considered Chesternut "in conjunction...