State v. Wilson

• Decision Date: 01 September 1995
• Docket Number: No. 113,113
• Citation: 106 Md.App. 24,664 A.2d 1
• Parties: , 64 USLW 2207 STATE of Maryland v. Jerry L. WILSON. ,
• Court: Court of Special Appeals of Maryland

Page 24

106 Md.App. 24

664 A.2d 1, 64 USLW 2207

STATE of Maryland v. Jerry L. WILSON.

No. 113, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Aug. 30, 1995.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for appellant

Lisa D. Didomenico (G. Warren Mix and Turnbull, Mix & Farmer, on the brief), Towson, for appellee.

Argued before WILNER, C.J., and MOYLAN and HARRELL, JJ.

MOYLAN, Judge.

The appellee, Jerry Lee Wilson, was indicted by the Baltimore County Grand Jury for the possession of cocaine with intent to distribute and for related narcotics and conspiracy offenses. He filed a pretrial motion to suppress physical evidence on the ground that it had been obtained in violation of his Fourth Amendment right to be secure from unreasonable searches and seizures. On November 23, 1994, Judge Thomas J. Bollinger conducted a suppression hearing and reserved his decision on the motion. On January 10, 1995, Judge Bollinger granted the appellee's motion to suppress the evidence. Under the provisions of Md.Code (1995 Repl.Vol.), § 12-302(c)(3) of the Cts. & Jud. Proc. Article, the State has appealed that suppression order.

The Issue

The single issue before us is very narrow. When a police officer makes a routine traffic stop, does his automatic right to order the driver to exit the vehicle, a procedure deemed to be constitutionally reasonable by Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), also extend to passengers in the stopped vehicle?

The Factual Background

The only witness to testify at the suppression hearing was Trooper David Hughes of the Maryland State Police. At approximately 7:30 P.M. on June 8, 1994, Trooper Hughes observed a white 1994 Nissan Maxima driving southbound on I-95 at what appeared to be a high rate of speed. The trooper pulled into the lane behind the Maxima and "paced" it for approximately one mile. It was going 64 miles per hour in a 55 miles-per-hour zone. He also observed that there was no regular license tag on the front or rear of the car, except that on the back there was "a paper tag kind of hanging half off, half on that said Enterprise Rent-A-Car." Officer Hughes activated his lights and siren, but the Maxima continued to drive, with Trooper Hughes behind it, for approximately one-and-one-half miles before finally stopping in Baltimore City.

Both during the pursuit and then in approaching the Maxima after it had stopped, Trooper Hughes observed that the car had three occupants. During the pursuit, the two passengers had turned and looked at him several times and had on several occasions ducked below the sight level and then reappeared.

As Trooper Hughes started to approach the Maxima on foot, he saw that the driver had spontaneously exited the vehicle. The trooper directed the driver to step back toward him and the two met at a point between their respective vehicles. Trooper Hughes advised the driver, a Mr. McNichol, why he had been stopped and asked McNichol for his license and registration card. McNichol explained that he was coming from Connecticut and going toward South Carolina. He produced a valid Connecticut driver's license. McNichol further indicated that the rental papers for the car were in the vehicle. It was at that point that Trooper Hughes instructed McNichol to return to the vehicle to retrieve the rental documents. McNichol got in the vehicle and sat in the driver's seat.

Throughout the initial encounter, Trooper Hughes had observed that McNichol was extremely nervous. He appeared at times to be trembling and answered every question with a question. Trooper Hughes had also observed that the front seat passenger, the appellee Jerry Lee Wilson, was sweating and extremely nervous.

It was after McNichol had reentered the car that Trooper Hughes ordered Wilson out of it. As Wilson complied with the trooper's direction to walk back closer to the police vehicle, what appeared to be (and, indeed, turned out to be) crack cocaine fell to the ground. Trooper Hughes drew his weapon and placed Wilson under arrest. When Trooper Hughes was asked why he had directed Wilson to exit the vehicle, he replied:

Well, due to the movement in the vehicle I thought possibly there could be a handgun in the vehicle. I had concern for my safety. At that time when Mr. McNichol went back to the car, I asked Mr. Wilson to step out, that is my whole purpose of not approaching the vehicle, by myself, with three occupants in the vehicle, I wanted each one out at a time to speak to each individual, for my safety.

The single issue before Judge Bollinger was whether Trooper Hughes violated Wilson's Fourth Amendment right against having his person seized unreasonably when he ordered Wilson to step out of the vehicle.

A False Trail

Both at appellate argument and in appellate brief, the State urged, as an alternative rationale, that Trooper Hughes had articulable or particularized suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), either to "stop" Wilson for questioning or to "frisk" Wilson for weapons. Under either set of circumstances, the minimal seizure of Wilson's person occasioned by ordering him from the car would have been reasonable. We reject the State's alternative rationale, however, for several reasons.

In the first place, the State never urged such a basis for the exit-order at the suppression hearing. Judge Bollinger was not called upon to rule whether there was articulable suspicion either for a Terry "stop" or for a Terry "frisk" and, indeed, he made no such rulings.

With respect to this alternative rationale, the State is even more bereft. Articulable suspicion, for either a stop or a frisk, requires not simply the external circumstances that would justify such particularized suspicion. It requires, in addition, that the officer purporting to act on the basis of such suspicion actually articulate such a purpose and such a basis for action. Gibbs v. State, 18 Md.App. 230, 239-42, 306 A.2d 587 (1973).

What must be articulated to justify a Terry "stop" is particularized suspicion that a crime has occurred, is then occurring, or is about to occur. A "stop," unlike a "frisk," is crime-related, not weapon-related. The societal purpose served by a Terry "stop" is the prevention or detection of crime. The justification for a "stop," therefore, must be framed and phrased in terms of suspected crime. It is, moreover, the officer who must do the articulating, not the Attorney General by way of appellate afterthought. Trooper Hughes articulated nothing with respect to any crime that he suspected Wilson of being involved in. The absence of an articulated basis for a Terry "stop" is as absolute here as it was in Gibbs v. State:

Officer Stewart, in the case at bar, articulated absolutely nothing as to what crime or type of crime he reasonably suspected the appellant of having engaged in, of then engaging in, or of being about to engage in. (Emphasis supplied.)

18 Md.App. at 241, 306 A.2d 587.

With respect to a possible justification for the exit-order based on the notion that Trooper Hughes was somehow undertaking a Terry "frisk," the overarching fact is that Trooper Hughes never remotely articulated having entertained any such purpose. He did, to be sure, express some fear that "possibly there could be a handgun in the vehicle." The ostensible purpose for ordering Wilson out of the car, however, was to take Wilson out of proximity to such a possible weapon rather than to frisk him for a weapon. Whatever Trooper Hughes was doing when he ordered Wilson out of the car, it was not in furtherance of any intent to conduct a frisk. In the absence of such a purpose, whether there might, in the abstract, have been a constitutional basis for a frisk is immaterial.

If these were not impediments enough, the State urges us to exercise our own independent constitutional appraisal on a de novo basis. Such appellate latitude is not available to us. Although we may exercise de novo review with respect to mixed questions of law and fact, we are enjoined to extend the more deferential "clearly erroneous" standard of review to the findings of the trial judge on purely factual questions. Aiken v. State, 101 Md.App. 557, 563, 647 A.2d 1229 (1994), cert. denied, 337 Md. 89, 651 A.2d 854 (1995); State v. Jones, 103 Md.App. 548, 606-11, 653 A.2d 1040 (1995). Judge Bollinger found as a first-level fact that Trooper Hughes possessed no fear that Wilson was armed. Judge Bollinger's conclusion was not that the external circumstances did not add up to articulable suspicion. That, indeed, would have been a finding on a mixed question of law and fact and would be subject to de novo review. Judge Bollinger's finding, by way of contrast, was that Trooper Hughes did not even possess such a suspicion. That is a finding of pure fact that can be overturned only if clearly erroneous.

In part because Trooper Hughes did not order all three individuals out of the Maxima initially, and in part because McNichol was freely permitted to reenter the vehicle, Judge Bollinger concluded that Trooper Hughes's action was not a preventive or preemptive measure intended to neutralize the risk of harm from offensive weapons. His conclusion was not that there was no basis for a reasonable suspicion that Wilson was armed and dangerous, but rather that Trooper Hughes entertained no such suspicion, reasonable or unreasonable:

In this case the officer's experience is 13 months as a trooper and this Court finds that when the officer allowed the driver of the vehicle to return to the car to obtain the rental documents he could not have had a reasonable suspicion that the person was armed and dangerous; and, therefore, any future intrusion into the right of the occupants...