Swift v. State

• Decision Date: 02 June 2006
• Docket Number: No. 98, September Term, 2005.,98, September Term, 2005.
• Citation: 393 Md. 139,899 A.2d 867
• Parties: Logan Hamilton SWIFT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

899 A.2d 867

393 Md. 139

Logan Hamilton SWIFT v. STATE of Maryland.

No. 98, September Term, 2005.

Court of Appeals of Maryland.

June 2, 2006.

COPYRIGHT MATERIAL OMITTED

Stacy W. McCormack, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for petitioner.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

RAKER, J.

The sole issue in this appeal is whether the trial court erred in denying petitioner's motion to suppress a controlled dangerous substance seized from him by the police. Petitioner Logan Hamilton Swift appeals the denial of his motion to suppress evidence of contraband obtained by the police. Because a reasonable person would not have felt free to leave under the circumstances in which the police officer encountered petitioner, and the police officer lacked any reasonable suspicion to stop petitioner, we shall hold that the Circuit Court for Wicomico County erred in denying petitioner's motion to suppress.

I.

Swift was charged in the Circuit Court for Wicomico County in a criminal information with the following offenses: possession of a regulated firearm under the age of twenty-one in violation of Md.Code (1957, 1996 Repl.Vol., 2001 Cum.Supp.), Art. 27 § 445(e)¹; wearing, carrying, or transporting a handgun upon his person in violation of Md.Code (2002, 2003 Cum. Supp.), § 4-203 of the Criminal Law Article;² possession of cocaine, a Schedule II CDS, with sufficient quantity to indicate an intent to distribute within a 1000 feet of a school in violation of § 5-627(a); possession of cocaine with intent to distribute in violation of § 5-602(2); and possession of cocaine in violation of § 5-601(c)(1).

Prior to trial, Swift filed a motion to suppress controlled dangerous substances that were seized from him,³ and a handgun recovered by the police which was about an arm's length from Swift when he was arrested.⁴ Deputy Dykes was the only witness to testify at the suppression hearing. The following facts were elicited. Deputy Jason Dykes was on routine patrol in a marked cruiser in Fruitland, Maryland, in the early morning hours of August 9, 2003. On that particular night, Deputy Dykes had not received any reports of criminal activity in the area. At approximately 3:13 a.m., Deputy Dykes was patrolling the area of Poplar Street and Elizabeth Street, an area he characterized as a high crime area with an open air drug market. While on patrol, he was wearing his uniform. He first saw Swift walking northbound on Poplar Street in the direction of Elizabeth Street. Deputy Dykes explained that he observed Swift probably three times, within three to five minutes, on Poplar Street and then on Elizabeth Street, and that Swift would look over his shoulder continually at him as he drove by. Swift was walking five feet from the edge of the pavement, walking into what would be the direction of oncoming traffic, if any.

Deputy Dykes stopped his cruiser about ten feet in front of Swift. Swift was walking down Elizabeth Street on his side of the road as the deputy drove up Elizabeth Street. At that time, Deputy Dykes stopped in front of Swift and got out of his car. He did not activate his emergency equipment or his siren, nor did he draw his weapon, but his headlights were on, and shining in the direction of Swift. Swift continued to walk toward the deputy's car, and the deputy, with his gun holstered, asked Swift for permission to talk with him "in order to perform a field interview stop" and obtain Swift's information. Deputy Dykes observed that Swift was wearing a black ball cap, a long white tee shirt that concealed his waistband, and blue jeans. The area was fairly dark, and the deputy and Swift were the only two individuals on the street. Deputy Dykes testified that Swift agreed to speak with him, and then explained his subsequent actions, as follows:

"[STATE]: What did you do after asking him to stop and talk to you?

[DEPUTY DYKES]: Asked him for ID, asked him for his information. He gave it to me. I called in a wanted check over the radio for him. At that time Officer Matt Brown with the Fruitland Police Department heard me call it in. Advised me over the radio that he was known for drugs and weapons.

[STATE]: Let me stop you there. How did you call in the warrant check to dispatch?

[DEPUTY DYKES]: Called in over my radio. I was standing outside the car with him, called in over my hand held radio, his name, date of birth, for a wanted check to see if he had any warrants on him.

[STATE]: While you were running that wanted check were you restraining him in any way?

[DEPUTY DYKES]: No. He was standing right with me, right in front of me, a couple of feet in front of me.

[STATE]: A couple feet between you and him?

[DEPUTY DYKES]: Yes.

[STATE]: What happened as you were waiting for the wanted check?

[DEPUTY DYKES]: Officer Matt Brown contacted me on the radio, advised me that he's known for drugs and weapons.

[STATE]: Who was he referring to?

[DEPUTY DYKES]: The Defendant, Mr. Swift. At that time, I acknowledged him.

[STATE]: Did he tell you what type of weapon he's known for?

[DEPUTY DYKES]: Guns, weapons. He told me, advised me he's known for CDS and guns."

Deputy Dykes explained that he used the pertinent police codes to complete the warrants check, and that he used an ear piece to receive transmissions from the dispatcher to prevent people from hearing the return transmissions. He asked Swift if he had any guns, knives, or drugs on him, and Swift said that he did not.⁵ Swift informed Deputy Dykes that he was on his way home.

Deputy Dykes then asked Swift if he could search him. Swift did not reply to the deputy's request but took some money out of his pocket, and then put his hands on the hood of Deputy Dykes's car, which the deputy viewed as consent. Deputy Dykes testified as follows:

"The Defendant kind of threw his arms up in the air, put his hands on the hood of my car, I took that as consent. I went to put my flashlight away and went to pat him down at that time.

* * *

"I went to secure my flashlight and approach him from behind to pat him down. At that time Mr. Swift pushed off from my hood and fled from me."

Deputy Dykes chased Swift, subsequently caught up with him, and arrested him. Officer Mark Perdue of the Fruitland Police Department arrived on the scene and searched Swift, recovering four individually wrapped, small bags of crack cocaine in Swift's pant leg and eighty dollars.

Prior to trial, Swift moved to suppress the evidence seized from him. Swift argued at the suppression hearing, that based on the totality of the circumstances, a reasonable person would not have felt free to leave, and thus he was detained illegally by the deputy.

The Circuit Court denied Swift's motion to suppress. The court ruled that under the facts of the case, a reasonable person would have felt free to leave, explaining as follows:

"Considering the totality of the circumstances what seems to me to be relevant is that there was one officer present. The officer was in uniform, he was in a marked patrol car. Although Mr. Swift came over to the police car, that was not as a result of any direction or order from the Deputy. The Deputy did not indicate to Mr. Swift that he was suspected of any crime.

"There's nothing from which I can conclude that the Deputy had any of Mr. Swift's documents. The Deputy said that he could not say categorically that he did not have an ID card. That seems to me to be something short of evidence that he did have it considering the testimony that his clear recollection is that he wrote the identification information down in his note pad.

"There's no indication of a display of weapon, of a tone of voice that would have indicated compliance with any request. There was no activation of emergency equipment. The encounter was a brief one, two to three minutes at most between the initial encounter and the time when Mr. Swift left the scene.

"There is evidence and defense relied in part on the blocking of the Defendant's path by the patrol vehicle. And there are cases in Maryland and other jurisdictions where using a car in an aggressive manner to block a Defendant's path or control the direction or speed of his movement is evidence of a seizure. The case, at least one that I recall, is one where the Defendant was walking and the police pulled the car across the Defendant's path and blocked the Defendant. In this particular case the evidence is the Defendant was in the highway, in the traveled lane of the highway, in the lane in which the officer was properly traveling. And that seems to me to be a far different factual predicate than was the case in Jones versus State, which is one where the blocking of the movement was found to be an indicia of seizure.

"There was no frisk.

"And basically what I find to be under the totality of the evidence is that there was a voluntary encounter, an accosting, a field interview, whatever term you want to place on it, but it's one which I think a reasonable person under the facts of this case would have felt free to leave. And indeed the evidence is Mr. Swift did feel free to leave, he took off at a certain point.

"So considering those facts I'm going to deny the motion."

Swift proceeded to a trial before the court on a not guilty plea, agreed statement of facts. The court found Swift guilty of the handgun violations and the controlled dangerous substance charge. Swift was sentenced to a term of incarceration on both charges.

Petitioner noted a timely appeal to the Court of Special Appeals. In an unreported opinion, the court affirmed the judgment of the trial court denying the motion to suppress. The court held that because "Officer Dykes did not `seize' Swift, even up to the point where Swift placed his hands on the patrol car as a show of consent, we have no occasion to...