Thornton v. State, No. 51, Sept. Term, 2018

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Greene, J.
• Citation: 214 A.3d 34,465 Md. 122
• Docket Number: No. 51, Sept. Term, 2018
• Decision Date: 06 August 2019
• Parties: Tamere THORNTON v. STATE of Maryland

465 Md. 122
214 A.3d 34

Tamere THORNTON
v.
STATE of Maryland

No. 51, Sept. Term, 2018

Court of Appeals of Maryland.

August 6, 2019

Argued by Michael T. Torres, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland of Baltimore, MD), on brief, for Petitioner.

Argued by Benjamin A. Harris, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland of Baltimore, MD), on brief, for Respondent.

Argued before: Barbera, C.J.,^* Greene, McDonald, Watts, Hotten, Getty, Sally D. Adkins (Senior Judge, Specially Assigned), JJ.

Greene, J.

465 Md. 129

In the present case, we are asked to review the constitutionality of the means by which police officers discovered a gun in

465 Md. 130

the possession of Petitioner Tamere Thornton ("Petitioner" or "Mr. Thornton"). On the afternoon of January 1, 2016, three police officers were on patrol looking to discover guns, drugs, or other contraband when they observed Petitioner sitting in the driver's seat of a vehicle that was illegally parked outside of Petitioner's home. The officers approached the parked vehicle and ultimately began to frisk Mr. Thornton, which culminated in Mr. Thornton's arrest after officers confirmed that he possessed a handgun. We hold that the gun should have been excluded as evidence against Petitioner because the State failed to establish that the frisk of Petitioner was reasonable under the circumstances. Moreover, the attenuation doctrine does not serve to render the evidence admissible because the officers discovered the handgun by exploitation of the unlawful frisk, and the officers' misconduct was flagrant.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Thornton was charged and convicted in the Circuit Court for Baltimore City with possession of a firearm after having been convicted of a disqualifying crime.¹ The charge and conviction followed an incident, which culminated in Mr. Thornton's arrest after officers removed a handgun from Mr. Thornton. Mr. Thornton filed a motion to suppress, seeking to exclude the gun as evidence against him at trial. On August 29, 2016, the trial court held a

214 A.3d 39

suppression hearing on Mr. Thornton's motion.

The Suppression Hearing

The State called Officers Kenneth Scott ("Officer Scott") and Jeffrey Zimmerman ("Officer Zimmerman") to testify as witnesses during the suppression hearing. Mr. Thornton's

465 Md. 131

counsel cross-examined the officers, but Mr. Thornton did not testify or otherwise call any witnesses at the hearing. To summarize the facts of this case, we look to testimony from both officers.

On January 1, 2016 at approximately 2:00 p.m., Officers Scott and Zimmerman were on patrol in an unmarked police car. They were accompanied by a third officer, who was identified as Officer Gruver. The officers were driving on Midwood Avenue, intending to turn left onto McCabe Avenue. According to Officer Scott, McCabe Avenue is "a high drug area[.]" The officers were in the area looking for drugs, weapons, and other contraband.

Meanwhile, Mr. Thornton was on the 5200 block of Midwood Avenue, sitting in the driver's seat of a silver Cadillac. The vehicle's lights and engine were off, and Mr. Thornton was the only occupant. The vehicle was parked along the curb across the street from Mr. Thornton's home, but it was facing the wrong direction.² As the suppression court found, there was construction work being done on the street that interfered with ordinary parking.

Officer Scott noticed the improperly parked vehicle. At Officer Scott's direction, Officer Zimmerman, who was driving the police car, pulled behind Mr. Thornton's vehicle and activated the emergency lights on the police car. The officers intended to inform the vehicle's driver that the car was illegally parked. Officers Scott and Zimmerman exited the police car and approached the parked vehicle. Officer Zimmerman approached on the driver's side, and Officer Scott approached on the passenger's side.

465 Md. 132

When the officers reached the car, they questioned Mr. Thornton for approximately 30-40 seconds. There is no indication that the officers informed Mr. Thornton that his vehicle was illegally parked. In addition, the officers never issued Mr. Thornton a parking citation. Neither officer could affirm that they investigated the license plate on Mr. Thornton's vehicle or asked Mr. Thornton for his license and registration, although both officers testified that running a vehicle's tags and asking for a driver's license and registration is standard procedure for issuing a parking citation to the operator of an illegally parked vehicle.

By all accounts, Mr. Thornton's demeanor while he was being questioned was "laid back." The suppression court found that there was "no indication of verbal aggressiveness, disobedience, [or] false identification." There was "[n]o evidence of a tip, that something bad had happened .... [T]here was no evidence of a rash of recent crimes that [Mr. Thornton] could be assigned to. No indication that [Mr. Thornton] fit some description of some third party." Nonetheless, both officers testified that Mr. Thornton showed characteristics of an armed individual. According to the

214 A.3d 40

trial court's factual findings, to support their notion that Mr. Thornton was armed, "[a]ll [the officers] ha[d] [wa]s ... conduct with [Mr. Thornton's] hands [that the officers observed] while [Mr. Thornton was] being approached by the police officers."

At the suppression hearing, the officers described the conduct they observed that led them to believe that Mr. Thornton was armed. Even though Mr. Thornton was observed seated in a vehicle, Officer Scott testified that when a person is armed, "they walk ... with their arm[s] straight, sometimes they don't like swing their arms a lot or they check[ ] ... their ... front waistband area." Officer Scott explained that, as he was approaching Mr. Thornton's car, he saw Mr. Thornton looking out of his mirror. He also saw Mr. Thornton "numerous times like start making movements to his front area[.]" He did not describe the specific movements that he saw. Officer Scott explained that, while Mr. Thornton was being questioned, Mr. Thornton had his hands down by his side near his

465 Md. 133

waist. According to Officer Scott, "[Mr. Thornton] just kept like doing like a check, like just trying to, I don't know, like push it down or ... I don't know ... just to make sure it's secured." Mr. Thornton made such movements "[n]umerous, numerous times." Officer Scott inferred that Mr. Thornton was doing "a weapons check ... like he had something he was trying to hide."

Officer Zimmerman testified that an armed individual may have "a bladed stance away from you, [do] security checks, maybe favor[ ] one side of [his or her] body but a big one is ... hold[ ] the area where the weapon is concealed." Officer Zimmerman indicated that, when seated in a vehicle, the individual may move his or her shoulders "up or down drastically and that would show that [the individual is] maybe trying to reach under [his or her] seat or to, you know, further conceal something in [his or her] front waistband." In addition, Officer Zimmerman noted that the suspect may make "quick movements that are kind of uncharacteristic with just being seated in a vehicle."

Officer Zimmerman testified further that, as he was approaching Mr. Thornton's vehicle, he saw Mr. Thornton "raise his right shoulder and kind of bring his elbows together[.]" Officer Zimmerman said that Mr. Thornton appeared "uncomfortable with whatever was in his lap ... he kept trying ... [to] mak[e] adjustments, kept his hands in front of his lap." When speaking with the officers, "Mr. Thornton would lean over to the right to address ... Officer Scott and then again would sit back down and attempt to adjust something in his waistband." Mr. Thornton appeared to be "manipulating something, that he was obviously uncomfortable with, didn't like the position or ... the size, the shape, but there was something that he was manipulating." At first, Officer Zimmerman said that Mr. Thornton made such movements two or three times. Later, Officer Zimmerman testified that Mr. Thornton touched his waistband four to five times. Officer Zimmerman conceded that Mr. Thornton may have been moving to address the officers, who were stationed on either side of his vehicle. He also acknowledged that, in his experience, individuals tend

465 Md. 134

to be more nervous around police and may move around as a result. He maintained, however, that Mr. Thornton was not making nervous movements; his movements were characteristic of an armed person.

Because the officers thought that Mr. Thornton exhibited signs of an armed individual, Officer Scott said that the stop was no longer an ordinary traffic stop. Officer Scott asked Mr. Thornton whether he could search Mr....