Thornton v. State
| Decision Date | 25 July 2018 |
| Docket Number | No. 1569, Sept. Term, 2016,1569, Sept. Term, 2016 |
| Parties | Tamere THORNTON v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Argued by: Michael T. Torres (Paul B. DeWolfe, Public Defender on the brief), Baltimore, MD, for Appellant.
Argued by: Benjamin A. Harris (Brian E. Frosh, Atty. Gen. on the brief), Baltimore, MD, for Appellee.
Panel: Nazarian, Arthur, Friedman, JJ.
Arthur, J.Tamere Hassan Thornton1 was charged in the Circuit Court for Baltimore City with offenses related to the possession of a handgun. After the circuit court denied his motion to suppress evidence, Thornton entered a plea of not guilty and allowed the case to proceed on an agreed statement of facts. On that basis, he was convicted of one count of possessing a regulated firearm after previously being convicted of a crime of violence. The court sentenced him to four years of imprisonment and permitted him to remain on bail during this appeal to challenge the suppression ruling.
For the reasons discussed in this opinion, we conclude that the circuit court did not err when it determined that the evidence of handgun possession was too attenuated from any unreasonable search to require the exclusion of that evidence. We affirm the judgment.
The basic facts are as follows: police officers detained Thornton for a parking infraction across the street from his home; after asking Thornton a few questions, the officers ordered him to step out of his car so that they could perform a pat-down search; as soon as the officer started to pat down Thornton's clothing, Thornton tried to run away, but he fell after a short distance; and the officers quickly restrained him and lifted him off the ground to discover a handgun underneath him.
The officers placed Thornton under arrest and transported him to a police station. They did not issue a parking citation. The weapon that they recovered was a .32 caliber semi-automatic handgun with a 2-1/8 inch barrel. It had one live round in the chamber and a magazine with five live rounds. Testing showed that it was operable.
Thornton was charged with five counts: (1) possessing a handgun after being convicted of a crime of violence; (2) possessing a handgun after being convicted of a disqualifying crime; (3) wearing, carrying, or transporting a handgun on or about his person; (4) wearing, carrying, or transporting a handgun in a vehicle travelling on a public road; and (5) possessing ammunition after having been prohibited from possessing a regulated firearm. He was released after posting bond.
Counsel for Thornton filed an omnibus motion, which included a request to suppress evidence obtained at the time of his arrest. The circuit court held a suppression hearing on August 29, 2016.
Only two witnesses testified: Baltimore City police officers Kenneth Scott and Jeremy Zimmerman. As the circuit court recognized, the two officers gave "somewhat conflicting stories" about some events leading to the discovery of the handgun. The court described Officer Scott's testimony as "unconvincing" in many respects, and it appeared to rely on some of Officer Zimmerman's testimony. To provide context for analyzing the court's ruling, this summary includes testimony from both officers.
At around 2:00 p.m. on January 11, 2016, three officers assigned to an "Operations Drug Unit" were travelling in an unmarked police vehicle on Midwood Avenue. According to Officer Scott, who was a passenger in that vehicle, they were "patrolling" and "driving through to go through McCabe for CDS," or controlled dangerous substances. He asserted that "McCabe" is "a high drug area, traffic [sic]" located "right off of Midwood."2 In the words of Officer Zimmerman, the driver of the vehicle, they were in the area looking for "[d]rugs, weapons, all kinds of things[.]"
At the same time, Tamere Thornton was sitting in the driver's seat of a Cadillac sedan parked across from his home on Midwood Avenue. The sedan's lights were off, and its engine was not running. On the same block, a tree-removal crew was occupying multiple parking spaces with two trucks and a set of cones. The sedan was parked nearby, facing against the flow of traffic, with its left wheels next to the curb. Maryland law requires that a vehicle parked on a two-way roadway must be "parked parallel to the right hand curb or edge of the roadway, with its right hand wheels within 12 inches of that curb or edge of the roadway." Md. Code , § 21-1004(a) of the Transportation Article ("TA").
Officer Scott noticed that the sedan was improperly parked on the wrong side of Midwood Avenue. Officer Zimmerman made a U-turn and stopped the unmarked police vehicle directly behind the sedan. The officers activated the emergency lights of the police vehicle, but did not activate its siren. Officer Zimmerman walked to the driver's side of the sedan, Officer Scott walked to the passenger side, and a third officer remained inside the police vehicle. The officers were wearing tactical vests with the word "POLICE" displayed in bold letters across their chests.
Thornton remained in the driver's seat of the sedan as the two officers approached. For a brief period of time, less than one minute, the officers proceeded to ask Thornton a few questions. Although Officer Scott claimed that the initial purpose of the encounter was to inform the driver that the sedan was "on the wrong side of the street," no testimony indicates that the officers actually told Thornton about the parking violation. According to both officers, Thornton's demeanor was "laid back," and he did not say anything unusual during the exchange. Nevertheless, both officers testified that, because of certain hand movements that Thornton made, they suspected that he might be carrying a weapon. As the circuit court noted, Officer Scott testified in "fairly vague terms" about these hand movements, while Officer Zimmerman's testimony "was less vague" on that matter.
Officer Scott, a 10-year veteran of the police department, asserted that he had training and experience in identifying armed persons. Throughout his testimony, Officer Scott frequently stated his conclusion that Thornton displayed "characteristics of an armed individual" while seated in the sedan. The only applicable "characteristic[ ]" that Officer Scott mentioned is that an armed person sometimes will perform "checks" by touching his or her "front waistband area," which, Officer Scott said, is a common place for a person to carry a firearm.
Officer Scott testified that he could see Thornton "looking out his mirror" as the officers approached the sedan. Officer Scott claimed that, as he approached the passenger side of the sedan, he saw Thornton "numerous times like start making movements to his front area[.]" According to Officer Scott, Thornton kept his hands "down on the side" and "around his waistband area." When asked about any hand movements that he may have observed, Officer Scott gave various responses:
Officer Scott testified that he did not speak to Thornton at first, but instead focused on observing Thornton's conduct while Officer Zimmerman questioned Thornton from the opposite side. At one point, Officer Scott heard Thornton say that he "lived across the street."3
Officer Scott asked Thornton if he would permit the officers to search the sedan. Thornton declined, which he certainly had the right to do. See Longshore v. State , 399 Md. 486, 537-38, 924 A.2d 1129 (2007) ().
In response, Officer Scott told Thornton that they would need to wait for a "K-9 unit" to arrive with an odor-detecting dog.
In his testimony, however, Officer Scott admitted that he did not actually intend to call for a K-9 unit. Officer Zimmerman later explained in his testimony that officers sometimes tell a detained driver that they intend to call a K-9 unit only "to gauge the reaction" of the driver. The circuit court described this tactic as "a bluff." There is no indication that Officer Scott's "bluff" provoked any particular reaction from Thornton.
Officer Scott testified that, after announcing an intention to call for a K-9 unit, he told Officer Zimmerman to "pull [Thornton] out of the vehicle" for a weapons check. During cross-examination, Officer Scott was unable to explain why he would have first asked permission to conduct a vehicle search and then suggested that he would call a K-9 unit if he had truly believed all along that Thornton was carrying a weapon. Officer Scott could only say that "the hair on the back of [his] neck ... stood up after a minute," which made him "think [Thornton] ha[d] something."
As the circuit court noted, Officer Zimmerman described in "greater detail," relative to his partner, the "specific motions" that Thornton allegedly made. Citing his training and experience from three years with the Baltimore City police, Officer Zimmerman asserted that common indications that a person may be armed include "a bladed stance...
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