Trott v. State, No. 2066

CourtCourt of Special Appeals of Maryland
Writing for the CourtKRAUSER.
Citation770 A.2d 1045,138 Md. App. 89
Decision Date25 April 2001
Docket NumberNo. 2066
PartiesDonald Glenn TROTT, v. STATE of Maryland.

770 A.2d 1045
138 Md.
App. 89

Donald Glenn TROTT,
v.
STATE of Maryland

No. 2066, Sept. Term, 1999.

Court of Special Appeals of Maryland.

April 25, 2001.


770 A.2d 1047
Michael R. Malloy, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Leigh S. Halstad, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore and Frank Weatherbee, State's Attorney for Anne Arundel County, Annapolis, on the brief), for appellee.

Submitted before MOYLAN,1 SALMON, KRAUSER, JJ.

770 A.2d 1046
KRAUSER, Judge

In this appeal, we are asked to consider once again the question of when an on-the-street inquiry by a police officer becomes a seizure of the inquiree under the Fourth Amendment to the United States Constitution. Although viewed by some as a quagmire of quibble, this area of the law, with all its niggling distinctions, lies at the heart of maintaining a free, just and ordered society. To that end, we willingly enter the maze of precedent that has developed

770 A.2d 1048
around this issue in the hope of emerging with our common sense intact and our decisional law enhanced

Appellant, Donald Glenn Trott, was convicted of second degree burglary after a bench trial on an agreed statement of facts in the Circuit Court for Anne Arundel County. He was subsequently sentenced to a term of ten years' imprisonment, five years of which were suspended.

Before trial, appellant unsuccessfully moved to suppress the fruits of his crime and his statements to police on the ground that, when he was initially approached and questioned by a police officer about the equipment in his possession, he was in effect "seized" by that officer who, according to appellant, had no reasonable articulable suspicion that appellant was involved in criminal activity. Therefore, according to appellant, his "seizure" and subsequent arrest were in contravention of the Fourth Amendment. The denial of that motion by the circuit court forms the basis of this appeal.

BACKGROUND2

At the hearing on appellant's motion to suppress, testimony was presented that on February 19, 1999, at approximately 3:23 a.m., Anne Arundel County Police Officer Middleton was walking down a residential street, Bellerive Drive, when he heard a loud crash. At that time, he was in uniform and on duty.

Moments later, he observed appellant pushing a woman's bicycle with a "kid's tote ... attached to the back" up Bellerive Drive. The street was well lit, and, as appellant approached, Officer Middleton could see that the tote contained a weed whacker, a snow blower, a large tire, and a tow hitch. At the suppression hearing, Officer Middleton testified:

I observed a subject walking up [Bellerive]3 Drive pushing a female bicycle that had a caption [sic] on the back of the bicycle commonly carried two children [sic]. It was a double—they call it a kid's tote that's attached to the back of the bicycle. And loaded in the back in the kid's tote, I observed a snow blower, a weed whacker and a large ... tire and capacity tow hitch[ ] that were loaded in the back of this tote. And there was a white male pushing the bicycle up the hill, and that's when I first observed him. He was on the street pushing the bicycle with all these items in the back.

"[B]ecause it was 3:30 in the morning..." and it "looked completely out of place," Officer Middleton walked over to appellant, who was on the other side of the street. He asked appellant "what he was doing with the items and the bicycle." In reply, appellant stated that, on the way home, his pick-up truck had broken down, and "he did not want to leave the materials in the back of the pick-up truck." When he gave his name upon the officer's request, Middleton immediately recognized it as the name of someone who "ha[d] been involved in numerous break-ins in the past."

Officer Middleton then radioed for a back-up unit. While on the radio, he was advised by another officer to "be careful"

770 A.2d 1049
because appellant "was wanted and to hold on to him, because he was going to run."

As the field interview progressed, the officer, either knowing that appellant had no driver's license or playing a hunch that he did not have one, commented on that fact. In response, appellant stated that his brother had been driving the truck when it broke down. Worried that appellant might have overheard the radio transmissions and concerned that appellant was growing more "nervous" and "jittery," the officer placed appellant in handcuffs for, as he put it, "his and my safety." Officer Middleton then ran a warrant check and learned that there was an outstanding warrant for appellant's arrest. The officer placed appellant under arrest at approximately 3:35 a.m., twelve minutes after he had first approached appellant.

Departing from the record of the motion to suppress,4 we note that the next day the police were contacted by a "Mr. Weber." He advised the police that very early that morning he and his son had "heard a noise... out back" but, seeing nothing, had gone back to bed. When they awoke later that day, they discovered that the "storage shed located toward the rear of [their] home" had been broken into and that, among the items stolen, was a woman's bike, a weed whacker, a snow blower, and a "tot tote." Upon arriving at the police station, they identified the items taken from appellant as the property that had been stolen from their storage shed.

At the conclusion of the suppression hearing, the circuit court denied appellant's motion to suppress the items seized, finding that Officer Middleton's initial stop of appellant was based upon a reasonable articulable suspicion that appellant was engaged in criminal activity. The court also denied appellant's motion as to the state-ments he made to the officer, concluding that appellant had voluntarily made those statements to police.

DISCUSSION

I

Appellant contends that his "initial stop" by the police officer constituted a seizure and that the officer seized him without a reasonable articulable suspicion of criminal activity and thereafter arrested him without probable cause. Therefore, appellant claims, the circuit court erred in failing to grant his motion to suppress. We disagree.

When the officer walked over to appellant and asked who he was and what he was doing—an encounter that appellant characterizes as the "initial stop"—no seizure occurred within the meaning of the Fourth Amendment. Even if one did, the officer had a reasonable articulable suspicion to make that "stop." Moreover, the arrest that followed was supported by probable cause.

In reviewing a denial of a motion to suppress, we accept the findings of fact made by the circuit court, unless they are clearly erroneous. See Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. 341, 346-47, 574 A.2d 356 (1990). Our review is based solely upon the record of the suppression hearing. See In re Tariq A-R-Y, 347 Md. 484, 488, 701 A.2d 691 (1997). And we review that record in the light most favorable to the prevailing party. See Riddick, 319 Md. at 183, 571 A.2d 1239; Cherry v. State, 86 Md.App. 234, 237, 586 A.2d 70 (1991). We review de novo, however, all legal conclusions. See Riddick, 319 Md. at

770 A.2d 1050
183, 571 A.2d 1239. In other words, this Court must make its own independent constitutional determination of whether the encounter in question and subsequent arrest of appellant were lawful. Id.; Perkins, 83 Md.App. at 346, 574 A.2d 356.

The Fourth Amendment proscribes unreasonable searches and seizures, but not every encounter between a citizen and a police officer constitutes a "seizure." As the Supreme Court observed in Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), "[s]treet encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations...."

Nor does police questioning transform such an encounter into a seizure. "Mere police questioning does not constitute a seizure. This is so even if the police lack any suspicion, reasonable or otherwise, that an individual has committed a crime or is involved in criminal activity, because the Fourth Amendment simply does not apply." Ferris v. State, 355 Md. 356, 374-75, 735 A.2d 491 (1999) (internal citations omitted). Indeed, "[u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment." INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984).

Such an encounter has been dubbed, for better or worse, an "accosting." Unfortunately, the term itself, though no doubt intended to be a neutral description of actions taken by a police officer to trigger an encounter, connotes a confrontational and unwelcome act by the investigating officer and thereby begs the question whether the subject of the "accosting" was intimidated by the officer's conduct.5 The better and more neutral term, we believe, is "inquiry." For the purposes of this opinion, however, we will use the terms interchangeably as we fear that the term "accosting" is too well rooted in the case law to be extirpated.

"Typically, an accosting occurs when police officers approach a citizen and ask for information, usually one's name, address, date of birth, destination, point of origin, and contents of luggage or vehicle." Reynolds v. State, 130 Md.App. 304, 322-23, 746 A.2d 422 (1999), cert. denied, 358 Md. 383, 749 A.2d 173, and cert. denied, ___ U.S. ___, 121 S.Ct. 178, 148 L.Ed.2d 122 (2000). Such a procedure is not only constitutionally permissible but plays a pivotal role in law enforcement. A "field investigation" is "the principal investigative technique in law...

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41 practice notes
  • Graham v. State, No. 1246
    • United States
    • Court of Special Appeals of Maryland
    • September 6, 2002
    ...out to Jones using one of three salutations—"Hey, could you come here" or "Hold on a minute" or "Hey, wait a minute." In Trott v. State, 138 Md.App. 89, 770 A.2d 1045 (2001), this Court, by way of contrast, found a street encounter to have been completely consensual. One of the factors we f......
  • Harrod v. State
    • United States
    • Court of Special Appeals of Maryland
    • April 30, 2010
    ...and (2) to prevent a suspect's flight. Id. (citing, respectively, In re David S., 367 Md. 523, 789 A.2d 607 (2002), and Trott v. State, 138 Md.App. 89, 770 A.2d 1045 Even under these scenarios, there is no bright line marking the point at which a Terry stop and frisk rises to the level of a......
  • Hatcher v. State, No. 1055 September Term, 2006.
    • United States
    • Court of Special Appeals of Maryland
    • November 7, 2007
    ...occupants of the car. Handcuffing alone does not necessarily transform an investigatory 935 A.2d 480 stop into an arrest. Trott v. State, 138 Md.App. 89, 770 A.2d 1045, a 2001 case. Within approximately 10 minutes of the stop, Officer Kelley was given information that a Carroll Antonio Hatc......
  • Williams v. State, No. 1597
    • United States
    • Court of Special Appeals of Maryland
    • June 26, 2013
    ...David S., 367 Md. at 539, 789 A.2d 607 (not an arrest when defendant was forced to the ground and placed in handcuffs); Trott v. State, 138 Md.App. 89, 118, 770 A.2d 1045 (2001) (not necessarily an arrest when defendant was handcuffed because it was a “protective and flight preventive measu......
  • Request a trial to view additional results
41 cases
  • Graham v. State, No. 1246
    • United States
    • Court of Special Appeals of Maryland
    • September 6, 2002
    ...out to Jones using one of three salutations—"Hey, could you come here" or "Hold on a minute" or "Hey, wait a minute." In Trott v. State, 138 Md.App. 89, 770 A.2d 1045 (2001), this Court, by way of contrast, found a street encounter to have been completely consensual. One of the factors we f......
  • Harrod v. State
    • United States
    • Court of Special Appeals of Maryland
    • April 30, 2010
    ...and (2) to prevent a suspect's flight. Id. (citing, respectively, In re David S., 367 Md. 523, 789 A.2d 607 (2002), and Trott v. State, 138 Md.App. 89, 770 A.2d 1045 Even under these scenarios, there is no bright line marking the point at which a Terry stop and frisk rises to the level of a......
  • Hatcher v. State, No. 1055 September Term, 2006.
    • United States
    • Court of Special Appeals of Maryland
    • November 7, 2007
    ...occupants of the car. Handcuffing alone does not necessarily transform an investigatory 935 A.2d 480 stop into an arrest. Trott v. State, 138 Md.App. 89, 770 A.2d 1045, a 2001 case. Within approximately 10 minutes of the stop, Officer Kelley was given information that a Carroll Antonio Hatc......
  • Williams v. State, No. 1597
    • United States
    • Court of Special Appeals of Maryland
    • June 26, 2013
    ...David S., 367 Md. at 539, 789 A.2d 607 (not an arrest when defendant was forced to the ground and placed in handcuffs); Trott v. State, 138 Md.App. 89, 118, 770 A.2d 1045 (2001) (not necessarily an arrest when defendant was handcuffed because it was a “protective and flight preventive measu......
  • Request a trial to view additional results

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