The case of Sizer v. State, 2017 Md. LEXIS 270 is currently pending before the Maryland Court of Appeals, after cert was granted to the defendant following his take down by the Court of Special Appeals in State v. Sizer, 230 Md. App 640 (2016). The case has meandered down a long and winding road through the justice system, beginning on the mean streets of Columbia in Howard County, through Circuit Court, up to the Court of Special Appeals, back to Circuit Court, and now before the Court of Appeals. Depending on what the CoA determines, it could then find itself back in Circuit Court for trial.

The Court of Appeals will hear four issues:

  1. Where the police make an illegal stop of a person, discover a valid, pre-existing arrest warrant, and seize evidence from the person during a search incident to arrest, must the admissibility of that evidence be determined based on an application of the “attenuation factors,” as held in Utah v. Strieff, 136 S.Ct. 2056 (2016), Cox v. State, 397 Md. 200 (2007), and Myers v. State, 395 Md. 261 (2006), or may a court, as the CSA did in this case, reject the attenuation doctrine and find that such evidence will always be admissible because the arrest warrant constitutes an “independent source”?
  2. Did the hearing judge correctly rule that the discovery of a valid pre-existing arrest warrant did not attenuate the connection between the illegal stop of Petitioner and the evidence seized from him shortly thereafter?
  3. Where a person is under no obligation to interact with the police, does flight to avoid that interaction, by itself, justify a Terry stop; and if so, does it still justify the stop where there is evidence that flight was provoked by the threatening or startling actions of the police officers?
  4. Did the hearing judge correctly rule that police violated the Petitioner’s Fourth Amendment rights where the only observation officers made regarding Petitioner before tackling him was that he immediately ran upon noticing the six bicycle-riding police officers riding towards him?

For purposes of this article I will focus mainly on Issue 3, and to a lesser extent, Issues 1, 2 and 4.

Before getting into the specifics of the case, a brief refresher is in order. There are three distinct “levels of suspicion” concomitant with certain police actions related to interacting with citizens. The first is when a police officer walks up to a citizen on the street and simply wants to question them. Just because.

In order to have a conversation with a citizen, the police need have no level of suspicion that anything is amiss. In legal parlance, this is known as “accosting.” The police have every right to walk up to an individual and say, “Excuse me Sir, but might I have a word?” If the person politely responds with “Take a hike, Flatfoot” you must then exercise your legs.

Editorial – “Accost,” while it is the correct legal term, is nonetheless such a harsh word. If your wife or significant other came home and told you they had been “accosted” in Wal-Mart, you would immediately think the worst: either they were molested; someone tried to steal their purse or European man bag; or Girl Scouts tried to sell them cookies. The Thesaurus cites “annoy”, “confront”, “bother” and “challenge” as synonyms for “accost”, so you get my point. Please try and use a different word in your police reports and when testifying, especially before a jury. Words matter!

Should you decide that you want to briefly detain that individual and question them further, the required level of suspicion is reasonable articulable suspicion. That is, reasonable articulable suspicion that they are about to commit, are committing, or have committed a crime (and/or are armed and dangerous). Finally, should you want to place them under arrest, the required level of suspicion is probable cause. Nothing new here.

Facts of Sizer v. State

The interaction in question took place in the early evening hours of November 20, 2015. A number of Howard County police officers – comprising part of the “Bike Unit” – were patrolling a “high crime area” near the Owen Brown Village Center. That particular area had such a level of nefarious behavior that the police had established a nearby satellite office to keep a watch over it. Prior to the night in question there had been reports of a person brandishing a handgun near the Village Center. As we shall see, the establishment of that locale as being a high crime area is of utmost importance in the outcome of the case.

As the clock struck 5:30 the parking lot area was mostly dark. There were about a half-dozen individuals milling about a mini-van, being loud and boisterous and appearing to pass an alcoholic beverage back and forth. Someone in the group threw a glass bottle on the ground. One of the officers recognized a member of the group (not Mr. Sizer) who had been banned from the Village Center for repeated socially unacceptable behavior.

As the officers approached the group of civilians, they announced their presence by saying “Police. Stop. Don’t run.” The officers were in bright blue uniform jackets with the word “Police” in plain view. It was at that point that Sizer turned and immediately began sprinting away. Finding this suspicious, two of the officers on bikes chased him down, at which time Sizer stopped; raised his hands; and stated, “Okay, I have a pistol. I have a pistol.” The officers wrestled him to the ground, putting him in handcuffs. The on-scene supervisor approached and recognized Sizer as having open warrants for his arrest for distribution of marijuana and violation of probation, whereupon Sizer was arrested. He then stated that he had a gun and pills in his possession. A search incident to arrest on the warrant revealed a loaded .38 caliber revolver and a baggie containing 27 pills.

The Suppression Hearing

At a pre-trial hearing to determine the admissibility of the recovered evidence, the defense argued that the defendant’s actions in running from the scene did not provide the police with a reasonable suspicion to detain him. Sizer also argued that the discovery of the pre-existing warrant did not attenuate the connection between the unlawful detention and the evidence subsequently recovered.

While the hearing judge indicated in his opinion that the police were reasonable in every action they took, the court nonetheless determined that, regardless of the reasonableness of their actions “…flight, in and of itself, or not sticking around for the police to investigate you, in and of itself is not illegal.”

The court also determined that “there’s no per se illegality of having a weapon. I’m assuming that the defendant didn’t have a permit, but I don’t know that. It’s not per se illegal to have a weapon.”

The court went on to express the opinion that the police “probably saved the public from additional crimes that evening…Do I have any doubt that the defendant ran because he didn’t want to be arrested, because he had, probably, an illegal weapon on his person? Am I reasonably sure that he had illegal drugs on his person? Of course I am. I wasn’t born yesterday. But that’s not the issue. The issue is, were the rules followed?”

The hearing court ultimately determined that the rules were indeed not followed and suppressed the drugs and handgun because the police didn’t have a reasonable suspicion to detain Mr. Sizer.

The police and prosecutors of Howard County were not happy with the ruling and asked the Attorney General’s Office to appeal. They complied and the case made its way to the Court of Special Appeals.

Court of Special Appeals Decision

Judge Charles Moylan, writing for the majority, drafted a nice review of Terry–related law and the reasonable suspicion standard required to justify such stops. The majority quickly determined that in Sizer, “…constitutional protocols were scrupulously observed. The Fourth Amendment was not offended, and the evidence should not have been suppressed.” Victory for the good guys! On most days I would have read no further, but it’s Judge Moylan, and his opinions should be savored from start to finish, much like a fine wine. Never mind the fact that I once thought Ernest & Julio Gallo made fine wines.

The CSA opinion addressed at length the U.S. Supreme Court case of Illinois v. Wardlow, 528 U.S. 119 (2000) and determined that the facts in Sizer were, for all intents and purposes, a clone of Wardlow. Wardlow involved a team of eight Chicago officers in a high-crime area known for heavy narcotics trafficking. Wardlow, who was unknown to the police, was holding an opaque bag, and as he looked in the direction of the officers, turned and beat feet in the opposite direction. Some officers took off in pursuit and upon stopping him, conducted a pat-down for weapons. As part of the frisk, they squeezed the opaque bag and felt what appeared to be a handgun. Inside the bag was a .38 caliber handgun.

The issue in Wardlow, as in Sizer, was whether the police had reasonable suspicion to detain Wardlow based upon his flight from the scene.

The SCOTUS determined that an important factor in determining reasonableness of a Terry stop is the character of the neighborhood as a high crime area. The Court determined that the mere presence of a person in such a neighborhood “is not enough to support a reasonable particularized suspicion that the person is committing a crime…but that officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” Id @ 124.

While flight from the scene upon noticing the arrival of the police is not necessarily indicative of criminal activity, when that unprovoked flight is taken in tandem with the high crime nature of the community, it certainly suggests same. The Court in Wardlow explained that while a person in such a community certainly has the right to go about their business, remain silent and/or refuse to cooperate with the police, their unprovoked flight upon seeing the police gives rise to a reasonable suspicion that the person is up to no good.

Just as in Sizer, the defense in Wardlow argued that there may well be an innocent explanation for flight. The SCOTUS acknowledged that to be true, but stated that even innocent behavior may be suspicious nonetheless. The Court stated that even in Terry v. Ohio, the actions of Terry and his side-kick – while lawful – nevertheless gave rise to a reasonable suspicion that they were casing the store for a robbery.

While the defense continued to maintain that Mr. Wardlow had a right to “go about his business,” the SCOTUS had the following response:

Unprovoked flight is simply not a mere refusal to cooperate. Flight by its very nature, is not going about one’s business; in fact it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning. @ 125

In comparing the Wardlow facts to Sizer, Judge Moylan also referenced Bost v. State, 404 Md. 341 (2008), which culled the following from Wardlow: “The United States Supreme Court has made clear that unprovoked flight is enough to support reasonable suspicion that a crime has been committed.” 406 Md. 359-60

Judge Moylan made it clear that once Sizer turned and fled, he turned the focus onto himself and ratcheted up what had been only a non-particularized suspicion into a highly particularized and highly individualized suspicion. In other words, Sizer’s actions evidenced consciousness of guilt. While his flight was “not necessarily indicative of wrongdoing, it was certainly suggestive of such. Behavior that is certainly suggestive of wrongdoing is ample justification for a reasonable Terry stop.” @657

Terry Stops and Police Use of Force

The court went on to address the question of whether the physical take down of Sizer should have played a part in suppressing the evidence. It made clear that once the reasonable suspicion had risen above the level of an “inchoate hunch” and became a reasonable, articulable suspicion, the police were constitutionally authorized to detain a suspect and question him. In the words of Judge Moylan, “a Terry stop is a lawful exercise of governmental authority, not a mere request that may be disregarded. A suspect who physically resists being detained can be physically restrained.” @ 660.   That includes being tackled and/or being handcuffed and the Court determined there was no improper use of force.

Holding

The Court ultimately held that the unprovoked flight of Sizer from a high crime area upon the arrival of the police constituted reasonable articulable suspicion to support a Terry stop for further investigation. The Court went on to say that the ensuing search of the backpack would also have qualified as a reasonable Terry frisk, even absent the open warrant for his arrest, which allowed a search incident thereto.

Fruit of the Poisonous Tree

The Court then spent about 15 pages addressing the open arrest warrant and whether that warrant would have trumped the Terry stop even had the CSA deemed it to have been unlawful. The Court discussed the Fruit of the Poisonous Tree Doctrine and its three “antidotes”: Attenuation of Taint, Independent Source, and Inevitable Discovery. The Court determined that, even had the Terry stop been deemed unlawful, the existence of the warrant as an independent source would have produced the same evidence.

The defense pursued the classic “but/for” argument (as in but/for the unlawful Terry stop, the on-scene supervisor would not have recognized Sizer and therefore would not have been able to arrest him pursuant to the open warrant and therefore would not have searched him incident thereto.) The CSA determined that the “but/for” argument flies contrary to generally accepted Fourth Amendment jurisprudence going back to the days of Wong Sun v. United States, 371 U.S. 471 (1963).

Conclusion

The most important thing to take from Sizer is that in order to effectuate a valid Terry stop and frisk, the police must possess a reasonable articulable suspicion that the suspect is about to commit, is committing, or has committed a crime and/or is armed and dangerous. That reasonable articulable suspicion is determined on the totality of the circumstances, and can take into account the officer’s training, knowledge and experience. In circumstances based only on unprovoked flight from the police, it is incumbent upon police and prosecutors to establish that the area in which the flight took place is a high crime area. The mere presence in a high crime area is not enough, absent any additional observations and circumstances.

Hopefully, the Court of Appeals will apply similar reasoning and affirm the decision of the Court of Special Appeals. Stay tuned.

AS ALWAYS, PLEASE CHECK WITH YOUR LOCAL STATE’S ATTORNEY’S OFFICE WITH ANY SPECIFIC QUESTIONS RELATED TO THIS SUBJECT MATTER.