(and no charge for the use of my PowerPoint!)

By David Daggett

As I was sitting at my desk pondering a subject for the October Blog, I looked over the website of recently published opinions by Maryland’s appellate courts. On October 26, 2016, the Court of Special Appeals issued the reported opinion of Santos v. Maryland, No. 2446, September Term, 2015, which is a great step-by-step analysis of the law covering stops, detentions, searches and seizures. For those of you who have suffered the fate of sitting through my yawn-inducing power point on the subject, you will recognize the names of just about every case that the CoSA cited in Santos (assuming you were awake.) Kudos to Judge Beachley for a very well thought-out and well-written opinion.

The Facts

On September 30, 2014, Detective Bridges and Sergeant Radowski of the Baltimore County Police Department were patrolling in an unmarked car near the Eastpoint Mall in Dundalk. It was a little past noon. They noticed a vehicle parked by itself away from the nearby McDonald’s, even though spaces were available closer to the restaurant. The officers both knew that that particular parking lot was a haven for narcotics transactions. The Appellant, Anthony Santos, was in the driver’s seat and a female, later identified as Amanda Fitch, was in the front passenger’s seat. They appeared to be “looking around” as if they were checking for police presence. Ms. Fitch got out of the car and entered the land of the golden arches, sitting at a table with a lone male. It was noted that Ms. Fitch was wearing pajama pants, which was either a fashion statement on her part or indicative of the fact that she had just woken up and didn’t have any clean jeans to wear. I’m not sure what, if any, relevance her sartorial selection had on this case, but it was mentioned in the opinion so far be it from me to leave it out.

As Ms. Fitch was seated inside, Santos left the parking lot and was observed “manipulating” his cell phone as he drove. Apparently his vehicle wasn’t equipped with blue tooth. It was the use of the cell phone while driving that provided the probable cause for the stop. Det. Bridges believed that everything he had seen up to this point was consistent with a drug transaction having taken place so they conducted a traffic stop of Santos’ vehicle in a nearby parking lot.

As the officers approached the vehicle, they identified themselves, explained the reason for the stop, and asked for Santos’ license and registration. Mr. Santos appeared unusually nervous, was trembling and sweating profusely, even though it wasn’t a hot day. When asked from where he was coming, Santos stated that he was coming from the mall and that he had not met with anyone. As he was clearly being dishonest about this piece of information, Santos was asked to exit his vehicle. Two other officers arrived within two to three minutes of the stop. A check of Santos revealed two possible warrants, which Det. Bridges requested the status of.

Sgt. Radowski and one of the other officers went back to the McDonald’s in search of Ms. Fitch, some Big Macs and some fries. Ms. Fitch was spotted coming out of the ladies room and upon questioning, indicated that she had “already used” the heroin she had purchased from Santos. She explained that Santos had retrieved the heroin from behind the passenger’s seat of his car and sold it to her. Sgt. Radowski radioed this information to Det. Bridges approximately six minutes after leaving the traffic stop. At the time the information from Ms. Fitch had been relayed to Det. Bridges, Santos’ license and registration had been verified but they were still awaiting the status of the warrants.

At this point – based upon the information relayed from Sgt. Radowski – Detective Bridges arrested Santos and searched his vehicle. Heroin and cocaine were found in the vehicle.

Motion to Suppress Evidence

The timing and sequence of events, along with the observations of the officers (or lack thereof, according to the defense) formed the basis of the suppression motion. The Circuit Court concluded that the traffic stop was a valid Whren v. United States, 517 U.S. 806 (1966) stop; that the questions asked of Santos were “routine”; and that reasonable suspicion existed to detain Santos based upon his actions, false answers and other observations made by the officers. Santos ultimately entered a guilty plea and received a hefty sentence, but filed a timely appeal.

The Stop

The Court of Special Appeals began its analysis with the “Whren-stop” and quoted from Charity v. State, 132 Md. App. 598, 601 (2000):

In Whren v. United States…the Supreme Court extended law enforcement officers a sweeping prerogative, permitting them to exploit the investigative opportunities presented to them by observing traffic infractions even when their primary subjective intention is to look for narcotics violations.

In assessing the traffic stop, the Court noted that the only concern is whether the officers possessed sufficient information to objectively justify the traffic stop. Here, the use of the cell phone while driving – a violation of TR §21-1124.2 – formed a valid basis for the traffic stop under Whren.

The Detention

The Court of Special Appeals cited Ferris v. State, 355 Md. 356 (1999), which outlined the limitations on law enforcement following a valid traffic stop, itself citing Berkemer v McCarty, 468 U.S. 420 (1984), which analogized the degree of intrusiveness of a traffic stop to the degree of restraint in a typical Terry v Ohio stop and Florida v. Royer, 460 U.S 491 (1983), in which the Court held that the detention of a person must be temporary and last no longer than is necessary to effectuate the original purpose of the stop (e.g. write the citation/s or warning). Once the underlying basis of the original stop has been completed, the person can only be further detained under two circumstances: 1) they consent; or 2) the officer has, at a minimum, reasonable articulable suspicion that criminal activity is afoot.

The Santos Court then focused its attention on reasonable articulable suspicion under Terry and explained how a traffic stop can transition into a continued detention based upon developing reasonable articulable suspicion. In other words, while the traffic (license, registration/proof of insurance) and warrant checks were going on, there was nothing to preclude the simultaneous narcotics investigation, just as long as it doesn’t appreciably extend the purpose of the traffic stop.

Totality of the Circumstances

In determining whether the police had reasonable articulable suspicion to detain Santos to investigate further, the Court based its ruling upon a totality of the circumstances analysis. The Supreme Court clearly spelled out that standard in United States v. Arvizu, 534 U.S. 266 (2002):

When discussing how reviewing courts should make reasonable suspicion determinations, we have said repeatedly that they must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing. This process allows officers to draw on their own experience and specialized training to make inferences and deductions about the cumulative information available to them that “might well elude an untrained person.” Arvizu @ 273

The Court in Santos went through all the observations made by Det. Bridges and Sgt. Rakowski (where the vehicle had been parked; that it was in an area often used for narcotics transactions; the furtive movements by Santos and Fitch, as if they looking for police presence; Fitch exiting the vehicle and joining another male in McDonald’s) and found it reasonable to believe – based on their training, knowledge and experience – that they were witnessing a drug transaction.

As previously noted, after making the traffic stop, Detective Bridges noticed Santos appearing nervous, sweating profusely and trembling. Santos then lied to the officers regarding whether he had met with anyone in the parking lot. While the stop of the vehicle was based upon the cell phone violation, the aggregate facts allowed for the continued detention of Santos, based upon a reasonable suspicion that criminal activity was afoot.

While Judge Beachley conceded that there might have been an innocent explanation for many, if not all, of Santos’ actions, his opinion referenced United States v. Sokolow, 490 U.S. 1 (1989), which held that reasonable suspicion can develop from “a series of acts, each of them perhaps innocent if viewed separately, but which taken together warrants further investigation.” He again cited Arvizu, in that reasonable suspicion determinations allow “officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might not be readily apparent to an untrained person.” Arvizu @ 273

The Court held that the circumstances of this case, in toto, were more than enough to form reasonable articulable suspicion and allowed officers to further investigate.

The Appellant argued that the officers exceeded the permissible scope of the traffic stop when they asked the appellant where and with whom he had been, maintaining that those questions were improper because they were unrelated to the traffic stop. The Court disagreed, being persuaded by the United States Court of Appeals decision in United States v. Mason, 628 F. 3d 123 (4th Cir. 2010):

There is no support in Fourth Amendment jurisprudence for the notion that questioning unrelated to the purpose of a traffic stop requires reasonable suspicion, provided that the questioning occurs within the timeframe reasonably necessary to effectuate the traffic stop. An officer’s questions or actions during the course of a traffic stop or any other legal detention need not be solely and exclusively focused on the purpose on that detention.

Mason quoted from Arizona v. Johnson, 555 U.S. 323 (2009), in which the Supreme Court noted:

A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of the driver and passengers ordinarily continues and remains reasonable, for the duration of the stop.…an officer’s inquiries into matters unrelated to the justification for the traffic stop…do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.

The Duration of the Stop

In general, the constitutional length of a Terry-stop varies significantly from that of a traffic stop, including Whren-based stops. Under Ferris (as well as Rodriguez v. United States, 135 S. Ct 1609 (2015)), once the purpose of the traffic stop has been completed, further detention is not permitted. With Terry-stops, however, the key question is whether the police “diligently pursued a means of investigation that was likely to confirm or dispel their

[reasonable] suspicions quickly.”

According to Carter v. State, 143 Md. App. 670 (2002), “the permitted duration of a Terry-stop cannot be measured by the clock alone. Carter @ 692. Where reasonable suspicion quickly appears after a Whren traffic stop, the rules pertaining to Terry-stops take over. The question then becomes whether the police pursued their investigation from that point in a diligent and reasonable manner.


The Court of Special Appeals affirmed the trial court’s findings, concluding that the original stop of Santos was a valid Whren-stop (based upon the cell phone usage); that reasonable suspicion to detain was developed minutes after the original traffic stop; that it was that reasonable suspicion that justified the ongoing detention; that the officers pursued their on-going Terry investigation in a diligent and reasonable manner; the reasonable suspicion detention morphed into probable cause to arrest; which justified the search of the vehicle incident to arrest.

Good work by the Baltimore County Police Department!