The Maryland Court of Appeals just recently issued an opinion in the case of Sellman v. State, 2016 Md. Lexis 563, No. 84, September Term, 2015 in which it addressed the existence of reasonable suspicion to conduct a Terry frisk or pat down. While the holding did not go well for the State, the opinion does provide an excellent refresher for police and prosecutors as to exactly what is required of law enforcement officers prior to conducting a Terry type pat down for weapons.
Preliminarily, it is necessary to point out that while there is no such thing as a “pat down for officer safety” exception to the warrant requirement, it goes without saying that officer safety is of paramount concern, so you need to do what you need to do to be safe. That being said, just be aware that the sanction for an unlawful pat down may be the exclusion of any evidence discovered subsequent to that pat down, but it’s better to lose a case than to lose a life. Hopefully, this month’s blog will provide you with a little more insight on what is required under Terry.
On November 12, 2013, at approximately 2:00 a.m., a Corporal D and Officer K of the Anne Arundel County Police Department were on patrol and driving through a large apartment complex that contained over 50 buildings and 1,000 residents. The location was considered to be a high crime area because during the year that Cpl. D had been patrolling the area there had been a shooting, the recovery of handguns, multiple thefts from cars and numerous drug arrests had occurred.
As the two officers entered the complex, they saw a vehicle stopped at a stop sign and observed an individual, later identified as the appellant, Donzel Sellman, walk from an unlighted area of one of the buildings. Sellman saw the officers and abruptly stopped and appeared to turn and move towards a different direction. After the officers drove past, they saw Selman continue in his original direction and enter the vehicle that was first observed stopped at the stop sign.
As this struck the officers as being somewhat suspicious behavior, they followed the vehicle and, noticing a broken taillight and a broken light dangling by a wire harness below the bumper, activated their emergency equipment and stopped the vehicle.
Cpl. D approached from the driver’s side and observed four occupants inside, including Sellman, in the left-rear passenger seat. When asked what they were doing in the area, the driver (Gillespie) indicated that she was there to pick up a pregnant friend and take her to get something to eat. Undoubtedly only the finest culinary establishments are open at that time of day, although that didn’t seem to play a part in the Court’s analysis of the case. After determining that there were no open warrants or reports of the vehicle being stolen, the driver was given a written warning and asked to walk to the rear of the vehicle to see the items in need of repair.
At this point, Cpl. D asked Ms. Gillespie whether the officers could search the vehicle, as there had been problems in the area with drugs and thefts. Both officers later testified that Ms. Gillespie consented to the search. Ms. Gillespie then told the officers that Sellman also lived in the complex and that they had picked him up as well. At that point there seemed to be conflicting statements as to who actually lived in the apartment complex so Cpl. D asked for identification. Cpl. D testified that Sellman had no ID and “kept looking straight ahead and never looked at me.” Sellman then provided the officers with the name ‘Marcus Neal Saunders’ and gave a D.O.B. of July 12, 1982.
While no warrants existed for the occupants of the vehicle, the name Marcus Saunders had no MVA record, no arrest record or anything else associated with the name. Sellman (Saunders) then indicated that he’d never had a driver’s license, never been arrested and never been in trouble, at which point he was ordered out of the vehicle and frisked.
According to the suppression hearing testimony of Cpl. D, Sellman was frisked because the Corporal had received conflicting stories about who had been picked up and where, whether anyone of the four lived in the complex and that it was odd that the vehicle was being driven through the complex and picking up people at 2:00 a.m. Cpl. D then testified that before he continued his search of the vehicle, he wanted to make sure that none of the passengers were carrying any weapons. Cpl. D then testified at the suppression hearing that the department had standard operating procedures when conducting a vehicle search, which was to clear the vehicle of all occupants and frisk them for weapons. Sellman was asked if he had any weapons on him and he responded “no.” During the subsequent pat down a handgun was discovered in Sellman’s waistband along with cocaine, PCP, oxycodone, heroin and case. Apparently, amongst other things, Mr. Sellman wasn’t the most honest of individuals as he did, in fact, have a weapon and his name wasn’t Saunders.
Prior to trial in Circuit Court, Sellman moved to suppress the evidence recovered on the grounds that the frisk was unconstitutional because the officers lacked a reasonable basis to believe Sellman was armed and dangerous. The Circuit Court determined that there was reasonable articulable suspicion to conduct the frisk because the officers “were outnumbered; in a high crime area and it was late at night. The defendant had come from a dark area; his rigid and nervous behavior in the vehicle led to some suspicion on the officer’s part.” Sellman was found guilty of PWID cocaine and possession of a firearm during a drug trafficking crime.
Sellman appealed that conviction to the Court of Special Appeals, which determined that the facts did create a reasonable suspicion that Sellman was armed and dangerous and that he had or was planning to commit a crime. The Court of Appeals granted cert to determine whether it was reasonable to conclude that “Mr. Sellman was armed and dangerous, simply because he was stopped for generally suspicious conduct in a high crime area where thefts from cars had been reported at some unspecified time in the past?”
In Terry v. Ohio, 392 U.S. 1, 88 S. Ct 1868 (1968) the Supreme Court determined that on the basis of reasonable suspicion that an individual is armed and dangerous, an officer may conduct a limited pat down of the suspect’s outer clothing, with its purpose being not to discover evidence of a crime, but rather to protect the police officer and members of the public from harm by checking for weapons.
In a two-step process, the officer may first conduct a brief investigative stop of an individual if the officer has a reasonable suspicion that criminal activity is afoot. In order to take the next step and conduct a pat down/frisk, additional reasonable suspicion must exist that the person is armed and dangerous. The officer need not be absolutely certain that the person is armed and dangerous nor does the officer even need to possess probable cause to believe it to be the case. The Supreme Court in Terry determined that the question is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others, was in danger.” 392 U.S @27, 88 S. Ct. at 1883. “In determining whether the officer acted reasonably in such circumstances, due weight must be given, not to the unparticularized suspicion or hunch, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” 392 U.S. @27, 88 S. Ct. 1883. Perhaps this what the band Boston was singing about in their classic hit “More than a Feeling.”
When reviewing whether reasonable suspicion exists, “the test is ‘the totality of the circumstances,’ as viewed through the eyes of a reasonable, prudent, police officer.” Bost v. State, 406 Md. 341, 356 (2008).
The test is objective: “the validity of the stop or the frisk is not determined by the subjective or articulated reasons of the officer; rather, the validity of the stop or frisk is determined by whether the record discloses articulable objective facts to support the stop or frisk.” Ransome v. State, 373 Md. 99, 115 (2003).
Reasonable suspicion requires an officer to have “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion…” Terry, 392 U.S. at 21. In other words, “the officer has reason to believe that an individual is armed and dangerous if a reasonably prudent person, under the circumstances, would have felt that he was in danger, based on reasonable inferences from particularized facts in light of the officer’s experience.” Bailey v. State, 412 Md. 349 (2010) at 367.
In making its assessment as to whether a police officer acted “reasonably,” the court will give due deference to the training and experience of the law enforcement officer. This allows the officer to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might elude an untrained person. Crosby v. State, 408 Md. 490 (2009).
When it comes to a suppression hearing, the prosecutor should elicit from the officer “how the observed conduct, when viewed in the context of all of the other circumstances known to the officer, was indicative of criminal activity.” Crosby, 408 Md. at 508.
It is important to note that, in order to justify the frisk, an officer must have a reasonable suspicion that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous.
While clearly this was a close call, the Court of Appeals ultimately determined that under the totality of circumstances, the record from the trial court did not disclose enough articulable objective facts to support the frisk. The Court went over a number of factors it deemed pertinent to its analysis and ultimately concluded that they did not justify the frisk.
Although conceding that “while there undoubtedly is some risk to the police in every confrontation, nonetheless the Court emphasized that Terry has never been thought to authorize a protective frisk on the occasion of every authorized stop.” Citing from Simpler v. State, 318 Md. 311 (1990).
The Court noted the absence of any testimony from the officers providing individualized, objective reasonable suspicion that Sellman was involved in the thefts of property from cars. It determined that a generalized concern about theft from cars in the area was not on par with reasonable suspicion, and, without more, was too weak and attenuated to provide reasonable suspicion that criminal activity was afoot.
Lawfulness of Institutionalized Police Department Policies
The second issue addressed in Sellman was the lawfulness of a police department policy which ostensibly authorized officers – prior to conducting a consent search of a vehicle – to pat down the occupants of the car.
The Court rejected the idea that departments could authorize by “policy” that which is counter to Terry and its progeny and again referred to Simpler v. State, 318 Md. 311 (1990), where the Court of Appeals rejected the assertion that an officer could conduct a pat-down of a person as a “matter of routine caution.” The Court stressed that while most police confrontations carry with them some degree of risk, Terry has never been thought to authorize a protective frisk on the occasion of every authorized stop. The Court re-iterated that before an officer “places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.” United States v. Powell, 666 F. 3d 180, 185 (4th Cir. 2011).
To allow officers to conduct patdowns in all police-citizen encounters under the umbrella of “officer safety” would render the holding in Terry null and void and the Court wasn’t having any of that.
Inferring Weapons Use with Certain Crimes
The final issue in Sellman dealt with the Court of Special Appeals’ inference that certain crimes imply the use of a deadly weapon, therefore justifying a Terry frisk. The Court declined to create a bright line rule that the theft of property from cars automatically allows officers to infer that an individual is armed. The Court again stressed that the test as to whether reasonable suspicion exists is the totality of the circumstances as viewed through the eyes of a reasonable, prudent, police officer. “Would a reasonably prudent person, under the circumstances, have felt that he was in danger, based on reasonable inferences from particularized facts in light of the officer’s experience?” Bailey, 412 Md. At 367.
The Court of Appeals cited Justice Harlan’s opinion in Terry and listed a number of circumstances that could possibly justify a pat down in suspected “minor” crimes, including the suspect’s admission he is armed; a characteristic bulge in the suspect’s clothing; an otherwise inexplicable sudden movement toward a pocket or other place where a weapon could be concealed; movement under a jacket or shirt “consistent with the adjustment of a concealed firearm”; an otherwise inexplicable failure to remove a hand from a pocket; awkward movements manifesting an apparent effort to conceal something under his jacket; backing away by the suspect under circumstances suggesting he was moving back to give himself time and space to draw a weapon; awareness that the suspect had previously been engaged in serious criminal conduct; awareness that the suspect had previously been armed; awareness of recent erratic and aggressive conduct by the suspect; discovery of a weapon in the suspect’s possession; discovery that the suspect is wearing a bullet proof vest (or body armor); awareness of circumstances which might prompt the suspect to take defensive action because of a misunderstanding of the officer’s authority or purpose; failure to respond to the officer’s directive that he stop his vehicle or that he keep his hands in view or remove his hands from his pockets; the person stopped displayed a “boisterous, aggressive attitude”; or that in addition to the minor offense, there is some reason also to suspect the individual of much more serious criminal conduct. Also relevant is the fact that the officer is outnumbered.
While the Court of Appeals held that, under the circumstances, the Anne Arundel corporal did not have reasonable articulable suspicion to frisk Sellman and therefore, that the evidence recovered should have been suppressed, the good news is that the officers lived to talk about it and to go home to their respective families.
While the ultimate holding in this case did not go in favor of the State, the opinion does provide a helpful framework for police and prosecutors as to the sorts of factors courts will examine to validate Terry type encounters, including:
- When did the other crimes occur? That evening? That week? That month?
- Why was that particular individual suspected of criminal activity?
- Were any furtive gestures, evasive maneuvers or bulges observed?
- Were any suspicious bags or containers observed?
- Any instruments or tools associated with the suspected crime?
- What was the significance of receiving inconsistent statements and how was this related to their suspicion of criminal activity?
- Can the officer explain how the observed conduct was indicative of criminal activity?
- Are there any circumstances connecting the individual to suspected criminal activity?
- What was it – specifically – that would cause the officer to fear for his or her safety?
- Any threatening movements made?
- What was it that would lead a reasonably prudent officer to believe that the individual was armed?
- Was the suspected individual acting hostile?
- Was back-up immediately available upon request?
- Did a criminal check disclose any prior violent behavior, weapons charges or gang associations?
- Was the computer system used to conduct background checks working?
- What was it in the officer’s training, knowledge and experience that would lead him to believe that what was observed revealed possible criminal activity?
- What was it in the officer’s training, knowledge and experience that would lead him to believe that the person was armed?
- How many suspects were there compared to the number of officers present?
- While “nervousness” may be a factor, it must be exceptional or dramatic as opposed to the routine nervousness most people have when confronted by the police.
In addition to these factors, there is the laundry list of circumstances outlined at the bottom of page 5 and the top of page 6 that would also help justify the frisk. Just remember that the purpose is not to discover evidence of a crime, but rather to protect the police and officer and members of the public from harm by checking for weapons.
AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEY’S OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THIS SUBJECT MATTER
AND REMEMBER, BE CAREFUL OUT THERE!