MD: Painstaking discussion of a mere “accosting” and a stop

Distinguishing between a mere accosting of persons in a parked car and a stop, the court finds this was a detention governed by the Fourth Amendment and without reasonable suspicion. There was a call at 12:11 am about “drug activity” in a neighborhood, and the officer encountered a parked car with occupants doing nothing in particular. The “accosting” turned into a detention governed by the Fourth Amendment but without reasonable suspicioin, and the resulting search was suppressed. Pyon v. State, 2015 Md. App. LEXIS 50 (April 6, 2015).* Classic Moylan if you want a painstaking breakdown of the accosting evolving to a stop. This is just the last two paragraphs:

The Totality of the Circumstances

Looking at all of the circumstances, we do not hesitate to hold that the appellant, as Officer Kimmett moved around to his passenger window and requested his driver’s license, was being subjected to a Fourth Amendment seizure of his person without the required Fourth Amendment justification. Officer Kimmett’s smell of raw marijuana at that time and place was the fruit of that poisonous tree. The physical evidence should have been suppressed.

We hasten to reaffirm that we are not being critical of Officer Kimmett’s behavior. It is clear to us that she approached the scene as if she were conducting a Terry-level investigative stop and not a mere accosting. Her actions were in complete accord with what an officer’s actions should be in conducting a Terry-stop. The flaw, of course, is that a Fourth Amendment predicate had not been established for conducting such a Terry-stop. The State’s effort to justify the encounter as something less than an investigative stop is an afterthought.

Conclusion

It is constitutionally permissible, and indeed desirable, that the police react in a professionally authoritarian fashion and exercise firm control over the scene of a police-citizen encounter, whenever the police have at least a Terry-level reasonable suspicion that a crime (including a traffic offense) has occurred. Where, on the other hand, such Fourth Amendment justification is lacking, such authoritarian behavior may be completely inappropriate. As far as intellectual honesty is concerned, moreover, it is with ill grace that the police should behave in an authoritarian manner but then pretend that the encounter was innocuously egalitarian. It is necessary to recognize the level of police-citizen encounter that is called for in a given situation and then to adapt the police behavior accordingly. One size does not fit all. Overly authoritarian police behavior can ipso facto transform what might otherwise be an innocuously consensual police-citizen conversation into a full-fledged constitutional encounter.