MD: Trial court erred in suppressing virtual replay of Wardlow

Officers approached a group of men on the street in a high crime area telling them to stay put and not run. Defendant, however, sprinted away. Two officers were on bikes and caught up to him, and he admitted he had a gun on him when caught. The trial court’s findings of fact all favored the state right up to the conclusion that suppressed the frisk finding the gun. The suppression order is reversed. Terry is predicated on reasonable suspicion, not proof of a crime, and here there was reasonable suspicion by the character of the area and defendant’s unprovoked flight, which makes this a “replay” of Wardlow. State v. Sizer, 2016 Md. App. LEXIS 1394 (Nov. 29, 2016). This is by Justice Moylan for those who relish his writing:

The hearing court’s analysis there goes astray because it fails to appreciate that a Terry frisk is not predicated on the illegality of the suspect’s behavior in possessing a handgun but on the very different predicate of an officer’s fear for his own safety when confronting a suspect who the officer reasonably believes may be armed or dangerous. A suspect with a licensed handgun is just as dangerously armed as is a suspect with an unlicensed handgun. Licensed handguns shoot bullets that are just as deadly as are those from unlicensed handguns. A permit to carry a handgun would no more vitiate the need for a frisk than would the suspect’s promise not to shoot anybody with it. Even if the stopee had his permit to carry a handgun pinned to the front of his shirt and even if the officer read it before conducting the frisk, that would in no way eliminate or even diminish the need for the frisk. Indeed, it would enhance the need. Per se illegality is simply not a requirement for the reasonable articulable suspicion to support a Terry frisk.

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Unprovoked Flight as a Dispositive Terry Factor

Our de novo determination is that the constitutional protocols were scrupulously observed. The Fourth Amendment was not offended, and the evidence should not have been suppressed. The reasonable articulable suspicion for the Terry stop, moreover, was by no means based merely on flight. It was far more multi-factored than that. It was based on unprovoked flight upon the approach of the police in a high crime area. This case was a paradigmatic replay of Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) itself.

In Wardlow, even as in the present case, a team of eight officers converged on a Chicago neighborhood known for being a high crime area, specifically “an area known for heavy narcotics trafficking.” Wardlow, theretofore unknown to the police, was standing next to a building, holding an opaque bag. Wardlow, as did the appellee here, looked in the direction of the officers, then turned, and inexplicably fled. Two officers, as in this case, took off in pursuit. A short distance away, Officer Nolan stopped Wardlow and immediately conducted a pat-down search for weapons. As part of the frisk, Officer Nolan squeezed the opaque bag Wardlow was carrying and felt a heavy, hard object similar in shape to a gun. He opened the bag and recovered a loaded .38 caliber handgun. Wardlow was then arrested. 528 U.S. at 121-22.

The issue in Wardlow, as in the case now before us, was whether, pursuant to Terry v. Ohio, the police had reasonable suspicion to justify the initial detention of the suspect based on his flight. The trial court denied Wardlow’s motion to suppress the evidence. The Illinois Appellate Court, however, reversed the conviction, holding that Officer Nolan did not have reasonable suspicion to justify a Terry stop. 287 Ill. App. 3d. 367, 678 N.E.2d 65, 222 Ill. Dec. 658 (1997). The Illinois Supreme Court affirmed. 183 Ill. 2d 306, 701 N.E.2d 484, 233 Ill. Dec. 634 (1998). On certiorari, the United States Supreme Court reversed the Illinois courts and held that the Terry stop was, indeed, constitutional.

Prominent among the factors that the Supreme Court found to be strongly supportive of the reasonableness of the Terry stop was the character of the neighborhood as a high crime area.