This Terry stop failed reasonable suspicion and all tenets of Terry. [Subtext: Police are abusing Terry, and the courts have to control them.] Ames v. State, 2017 Md. App. LEXIS 121 (Feb. 3, 2017) (Moylan, J.) (caution: The Lexis version omits part of a paragraph from the slip opinion) (this case is a must read for defense lawyers, prosecutors, police, and trial and appellate judges):
A Terry Stop
This is exclusively a Terry frisk case and not a Terry stop case, and the two do not conflate. A brief word about Terry stops is desirable, nonetheless, simply to provide the necessary context for an analysis that looks to the relationship between a stop and a frisk. The Terry stop and the Terry frisk, of course, serve quite distinct purposes. The stop is crime-related, its purpose being to prevent or to detect crime. The reasonable articulable suspicion for a stop must be framed in terms of that purpose. The frisk, by diametric contrast, is not intended to be an investigative tool at all. Its express purpose and animating concern is the safeguarding of the life and limb of the stopping officer. In Graham v. State, 146 Md. App. 327, 358-59, 807 A.2d 75 (2002), we stressed this difference in purposes:
“The respective interests served by stops and by frisks are distinct. The stop is crime-related. What is, therefore, required is reasonable suspicion that a crime has occurred, is then occurring, or is about to occur. The frisk, by contrast, is concerned only with officer safety. What is, therefore, required is a reasonable articulable suspicion that the person stopped is armed and dangerous.”
(Emphasis supplied). In Gibbs v. State, 18 Md. App. 230, 241, 306 A.2d 587 (1973), this Court had earlier pointed out that the purpose of a Terry frisk was not to prevent or to detect crime.
“Even after a reasonable ‘stop’ has been made, the governmental interest which permits the further intrusion of a limited search — a ‘frisk’ – of the person is not the prevention or the detection of crime, but rather the protection of the officer making the ‘stop.'”
(Emphasis supplied).
Terry v. Ohio itself, 392 U.S. at 23, made the distinction in purpose absolutely clear.
“We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him….”
(Emphasis supplied). As a result, the Terry stop and the Terry frisk each require separate justification.
In the present case, there was no Terry stop. At the suppression hearing, the State did not attempt to establish a Terry stop. Before us, the State does not contend that there was an antecedent Terry stop. As he was asking questions of the appellant, Officer Aungst went immediately for a Terry frisk. It was as if Officer Aungst considered a Terry frisk to be a permissible adjunct to a mere accosting.Even if, purely arguendo, there had been an antecedent Terry stop, however, it is clear from everything we have said about the anonymous telephone tip and the essentially insignificant police observation that followed it, that there was no reasonable articulable suspicion to justify a Terry stop. The ostensible Terry frisk is on its own.
. . .
The Terry Frisk
The ostensible Terry frisk, which was the lone rationale for the State’s seizure of the physical evidence in this case, failed abjectly to pass constitutional muster in three separate ways, any one of which would be fatal.
A. The Lack of Reasonable Suspicion That the Stopee Was Armed and Dangerous.
The purpose for a Terry stop and the purpose for a Terry frisk are, as we have stated, very different. The Terry stop is part of law enforcement’s arsenal in its war on crimes. In the words of Terry v. Ohio itself, 392 U.S. at 22,
“[W]e consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.”
(Emphasis supplied). And see, Gibbs v. State, 18 Md. App. at 239-40.
. . .
Where the State was going on the suppression issue, however, is hard to figure. Even if it had been true, as argued by the State, that the appellant “could have been charged solely with the needles,” the fact is that he was not so charged or arrested. What then justified the rest of the search? The pulling of the coin purse from the appellant’s pocket? The opening of the coin purse? The retrieval of a plastic bag? The search of the plastic bag? Those things were not the product of a search incident to a lawful arrest, for no arrest (lawful or unlawful) had been made. There was simply no justification even offered for the search that, step by step, produced these items, and they, therefore, should have been suppressed. As the Court of Appeals explained in State v. Smith, 345 Md. 460, 465, 693 A.2d 749 (1997):
“[T]he objective is to discover weapons readily available to a suspect that may be used against the officer, not to ferret out carefully concealed items that could not be accessed without some difficulty. General exploratory searches are not permitted, and police officers must distinguish between the need to protect themselves and the desire to uncover incriminating evidence.”
(Emphasis supplied).
Although each excess may have been small, seguing almost indiscernibly into the next, the bottom line was that the appellant suffered, in its bottom line totality, what amounted to a fully intensive search-incident of his person and not an austerely limited pat-down for weapons. It is a classic example of a scope violation, with the Terry limitations being lost in the investigative bustle.
Were all the arguendos satisfied along the way, this ultimate search of the appellant, under the guise of a Terry frisk, we would hold to have been an unreasonable scope violation of the far more limited intrusion authorized by the concern for officer safety.
It Comes With the Territory
When half a century ago Terry v. Ohio was in its infancy, everyone understood that the grant of a broad new prerogative to the police and the built in limitation on the prerogative were but flip sides of the same indivisible coin. An understanding of the limitation was indispensable to a full understanding of the prerogative itself. It was the price that had to be paid for the prerogative. The limitation is not an arbitrary technicality designed to make the officer’s job more difficult. It is a built-in aspect of the prerogative itself. It comes with the territory.
