MD: Def’s alleged furtive movement while sitting in car wasn’t significant enough to show he was concealing a gun

Defendant’s “furtive movement” in the car while talking to the police officer outside the car wasn’t significant enough in the testimony to show that he was secreting something or moving around a weapon. There thus was no objective basis for the frisk. Thornton v. State, 2019 Md. LEXIS 383 (Aug. 7, 2019):

Moreover, the officers failed to articulate an objective basis or provide a justification for suspecting that Petitioner was manipulating or adjusting a weapon in his waist area rather than some innocent object. In fact, Officer Zimmerman conceded that Petitioner’s movements may have been consistent with innocent conduct. For instance, Officer Zimmerman acknowledged that Petitioner’s shifting around during the traffic stop could have been attributable to the fact that there were officers on either side of his vehicle, and he was shifting to answer the officers’ questions, rather than adjusting a weapon in his waistband or performing a weapons check. Consequently, the officers failed to explain “why [they] interpreted [Petitioner’s] conduct to indicate the presence of a weapon, rather than merely [possession of] a cell phone or another innocent object.” In re Jeremy P., 197 Md. App. at 20, 11 A.3d at 842. The officers’ testimony was “not particularized and could fit a very large category of presumably innocent travelers, who would be subject to virtually random [searches and] seizures were th[is] Court to conclude that as little foundation as there was in this case could justify a” frisk. See Sellman v. State, 449 Md. at 554, 144 A.3d at 788 (2016) (citation and internal quotations omitted). As such, we cannot say that the frisk was based on anything more than an inchoate and unparticularized hunch that Petitioner possessed a weapon.

Viewing the totality of the circumstances, we conclude that the officers did not have reasonable suspicion to lawfully frisk Petitioner. Petitioner was investigated concerning a minor traffic violation, and the officers outnumbered him three to one. Although Petitioner made allegedly “furtive movements” as the officers approached his vehicle, during the encounter, Petitioner was described as “laid back,” and he complied with the officers’ requests. Under these circumstances, the officers failed to particularize an objectively reasonable basis for believing that Petitioner was armed and dangerous. Indeed, the suppression court found that, during the exchange, the officers acted in a manner that was largely inconsistent with a genuine belief that Mr. Thornton was armed and dangerous. Accordingly, the frisk of Petitioner was based on an inchoate and unparticularized hunch that Petitioner possessed a weapon. The frisk was, therefore, not supported by the requisite quantum of suspicion to overcome the State’s burden of proving that the warrantless search was reasonable. We hold that the frisk violated Petitioner’s Fourth Amendment rights.