{"id":4251,"date":"2011-01-11T12:10:20","date_gmt":"2010-06-04T00:07:56","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-06-03T18:10:30","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4251","title":{"rendered":"MD: State’s changing theory on suppression after evidence in denied defendant a fair hearing; lifting shirt exceeded frisk"},"content":{"rendered":"

State\u2019s changing theories of the justification for the warrantless search of the defendant\u2019s person after the proof closed denied the defendant a fair opportunity to litigate the search issue. \u201cWe hold that the suppression hearing ruling, based on an unraised, undeveloped, and unargued Fourth Amendment theory, was in error and that the physical evidence should, therefore, have been suppressed.\u201d Then, the lifting of defendant\u2019s shirt after the frisk exceeded the scope of the frisk, and it violated the Fourth Amendment. Epps v. State<\/a>, 193 Md. App. 687, 1 A.3d 488 (2010):<\/p>\n

Directing the appellant to lift his shirt went beyond the limited scope of a frisk. It revealed \u201ca small, clear plastic baggie \u2026 protruding from the top of his pants.\u201d A pat-down of the appellant would not have permitted the recovery of that baggie. It was not a hard metallic object that could have been mistaken for a weapon. Although, to the touch through clothing, it might have aroused suspicion, it by no means communicated probable cause as per the \u201cplain feel doctrine\u201d of Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). A properly limited frisk of the appellant would not have produced the cocaine, for the possession of which the appellant is now facing 25 years of imprisonment without the possibility of parole.<\/p>\n

The suppression hearing judge reasoned, sua sponte, that the lifting of the shirt was reasonable because it was less intrusive than a pat-down would have been. The degree of intrusiveness, however, is not the controlling criterion. Nor is the duration of the intrusion. Nor is the degree of embarrassment that the intrusion might cause. The critical limitation is that the intrusion must be only that which is necessary to detect the presence of a weapon — and nothing more. In this case, the alternative intrusion self-evidently detected something other than the presence of a weapon and the appellant is paying a heavy price for that incremental revelation.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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