MD: Officer’s take down of def when he got out of his car was unjustified, so frisk invalid

The officer’s take down of the defendant when he got out of his car wasn’t supported by the record. Thus, the following frisk was unjustified. Williams v. State, 2020 Md. App. LEXIS 512 (May 29, 2020):

Here, Sergeant Brown’s testimony did not rebut the presumption that the search was unreasonable. Sergeant Brown has a long history working as a law enforcement officer, starting his career in 1997. At the time of the stop, he was working as patrol supervisor and stated that he’s responsible for traffic stops “at times.” Sergeant Brown stated that he was on patrol on Linden Avenue in an unmarked police vehicle when he saw Mr. Williams driving with “his cell phone up to his ear.” He “turned around and initiated a traffic stop on the vehicle on Bank Street” a “short time later.” He specified that the stop occurred “two to five minutes” after he activated his emergency equipment. Sergeant Brown testified that as he was getting out of his vehicle, Mr. Williams “quickly got out of his vehicle” as well. He didn’t identify himself as a police officer or say anything else to Mr. Williams after he got out of his vehicle. He then “approached [Mr. Williams] quickly as he got out,” and as he approached, he observed that Mr. Williams “turned his back to [him] quickly” and “held something in his hands.” He said Mr. Williams “clenched his hands together,” so he “grabbed him” because he “didn’t know what he had in his hands.” After grabbing Mr. Williams, Sergeant Brown “wrestled” him to the ground and “told him to [] stop resisting,” his first oral communication with Mr. Williams. Sergeant Brown “told him to put his hands behind his back,” and when Mr. Williams didn’t comply, Sergeant Brown pepper sprayed him. Then, Mr. Williams stopped struggling and threw two baggies under his car. He testified that he “eventually” placed Mr. Williams in handcuffs after Mr. Williams threw marijuana under the car. And he “ended up searching the vehicle” and Mr. Williams’s person.

Viewing the facts under the totality of the circumstances, the State has failed to present sufficient evidence to rebut the presumption that the warrantless frisk was unreasonable. At the time Sergeant Brown took down Mr. Williams, he knew that: (1) Mr. Williams had been talking on his cell phone while driving; (2) Mr. Williams stopped his car after emergency equipment was activated (although he contradicts himself on how long it took Mr. Williams to stop); (3) as he got out of his police car, Mr. Williams got out of his car quickly as well; (4) Mr. Williams was facing forward; and (5) Mr. Williams had his hands clenched together. Sergeant Brown never expressed any belief that Mr. Williams posed a risk to his safety or the safety of others around them. Similarly, his testimony included no expressions of fear, and no sense that he was afraid, felt he was in danger, or that Mr. Williams appeared to be engaged in criminal conduct.

Again, a Terry frisk is meant to protect officers and bystanders from risks posed by weapons. Thornton, 465 Md. at 146. And “[t]o articulate reasonable suspicion, an ‘officer must explain how the observed conduct, when viewed in the context of all other circumstances known to the officer, was indicative of criminal activity.'” Thornton, 465 Md. at 147 (quoting Sizer v. State, 456 Md 350, 365 (2017) (emphasis added)). The record at the suppression hearing reveals no such risks or observations.

Sergeant Brown is an experienced law enforcement officer, and he didn’t attempt here to explain how Mr. Williams’s conduct, at the inception of the seizure, was potentially criminal or dangerous. He didn’t say how his training and experience made him believe that what he observed may have been criminal activity. See Sellman, 449 Md. at 549 (“[T]he officer must explain how the observed conduct, when viewed in the context of all of the other circumstances known to the officer, was indicative of criminal activity.”) (quoting Crosby v. State, 408 Md. 490, 508 (2009)). Under the totality of the circumstances, Sergeant Brown did not have reasonable suspicion to frisk Mr. Williams, and we will not “‘rubber stamp’ conduct simply because the officer believed he had the right to engage in it.” In re Jeremy P., 197 Md. App. 1, 22 (2011). The State didn’t rebut the presumption that the take-down and search were unreasonable, and Sergeant Brown violated Mr. Williams’s rights when he conducted an unlawful Terry frisk.

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