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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)