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Sellman v. State

Court of Appeals of Maryland

August 24, 2016

DONZEL SELLMAN
v.
STATE OF MARYLAND

          Argued: May 9, 2016

         Circuit Court for Anne Arundel County Case No. K-13-2427

          Barbera, C.J. Greene, Adkins, McDonald, Watts, Battaglia, Lynne A. (Retired, Specially Assigned), Wilner, Alan M. (Retired, Specially Assigned), JJ.

          OPINION

          Greene, J.

         In this case, Petitioner, Donzel Sellman ("Sellman"), challenges the denial of a motion to suppress evidence obtained after a Terry frisk.[1] He argues that the law enforcement officers did not have reasonable suspicion to justify the frisk. We agree that, under the totality of the circumstances, the facts of this case fall short of the reasonable suspicion standard, under Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968), and therefore, we reverse the judgment of the Court of Special Appeals.

         FACTUAL AND PROCEDURAL BACKGROUND

         The relevant facts are taken from testimony presented at a suppression hearing, and we view them in a light most favorable to the State, the prevailing party at that hearing. On November 12, 2013, at approximately 2 a.m., Corporal William Daughters, a twenty-four-year veteran of the Anne Arundel County Police Department, and Officer Dan Kramer, a trainee, were on patrol. The officers were driving through a large apartment complex in Glen Burnie that contained over fifty buildings and had approximately one thousand residents. Corporal Daughters indicated that the complex was considered a high crime area, because, in the year that he had been patrolling that area, there had been a shooting, the recovery of handguns, multiple thefts from cars, and drug arrests.

         As the two officers entered the complex, they observed a vehicle stopping at a stop sign; the driver waited for the officers to cross the intersection before proceeding. As the officers drove through the complex, they observed an individual, later identified as Sellman, walk from a dark area on the side of one of the apartment buildings where there was no entry way towards an area lit by a street light. Corporal Daughters testified that "it appeared we startled him." The officer explained that Sellman "came to an abrupt stop, and then quickly, he started to turn to his right, but then stopped and then watched our car as it went by." Once the officers drove past him, Sellman continued on his way. Corporal Daughters observed Sellman through his rearview mirror, and saw him walk at a normal pace "toward[s] the roadway and [he] walked toward[s] the parking area. There are cars parked along the shoulder on that roadway, and he appeared to be walking towards those cars." He noticed that the vehicle he had previously seen at the stop sign "stopped in the roadway and then the person on foot[, Sellman, ] got into the left rear door of the vehicle."

         Corporal Daughters later testified: "I just thought it appeared odd at that point, people out on foot and people - - instead of everyone getting into a car in one location, picking somebody up around the corner . . . ."[2] The officers turned the patrol car around, and followed the vehicle. Upon noticing that the vehicle had a broken rear taillight and a broken tag light dangling by its wiring harness below the bumper, Corporal Daughters activated the emergency lights, and the driver immediately pulled over.

         The officers exited the patrol car, and approached the stopped vehicle from different sides. Corporal Daughters approached the driver's side and observed four occupants inside, including Sellman who was in the left-rear passenger seat.[3] Corporal Daughters explained to the driver, Samantha Gillespie, why he had pulled her over, and requested her driver's license and vehicle registration. Gillespie explained that she was unsure where the registration was, because she was borrowing the car from a friend, however, she did provide her driver's license. When asked why she was in the neighborhood, Gillespie explained that she was there to pick up Andrea Queen, a resident who lived in a nearby apartment. Officer Kramer testified: "The driver stated that they were taking her pregnant friend to go out and get some food[.]" Queen was in the right-rear passenger seat opposite the driver. Corporal Daughters asked Queen if she had any identification. She responded no, but indicated that she lived in the complex. Corporal Daughters later testified that he had encountered Queen on a previous occasion, and had reason to believe she did not live at this particular complex.[4] He also testified that Sellman's behavior was unusual, because:

On my first approach to the vehicle up to the point where I had actually physically asked him questions, where he had to respond to me, Mr. Sellman was sitting completely rigid in his seat, he had his hands on his knees and was looking straight ahead and never turned his head once.

         The officers returned to the patrol car to conduct a warrant check on Gillespie, which came up negative. They also used the police database to access records from the Motor Vehicle Administration ("MVA") in order to check the status of the driver and the vehicle she was driving; the vehicle was not reported as being stolen. The officers exited the patrol car, and returned to the stopped vehicle. Gillespie was given a written warning and then Corporal Daughters asked her to exit the vehicle. He took her to the rear of the vehicle, identified the broken lights, and told her that they needed to be repaired. At this time, Corporal Daughters asked Gillespie whether she had anything illegal in the car, and she responded no. He asked for permission to search the vehicle. Gillespie asked why, and Corporal Daughters explained "we had some problems in the area with some thefts and some drugs, and that kind of thing." Both officers testified that Gillespie consented to the search.[5] Corporal Daughters then asked Gillespie if the left-rear passenger, Sellman, lived in the apartment complex. She stated yes, and that she had picked him up as well. Gillespie remained with Officer Kramer while Corporal Daughters returned to the stopped car. Corporal Daughters testified that "because of the history surrounding the apartment complex, I wanted to identify everybody in the vehicle." He stated:

I went back up to the vehicle [to obtain identification from the other occupants]. Again, at that point, I had a somewhat conflicting story about who lived in the apartment complex. The only one that stated they had, was the right-rear passenger, [Queen, ] the female.

         When asked why this was conflicting, Corporal Daughters testified:

Because now, the driver was saying that the left-rear passenger[, Sellman, ] also lived in the apartment complex, yet when I asked the group in the car when I first approached who lived in the apartment complex, the only one that said they did, was the right-rear passenger.

         Prior to conducting the search, he asked the three passengers to identify themselves. The front-seat passenger, a male, provided identification. Corporal Daughters testified that Sellman "kept looking straight ahead and never looked at me[, ]" however, "[o]nce I actually asked him a question, he turned toward me and gave me the name and date of birth." Queen also provided her name and date of birth. The officer then asked Sellman if he lived in the complex and Sellman replied that he did not, which conflicted with Gillespie's earlier statement.

         Officer Kramer remained with Gillespie while Corporal Daughters returned to the patrol car to run warrant checks and a history on the three occupants, including the alias provided by Sellman: Marcus Neal Saunders, born July 12, 1982. While he was running a history on the names using the police database, Corporal Daughters contacted Corporal Miller[6] and asked him to come to the scene to assist, because there were four detainees- two men and two females-and two officers at the scene. He wanted the parking lot checked to see if any cars had been broken into. After running the warrant checks, "[a]ll three came back with no warrants." However, "the name Saunders had absolutely no record through [the] MVA, local arrest records, anything." He testified that this was unusual.[7] He also testified that he was confident in the identity of the other three occupants, because two had provided identification, and he knew the third, Queen, from a previous encounter.

         Corporal Miller arrived shortly thereafter and exited his patrol car. Officer Kramer remained with Gillespie at the rear of the stopped vehicle while Corporal Miller approached the vehicle from the right side, and Corporal Daughters approached the vehicle from the left side. Corporal Daughters opened the left rear door, and again questioned Sellman about his name. Sellman replied that he had provided his correct name, and when the officer informed him that no records came up under that name, Sellman explained that "he'[d] never had a driver's license, he'[d] never been arrested, [and] he'[d] never been in trouble." The officer then ordered Sellman out of the vehicle, and had him place his hands on the trunk of the car. Corporal Daughters testified that he conducted the frisk, because:

At that point, I had again conflicting stories about who had been picked up where, whether anybody at all lived in the apartment complex, if anybody, [and i]t was odd that they were driving through the parking lot, [and Gillespie informed me she was] picking people up on foot at that hour of the morning . . . . And before I continue any further, or continue to a search of the vehicle, which Ms. Gillespie allowed us to do, I wanted to make sure none of the passengers were carrying any weapons.

         He testified that it was his intent to search the vehicle. At the suppression hearing, the State asked "what is the normal course of procedure or the normal standard operating procedures" prior to conducting a search of a vehicle. Corporal Daughters responded:

We will take the individuals out of a car . . . have them step out, individually, and make sure that they're not carrying weapons or anything that can harm us . . . once they're out of the car. And then once the car is clear, officers or an officer will stay with the passengers or driver, whoever the occupants of the vehicle are.

         He testified that he asked Sellman if he had any weapons on him and Sellman responded no. Then, Corporal Daughters frisked Sellman, pursuant to these standard operating procedures, and discovered a handgun in Sellman's waistband.[8]

         Prior to trial, Sellman moved to suppress the evidence obtained from the frisk. He argued that the frisk was unconstitutional, because the officers lacked a reasonable basis to believe Sellman was armed and dangerous. On April 2 and 22, 2014, a pre-trial suppression hearing took place in the Circuit Court for Anne Arundel County. Corporal Daughters testified for the State; Ms. Gillespie testified for the defense; Officer Kramer testified as a rebuttal witness for the State in order to corroborate Corporal Daughters' testimony.

         The motions judge denied the motion to suppress, and upheld the frisk of Sellman. The judge found the initial traffic stop was valid, because the vehicle had a broken taillight and tag light, and that Gillespie freely and voluntarily consented to the search the vehicle. She also found credible the officers' description of Sellman: "[H]e appeared to be nervous, how he was rigid, how he was looking ahead." Lastly, the judge found that the pat down was valid. According to the suppression court, there was reasonable articulable suspicion to frisk Sellman, because the officers "were outnumbered at that point in time; They were in a high-crime area [and] it was late at night; The Defendant had come from a dark area; His [rigid and nervous] behavior in the vehicle led to some suspicion on their part . . . ."

         At trial, Sellman entered into a not guilty agreed statement of facts to the charges of possession of cocaine with intent to distribute and possession of a firearm during a drug trafficking crime. He was found guilty on both charges and was sentenced to a total of ten years in prison, the first five to be served without the possibility of parole.

         Sellman appealed the constitutionality of the frisk to the Court of Special Appeals. In an unreported opinion, a divided panel of the intermediate appellate court affirmed the denial of the motion to suppress. It held, based on its review of the totality of the circumstances, that the facts created reasonable suspicion that Sellman was armed and dangerous, and that he had committed or was planning to commit a crime. Therefore, it reasoned, it was permissible for Corporal Daughters to frisk Sellman in the interest of officer safety. One judge dissented, and stated: "It is painfully obvious that the officers frisked [] Sellman not because they were acting upon reasonable suspicion that he was armed and dangerous, but because they routinely conduct suspicionless searches of every passenger in every car they search."

         Sellman filed a petition for writ of certiorari with this Court. We granted certiorari to answer the following questions:

1. Did the Court of Special Appeals err in finding the police had reasonable suspicion to believe Mr. Sellman was armed and dangerous, simply because he was stopped for generally suspicious conduct in a high crime area where thefts from cars had been reported at some unspecified time in the past?
2. Did the Court of Special Appeals err in finding that the crime of theft from cars implies the use of a deadly weapon?

Sellman v. State, 446 Md. 218, 130 A.3d 507 (2016). For the reasons stated below, we answer the questions in the affirmative. Accordingly, we hold that the evidence seized in violation of the Fourth Amendment was inadmissible. Therefore, we reverse the judgment of the Court of Special Appeals.

         STANDARD OF REVIEW

         At issue is the propriety of the denial of a motion to suppress evidence obtained by way of a frisk. We have previously stated:

When reviewing the disposition of a motion to suppress evidence alleged to have been seized in contravention of the Fourth Amendment . . . ., we view the evidence adduced at the suppression hearing, and the inferences fairly deducible therefrom, in the light most favorable to the party that prevailed on the motion. The appellate court defers to the trial court's fact-finding at the suppression hearing, unless the trial court's findings were clearly erroneous. Nevertheless, in resolving the ultimate question of whether the detention or attendant search of an individual's person or property violates the Fourth Amendment, we make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Thus, this Court considers the evidence adduced at the suppression hearing, construed in the light most favorable to the State as the prevailing party at the suppression hearing.

Bailey, 412 Md. at 362, 987 A.2d at 80 (internal citations and quotation marks omitted). See also Nathan v. State, 370 Md. 648, 659, 805 A.2d 1086, 1093 (2002) ("We will review the legal questions de novo and based upon the evidence presented at the suppression hearing and the applicable law, we then make our own constitutional appraisal.") (citation omitted).

         DISCUSSION

         Sellman argues that the judgment of the Court of Special Appeals should be reversed, because the facts do not amount to reasonable suspicion to justify a frisk under Terry, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. Sellman argues that the record is devoid of any facts indicating he was armed or dangerous, or linking him to the suspected crime of theft of property from cars. He contends that the intermediate appellate court erred in justifying the frisk based on a generalized concern about car break-ins occurring in the area where he was stopped, which falls short of reasonable suspicion. In his brief, Sellman argued: "The [intermediate appellate] court relied on the purportedly violent nature of car break-ins, and the likelihood of weapon use, yet required no nexus between Mr. Sellman and that particular crime." He posits that to affirm the decision "would allow police to automatically frisk anyone who is stopped on reasonable suspicion as long as it takes place in a high crime area where violent crimes occur."

         Naturally, the State disputes Sellman's interpretation of Court of Special Appeals' unreported opinion, and argues that the frisk was justified by reasonable suspicion that Sellman was armed and dangerous. For support, the State cites to several cases, including cases from other jurisdictions, where factors, such as the time of night, a location in a high crime area, or a suspect's nervous behavior, supported a Terry frisk of a car occupant.

         Fourth Amendment

         The Fourth Amendment of the United States Constitution is applicable to the states through the Fourteenth Amendment. Holt v. State, 435 Md. 443, 458, 78 A.3d 415, 423 (2013). It guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV; see Lewis v. State, 398 Md. 349, 361, 920 A.2d 1080, 1087 (2007) ("The Fourth Amendment, however, is not 'a guarantee against all searches and seizures, but only against unreasonable searches and seizures.'") (citation omitted). "[T]he touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Lewis, 398 Md. at 361, 920 A.2d at 1087 (internal quotation marks and citation omitted). "Reasonableness, of course, depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331, 336 (1977) (internal quotation marks and citation omitted). "In these stop and frisk cases, the reviewing court 'must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.'" Underwood v. State, 219 Md.App. 565, 571, 101 A.3d 514, 518 (2014) (quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906).

         In the present case, the parties do not dispute the propriety of the initial traffic stop based on minor traffic violations. The purpose of that stop was fulfilled once Gillespie received the written warning from the officers. Then, Gillespie consented to the search of the vehicle. The issue raised is whether, under all of the circumstances, the Terry frisk of Sellman was permissible under the Fourth Amendment.[9] Our analysis, therefore, begins and ends with the frisk.

         Reasonable Suspicion for a Terry Frisk

         "The default rule requires that a seizure of a person by a law enforcement officer must be supported by probable cause, and, absent a showing of probable cause, the seizure violates the Fourth Amendment." Crosby v. State, 408 Md. 490, 505, 970 A.2d 894, 902- 03 (2009). In Terry, however, the Supreme Court of the United States "recognized that a law enforcement officer may conduct a brief investigative 'stop' of an individual if the officer has a reasonable suspicion that criminal activity is afoot." Crosby, 408 Md. at 505, 970 A.2d at 903 (citing Terry, 392 U.S. at 17, 88 S.Ct. at 878, 20 L.Ed.2d at 903). See also In re David S., 367 Md. 523, 532, 789 A.2d 607, 612 (2002) ("[A] police officer may stop and briefly detain a person for investigative purposes if the officer has reasonable suspicion, supported by articulable facts, that criminal activity 'may be afoot.'"). "[A]lthough a reasonable stop is a necessary predecessor to a reasonable frisk, a reasonable frisk does not inevitably follow in the wake of every reasonable stop." Simpler v. State, 318 Md. 311, 319, 568 A.2d 22, 25-26 (1990) (quoting Gibbs v. State, 18 Md.App. 230, 238-39, 306 A.2d 587, 592 (1973)) (internal quotation marks omitted). To safeguard constitutional protections guaranteed by the Fourth Amendment, a frisk following a Terry stop is permitted under limited circumstances:

In addition to the authority to stop and briefly detain a person, the Supreme Court identified circumstances permitting police officers to pat-down the subject of a Terry stop:
"[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch, ' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."
Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d [at 909] (citations omitted). This limited search, known in common parlance as a frisk, "is not to discover evidence, but rather to protect the police officer and bystanders from harm." State v. Smith, 345 Md. 460, 465, 693 A.2d 749, 751 (1997).

In re David S., 367 Md. at 533, 789 A.2d at 613. See also McDowell v. State, 407 Md. 327, 340, 965 A.2d 877, 884 (2009) ("What Terry allows are 'necessary measures' to determine whether a person is carrying a weapon.").

         Under Terry, in order to conduct a frisk an officer must have reasonable suspicion "that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . . ." 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911; See also Crosby, 408 Md. at 508, 970 A.2d at 904 ("[T]he reasonable suspicion standard carries limitations[:] it does not allow [a] law enforcement official to simply assert that innocent conduct was suspicious to him or her.") (internal quotation marks omitted).

         When reviewing whether reasonable suspicion exists, "[t]he test is 'the totality of the circumstances, ' viewed through the eyes of a reasonable, prudent, police officer." Bost v. State, 406 Md. 341, 356, 958 A.2d 356, 365 (2008). The test is objective: "the validity of the stop or the frisk is not determined by the subjective or articulated reasons of the officer; rather, the validity of the stop or frisk is determined by whether the record discloses articulable objective facts to support the stop or frisk." Ransome v. State, 373 Md. 99, 115, 816 A.2d 901, 910 (2003) (Raker, J., concurring). Reasonable suspicion requires an officer to have "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion . . . ." Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. In other words, "[t]he officer has reason to believe that an individual is armed and dangerous if a reasonably prudent person, under the circumstances, would have felt that he was in danger, based on reasonable inferences from particularized facts in light of the officer's experience." Bailey, 412 Md. at 367, 987 A.2d at 83 (citing Longshore v. State, 399 Md. 486, 509, 924 A.2d 1129, 1141-42 (2007)).

         In Crosby, we dedicated significant time to the subject ...


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