Graeff, Leahy, Moylan, Charles E., Jr. (Senior Judge,
Specially Assigned), JJ.
wisdom undergirding this State appeal emanates from the
twenty-eighth chapter of the Book of Proverbs, Verse
"The wicked flee when no man pursueth; but the righteous
are bold as a lion."
Book of Proverbs begat Terry v. Ohio. And
Terry v. Ohio begat the indictment of the appellee,
Jamal Rasheed Sizer, by the Grand Jury for Howard County.
When the appellee fled, Officer Andrew Schlossnagle pursued,
leading to the appellee's being charged with the unlawful
possession of a firearm with a nexus to drug trafficking. On
December 4, 2015, the appellee filed a pre-trial motion to
suppress evidence taken from his person, alleging a Fourth
Amendment violation. A hearing was held on that motion on May
26, 2016, at the close of which the motion was granted.
State filed a timely appeal on June 3, 2016. The appeal is
authorized by Maryland Code, Courts and Judicial Proceedings
Article, § 12-302(c)(4). Pertinent are subsections
(c)(4)(iii) and (iv):
"(iii) Before taking the appeal, the State shall certify
to the court that the appeal is not taken for purposes of
delay and that the evidence excluded or the property required
to be returned is substantial proof of a material fact in the
proceeding. The appeal shall be heard and the decision
rendered within 120 days of the time that the record on
appeal is filed in the appellate court. Otherwise, the
decision of the trial court shall be final.
"(iv) Except in a homicide case, if the State appeals on
the basis of this paragraph, and if on final appeal the
decision of the trial court is affirmed, the charges against
the defendant shall be dismissed in the case from which the
appeal was taken. In that case, the State may not prosecute
the defendant on those specific charges or on any other
related charges arising out of the same incident."
record was filed with this Court on August 3, 2016.
Accordingly, our decision must be rendered no later than
December 1, 2016. We heard oral argument on November 2, 2016.
of Appellate Review
Longshore v. State, 399 Md. 486, 498-99, 924 A.2d
1129 (2007), the Court of Appeals summarized definitively the
standards governing the appellate review of a decision to
suppress evidence. That standard first delineates the
evidence and argument subject to review:
"When an appellate court reviews a trial court's
grant or denial of a motion to suppress evidence under the
Fourth Amendment, it will consider only the facts and
information contained in the record of the suppression
399 Md. at 498. (Emphasis supplied). That limitation is easy
to adhere to in the present case, because there is nothing
else to consider.
standard then makes clear the deference the appellate court
will extend to the fact-finding of the hearing judge:
"Moreover, when there is a conflict in the evidence,
an appellate court will give great deference to a hearing
judge's determination and weighing of first-level
findings of fact. It will not disturb either the
determinations or the weight given to them, unless they are
shown to be clearly erroneous."
Id. (Emphasis supplied). In this case, the hearing
judge made extensive findings of fact, which we will recount
in full detail.
standard also states that when there is a conflict between
the respective versions of the evidence presented by the
State and by the defense, the tilt on appellate review will
go decisively in favor of the prevailing party:
"An appellate court further will view the evidence and
all reasonable inferences drawn from that evidence in the
light most favorable to the party prevailing on the
case, the prevailing party was the appellee. In any conflict
between competing versions of the evidence, therefore, it
would be the appellee's version that we will accept as
historic fact. In this particular case, however, that
potentially favorable tilt is for the appellee an essentially
empty victory. He has offered no significant alternative
version of the evidence toward which we might tilt. He did
not testify. He essentially presented no evidence on his own
behalf. His counsel, before the hearing judge, did not even
argue any contrary interpretation of the evidence. The
State's evidence was effectively unchallenged.
the evidence has been presented, however, and once the
hearing judge has made possible findings of fact, there
remains the ultimate issue of determining the legal
significance of the accepted facts. On this legal issue, the
appellate court will make its own de novo
"An appellate court, however, under an independent
de novo review standard, must consider the
application of the law to those facts in determining whether
the evidence at issue was obtained in violation of the law,
and, accordingly, should be suppressed."
399 Md. at 499. See also, State v. Nieves, 383 Md.
573, 581-82, 861 A.2d 62 (2004); Laney v.
State, 379 Md. 522, 533-34, 842 A.2d 773 (2004);
Dashiell v. State, 374 Md. 85, 93-94, 821 A.2d 372
(2003); Stokeling v. State, 189 Md.App. 653, 661-62,
985 A.2d 175, cert. denied, 414 Md. 332,
995 A.2d 297 (2010). We will announce our de novo
Andrew Schlossnagel and Corporal James Zammillo testified for
the State. Officer Ronald Baker was briefly called by the
appellee, but his testimony coincided 100% with that of the
other officers. There were no other witnesses. With respect
to their testimony, the hearing judge made the following
assessment of their credibility:
"The police testified today without embellishment.
The Court found them to be truthful and
afternoon of November 20, 2015, at approximately 5:30 p.m.,
the three testifying officers, along with two other officers,
were on bike patrol near the Owen Brown Village Center. They
were all members of the Pathway Patrol Unit, informally known
as the Bike Unit. The officers described the general
character and reputation of the area. They referred to the
Owen Brown Village Center and its surrounding footpaths as a
"high crime area." Corporal Zammillo, the
supervisor of the Pathway Patrol Unit, testified that the
Owen Brown Village area is such a high crime area that a
police satellite office was established nearby to keep close
control of it. The witnesses recounted how, on the night
before November 20, there had been reports of a person
brandishing a handgun on the footpaths around the Village
Center. Because of such criminal activity, the officers had
been asked by local business owners to increase their
presence in the area. With respect to the responsibilities of
the bike patrol and with respect to the characterization of
the neighborhood as a "high crime area, " the
hearing judge made the following specific findings of fact.
"[T]heir duty is to patrol the pathways of Columbia to
ensure safety of the public. That the night before, there had
been a complaint made of someone brandishing or displaying a
handgun in the parking lot of the Owen Brown Cradlerock
Library, and there was, understandably, concern. In
general, the area is considered a high or higher-crime area
in Columbia. There had been a number of robberies,
and the police had certainly this mind-set and were certainly
doing what they were supposed to be doing, that is,
patrolling the area."
p.m. in November, the parking lot area was largely dark. The
approaching officers observed between five and seven persons
standing around a mini-van in the parking lot. The group was
loud and appeared to be "passing an alcoholic beverage
back and forth." One unidentified member of the group
threw a glass bottle on the ground. Officer Baker, moreover,
recognized one member of the group, a Joseph Davis, as a
"repeat offender" who was banned from the Village
Center. The hearing judge made specific factfindings with
respect to the police observations of the group milling about
"They're in a darker, less lit area. They see this
group of individuals which includes the Defendant, Mr. Sizer.
That the group appears to be loitering; that the group
appears to be drinking alcohol, open containers, and that
somebody of the group - they cannot be sure whether it was
Mr. Sizer or not - threw a bottle. The police were
concerned, understandably, and approached the group.
They were in uniform. On their bright-blue jackets are their
respective names and the word "Police, " and they
verbally identified themselves as police. While they
themselves had been in a darker area, the testimony was that
there was sufficient lighting in the parking lot area to see
group of officers approached the group of civilians, they
announced their official presence by saying, "Police.
Stop. Don't run." They were in uniform, bright-blue
jackets with the word "Police" in prominent
letters. At that point, the appellee "turned and
immediately began sprinting away." Officer Schlossnagle
along with Officer Burris took off in immediate pursuit,
repeatedly giving "multiple commands to stop
running." Because Officers Schlossnagel and Burris were
on bikes and the appellee was on foot, the pursuit was brief.
As the two officers caught up with the appellee and were
about to "take him down, " the appellee threw up
his hands and yelled, "Okay, I have a pistol. I have a
pistol." The officers wrestled the appellee to the
ground and started to place him in handcuffs.
Arrest as a Superseding Rationale
at that point, seconds after Officer Schlossnagle first
caught the appellee and while Officer Schlossnagle and
Officer Burris were still attempting to handcuff him, that
Corporal Zammillo arrived on the scene. As the supervisor of
the unit, Corporal Zammillo had seen the two officers begin
the chase and he, on bike, set off only seconds behind them.
Corporal Zammillo immediately recognized the appellee as
someone with whom he had had multiple prior interactions. Of
critical importance, Corporal Zammillo also knew, from his
check of the Police Department's Records Management
System, that the appellee had an active arrest warrant issued
by the Howard County Sheriff's Department. Corporal
Zammillo knew the appellee by face and name. Knowing well
many of the characters in a particular high crime area,
Corporal Zammillo explained that, each day just before
setting out with his unit to patrol a particular area, he
would look over the list for those with outstanding warrants
for their arrest. The appellee had outstanding arrest
warrants for both the distribution of marijuana and for the
violation of probation.
Zammillo arrived on the "take down" scene just as
Officers Schlossnagle and Burris were wrestling the appellee
to the ground and were in the process of handcuffing him.
Corporal Zammillo informed the appellee that there was an
outstanding warrant for his arrest and arrested him. As of
the moment of that arrest, a fresh and superseding Fourth
Amendment rationale took control of the case, and the
propriety vel non of the preceding Terry
stop became immaterial with respect to events that followed.
As he was being arrested, the appellee announced to the
officers, "I have a piece and pills on me."
Frisk and the Search Incident
his brief flight, the appellee had been wearing a backpack.
As he fell to the ground, the backpack fell with him. As soon
as the handcuffs were on the appellee, the officers looked in
the backpack and immediately observed a .38 caliber revolver,
along with the appellee's I.D. Because a potentially
hostile crowd was gathering, the officers immediately took
the appellee and his backpack and adjourned to the nearby
police satellite office.
satellite office, the officers removed from the backpack the
.38 caliber revolver, loaded with five rounds of ammunition.
Also recovered were four additional rounds of ammunition. A
further search at the satellite office produced from the
appellee's sock a baggie containing 27 pills. At that
point, it but remained to draw a proper legal conclusion from
this unchallenged evidentiary predicate.
the hearing judge's factfinding was unvaryingly
supportive of the reasonableness of the police behavior
through every step of the confrontation, the court's
legal ruling turned abruptly in an opposite direction. As we
examine de novo where the legal analysis that lead
to the suppression of the evidence went, in our de
novo judgment, astray, that analysis seemed to insist
that a Terry stop must be based on nothing short of
the per se illegality of the suspect's behavior.
The hearing court's analysis began:
"The issue before the Court is, when Mr. Sizer ran,
was it reasonable for the police to run after him?
One could argue that it was, because why is this guy running?
But [Defense Counsel] points out, and he's
right, that flight, in and of itself, or not
sticking around for the police to investigate you in and
of itself is not illegal."
on the fact that flight is not, in and of itself, illegal
sets an unduly high bar for a Terry stop to clear. A
reasonable articulable suspicion that a crime has occurred,
is then occurring, or is about to occur does not demand
evidence legally sufficient to sustain a criminal conviction.
Nor does it demand so much as probable cause. In Butler
v. State, 214 Md.App. 635, 651, 78 A.3d 887 (2013), this
Court succinctly set out the appropriate quantitative
"[R]easonable suspicion requires 'more than
a mere hunch but is "a less demanding standard than
probable cause and requires a showing considerably less than
preponderance of the evidence."'"
(Emphasis supplied; citation omitted). See also Holt v.
State, 435 Md. 443, 459-60, 78 A.3d 415 (2013);
Crosby v. State, 408 Md. 490, 506, 970 A.2d 894
(2009); Nathan v. State, 370 Md. 648, 660, 805 A.2d
1086 (2002); Cartnail v. State, 359 Md. 272, 285,
753 A.2d 519 (2000).
United States v. Arvizu, 534 U.S. 266, 274, 122
S.Ct. 744, 151 L.Ed.2d 740 (2002), the Supreme Court
commented on the same easily satisfied quantitative standard
for a constitutional Terry stop:
"Although an officer's reliance on a mere
'hunch' is insufficient to justify a stop, the
likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short
of satisfying a preponderance of the evidence
(Emphasis supplied; citations omitted). See also Adams v.
Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d
612 (1972) ("The Fourth Amendment does not require a
policeman who lacks the precise level of information
necessary for probable cause to arrest to simply shrug his
shoulders and allow a crime to occur or a criminal to
escape."); Alabama v. White, 496 U.S. 325, 330,
110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); United States v.
Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d. 1
(1989); United States v. Cortez, 449 U.S. 411,
417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
shall point out infra, flight in and of itself may
not be illegal per se, but it may well be a
constitutional justification for an investigative detention,
to wit, a Terry stop, pursuant to Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
court's analysis then went on to invalidate what could
have been a Terry frisk for weapons, it suggested
that a police officer's fear that a suspect might be
armed and dangerous would be rendered unreasonable if there
were an unrebutted possibility that the suspect might have a
license for the gun he was carrying.
"So, the police take Mr. Sizer down, and Mr.
Sizer says, in the process of Officer Schlossnagle
taking him down - says, I have basically a weapon.
And there's no per se illegality of having a
weapon. I'm assuming that the Defendant
didn't have a permit, but I don't know that, to
carry. And so it's not per se illegal to have a
hearing court's analysis there goes astray because it
fails to appreciate that a Terry frisk is not
predicated on the illegality of the suspect's behavior in
possessing a handgun but on the very different predicate of
an officer's fear for his own safety when confronting a
suspect who the officer reasonably believes may be armed or
dangerous. A suspect with a licensed handgun is just as
dangerously armed as is a suspect with an unlicensed handgun.
Licensed handguns shoot bullets that are just as deadly as
are those from unlicensed handguns. A permit to carry a
handgun would no more vitiate the need for a frisk than would
the suspect's promise not to shoot anybody with it. Even
if the stopee had his permit to carry a handgun pinned to the
front of his shirt and even if the officer read it before
conducting the frisk, that would in no way eliminate or even
diminish the need for the frisk. Indeed, it would enhance the
need. Per se illegality is simply not a requirement
for the reasonable articulable suspicion to support a
hearing court's analysis concluded, it seemed to reaffirm
the quintessential reasonableness of Officer
Schlossnagle's conduct even as it grudgingly held that
"the rules were not followed."
"Officer Schlossnagle most likely, probably did
- in addition to Officer Baker and Corporal Zammillo -
probably saved the public potentially from additional
crimes that evening; one could argue that. Probably
did…. Do I have any doubt that the Defendant ran
because he didn't want to be arrested, because he had,
probably, an illegal weapon on his person; that he was
on probation, and that in and of itself most likely precluded
him from having any weapons on his person? Am I
reasonably sure that he had illegal drugs on his person?
Of course I am. I wasn't born
yesterday. But that's not the issue. The issue
is, were all the rules followed? And although I can
understand the heat of the moment, I can understand the
high-crime area, the fact that Mr. Sizer ran, in and of
itself, based on the particular scenario that's being
given here today, is not sufficient."
hearing court referred to "Officer Schlossnagle's
act of physically putting his hands on the Defendant and, in
the officer's words, taking him down." Lest there be
any suggestion there that a "hard take down" might
render an otherwise good Terry stop unreasonable,
see In re David S., 367 Md. 523, 539, 789 A.2d 607
"Several police officers conducted a 'hard take
down' of respondent. The officers, with their weapons
drawn, forced respondent to the ground and placed him in
handcuffs. This conduct was not unreasonable because the
officers reasonably could have suspected that that respondent
posed a threat to their safety. Considering the totality
of the circumstances, as they appeared to the officers at the
time, in order to maintain their safety, handcuffing
respondent and placing him on the ground for a brief time was
reasonable and did not convert the investigatory stop
into an arrest under the Fourth Amendment. Although this
is a severe form of intrusion, we conclude that under
the circumstances, it was reasonable."
(Emphasis supplied). See also, Lee v.
State, 311 Md. 642, 661-66, 537 A.2d 235 (1988);
Elliot v. State, 417 Md. 413, 429-30, 10 A.3d 761
(2010); Bailey v. State, 412 Md. 349, 371-72 n. 8,
987 A.2d 72 (2010); Chase v. State, 224 Md.App. 631,
646-47, 121 A.3d 257, aff'd, 449 Md. 283, 144
A.3d 360 (2015).
Flight as a Dispositive Terry Factor
de novo determination is that the constitutional
protocols were scrupulously observed. The Fourth Amendment
was not offended, and the evidence should not have been
suppressed. The reasonable articulable suspicion for the
Terry stop, moreover, was by no means based merely
on flight. It was far more multi-factored than that. It was
based on unprovoked flight upon the approach of
the police in a high crime area. This case was a
paradigmatic replay of Illinois v. Wardlow, 528 U.S.
119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) itself.
Wardlow, even as in in the present case, a team of
eight officers converged on a Chicago neighborhood known for
being a high crime area, specifically "an area known for
heavy narcotics trafficking." Wardlow, theretofore
unknown to the police, was standing next to a building,
holding an opaque bag. Wardlow, as did the appellee here,
looked in the direction of the officers, then turned, and
inexplicably fled. Two officers, as in this case, took off in
pursuit. A short distance away, Officer Nolan stopped Wardlow
and immediately conducted a pat-down search for weapons. As
part of the frisk, Officer Nolan squeezed the opaque bag
Wardlow was carrying and felt a heavy, hard object similar in
shape to a gun. He opened the bag and recovered a loaded .38
caliber handgun. Wardlow was then arrested. 582 U.S. at
issue in Wardlow, as in the case now before us, was
whether, pursuant to Terry v. Ohio, the police had
reasonable suspicion to justify the initial detention of the
suspect based on his flight. The trial court denied
Wardlow's motion to suppress the evidence. The Illinois
Appellate Court, however, reversed the conviction, holding
that Officer Nolan did not have reasonable suspicion to
justify a Terry stop. 287 Ill.App.3d. 367, 678
N.E.2d 65 (1997). The Illinois Supreme Court affirmed. 183
Ill.2d 306, 701 N.E.2d 484 (1998). On certiorari, the United
States Supreme Court reversed the Illinois courts and held
that the Terry stop was, indeed, constitutional.
among the factors that the Supreme Court found to be strongly
supportive of the reasonableness of the Terry stop
was the character of the neighborhood as a high crime area.
"An individual's presence in an area of expected
criminal activity, standing alone, is not enough to support a
reasonable, particularized suspicion that the person is
committing a crime. Brown v. Texas,443 U.S. 47, 99
S.Ct. 2637, 61 L.Ed.2d 357 (1979). But officers are not
required to ignore the relevant characteristics of a location
in determining whether the circumstances are sufficiently
suspicious to warrant further investigation.
Accordingly, we have previously noted the fact that the
stop occurred in a 'high crime area' among the