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State v. Sizer

Court of Special Appeals of Maryland

November 29, 2016


          Graeff, Leahy, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.


          Moylan, J.

         The wisdom undergirding this State appeal emanates from the twenty-eighth chapter of the Book of Proverbs, Verse 1:

"The wicked flee when no man pursueth; but the righteous are bold as a lion."

         And the 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.

         The State Appeal

         The 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."

(Emphasis supplied).

         The 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.

         Standard of Appellate Review

         In 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 hearing."

399 Md. at 498. (Emphasis supplied). That limitation is easy to adhere to in the present case, because there is nothing else to consider.

         The 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.

         The 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 motion[.]"


         In this 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[1] 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.

         Once 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 determination:

"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).[2] We will announce our de novo determination infra.

         The Initial Encounter

         Officer 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 credible."

(Emphasis supplied).

         On the 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."

(Emphasis supplied).

         At 5:30 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 the mini-van.

"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 the group."

(Emphasis supplied).

         Unprovoked Flight

         As the 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.

         The Arrest as a Superseding Rationale

         It was 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.

         Corporal 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."

         The Frisk and the Search Incident

         During 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.

         At the 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 Suppression Ruling

         Although 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."

(Emphasis supplied).

         Reliance 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 measure:

"[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).

         In 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 standard[.]"

(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).

         As we 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).

         As the 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 weapon."

(Emphasis supplied).

         The 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 Terry frisk.

         As the 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."

(Emphasis supplied).

         The 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 (2002):

"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).

         Unprovoked Flight as a Dispositive Terry Factor

         Our 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.

         In 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 121-22.

         The 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.

         Prominent 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 relevant ...

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