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Sizer v. State

Court of Appeals of Maryland

November 28, 2017

JAMAL SIZER
v.
STATE OF MARYLAND

          Argued: September 6, 2017

         Circuit Court for Howard County Case No. 13-K-15-056103

          Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          Greene, J.

         In the case before us, we are asked to consider the constitutionality of the stop and the subsequent search incident to the arrest of Petitioner, Jamal Sizer. On the evening of November 20, 2015, five or six officers of the Howard County Police Department Pathways Patrol Unit, a bicycle patrol unit, observed Mr. Sizer and others congregating in a public parking lot, drinking from what appeared to be an open alcohol container. The officers described the group as "loud and disorderly." The officers observed a bottle being thrown and heard it hit the ground, but could not see who threw the bottle. The officers approached the group to investigate who in the group threw the bottle. Mr. Sizer fled upon the officers' approach. A chase ensued and ended with the seizure of Mr. Sizer, which led to the discovery that he possessed a .38 caliber revolver in his backpack. Contemporaneously with the seizure of Mr. Sizer, an officer recognized Mr. Sizer as having an outstanding arrest warrant. Subsequently, pursuant to the discovery of the outstanding warrant, Mr. Sizer was arrested and taken to the local police precinct, where an officer searched Mr. Sizer incident to his arrest and recovered a baggie containing twenty-seven pills of oxycodone, a controlled dangerous substance, hidden in his sock.

         Mr. Sizer filed a motion to suppress the firearm and the pills recovered from his person, and after a hearing, the Circuit Court for Howard County granted his motion. The State appealed, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(4) (1973, 2013 Repl. Vol., 2016 Supp.). In a reported opinion, the Court of Special Appeals reversed the judgment of the Circuit Court, holding that the stop was constitutional. State v. Sizer, 230 Md.App. 640, 658, 149 A.3d 706, 717 (2016). The intermediate appellate court held in the alternative that, assuming arguendo that the stop was unlawful, the evidence recovered would have been admissible under the independent source doctrine because Mr. Sizer was arrested on a valid pre-existing warrant that was independent of the illegal stop. Id. at 669, 149 A.3d at 723. A concurring member of the three-judge panel, Judge Kathryn Graeff, concluded that, assuming arguendo that the stop was illegal, the evidence that was recovered from Mr. Sizer would have been admissible under the attenuation doctrine, rather than the independent source doctrine, in light of this Court's decisions in Myers v. State, 395 Md. 261, 909 A.2d 1048 (2006), Cox v. State, 397 Md. 200, 916 A.2d 311 (2007), and the United States Supreme Court's decision in Utah v. Strieff, ___ U.S. ___, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016). Id. at 680-81, 149 A.3d at 730.

         We review the issue of whether the officers had reasonable suspicion to stop Mr. Sizer. We hold that the officers had reasonable suspicion to conduct a stop when they witnessed what appeared to be criminal activity occurring immediately before the investigatory stop. In the alternative, we hold that, even assuming the stop was unlawful, the evidence recovered from Mr. Sizer would be admissible in evidence because the attenuation doctrine would apply, pursuant to the Supreme Court's reasoning in Strieff.

         For reasons stated in this opinion, we shall affirm the judgment of the Court of Special Appeals to the extent that it held that the officers had reasonable suspicion to stop Mr. Sizer. We also, alternatively, affirm the judgment of the intermediate appellate court and adopt the reasoning of the concurring opinion, penned by Judge Graeff, with respect to the application of the attenuation doctrine.

         I.

         Initial Stop

         The relevant undisputed facts are taken from testimony presented at the suppression hearing. On the evening of November 20, 2015, five or six officers, from the Howard County Police Department Pathway Patrol Unit ("Patrol Unit"), on routine patrol, biked the footpaths that "lead all throughout Columbia, [Maryland]." While on the footpath, officers in the Patrol Unit observed a group of individuals "play fighting and passing around an alcoholic beverage back and forth." The Patrol Unit suspected that the beverage was alcohol because it was in a brown paper bag and the group's body language was "consistent with individuals drinking." The officers, from 25-35 yards away from the group, observed a bottle being thrown and heard it hit the ground, but could not see who threw the bottle. At that point, the officers approached the group to investigate. When the officers were approximately five feet away, Mr. Sizer fled on foot, away from the officers.

         Officer Andrew Schlossnagle, one of the officers in the Patrol Unit, gave immediate chase and "physically took [Mr. Sizer] to the ground." As Mr. Sizer was being tackled to the ground, he revealed that he was carrying a handgun on his person. Within seconds of the takedown, another officer from the Patrol Unit recognized Mr. Sizer as the subject of an outstanding arrest warrant. At that point Mr. Sizer was arrested and taken to the police satellite station in the Village Center pursuant to the officers' belief that he was the subject of a pre-existing warrant. At the satellite station, the officers confirmed the existence of the warrant and performed a search of Mr. Sizer incident to his arrest. The officers recovered a .38 caliber handgun from Mr. Sizer's backpack and twenty-seven pills of oxycodone, a controlled dangerous substance, from Mr. Sizer's sock. Additional facts will be discussed as needed.

         Suppression Hearing

         Mr. Sizer moved to suppress the weapon and the pills, arguing that the evidence was obtained pursuant to an unlawful stop. At the suppression hearing, members of the Patrol Unit testified that the Owen Brown Village Center was a "high" or "higher crime area, " compared to other parts of Columbia, Maryland. The State argued that Mr. Sizer's flight in a high crime area was enough to give the officers reasonable suspicion to conduct a stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("Terry stop"); see also Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ("Terry stop in a high crime area").

         The three testifying officers similarly characterized the Owen Brown Village Center as a high crime area. Officer Schlossnagle testified that the Owen Brown, Long Reach, and Oakland Mills Village Centers "tend to [have] an increase in calls for service and just general issues. There tends to be more calls for service in that - in those congested areas."

         When asked about what types of crimes he had investigated in the Owen Brown Village

         Center, the officer responded, "[W]e were tasked to Owen Brown because of the increased calls for service and on-going trends in the area." The Circuit Court judge interjected:

[COURT]: Is "increased calls for service" a nice way of saying "high crime[]?"
[OFFICER SCHLOSSNAGLE]: Yes, Your Honor.
[COURT]: Thank you. I mean, just so I know what we're talking about.

         Officer Schlossnagle explained that at the time of the incident, there was "an ongoing robbery series" and that "business owners . . . were complaining of quality of life issues, [such as controlled dangerous substance] violations, loitering, drinking, where the business centers requested an increased presence." Officer Schlossnagle also explained that "there was a report of a subject displaying a handgun the day before in the footpaths and fields that abut up to the village center." [1] He testified that "there is a network of footpaths that leads up to the back side of [the village center]." A second officer, Corporal James Zammillo, testified that the Owen Brown Village Center was a "high crime area" as compared to other parts of Columbia. Corporal Zammillo explained that his assignment as a member of the bike team patrol included "passively patrolling the ninety-plus miles of pathway that traverses through Columbia." Corporal Zammillo confirmed Officer Schlossnagle's testimony that there was "an ongoing robbery series" in the area.

         A third officer, Officer Ronald Baker, the only witness called by the defendant, testified that the patrol officers had been "traveling the pathways, and we came across the Owen Brown Village Center, but we stopped at the entrance to the Owen Brown Village Center via [the] pathway." He explained that, at the time of observing the group of individuals, he recognized one individual whom he knew had been banned from the Owen Brown Village Center:

[STATE]: Is Mr. Davis banned from the -- I believe it's the Owen Brown Village Center?
[OFFICER BAKER]: Yes, he is.
[STATE]: And you indicated -- did you indicate you were waiting for him, to see if he would enter where he was banned from?
[OFFICER BAKER]: Yes.
[STATE]: And where specifically was that?
[OFFICER BAKER]: That particular area we were at, to the best of my knowledge, that parking lot isn't part of the village center. So, we was [sic] watching him and the group to see if they were going to enter the banned part of the village center.

         Officer Baker also testified that when the officers were about five feet away, the group noticed the officers. Officer Baker testified that his uniform consisted of a badge and the word "Police" on the front of the jacket in neon lettering. Two other officers testified with a similar description of their uniform. Later, in Officer Baker's testimony, he stated that it appeared that Mr. Sizer ran as soon as Mr. Sizer observed the officers:

[STATE]: How far away were you from this group of suspects - subjects when you believed they noticed you?
[OFFICER BAKER]: Well, as we approached, probably about five feet when they turned around to see us.
[STATE]: And as soon as they noticed you, did Mr. -- did one of the suspects run?
[OFFICER BAKER]: Yes.
[STATE]: And did you write in your report that as soon as the suspect observed officers . . . Is that correct?
[OFFICER BAKER]: Yes.
* * *
[STATE]: You indicated in your report that the subject ran as soon as he recognized you were there. [OFFICER BAKER]: It appeared that way; yes.

         The officers testified that they were concerned with the group's general disorderliness and possible open container violations. None of the officers testified that they believed the group was connected to the "ongoing robbery series, " or that they suspected any member of the group was the individual who had displayed a gun on the previous night.

         After the three officers testified, the hearing judge first analyzed whether Mr. Sizer's flight was legally sufficient to conduct a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The hearing judge found all three testifying officers "to be truthful and credible" and that they had "testified today without embellishment." She found that "somebody [in] 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." The hearing judge found that "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." Nevertheless, the hearing judge suppressed the evidence, and, in doing so, indicated that she questioned whether "all the rules [were] followed[.]" The hearing judge explained, "[T]he fact that Mr. Sizer ran, in and of itself, based on the particular scenario that's being given here today, is not sufficient." Further, the hearing judge concluded that the pre-existing arrest warrant did not attenuate the taint of the unconstitutional stop.

         Procedural History

         The State appealed the Circuit Court's decision to suppress the evidence. The Court of Special Appeals reversed the suppression of the weapon and the pills, and held that given the totality of the circumstances, the stop was reasonably justified. Sizer, 230 Md.App. at 658, 149 A.3d at 717. The Court of Special Appeals alternatively held that had the stop not been constitutional, the evidence would not have been suppressed due to Mr. Sizer's pre-existing arrest warrant, although the three-judge panel disagreed as to the reason for non-suppression of the evidence. Id. at 669, 149 A.3d at 723.

         Mr. Sizer petitioned this Court for certiorari, which we granted. Sizer v. State, 452 Md. 3, 155 A.3d 890 (2017). In the interest of clarity, we have condensed Mr. Sizer's questions for certiorari into two questions: Did the arresting officers have reasonable suspicion to stop Mr. Sizer, and if the arresting officers did not have reasonable suspicion to stop and detain Mr. Sizer, was the suppression of the evidence justified?[2]

         II.

         Standard of Review

         When reviewing a hearing judge's ruling on a motion to suppress evidence under the Fourth Amendment, we consider only the facts generated by the record of the suppression hearing. Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129, 1135 (2007). We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the party prevailing on the motion, in this case, Mr. Sizer. Id. We review the hearing judge's findings for clear error. Id.

         Finally, we review the hearing judge's legal conclusions de novo, making our own independent constitutional evaluation as to whether the officer's encounter with the defendant was lawful. Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999). In other words, our plenary review of the record for error requires application of the facts under a totality of the circumstances analysis.

         III.

         Parties' Contentions

         Mr. Sizer's arguments generally focus on the officers' consideration of Mr. Sizer's flight in what the officers characterized as a high crime area. He asserts that the officers did not have a "particularized and objective basis" to support reasonable suspicion for the stop. Mr. Sizer correctly acknowledges that the United States Supreme Court has not imposed a bright-line rule that flight in a high crime area is always sufficient to generate reasonable suspicion of criminal activity. Mr. Sizer postulates, however, that if this Court affirms the suppression court's decision, it will effectuate a bright-line rule that neither the Supreme Court nor this Court has endorsed. Mr. Sizer relies on the Supreme Court's decision in Wardlow for his contention that flight is merely a display of a citizen's constitutional "right to ignore the police and go about his ...


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