Argued: September 6, 2017
Court for Howard County Case No. 13-K-15-056103
Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty,
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.
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.
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.
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.
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.
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.
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
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
asked about what types of crimes he had investigated in the
Owen Brown Village
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
[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
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."
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.
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
[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.
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.
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
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.
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.
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
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.
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.
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 ...