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Thornton v. State

Court of Special Appeals of Maryland

July 25, 2018

TAMERE THORNTON
v.
STATE OF MARYLAND

          Circuit Court for Baltimore City Case No. 116027021

          Nazarian, Arthur, Friedman, JJ.

          OPINION

          ARTHUR, JUDGE

         Tamere Hassan Thornton[1] was charged in the Circuit Court for Baltimore City with offenses related to the possession of a handgun. After the circuit court denied his motion to suppress evidence, Thornton entered a plea of not guilty and allowed the case to proceed on an agreed statement of facts. On that basis, he was convicted of one count of possessing a regulated firearm after previously being convicted of a crime of violence. The court sentenced him to four years of imprisonment and permitted him to remain on bail during this appeal to challenge the suppression ruling.

         For the reasons discussed in this opinion, we conclude that the circuit court did not err when it determined that the evidence of handgun possession was too attenuated from any unreasonable search to require the exclusion of that evidence. We affirm the judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         The basic facts are as follows: police officers detained Thornton for a parking infraction across the street from his home; after asking Thornton a few questions, the officers ordered him to step out of his car so that they could perform a pat-down search; as soon as the officer started to pat down Thornton's clothing, Thornton tried to run away, but he fell after a short distance; and the officers quickly restrained him and lifted him off the ground to discover a handgun underneath him.

         The officers placed Thornton under arrest and transported him to a police station. They did not issue a parking citation. The weapon that they recovered was a .32 caliber semi-automatic handgun with a 2-1/8 inch barrel. It had one live round in the chamber and a magazine with five live rounds. Testing showed that it was operable.

         Thornton was charged with five counts: (1) possessing a handgun after being convicted of a crime of violence; (2) possessing a handgun after being convicted of a disqualifying crime; (3) wearing, carrying, or transporting a handgun on or about his person; (4) wearing, carrying, or transporting a handgun in a vehicle travelling on a public road; and (5) possessing ammunition after having been prohibited from possessing a regulated firearm. He was released after posting bond.

         Counsel for Thornton filed an omnibus motion, which included a request to suppress evidence obtained at the time of his arrest. The circuit court held a suppression hearing on August 29, 2016.

         Only two witnesses testified: Baltimore City police officers Kenneth Scott and Jeremy Zimmerman. As the circuit court recognized, the two officers gave "somewhat conflicting stories" about some events leading to the discovery of the handgun. The court described Officer Scott's testimony as "unconvincing" in many respects, and it appeared to rely on some of Officer Zimmerman's testimony. To provide context for analyzing the court's ruling, this summary includes testimony from both officers.

         At around 2:00 p.m. on January 11, 2016, three officers assigned to an "Operations Drug Unit" were travelling in an unmarked police vehicle on Midwood Avenue. According to Officer Scott, who was a passenger in that vehicle, they were "patrolling" and "driving through to go through McCabe for CDS," or controlled dangerous substances. He asserted that "McCabe" is "a high drug area, traffic [sic]" located "right off of Midwood."[2] In the words of Officer Zimmerman, the driver of the vehicle, they were in the area looking for "[d]rugs, weapons, all kinds of things[.]"

         At the same time, Tamere Thornton was sitting in the driver's seat of a Cadillac sedan parked across from his home on Midwood Avenue. The sedan's lights were off, and its engine was not running. On the same block, a tree-removal crew was occupying multiple parking spaces with two trucks and a set of cones. The sedan was parked nearby, facing against the flow of traffic, with its left wheels next to the curb. Maryland law requires that a vehicle parked on a two-way roadway must be "parked parallel to the right hand curb or edge of the roadway, with its right hand wheels within 12 inches of that curb or edge of the roadway." Md. Code (1977, 2012 Repl. Vol.), § 21-1004(a) of the Transportation Article ("TA").

         Officer Scott noticed that the sedan was improperly parked on the wrong side of Midwood Avenue. Officer Zimmerman made a U-turn and stopped the unmarked police vehicle directly behind the sedan. The officers activated the emergency lights of the police vehicle, but did not activate its siren. Officer Zimmerman walked to the driver's side of the sedan, Officer Scott walked to the passenger side, and a third officer remained inside the police vehicle. The officers were wearing tactical vests with the word "POLICE" displayed in bold letters across their chests.

         Thornton remained in the driver's seat of the sedan as the two officers approached. For a brief period of time, less than one minute, the officers proceeded to ask Thornton a few questions. Although Officer Scott claimed that the initial purpose of the encounter was to inform the driver that the sedan was "on the wrong side of the street," no testimony indicates that the officers actually told Thornton about the parking violation. According to both officers, Thornton's demeanor was "laid back," and he did not say anything unusual during the exchange. Nevertheless, both officers testified that, because of certain hand movements that Thornton made, they suspected that he might be carrying a weapon. As the circuit court noted, Officer Scott testified in "fairly vague terms" about these hand movements, while Officer Zimmerman's testimony "was less vague" on that matter.

         Officer Scott, a 10-year veteran of the police department, asserted that he had training and experience in identifying armed persons. Throughout his testimony, Officer Scott frequently stated his conclusion that Thornton displayed "characteristics of an armed individual" while seated in the sedan. The only applicable "characteristic[]" that Officer Scott mentioned is that an armed person sometimes will perform "checks" by touching his or her "front waistband area," which, Officer Scott said, is a common place for a person to carry a firearm.

         Officer Scott testified that he could see Thornton "looking out his mirror" as the officers approached the sedan. Officer Scott claimed that, as he approached the passenger side of the sedan, he saw Thornton "numerous times like start making movements to his front area[.]" According to Officer Scott, Thornton kept his hands "down on the side" and "around his waistband area." When asked about any hand movements that he may have observed, Officer Scott gave various responses:

[OFFICER SCOTT]: Like [Thornton] just kept like doing a check, like just trying to, I don't know, like push it down or just (indicating), I don't know, you know, just to make sure it's secured. I'm not sure what he was trying to do but, I mean, it just . . .
* * *
[OFFICER SCOTT]: He was still like, the same thing, like a weapons check, just trying to, you know, like he had something he was trying to hide.
* * *
[OFFICER SCOTT]: It was more or less like his - yeah, I mean like, yeah, like I said, just trying to - I don't know if he was trying to push it down so like I guess we wouldn't be able to see it or I'm not sure, but I just know he just kept doing it . . .
* * *
[OFFICER SCOTT]: But I mean, you know, it was just - something just didn't fit right with him keep checking his waist area.

         Officer Scott testified that he did not speak to Thornton at first, but instead focused on observing Thornton's conduct while Officer Zimmerman questioned Thornton from the opposite side. At one point, Officer Scott heard Thornton say that he "lived across the street."[3]

         Officer Scott asked Thornton if he would permit the officers to search the sedan. Thornton declined, which he certainly had the right to do. See Longshore v. State, 399 Md. 486, 537-38 (2007) (explaining that a "person has a constitutional right to refuse to consent to a warrantless search of his or her automobile, and such refusal may not later be used to implicate guilt[, ]" nor can it be used to justify a warrantless search).

         In response, Officer Scott told Thornton that they would need to wait for a "K-9 unit" to arrive with an odor-detecting dog. In his testimony, however, Officer Scott admitted that he did not actually intend to call for a K-9 unit. Officer Zimmerman later explained in his testimony that officers sometimes tell a detained driver that they intend to call a K-9 unit only "to gauge the reaction" of the driver. The circuit court described this tactic as "a bluff." There is no indication that Officer Scott's "bluff" provoked any particular reaction from Thornton.

         Officer Scott testified that, after announcing an intention to call for a K-9 unit, he told Officer Zimmerman to "pull [Thornton] out of the vehicle" for a weapons check. During cross-examination, Officer Scott was unable to explain why he would have first asked permission to conduct a vehicle search and then suggested that he would call a K-9 unit if he had truly believed all along that Thornton was carrying a weapon. Officer Scott could only say that "the hair on the back of [his] neck . . . stood up after a minute," which made him "think [Thornton] ha[d] something."

         As the circuit court noted, Officer Zimmerman described in "greater detail," relative to his partner, the "specific motions" that Thornton allegedly made. Citing his training and experience from three years with the Baltimore City police, Officer Zimmerman asserted that common indications that a person may be armed include "a bladed stance away from" an officer, "security checks," "favoring one side of [the] body," and, in particular, "holding the area where the weapon is concealed." He asserted that, when trying to determine whether the occupant of a vehicle may be armed, one should "look for a shoulder moving up or down drastically" as a result of the effort "to reach under a seat or to . . . further conceal something in [the person's] front waistband."

         Officer Zimmerman testified that, as he walked to the driver's side of the sedan, he "observed Mr. Thornton raise his right shoulder and kind of bring his elbows together," which Officer Zimmerman characterized as "consistent with attempting to conceal something in the front area of [a person's] body." Officer Zimmerman performed a demonstration of this movement as he described it a second time: "right shoulder up which kind of brings your hand up a little bit higher and then . . . elbows together, kind of pushing down."[4]

         In Officer Zimmerman's opinion, "it was very apparent that [Thornton] was uncomfortable with whatever was in his lap," because he continued "making adjustments" around "where [his] belt buckle would be on [his] pants." Officer Zimmerman said that, although Thornton was not "grabbing anything," it appeared that he was "manipulating something" and that he "was obviously uncomfortable" with the "the position," or "the size," or "the shape" of whatever object he was manipulating. Officer Zimmerman testified that Thornton "would sit back down and attempt to adjust something in his waistband" whenever he "would lean over to the right to address" Officer Scott. This happened "about two or three times," according to Officer Zimmerman.

         In total, Officer Zimmerman estimated that Thornton made four or five "distinct movements" or "adjustments" near his waistband during the 30 or 40 seconds before they told him to step out the sedan. In Officer Zimmerman's opinion, those movements "were not . . . solely nervous movements[.]" Officer Zimmerman testified that, "[f]rom what [he] observed," he "believed that [Thornton] was concealing some sort of weapon . . . in his waistband[.]"

         According to both officers, Thornton was not "free to leave" by the time they told him to step out of his car. Officer Zimmerman testified that he himself opened the door of the sedan and allowed Thornton to stand up. Officer Zimmerman did not recall seeing that Thornton needed to unbuckle his seatbelt when he stood up.

         Officer Zimmerman told Thornton to place his hands on his head. Thornton complied. Officer Zimmerman claimed that, at that time, he had not yet made any physical contact with Thornton.

         Officer Zimmerman started to pat down Thornton's clothing, beginning with the front waistband area. Officer Zimmerman testified that, "as soon as [he] began" to "touch [Thornton] to begin the pat down," Thornton started to run away. Officer Zimmerman said that he did not feel a weapon as he made contact with Thornton.

         Officer Zimmerman claimed that Thornton "kind of pushed" him "aside a little bit and then ran, trying to run southbound in the block[.]" Thornton "slipped or fell," and Officer Zimmerman was "able to jump on top of" him while he was face-down with his hands under his chest. The two officers grabbed Thornton's hands and handcuffed him. When the officers "rolled [Thornton] over," Officer Zimmerman noticed "a handgun on the ground under him."

         In Officer Scott's telling of the same events, Officer Zimmerman actually "pull[ed]" Thornton out from the sedan, announced to Thornton that he was going to check him for weapons, and "went down in the [waist] area" to start the pat-down. Then, according to Officer Scott, Thornton "tried to push [Officer Zimmerman] out of the way so he could try to run." Officer Scott said that, as Thornton "pushed away," Officer Zimmerman "was able to grab" him, while he "was trying to still move his feet[.]" Officer Scott said that Thornton "slipped" on some "dead branches" on the ground, which allowed them to regain control of him. According to Officer Scott, "once [they] got him in handcuffs, [they] picked him up, and the handgun was right there underneath of him."

         Thornton elected not to testify, and defense counsel argued the motion based on the testimony of the two officers. Defense counsel conceded that the officers had the right to investigate Thornton's improperly parked sedan, but challenged whether their observations justified the pat-down. Defense counsel asserted that, "[a]t worst," the officers may have observed "some kind of movements that in their mind are a characteristic of an armed person[.]" Defense counsel argued that "in fact, if they saw enough to really think that [Thornton] had a gun, they wouldn't have been wasting their time even talking to him about permission to search the car, much less go for the K-9 unit." Defense counsel theorized that the officers were "looking for drugs" when they decided to search Thornton's person after he refused to consent to a vehicle search.

         As the sole justification for the pat-down, the State pointed to the officers' testimony that Thornton was "reaching into his waistband," considered in light of the officers' testimony about their training and experience in the identification of armed persons. The State also argued that "there really was no search" because the discovery of the gun occurred after what the State called Thornton's "unprovoked flight" as soon as the pat-down started. In response to that second argument, defense counsel asserted that the handgun should be suppressed as "the fruit of the poisonous tree."

         After several hours of consideration, the court rendered a thoughtful and cautious oral ruling. The court noted: "Despite what appears on its face to be simple facts, the legal analysis is actually fairly complicated." While admitting that the case presented "a close question," the court announced that it would deny the motion to suppress.

         The court, proceeding in chronological order, first determined that the officers had acted lawfully when they initially confronted Thornton. The court recognized that there was "some merit" to the suggestion that the officers were using the parking violation as "an excuse to inquire further into the driver who was sitting in the vehicle." Yet the court concluded that there was in fact "a real issue with an illegally parked car" to justify the initial investigation.

         The court then examined the officers' "somewhat conflicting stories" about what happened after they approached Thornton's sedan. The court noted that Officer Scott provided "very few details" about observations that made him suspect that Thornton was armed. The court reasoned that Officer Scott's efforts to search the sedan were "somewhat inconsistent with his genuine belief that there might be a weapon involved." The court concluded: "His testimony frankly was unconvincing." The court said that, if the State had offered only Officer Scott's testimony, the decision would be "relatively easy," because the court would conclude that "his testimony does not convince nor does it establish sufficient cause for a search."

         By contrast, the court said that Officer Zimmerman's testimony was "substantially different," in that it included "much greater detail" as to "the specific motions" that suggested "that [Thornton] was possibly armed[.]" Specifically, the court mentioned the initial movement toward the waistband that Officer Zimmerman claimed to have seen as the officers were approaching the sedan. The court, "for purposes of the record," recounted that Officer Zimmerman "dipped a shoulder, straightened up, reaching for the belt area" in his in-court demonstration. The court said that this movement "if it took place as described, could be consistent with adjusting the position of a gun in the waistband or in some other actions toward the band."

         Nevertheless, citing In re Jeremy P., 197 Md.App. 1 (2011), the circuit court observed that "a security check by itself" typically "is not enough to establish either reasonable cause or probable cause because it could represent any variety of behaviors other than checking on a gun." The court noted the absence of any additional circumstances that might indicate dangerousness or criminality on Thornton's part. Summarizing the evidence, the court concluded: "All they have is this conduct with his hands while he's being approached by the police officers."

         Although the court concluded that the officers were entitled to direct Thornton to exit the car, the court declined to conclude that the officers had sufficient justification to pat down his clothing. In the court's words, the officers had "very questionable reasonably articulable suspicion" that Thornton was armed and dangerous when he stepped out of the car. The court said that, "had they done a frisk of him at this point," there would be a "serious question as to the legality of the frisk." Later, the court reiterated its opinion that "the initial search might in fact very well have been improper."

         Nevertheless, the court said that "the search had not really begun as of the time when [Thornton] turned and ran" from Officer Zimmerman. Recounting the evidence, the court stated: "he begins to run, he is chased, it's not clear how far, he falls to the ground, he gets up[, ] and the gun is found on the ground." The court reasoned that Thornton's flight "changes in some significant ways the analysis" because flight from the police may contribute to suspicion of criminal activity. The court also commented that it was "an interesting question" whether "a search t[ook] place or a seizure t[ook] place at all" under the circumstances, because the gun "f[ell] out from [Thornton's] waist[.]"

         Finally, the court considered "whether, even if the search beg[an], improperly or illegally," there was "a subsequent event that attenuates the initial illegality." The court examined three "attenuation" factors: (1) "the time that has elapsed between the illegality and the acquisition of the evidence"; (2) "the presence of intervening circumstances"; and (3) "the purpose and flagrancy of the official misconduct." See Myers v. State, 395 Md. 261, 285-86 (2006) (discussing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).

         Addressing the first factor, the court observed that the time lapse was "very small, very short[.]" Addressing the third factor, the court stated that the officers' conduct was "arguably illegal" when they attempted to frisk Thornton "under circumstances in which the only indicator of potential criminal conduct was the furtive motions of his hands which they felt might have indicated the ...


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