Circuit Court for Baltimore City Case No. 116027021
Nazarian, Arthur, Friedman, JJ.
Hassan Thornton 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.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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.
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." 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[.]"
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").
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.
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.
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.
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.
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."
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).
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
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."
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."
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."
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
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[.]"
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.
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.
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.
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."
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."
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
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."
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.
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.
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."
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."
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
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
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[.]"
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)).
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