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Circuit Court for Baltimore City, Case No. 116027021. Stephen
J. Sfekas, Judge
by Michael T. Torres, Asst. Public Defender (Paul B. DeWolfe,
Public Defender of Maryland of Baltimore, MD), on brief, for
by Benjamin A. Harris, Asst. Atty. Gen. (Brian E. Frosh,
Atty. Gen. of Maryland of Baltimore, MD), on brief, for
before: Barbera, C.J.,[*] Greene, McDonald, Watts, Hotten,
Getty, Sally D. Adkins, (Senior Judge, Specially Assigned),
Md. 129] In the present case, we are asked to review the
constitutionality of the means by which police officers
discovered a gun in [465 Md. 130] the possession of
Petitioner Tamere Thornton ("Petitioner" or
"Mr. Thornton"). On the afternoon of January 1,
2016, three police officers were on patrol looking to
discover guns, drugs, or other contraband when they observed
Petitioner sitting in the drivers seat of a vehicle that was
illegally parked outside of Petitioners home. The officers
approached the parked vehicle and ultimately began to frisk
Mr. Thornton, which culminated in Mr. Thorntons arrest after
officers confirmed that he possessed a handgun. We hold that
the gun should have been excluded as evidence against
Petitioner because the State failed to establish that the
frisk of Petitioner was reasonable under the circumstances.
Moreover, the attenuation doctrine does not serve to render
the evidence admissible because the officers discovered the
handgun by exploitation of the unlawful frisk, and the
officers misconduct was flagrant.
FACTUAL AND PROCEDURAL BACKGROUND
Thornton was charged and convicted in the Circuit Court for
Baltimore City with possession of a firearm after having been
convicted of a disqualifying crime. The charge and conviction
followed an incident, which culminated in Mr. Thorntons
arrest after officers removed a handgun from Mr. Thornton.
Mr. Thornton filed a motion to suppress, seeking to exclude
the gun as evidence against him at trial. On August 29, 2016,
the trial court held a
suppression hearing on Mr. Thorntons motion.
The Suppression Hearing
State called Officers Kenneth Scott ("Officer
Scott") and Jeffrey Zimmerman ("Officer
Zimmerman") to testify as witnesses during the
suppression hearing. Mr. Thorntons [465 Md. 131] counsel
cross-examined the officers, but Mr. Thornton did not testify
or otherwise call any witnesses at the hearing. To summarize
the facts of this case, we look to testimony from both
January 1, 2016 at approximately 2:00 p.m., Officers Scott
and Zimmerman were on patrol in an unmarked police car. They
were accompanied by a third officer, who was identified as
Officer Gruver. The officers were driving on Midwood Avenue,
intending to turn left onto McCabe Avenue. According to
Officer Scott, McCabe Avenue is "a high drug
area[.]" The officers were in the area looking for
drugs, weapons, and other contraband.
Mr. Thornton was on the 5200 block of Midwood Avenue, sitting
in the drivers seat of a silver Cadillac. The vehicles
lights and engine were off, and Mr. Thornton was the only
occupant. The vehicle was parked along the curb across the
street from Mr. Thorntons home, but it was facing the wrong
direction. As the suppression court found, there
was construction work being done on the street that
interfered with ordinary parking.
Officer Scott noticed the improperly parked vehicle. At
Officer Scotts direction, Officer Zimmerman, who was driving
the police car, pulled behind Mr. Thorntons vehicle and
activated the emergency lights on the police car. The
officers intended to inform the vehicles driver that the car
was illegally parked. Officers Scott and Zimmerman exited the
police car and approached the parked vehicle. Officer
Zimmerman approached on the drivers side, and Officer Scott
approached on the passengers side.
Md. 132] When the officers reached the car, they questioned
Mr. Thornton for approximately 30-40 seconds. There is no
indication that the officers informed Mr. Thornton that his
vehicle was illegally parked. In addition, the officers never
issued Mr. Thornton a parking citation. Neither officer could
affirm that they investigated the license plate on Mr.
Thorntons vehicle or asked Mr. Thornton for his license and
registration, although both officers testified that running a
vehicles tags and asking for a drivers license and
registration is standard procedure for issuing a parking
citation to the operator of an illegally parked vehicle.
accounts, Mr. Thorntons demeanor while he was being
questioned was "laid back." The suppression court
found that there was "no indication of verbal
aggressiveness, disobedience, [or] false
identification." There was "[n]o evidence of a tip,
that something bad had happened .... [T]here was no evidence
of a rash of recent crimes that [Mr. Thornton] could be
assigned to. No indication that [Mr. Thornton] fit some
description of some third party." Nonetheless, both
officers testified that Mr. Thornton showed characteristics
of an armed individual. According to the
trial courts factual findings, to support their notion that
Mr. Thornton was armed, "[a]ll [the officers] ha[d]
[wa]s ... conduct with [Mr. Thorntons] hands [that the
officers observed] while [Mr. Thornton was] being approached
by the police officers."
suppression hearing, the officers described the conduct they
observed that led them to believe that Mr. Thornton was
armed. Even though Mr. Thornton was observed seated in a
vehicle, Officer Scott testified that when a person is armed,
"they walk ... with their arm[s] straight, sometimes
they dont like swing their arms a lot or they check[ ] ...
their ... front waistband area." Officer Scott explained
that, as he was approaching Mr. Thorntons car, he saw Mr.
Thornton looking out of his mirror. He also saw Mr. Thornton
"numerous times like start making movements to his front
area[.]" He did not describe the specific movements that
he saw. Officer Scott explained that, while Mr. Thornton was
being questioned, Mr. Thornton had his hands down by his side
near his [465 Md. 133] waist. According to Officer Scott,
"[Mr. Thornton] just kept like doing like a check, like
just trying to, I dont know, like push it down or ... I
dont know ... just to make sure its secured." Mr.
Thornton made such movements "[n]umerous, numerous
times." Officer Scott inferred that Mr. Thornton was
doing "a weapons check ... like he had something he was
trying to hide."
Officer Zimmerman testified that an armed individual may have
"a bladed stance away from you, [do] security checks,
maybe favor[ ] one side of [his or her] body but a big one is
... hold[ ] the area where the weapon is concealed."
Officer Zimmerman indicated that, when seated in a vehicle,
the individual may move his or her shoulders "up or down
drastically and that would show that [the individual is]
maybe trying to reach under [his or her] seat or to, you
know, further conceal something in [his or her] front
waistband." In addition, Officer Zimmerman noted that
the suspect may make "quick movements that are kind of
uncharacteristic with just being seated in a vehicle."
Officer Zimmerman testified further that, as he was
approaching Mr. Thorntons vehicle, he saw Mr. Thornton
"raise his right shoulder and kind of bring his elbows
together[.]" Officer Zimmerman said that Mr. Thornton
appeared "uncomfortable with whatever was in his lap ...
he kept trying ... [to] mak[e] adjustments, kept his hands in
front of his lap." When speaking with the officers,
"Mr. Thornton would lean over to the right to address
... Officer Scott and then again would sit back down and
attempt to adjust something in his waistband." Mr.
Thornton appeared to be "manipulating something, that he
was obviously uncomfortable with, didnt like the position or
... the size, the shape, but there was something that he was
manipulating." At first, Officer Zimmerman said that Mr.
Thornton made such movements two or three times. Later,
Officer Zimmerman testified that Mr. Thornton touched his
waistband four to five times. Officer Zimmerman conceded that
Mr. Thornton may have been moving to address the officers,
who were stationed on either side of his vehicle. He also
acknowledged that, in his experience, individuals tend [465
Md. 134] to be more nervous around police and may move around
as a result. He maintained, however, that Mr. Thornton was
not making nervous movements; his movements were
characteristic of an armed person.
Because the officers thought that Mr. Thornton exhibited
signs of an armed individual, Officer Scott said that the
stop was no longer an ordinary traffic stop. Officer Scott
asked Mr. Thornton whether he could search Mr. Thorntons
Thornton declined. In response, Officer Scott told Mr.
Thornton that they would have to wait for a K-9 unit to
arrive. Officer Zimmerman explained that "[s]ometimes we
will say that were calling for a K-9 unit to" scare or
"gauge the reaction of the person that [were] speaking
to." There is no indication that Officer Scotts threat
to call a K-9 unit invoked any particular reaction from Mr.
Thornton. At the suppression hearing, Officer Scott testified
that he did not intend to call a K-9 unit to the scene.
Officer Scott explained that his true intention was to search
Mr. Thornton because he believed Mr. Thornton was armed. On
cross-examination, Officer Scott was unable to explain why he
would ask to search Mr. Thorntons vehicle and threaten to
call a K-9 unit if, all along, he believed that Mr. Thornton
had a weapon.
Officer Scott told Officer Zimmerman to pull Mr. Thornton out
of the car to check him for weapons. Officer Zimmerman asked
Mr. Thornton to step out of the car and "place his hands
upon his head so [Officer Zimmerman] could perform [a]
pat[-]down[.]" Mr. Thornton complied. Both officers
acknowledged that, at this point, Mr. Thornton was not free
to leave. Officer Zimmerman initiated the weapons check, and
he made contact with Mr. Thorntons waistband. Upon making
contact, Officer Zimmerman did not feel a weapon. Once
Officer Zimmerman made contact with Mr. Thorntons waist, Mr.
Thornton "pushed [Officer Zimmerman] aside a little bit
and then ran." As Mr. Thornton tried to run away, he
slipped and fell. Officer Zimmerman jumped on top of Mr.
Thornton, and the officers placed him in handcuffs. The
officers rolled Mr. Thornton onto his back, exposing a
handgun that was lying on the ground beneath Mr. Thornton.
Md. 135] The Suppression Courts Ruling
suppression court engaged in a methodical analysis of the
facts, analyzing the timeline of events in chronological
order. First, the court analyzed the officers initial
confrontation with Mr. Thornton for the traffic violation.
The court found that the traffic stop may have been
pretextual, i.e., "just an excuse to inquire
further into the driver[.]" Even so, citing to Whren
v. United States , the court concluded that there was
"in fact a real violation" because Mr. Thorntons
car was parked illegally. Therefore, the court concluded that
the initial stop was lawful.
the court reviewed whether the officers were justified in
searching Mr. Thorntons person, based on the movements or
"furtive gestures" that they saw
Mr. Thornton make. Looking to Officer Scotts testimony
first, the court explained that "[h]e g[ave] very few
details about what [Mr. Thorntons] [465 Md. 136] conduct
consist[ed] of[.]" Furthermore, the court found that
Officer Scott asking to search Mr. Thorntons car and
threatening to call a K-9 unit was "somewhat
inconsistent with his genuine belief that there might be a
weapon involved." The court concluded that his testimony
was "unconvincing" and "d[id] not convince nor
d[id] it establish sufficient cause for a search[.]"
other hand, the suppression court explained that Officer
Zimmerman provided "much greater detail as to what the
specific motions were that constituted proof or suggestion
that [Mr. Thornton] was possibly armed[.]" The court
recounted that Officer Zimmerman demonstrated, in court, the
movements that he observed of Mr. Thornton. The court found
that if Mr. Thornton moved as described, such movements
"could be consistent with adjusting the position of a
gun in the waistband or in some other actions toward the
[waist]band." Citing In re Jeremy P.
, however, the court explained that
"a security check by itself ... is not enough to
establish either reasonable [suspicion] or probable cause
because it could represent any variety of behaviors other
than checking on a gun." The record lacked any
indication of verbal aggression, disobedience, or false
identification on Mr. Thorntons part, or evidence of a tip
or crime to which Mr. Thornton could be connected. The court
noted that the officers sole basis for justifying the search
was the movements that they observed Mr. Thornton making as
he was sitting in his vehicle.
on Pennsylvania v. Mimms , the court explained that
police officers may lawfully order an operator out of the
vehicle during the course of a traffic stop. Therefore, the
suppression court determined that the officers lawfully asked
Mr. Thornton to exit the vehicle. The court, however, found
that the officers had "very questionable reasonabl[e]
articulable suspicion" to subsequently frisk Mr.
Thornton. The court explained that, at this point, "had
they done a frisk of [Mr. [465 Md. 137] Thornton] ... there
would be serious question as to the legality of the
frisk." According to the suppression court, however,
"the search had not really begun as of the time when
[Mr. Thornton] turned and ran[.]"
Finally, assuming arguendo that an unlawful search
had occurred, the court considered whether the attenuation
doctrine rendered the handgun admissible. The court found
that Mr. Thorntons flight constituted an intervening
circumstance that "attenuate[d] the initial
illegality." Therefore, the court denied Mr. Thorntons
motion to suppress.
Conviction and Sentencing
the suppression courts ruling, Mr. Thornton entered a plea
of not guilty and proceeded on an agreed upon statement of
facts. The trial court found the States factual proffer,
which included admitting evidence of the gun recovered from
the ground, sufficient to support a criminal conviction.
Consequently, the court convicted Mr. Thornton of one count
of possessing a regulated firearm after
having been convicted of a crime of violence. He was
sentenced to four years of incarceration with the possibility
The Court of Special Appeals
Thornton noted an appeal to the Court of Special Appeals.
Before our intermediate appellate court, Mr. Thornton
challenged the suppression courts ruling on his motion to
suppress. Thornton v. State,238 Md.App. 87, 106,
189 A.3d 769, 780 (2018). In its analysis, the court reviewed
the constitutionality of the frisk of Mr. Thorntons person.
Id. at 122, 189 A.3d at 789. The court found no
caselaw "holding that testimony about a movement by the
occupant of a vehicle while an officer is approaching is
enough to generate reasonable suspicion that the occupant is
armed and dangerous." Id. Notably, the court
declined to reach an ultimate conclusion as [465 Md. 138] to
the constitutionality of the ...