Argued: February 5, 2019
Circuit Court for Baltimore City Case No. 116027021
Barbera, C.J. [*] Greene McDonald Watts Hotten Getty
Adkins, Sally D., (Senior Judge, Specially Assigned), JJ.
present case, we are asked to review the constitutionality of
the means by which police officers discovered a gun in 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 driver's
seat of a vehicle that was illegally parked outside of
Petitioner's home. The officers appoached the parked
vehicle and ultimately began to frisk Mr. Thornton, which
culminated in Mr. Thornton's 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.
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. Thornton's
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.
State called Officers Kenneth Scott ("Officer
Scott") and Jeffrey Zimmerman ("Officer
Zimmerman") to testify as witnesses during the
suppression hearing. Mr. Thornton's 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 driver's seat of a silver Cadillac. The
vehicle's lights and engine were off, and Mr. Thornton
was the only occupant. The vehicle was parked along the curb
across the street from Mr. Thornton's 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.
Scott noticed the improperly parked vehicle. At Officer
Scott's direction, Officer Zimmerman, who was driving the
police car, pulled behind Mr. Thornton's vehicle and
activated the emergency lights on the police car. The
officers intended to inform the vehicle's 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 driver's side, and Officer
Scott approached on the passenger's side.
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.
Thornton's vehicle or asked Mr. Thornton for his license
and registration, although both officers testified that
running a vehicle's tags and asking for a driver's
license and registration is standard procedure for issuing a
parking citation to the operator of an illegally parked
accounts, Mr. Thornton's 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 court's
factual findings, to support their notion that Mr. Thornton
was armed, "[a]ll [the officers] ha[d] [wa]s . . .
conduct with [Mr. Thornton's] hands [that the officers
observed] while [Mr. Thornton was] being approached by the
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 don't like swing their arms a lot or they check .
. . their . . . front waistband area." Officer Scott
explained that, as he was approaching Mr. Thornton's 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 waist. According to Officer Scott,
"[Mr. Thornton] just kept like doing like a check, like
just trying to, I don't know, like push it down or . . .
I don't know . . . just to make sure it's
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."
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."
Zimmerman testified further that, as he was approaching Mr.
Thornton's 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, didn't 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 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.
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. Thornton's car. Mr.
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 we're calling for a K-9 unit to" scare
or "gauge the reaction of the person that [we're]
speaking to." There is no indication that Officer
Scott's 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.
Thornton's vehicle and threaten to call a K-9 unit if,
all along, he believed that Mr. Thornton had a weapon.
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. Thornton's waistband. Upon
making contact, Officer Zimmerman did not feel a weapon. Once
Officer Zimmerman made contact with Mr. Thornton's 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.
Suppression Court's 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.
Thornton's 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. Thornton's person, based on the movements
or "furtive gestures" that they saw Mr. Thornton make.
Looking to Officer Scott's testimony first, the court
explained that "[h]e g[ave] very few details about what
[Mr. Thornton's] conduct consist[ed] of[.]"
Furthermore, the court found that Officer Scott asking to
search Mr. Thornton's 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. Thornton's
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
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. 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[.]"
assuming arguendo that an unlawful search had
occurred, the court considered whether the attenuation
doctrine rendered the handgun admissible. The court found
that Mr. Thornton's flight constituted an intervening
circumstance that "attenuate[d] the initial
illegality." Therefore, the court denied Mr.
Thornton's motion to suppress.
the suppression court's ruling, Mr. Thornton entered a
plea of not guilty and proceeded on an agreed upon statement
of facts. The trial court found the State's 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 of parole.
Court of Special Appeals
Thornton noted an appeal to the Court of Special Appeals.
Before our intermediate appellate court, Mr. Thornton
challenged the suppression court's 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. Thornton's
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 to the
constitutionality of the frisk. Id. at 123, 238 A.3d
at 790. Instead, the court assumed for purposes of its
analysis that the officers lacked the requisite quantum of
suspicion to justify the pat-down. Id.
assuming that the frisk was unlawful, the court reviewed
whether the handgun was admissible under the attenuation
doctrine. Id. at 124-37, 189 A.3d at 790-98. The
court explained that there was only a brief time lapse
between the officers' discovery of the handgun and the
pat-down of Mr. Thornton. Id. at 126, 189 A.3d at
792. Next, the court determined that Mr. Thornton's
flight could be a crime in itself pursuant to Md. Code Ann.,
Transportation Article, § 21-904(b)(2). Id. at
131, 189 A.3d at 794. His conduct, according to the Court of
Special Appeals, gave the officers probable cause to believe
that Mr. Thornton was violating the Transportation Article,
thereby providing them with probable cause to arrest Mr.
Thornton. Id. at 131, 189 A.3d at 794-95.
Accordingly, the court concluded that the officers conducted
a lawful seizure of Mr. Thornton through which they
discovered the handgun. Id. at 135, 189 A.3d at 797.
Finally, the court explained that any misconduct committed by
the officers was not flagrant. Id. at 137, 189 A.3d
at 798. Thus, weighing the aforementioned factors, the Court
of Special Appeals determined that the discovery of the
handgun was sufficiently attenuated from the unlawful frisk,
so the handgun should not be suppressed as evidence.
Thornton petitioned this Court for a writ of certiorari,
which we granted. We now review whether the suppression court
properly denied Mr. Thornton's motion to suppress the gun
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." Sizer v. State, 456 Md. 350, 362, 174
A.3d 326, 333 (2017) (citation omitted). We review the
evidence and the inferences drawn therefrom in the light most
favorable to the prevailing party. Id.
rulings present a mixed question of law and fact. Swift
v. State, 393 Md. 139, 154, 899 A.2d 867, 876 (2006)
(citations omitted). We recognize that the "[hearing]
court is in the best position to resolve questions of fact
and to evaluate the credibility of witnesses."
Id. Accordingly, we defer to the hearing court's
findings of fact unless they are clearly erroneous.
Bailey v. State, 412 Md. 349, 362, 987 A.2d 72, 80
(2010). We do not defer to the hearing court's
conclusions of law. Id. "[W]e 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." Sizer, 456 Md. at 362, 174 A.3d at 333
Fourth Amendment to the United States Constitution
guarantees, in relevant part, "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures[.]" U.S.
Const. amend. IV. The Amendment's protections are made
applicable to the States through the Fourteenth Amendment.
Grant v. State, 449 Md. 1, 16, 141 A.3d 138, 146
(2016) (citations omitted). When evidence is obtained in
violation of the Fourth Amendment, it will ordinarily be
inadmissible in a state criminal prosecution pursuant to the
exclusionary rule. Bailey, 412 Md. at 363, 987 A.2d
at 80. In certain instances, however, an exception to the
exclusionary rule may permit the admission of the evidence
that was obtained in violation of the Fourth Amendment.
See, e.g., Sizer, 456 Md. at 364, 174 A.3d
Whether Petitioner's Fourth Amendment Rights Were
present case, the parties seemingly assume, without arguing,
that the officers conducted an unlawful frisk of Petitioner.
As such, the parties proceed to debate whether excluding the
handgun as evidence was an appropriate consequence. At most,
the State urges that this Court should not decide whether the
officers had reasonable suspicion to frisk
Petitioner. Similarly, neither the suppression court
nor the Court of Special Appeals explicitly opined on whether
the officers violated Petitioner's Fourth Amendment
rights. The suppression court determined that the officers
had "very questionable reasonabl[e] articulable
suspicion[.]" The Court of Special Appeals assumed,
without deciding, that the officers' frisk of Petitioner
was unlawful. Thornton, 238 Md.App. at 123, 189 A.3d
at 790. We will not bypass this prefatory Fourth Amendment
issue. To provide guidance to suppression courts, we begin by
deciding whether the frisk violated Petitioner's Fourth
Fourth Amendment protects individuals from unreasonable
searches and seizures. U.S. Const. amend. IV. Fourth
Amendment jurisprudence has made it clear that warrantless
searches and seizures are presumptively unreasonable and,
thus, violative of the Fourth Amendment. Grant, 449
Md. at 16-17, 141 A.3d at 146-47 (citing Katz v. United
States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 514-16, 19
L.Ed.2d 576 (1967)). When a police officer conducts a
warrantless search or seizure, the State bears the burden of
overcoming the presumption of unreasonableness. Id.
at 17, 141 A.3d at 147. There are "a few specifically
established and well-delineated exceptions" to the
warrant requirement. Id. at 16-17, 141 A.3d at
147-48. One such exception is the "stop and frisk"
doctrine, which was recognized by the United States Supreme
Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968).
"frisk" is, in essence, a limited search, which is
constrained "to a pat-down of [an individual's]
outer clothing[.]" Bailey, 412 Md. at 368, 987
A.2d at 84 (citations omitted). "The purpose of a
protective Terry frisk is not to discover evidence,
but rather to protect the police officer and bystanders from
harm." Id. at 366-67, 412 Md. at 82-83
(citations and quotations omitted). As such, a law
enforcement officer may legitimately frisk an individual if
the officer has reasonable articulable suspicion that the
person with whom the officer is dealing is armed and
dangerous. Id. at 367, 987 A.2d at 83
frisk must be justified by particularized suspicion at its
inception. Id. Reasonable suspicion does not require
an officer to be absolutely certain that an individual is
armed and dangerous. Sellman v. State, 449 Md. 526,
541, 144 A.3d 771, 780 (2016). It does, however, require an
officer to have "specific and articulable facts which,
taken together with rational inferences from those facts,
reasonably warrant th[e] intrusion." Id. at
542, 144 A.3d at 781 (citation omitted). When a court is
faced with deciding whether an officer possessed reasonable
suspicion to frisk an individual, the court must take an
objective view of the totality of the circumstances. See
Bailey, 412 Md. at 365, 987 A.2d at 82. The court must
decide whether, under the circumstances, "a reasonably
prudent [law enforcement officer] . . . would have felt that
he [or she] was in danger, based on reasonable inferences
from particularized facts in light of the officer's
experience." Id. at 367, 987 A.2d at 83
(citation omitted). It is a fact-specific inquiry, which the
court must view "through the eyes of a reasonably
prudent police officer." Sellman, 449 Md. at
542, 144 A.3d at 781 (citation and internal quotations
omitted). The court should give due weight to an
officer's "specific reasonable inferences which he
[or she] is entitled to draw from the facts in light of his
[or her] experience." Id. at 541, 144 A.3d at
780 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct.
1868, 1883, 20 L.Ed.2d (1986)). The court should give no
weight to an officer's "inchoate and
unparticularized suspicion or 'hunch.'"
Court has concluded that furtive movements, coupled with
additional circumstances, can provide law enforcement with
reasonable suspicion to believe that an individual is armed
and dangerous. Chase v. State, 449 Md. 283, 307-08,
144 A.3d 630, 644 (2016). In Chase, two officers
were patrolling a hotel parking lot, located in an area known
for illicit narcotic activity. Id. at 289, 144 A.3d
at 634. The officers observed the passenger of a Lexus exit
his vehicle and get into the passenger's seat of a Jeep
Grand Cherokee. Id. at 290, 144 A.3d at 634. The
officers observed the occupants make furtive movements.
Id. at 291-92, 144 A.3d at 635. Specifically, the
occupants of the Jeep were moving around, and they put their
hands in their pockets. Id. at 292, 144 A.3d at 635.
The occupants also provided the officers with conflicting
explanations for their presence in the parking lot, and the
passenger was described as "irate." Id. at
292, 144 A.3d at 635-36. Based on the circumstances, the
officers suspected that the occupants were involved in
illegal activity and may possess weapons. Id. at
290-91, 144 A.3d at 634-35.
officers approached the vehicle and conducted a frisk of the
passenger but discovered nothing. Id. at 312, 144
A.3d at 647. The officers detained the occupants in handcuffs
and dispatched a K-9 unit to the scene. Id. at
292-93, 144 A.3d at 635. Ultimately, the officers searched
the Jeep and discovered a motel key. Id. at 294, 144
A.3d at 636-37. After obtaining a search warrant, the
officers found narcotics paraphernalia in the room associated
with the motel key, which, before this Court, was alleged to
have been discovered in violation of the driver's Fourth
Amendment rights. Id. at 294, 144 A.3d at 637. We
explained that the officers observed conduct that was
"consistent with the hiding of illegal drugs [and] . . .
suggested [that] weapons could have been secreted in the
vehicle." Id. at 307-08, 144 A.3d at 644. Thus,
we concluded that the occupants' "actions,
mannerisms and 'furtive' movements" gave the
officers reasonable suspicion to believe that weapons may
have been present. Id. at 312, 144 A.3d at 647.
Court of Special Appeals has concluded that a suspect's
furtive movements in a high crime area, alone, were not
sufficient to generate reasonable suspicion, where there was
no particularized explanation for why the movements were
inconsistent with innocent conduct. In re Jeremy P.,
197 Md.App. 1, 20-22, 11 A.3d 830, 842-43 (2011). In In
re Jeremy P., a detective conducted a stop and frisk of
a juvenile who made furtive movements in a high crime area,
leading the officer to suspect that he was concealing a
handgun. Id. at 3-8, 11 A.3d at 832-35.
Specifically, the juvenile "kept playing around with his
waistband area . . . . And he kept making firm movements in
his waistband area." Id. at 4, 11 A.3d at 832.
The officer observed the furtive movements two or three
times. Id. at 5, 11 A.3d at 833. He deemed the
juvenile's movements as "indicative of somebody
constantly carrying a weapon on them." Id. The
detective asked the juvenile to sit on the ground.
Id. at 6, 11 A.3d at 833. Ultimately, the detective
decided to conduct a pat-down. Id. When the ...