Thornton v. State

          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.

          OPINION

          GREENE, J.

         In the 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Mr. 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.^[1] 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. Thornton's motion.

         The Suppression Hearing

         The 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 officers.

         On 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.

         Meanwhile, 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.^[2] 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 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.

         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. 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 vehicle.

         By all 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 police officers."

         At 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."

         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. 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.

         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. 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.

         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. 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.

         The Suppression Court's Ruling

         The 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, ^[3] the court concluded that there was "in fact a real violation" because Mr. Thornton's car was parked illegally.^[4] Therefore, the court concluded that the initial stop was lawful.

         Next, the court reviewed whether the officers were justified in searching Mr. Thornton's person, based on the movements or "furtive gestures"^[5] 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[.]"

         On the 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., ^[6] 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 vehicle.

         Relying on Pennsylvania v. Mimms, ^[7] 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[.]"

         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. Thornton's flight constituted an intervening circumstance that "attenuate[d] the initial illegality." Therefore, the court denied Mr. Thornton's motion to suppress.

         Conviction and Sentencing

         Following 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.^[8] He was sentenced to four years of incarceration with the possibility of parole.

         The Court of Special Appeals

         Mr. 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.

         Next, 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).^[9] 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. Id.

         Mr. 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 as evidence.^[10]

         STANDARD OF REVIEW

         "When 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.

         Suppression 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 (citation omitted).

         DISCUSSION

         The 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 at 334.

         1. Whether Petitioner's Fourth Amendment Rights Were Violated

         In the 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.^[11] 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 Amendment rights.

         The 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.^[12] 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).

         A "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.^[13] Id. at 367, 987 A.2d at 83 (citations omitted).

         The 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.'" Id.

         This 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.

         The 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.

         The 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 ...