Thornton v. State

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          Circuit Court for Baltimore City, Case No. 116027021. Stephen J. Sfekas, Judge

         Argued by Michael T. Torres, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland of Baltimore, MD), on brief, for Petitioner.

         Argued by Benjamin A. Harris, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland of Baltimore, MD), on brief, for Respondent.

         Argued before: Barbera, C.J.,^[*] Greene, McDonald, Watts, Hotten, Getty, Sally D. Adkins, (Senior Judge, Specially Assigned), JJ.

          OPINION

         Greene, J.

         [465 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 driver’s seat of a vehicle that was illegally parked outside of Petitioner’s home. The officers approached 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

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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 [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 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.

         [465 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. 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

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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 [465 Md. 133] 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 [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. Thornton’s car. Mr.

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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.

         [465 Md. 135] 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

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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] [465 Md. 136] 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. [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. 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

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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 [465 Md. 138] to the constitutionality of the ...