Cotton v. State
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In the Circu it Court for C aroline Co unty IN THE COURT OF APPEALS OF MARYLAND No. 29 September Term, 2004 ______________________________________ STEVEN TERRY COTTON v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. Bell, C.J., Ba ttaglia, and G reene, JJ., dissen t. ______________________________________ Filed: April 11, 2005 On an agreed statement of facts, petitioner, Steven Cotton, was convicted in the Circuit Court fo r Caroline C ounty of po ssession of marijuana, for which, as a repeat offender, he was sentence d to two years in prison. That judgment was affirmed by the Court of Special Appeals. The marijuana that formed the basis of his conviction was taken from him by Caroline County Detective James Henning when Cotton, after receiving Miranda warnings, admitted to Henning that he had the drug in his possession. Cotton s only complaint is that, at the time of this encounter with Detective Henning, he was under an unlawful arrest and that both his admission and the ensuing search, as the fruit of that unlawful arrest, were inadmissible in evidence. We find no merit in that arg ument an d shall therefore affirm the judgment of the Court of Special Appeals. BACKGROUND An extensive f our-year inves tigation by the Caroline County Sheriff s Office established that Don An tonio Jones, his grandfathe r, Calvin Edgar B olden, and his mothe r, Calvileen Bolden, w ere operatin g an open -air drug m arket from and arou nd their home at 329 Bro oklyn Avenue, in Federalsburg. The investigation revealed that (1) significant quantities of drugs were brought in to the hous e by Jones, (2) th e drugs w ere being so ld not only in the house but around it as well, from the front porch and within what we would regard as the curtilage, (3) many of the individu als observe d in the traff icking, includ ing Jones a nd Calvin Bolden, had extensive drug-crime records, and some of them had a record of violent crimes, and (4) Jones, in particular, (i) ass ociated w ith individua ls who had extensive backgrounds in assaults , attemp ted mu rders, an d hand gun vio lations, (ii) had establish ed an elab orate counter-surveillance network around the vicinity of the house, and (iii) had threatened that a member of the police department is going to get shot if the police do not back o ff with patrols in the Bro oklyn, Fe deralsb urg are a. Based on this and a great deal more, all carefully set forth in a 68-page verified application, a District Court judge found probable cause to believe that violations of the controlled dangerous substance laws were occurring in and upon 329 Brooklyn Avenue not just the residence but outbuildings and motor vehicles on the property as well. Upon that finding, the court issued a warrant that authorized the police to enter and search, without the need for a knock or announcement of police presence, the residence and any outbuildings and motor vehicles located on said property. The warrant empowered the police to search the persons an d clothing o f Jones, C alvileen and Calvin B olden, and any other persons found in or upon said premises who may be participating in violations of [those statutes] and who may be c oncea ling evid ence, p araphe rnalia, an d Con trolled D angero us Sub stances , to seize all evidence found in or upon said prem ises, and to arrest all persons found in or upon s aid prem ises . . . wh o are pa rticipatin g in violations o f [thos e statute s]. Although only three persons were named in the warrant Jones and the two Boldens the affidav it established th at several o ther people with a history of criminal and violent conduct were involved, and the warrant clearly anticipated that some of them may be on or about the property when the warrant was executed. Hence, the authorization to enter the -2- house without knocking or announcing the police presence and to arrest all persons found in or upon the premises who may be participating in violations of the drug laws.1 Given that they were dealing w ith an open -air drug market, that an unknown number of people might be present when the warrant was executed, and that some of those people might be violent and likely to resist or flee, the police understandably arrived in force. Some twenty to twenty-five officers participated.2 When the police arrived, they found at least four people, including Jones and Cotton, in the front yard near the porch an area in which much of the drug activity described in the application for the warrant had taken place. Jones immedia tely fled, requiring two officers to pursue and ultimately capture him. The other people were handcu ffed and detained under guard. Th ere was no evide nce that they were held at gunpoin t. Cotton w as allowed to sit on a buck et or log. Detective Henning explained: That is standard p rocedure b ased on b eing in an open air drug market and doin g this type of no knock warrant, we had everyone is detained, placed on the ground for our safety and 1 Althoug h we ha ve recently held that there is no statutory authority fo r a judge, in advance , to authorize th e police to en ter a residenc e without k nocking o r announ cing their presen ce, see Dav is v. State, 383 Md. 394, 859 A.2d 1112 (2004) and State v. Ca rroll, 383 Md. 438, 859 A.2d 1138 (2004), the validity of the warrant issued in this case was not challen ged by Co tton, and, as h e was ne ither a residen t nor foun d inside the h ouse, it is not likely that he could challenge th e no-kn ock asp ect of it. 2 This wa s part of a larg er operation . Jones ma intained three residences a mobile home in which he processed the drugs, the house in question on Brooklyn Avenue from which h e sold the dr ugs, and a n earby apartm ent in whic h the police believed h e actually lived. Three separate warrants for those locations were executed simultaneously, and about 50 officers were involved in the entire operation. -3- detained at that position where they re at while the rest of the place is secured, and securing a residence doesn t just take two minutes, three minutes, it probably would take abo ut ten to fifteen minutes to m ake sure tha t all the room s, attics, crawl spaces, everythin g is secu red bef ore anyo ne doe s anything else. The detective added that it was not just a matter of securing the house itself: Basically we set up a perimeter as they are securing the house, we re setting up a perimeter, making sure no one doubles back around on us or anything to that effect, so yes, after I would say [ten to fifteen] minutes. However long it took to get the house totally secu red is w hen I sta rt makin g my rou nds to p eople. The detective explained that, once the house was secu red, which took abou t ten to fifteen minutes, he began to interview the people who had previously been detained. He began with Steven Aldredge, who was on or near the p orch with Cotton and Jones when the police arrived. He nning had what he said was a brief conversation with Aldredge. As Henning was talking to him, a police dog alerted to Aldredge s car. Henning requested and obtained permission to search both Aldredge and the car, and, when no contraband was found, Aldredge was promptly released. Henning then turned immediately to Cotton. He testified: I approa ched th e Def endan t, I told him what w as goin g on, a search and seizure warrant was bein g execute d. I immed iately advised him of his Miranda rights, I asked him if he had anything on him, he said, All I ve got is a bag of weed, that s all I got. At that point I said okay, that s fine. I got all the pertinent information, he was subsequently searched behind the residence further, to determine if he had anything else and he just remaine d in the scene until we w ere able to get a transport unit ther e. -4- Henning said that he asked the question, after giving the Miranda warning s, to determine whether Cotton ha d any weap ons or nee dles that mig ht jeopardize Henning s safe ty, and that he patted Cotton down after Cotton s admission that he was in possession of marijuana. Henning regarded the pat-down as a Terry v. O hio frisk. The marijuana that was found on Cotton is what led to his conviction for possession of the substance. Cotton looks on th is procedu re as transgre ssing his C onstitutional rights. He urges that so far as the police were concerned, he was a mere bystander who happened to be on the scene when they came to execute the warrant for the Bolden-Jones home, that they had no probable cause to be lieve that he h ad comm itted any crime o r had any con traband in his possession, and that they therefore had no lawful authority to detain him. The detention, he avers, constituted an unlawful arrest, and the interrogation and search that followed it were, as a result, equally unlawful. The de facto arrest, he says, arose from the fac t that he was detained for upwards of twenty minutes, during which time he was handcuffed, kept under guard, and given the Miranda warnin gs. DISCUSSION The Fourth Amendment does not prohibit all searches and seizures, but only those that are unr easona ble. United States v. Sharpe, 470 U.S . 675, 682, 1 05 S. Ct. 1568, 1573, 84 L. Ed.2d 605, 613 (1985); Maryland v. Buie, 494 U.S. 325, 331, 110 S. Ct. 1093,1096, 108 L. Ed.2d 276, 284 (1990). The starting point for a proper analysis of reasonableness is Michigan -5- v. Summers, 452 U .S. 692 , 101 S . Ct. 258 7, 69 L . Ed.2d 340 (1 981). As the police w ere about to execute a warrant to search a house for narcotics, they observed Summers coming down the front steps. The police detained h im while they searched the house and, after finding narcotics in the basement and learning that Summers owned the house, they arrested and searched him, finding heroin in his coat pocket. Clearly at that point they had probable cause to make the arrest, but the question before the Court just like the question before us in this case was the legality of the initial detention: was it an arrest that required probable cause or was it an investigative seizure that could be justified on less than probable cause? Examining earlier cases, in particular Terry v. O hio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968) and its extensive progeny, the Court confirmed that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as the police have an articulable basis for suspecting criminal activity and that the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry and Adams [v. Williams, 407 U .S. 143 , 92 S. C t. 1921, 3 2 L. Ed .2d 612 (1972 )]. Of particular importance in Summers was the fact that the police had obtained a warrant to search the house. Th e Court observed that, although the detention of S ummers -6- admittedly constituted a significant restraint on his liberty, justification for that detention also had to consider the law enforcement interest, and, in that regard, it made and emphasized the point seemingly lost on both Cotton and the Dissent in this case: Most obvious is the leg itimate law e nforcem ent interest in preventing flight in the event that incriminating evidence is found. Less o bvious , but som etimes o f greate r impor tance, is the interest in minimizing the risk of harm to the officers. Although no special danger to the police is suggested by the evidence in this record, th e execution of a war rant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidenc e. The risk of harm to both the police and the occup ants is minimized if the officers routinely exercise unquestioned command of the situation. Michigan v. Summers, supra, 452 U.S. at 702-03, 101 S. Ct. at 2594, 69 L. Ed.2d at 349-50. (Emp hasis ad ded). Although there were a number of people found in the home and detained by the police, the Summers case involved only Summ ers himself, who w as a residen t. In analyzing the issue before it and ultimately holding that a limited detention of Summers was permissible, the Court sometim es used the word resident and som etimes the word occupa nt to describe who may properly be detained, and that has eng endered c onsiderab le debate over whether anyone other than an actual resident of the home may be detained in the absence of independent probable cause or articulable suspicion. Most recently, the Supreme Court has characterized Summers as dealing with occupants. See Muehler v. Mena, 544 U.S. ____, ____ S. Ct. ____, ____ L . Ed.2d ____ (20 05). -7- In Stanford v . State, 353 Md. 527, 727 A.2d 938 (1999), we noted that three lines of cases had developed: those flatly holding that only actual residents of the home may be detained while the search proceeds; those adopting that view generally but allowing the detention of non-residents if the police can point to reasonably articulable facts that associate the visitor with the residence or the c riminal activity being investigated in the search warrant ; and those that broadly define occupants to include those visiting the residence to be searched. Id. at 535- 38, 727 A.2d a t 942-4 4. We pointed out that the cases in that third category tend to resolve the validity of the detention of visitors by comparing the nature of the police intrusion with any valid law enforc emen t interests in the de tention. Id. at 537-38, 727 A.2d at 943-44. Because w e concluded that the d etention of Mr. Stan ford was unlawful under any of those approaches, we did not need to decide which of them was the most appropriate. Since Stanford, it appears that at least three Federal ap pellate courts and one S tate Supreme Court have adopted approaches broader than the first and closer to the second or third. See United States v. Photogrammetric Data Services, Inc., 259 F.3d 229 (4 th Cir. 2001) , cert. denied, 535 U.S. 926, 122 S.Ct. 1295, 152 L. Ed.2d 208 (2002 ), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004) (detention of employees while business office searched pursuant to warrant permissible under Summers); Ganwich v. Knapp, 319 F.3d 1115 (9 th Cir. 2003) (same); United States v. Cavazos, 288 F.3d 706 (5 th Cir. 200 2), cert. denied, 537 U.S. 910 , 123 S. Ct. -8- 253, 154 L. Ed.2d 1 89 (2002 ); State v. Vasburger, 648 N.W.2d 829 (Wis. 2002 ). Subject to further instruction from the Supreme Court, we think that the second two approaches, or some synth esis of them , are more c onsistent with recent jurisprudence and represent a more reasoned and practical solution, in that they focus on the actual circumstances surrounding the issuance and execution of the warrant. Although Summers itself dealt only with a resident, the validity of the detention rested on precepts derived from Terry and its progeny. If, to minimize the risk of harm to both police and occupants, the police are authorized to routinely exercise unquestioned command of the situation, persons, other than just residents, who are found in or about the premises a re likely to be tem porarily detained as well, at least until the police can find ou t who they are and w hether they are involv ed in an y of the ille gal activ ities takin g place at the ho me. That authority was at least implicitly con firmed in Mary land v. B uie, sup ra, where, in executing an arrest warrant for Buie, police entered his home, immediately fanned out through the home looking not just for Buie but a nyone else who might be there, and continued that sweep even after Buie had been located and arrested. Reversing a contrary decision by this Court, the Supreme C ourt concluded that the o fficers had an interest in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangero us and w ho could u nexpecte dly launch an attack. Maryla nd v. Buie , supra, 494 U.S. at 333, 110 S. Ct. at 1098, 108 L. Ed.2d at 285. (Emphasis added). The Court continued that the arresting off icers are perm itted in -9- such circumstances to take reasonable steps to ensure their safety after, and while making the arrest and that [t]hat interest is sufficient to outweigh the intrusion such procedures may entail. Id. at 334, 110 S. Ct. at 1098, 108 L. Ed.2d at 286. It follows, from Summers and Buie, that, in execu ting a warra nt such as th at issued here, for a premises known to be an open-air drug market where the police are likely to encounter people who may well be dangerous, they are entitled, for their own safety and that of other pe rsons, to take com mand of the situation a nd, excep t for person s who cle arly are unconnected with any criminal activity and who clearly present no poten tial danger, essentially immobilize everyone until, acting with reasonable expedition, they know what they are confronting. It really cannot be otherwise. The police do not know who may be at the scene when they arrive. The people they find there, in or on the property to be searched, are not wearing identifying labels supplier, customer, processor, bodyguard, innocent bystander. It wo uld b e dec ided ly unreason able to expect the police simp ly to give a friend ly greeting to the folks there and proceed to search the house w ithout anoth er though t as to who those people are or what they may do. Indeed, the Supreme Court has specifically warned against the very kind of unrealistic second-guessing of police officers that Cotton and the Dissent insist be done in assessing in vestiga tive dete ntions. See United States v. Sharpe, supra, 470 U .S. at 686 , 105 S . Ct. at 15 75, 84 L . Ed.2d at 616. The questio n then b ecom es how long th at deten tion ma y last. That answer was supplied in Sharpe, which involved the stop of a vehicle and the detention of its driver, and -10- more rece ntly in Muehler v. Mena, supra, 544 U.S. at ____, ____ S. Ct. at ____, ____ L. Ed.2d at ____ . In Sharpe, the police had some reasonable suspicion that Sharpe and Savage, driving different vehicles in tandem, were transporting marijuana. Sharpe was stopped first while another officer pursued and eventually stopped Savage. Savage was detained until the first officer arrived about fifteen minutes later whereupon his truck was searched and marijuana found in it. The issue before the Court was not the validity of the initial detention but rather its length. The Court concluded: In assessing whether a detention is too long in duration to be justified as an inves tigative stop, w e consider it a ppropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quic kly, during w hich time it wa s nec essa ry to detain the defendant . . . . A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court shou ld not indulg e in unrealistic second-guessing . . . . A creative judge engaged in post hoc eval uatio n of police co nduct ca n alm ost always imagine some alternative means by which the objectives of the police might have been accomplished. But [t]he fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, itself, render the search unreasonable . . . . The question is not simply whether some other alternative was available, but whether the police a cted un reason ably in fai ling to re cogniz e or pur sue it. Id. at 686, 105 S. Ct. at 1575-76, 84 L. Ed.2d at 615-16. (Citations omitted and emphasis added ). In Muehler, the police, pursuant to a warrant, raided a house in which at least one member of a violent gang was thought to live. Ms. Mena, an occupant of the house, was -11- found asleep in her bed. She was placed in handcuffs at gunpoint and, along with three other persons found in trailers behind the house, taken to a converted garage and detained under guard for two-to-three hours. When the search of the house was completed, she was released. She the n sued two of the off icers un der 42 U .S.C. § 1 983, complaining, among other things, that her detention in handcuffs violated her Fourth Amendment rights. Reversing a contrary decision by the U.S . Court of Appeals for the Ninth Circuit, the Supreme Court, relying largely on Summers, held that, even though the detention of Ms. Mena was more instrusive than that of Mr. Summ ers, [t]he officers use of fo rce in the form of handcuffs to effectuate Mena s detention in the garage, as well as the detention of the three other occupants, was reasonable because the governmental interests outweigh the marginal intrusio n. Id. at ____, ____ S. Ct. at ____, ____ L. Ed.2d at _ ___. The Court held further that the fact that the detention lasted two-to-three hours was not, itself, unreasonable, if it did not last longer than the search of the house required.3 Cotton places some weight the Dissent even more on one aspect of Baker v. Monroe Townsh ip, 50 F.3d 1186 (3 rd Cir. 1995) , a split decision, without taking account of everything that the T hird Ci rcuit cou rt said an d did. Baker is actually instructive. Like Muehler, it was a § 1983 action stemming from the rough treatment of the Bake r family during a search of the home of Mrs. Baker s son, Clementh. At about 8:30 on a June 3 Mena also asserted that the detention did, in fact, extend beyond the time necessary to complete the search. Because the Ninth Circuit court had omitted to address that issue, the Supreme Court remanded the case for further proceedings on that claim. -12- evening, Mrs. Baker, along with two of her teenage daughters and a teenage son, we re approaching the home to have dinner with Clementh just as police from three jurisdictions arrived to execute a no knock drug raid. Some of the officers ran past them into the house, but oth ers poin ted gun s at them and ord ered the m to the groun d. Initiall y, the Bakers named in their complaint only one officer, Armstrong, and the municipality that employed him, but, after the court found that Armstrong had not been involved in any wrongful conduct and entered summary judgment against them, they sought to amend th eir complain t to add the names of the other officers, who actually committed the allegedly wrongful conduct, which the trial court denied on limitations grounds. The principal issue on appeal was the propriety of the summary judgment in favor of Armstrong.4 Armstrong, one of the first officers to arrive, did order the Bakers to get down as he rushed into the house. T he appellate court found no Fourth Amendment violation in that order. It observed that Armstrong, who was executing a no knock warrant, did not know who they were or whether they were entering or leaving the h ouse but, because they w ere at or near the porch and he therefore su spected tha t they had som e relationship to the house he had a warran t to search, he considered it necessary to get them on the ground to protect them from stray gunshots. Arm strong added that the presence of citizens standing in the middle of the raid could prevent the police from defending themselves, as they could not 4 When it surfaced that at least one of the Bakers was a minor at the time the complaint was filed, the appellate court remanded the case to determine whether she should be granted lea ve to ame nd her co mplaint. -13- return f ire in the middle of a cro wd. The court noted that [t]he dangerousness of chaos is quite pronounced in a drug raid, where the occupants are likely to be armed, where the police are certainly armed, and the nature of the suspected drug operation would involve a great deal of coming and going by drug customers and, citing both Michigan v. Summers and Terry v. O hio, concluded that the need to ascertain the Bakers identity, the need to protect them from stray gunfire, and the need to clear the area of approach for the police to be able to operate efficiently all made it reasonable to get the Bakers down on the ground for a few crucial minutes. Id. at 119192. While the Bakers were outside, handcuffed and held at gunpoint by at least two officers, Mrs. Baker s purse was snatched and emptied on to the street. After about ten minutes, Armstrong ordered that the Bak ers be brou ght inside, w here they we re detained , still handcuffed and at gunpoint, for another fifteen minutes. Citing United States v. Sharpe, supra, the court found no Constitutional violation simply because of that extended detention: We cannot say that a detention of fifteen minutes time to identify and release a fairly large group of people during a drug raid is unreasonable. Baker, supra, 50 F.3 d at 119 2. The problem la y in the fact that, during this entire 25-minute period, Armstrong was aware that the Bakers had been handcuffed and held at gunpoint and that Mrs. Baker s purse had been seized and emptied. The court concluded th at adding up the use of guns and handcuffs and, indeed, the length of the detention, shows a very substantial invasion of the -14- Bakers personal se curity, that the po lice used those methods without any reason to feel threatened by the Bakers, or to fear that the Bakers would escape, and that the appearances were those of a family paying a social visit, and while it may have been a v isit to a wayward son, there is simply no evidence of anything that should have caused the officers to use the kind of force they [were] alleged to have used. Id. at 1193. If Armstrong acquiesced in that behav ior, he w ould ha ve viola ted the B akers F ourth A mend ment rig hts. Apart from w hether the lim ited reman d in Baker would be w arranted under Muehler, the distinctions between Baker and this case are obvious. Cotton, an adult found standing next to Jones at the porch where numerous drug transactions had been observed, could not have been mista ken for an innocent f amily memb er waitin g for d inner to be serv ed. Jones, who was kno wn to asso ciate with violent persons, fled and had to be chased. Not knowing Cotton, there was, indeed, reason for the police to feel threatened. Although Cotton was handcuffed until Detec tive Henn ing could s peak w ith him, he was not held at gunpoint and he was not searched, as was M rs. Baker, until after he admitted po ssessing marijuana. In short, the condu ct that led the Baker court to conclude that summary judgment was inapprop riate in the § 198 3 action did not occur here. Indeed, the Baker court actua lly concluded that the kind of conduct that did occur here was not unlawful not the initial detention, no t the fifteen m inute duratio n of it. A case in point is United States v. Maddox, 388 F.2d 1356 (10th Cir. 2004). Two Federal marshals and a deputy sheriff went to a mobile home to serve an arrest warrant on -15- Rachel Page, a fugitive wanted for narcotics trafficking. When they arrived, they found Buhrle, the adult son of the owner of the home , in the drivew ay. They directed him to w ait with the sheriff in the carport while the marshals went inside to arrest Page. While the marshals were inside, a truck carrying three people, including Maddox, appeared. The sheriff noticed Maddox reach under the seat but was unsure what he was doing. The sheriff had the three exit the truck and wait in the carport. Although Maddox began walking in circles in the carport, he made no attemp t to escape. E ventually, three m ore peop le arrived and were held in the carport, although the sheriff then called for backup assistance. Before the backup arrived, the marshals escorted Page from the house but were required b y local protoco l to wait until a female officer arrived before escorting her from the area. Upon arrival of the backup summoned by the sheriff, Maddox was separated from the others. When a sked by a de puty whether he had any weapons or guns, Maddox replied that he had a concealed gun, some methamphetamine, and a scale. The deputy took possession of those items and arrested Maddox. This took place about a half hour after Maddox first arrived and was detained. Maddox, like Cotton here, moved to suppress the incriminating evidence on the gro und that his d etention an d question ing were unlawfu l. Relying largely on Maryla nd v. Buie , the Tenth Circuit Court of Appeals found no Fourth Amendment violation. Although Buie itself involved only a protective sweep of the house, the Maddox court concluded that the re asoning articulated by the Suprem e Court applied as well to protective detentions immediately outside the home: Because the ability -16- to search for dangerous individuals provides little protection for officers unless it is accompanied by the abili ty to temporarily seize any dangerous individuals that are located during the search, we conclude that detaining potentially dangerous persons for the duration of the arrest qualifies as a reasonable step [] to ensure the [officers ] safety. Maddox, supra, 388 F.3d at 1362, quoting in part from Buie. The court noted that the sweep permitted in Buie was of th e arrest scen e, which , in the Maddox case, included the area immediately adjacent to the home. Like Cotton, Maddox, invoking Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed.2d 238 (1979), urged that he was a mere bystander and that the sheriff should have simply sent him on his way. The court rejected that argument. In Ybar ra, the police, in the course of executing an arrest warrant for the bartender of a tavern, proceeded to search all of the patrons of the tavern, which the Court held w as impermissible that a pe rson s mere propinq uity to others independ ently suspec ted of c riminal a ctivity doe s not, without more, give rise to pro bable cause to search that person. Ybarra, supra, 444 U.S. at 91, 100 S. Ct. at 342, 62 L. Ed.2d at 245. (Emphasis added). The circumstances in the case before it led the Maddox court to conclude that there was more there that Buie was the more relevant case and it concluded that the sheriff had a reasonable articulable suspicion that Maddox posed a potential danger to the officers and that sus picion sup ported the te mporary pro tective detention. See also United States v . Vite-Espinoza, 342 F.3d 462, 46 7 (6 th Cir. 2003) ; United States v. Guadarrama, 128 F. Supp.2d 1 202, 1217 (E.D .Wis. 2001). -17- This Court has recognized that society has become more violent, that attacks against law enforcement officers have become more prevalent, that there is a greater need for police to take protec tive measu res to ensure their safety and that of the community that might have been unacceptable in earlier times, and th at Terry has been expanded to accommod ate those concerns. In In re David S., 367 Md. 523, 534, 789 A.2d 607, 613 (200 2), we qu oted with approval this passage from United States v. Tilmon, 19 F.3d 1221, 12 24-25 (7 th Cir. 1994): The last decade has witne ssed a mu ltifaceted ex pansion of Terry, including the trend granting officers greater latitude in using force in ord er to neutralize potentially dangero us suspec ts during an investigatory detention. For better or worse, the trend has led to the permitting of the use of handcuffs, for the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with in vestiga tory deten tion. Our approval of hard takedowns in David S. and in Lee v. State , 311 Md. 642, 537 A.2d 235 (1988), as permissible Terry detentions rather than as arrests, confirms our acceptance of that observ ation. See also D ashiell v. State , 374 Md. 85, 82 1 A.2d 372 (2 003). Cotton s reliance on Detective Henning s recitation of the Miranda warnings befo re questioning him as evidence that an arrest had already occurred also finds little support either in logic or in the case law. The prophylactic requirement of Miranda warnings is designed to safeguard important Fifth A mend ment p rotectio ns. See Dickerson v. United States, 530 U.S. 42, 120 S. Ct. 2326, 147 L . Ed.2d 405 (200 0). Although the giving of those warnings may be consid ered along with mo re relevant f actors as pa rt of all that occ urred, it shou ld have no special significance in determining whether a temporary detention constitutes an -18- arrest for Fourth Amendment purposes because it may well be req uired even when th ere is clearly no arrest. Miranda warnings need to be given whenever there is a custodial interrogation, and a custodial inte rrogation can arise from a pure Terry stop that nev er crosses into an arrest. See United Sta tes v. Smith , 3 F.3d 1088 (7 th Cir. 199 3), cert. denied, 510 U.S. 1061, 114 S. Ct. 733, 126 L. Ed.2d 696 (1994); United States v. Perdue, 8 F.3d 1455 (10th Cir. 1993); United States v. Clemons, 201 F. Supp.2d 142 (D.D .C. 2002); United States v. Calloway, 298 F. Supp.2d 39 (D .D.C. 2003). Understanding that, courts have made clear that a cautious or gratuitous recitation of Miranda warning s is irrelevant to whether there has been an arrest, or even a c ustodia l interrog ation. Cumm ings v. State, 27 Md. App. 361, 341 A.2d 294 (1975); Sydnor v . State, 39 Md. App. 459, 387 A.2d 29 7 (1978); Com. v. Alicea, 381 N.E.2d 144, 149-50 (Mass. 1978); People v. Wipfler, 368 N.E .2d 870 (Ill. 19 77); People v. Dozier, 385 N.E.2d 155, 158 (Ill. App. 1979); and cf. United States v. Diaz-Lizaraza, 981 F.2d 1216, 1222 (11th Cir. 1993). 5 Indeed, if the police proceed to interrogate a person seized and 5 Diaz-Lizaraza is particularly instructive. Federal agents made a good Terry stop and aske d Diaz fo r identification . When h e respond ed, one of the agents re cognized his voice as that of someone who had previously identified himself as George, and whom the agent knew had been intimately involved in the drug transaction they were investigating. At that point, the agents gave Diaz Miranda warnings, searched his truck, discovered a beeper th at had the sa me num ber as G eorge s b eeper, and then form ally arrested him. The court found that the Terry stop became an arrest once Diaz was voicerecognized as George, because at that point the agents had no intention of releasing him. In addressing the relevance of the Miranda warnings on that point, the court noted that Mirandizing a detainee does not convert a Terry stop into an a rrest, but in this case (contin ued...) -19- temporarily detained pursuant to Terry and do not give Miranda warnings, any incriminating evidence reveale d by that in terroga tion ma y, depending on the c ircumstanc es, be held inadmissib le as the product of a custodial interrogation and thereby doom the validity of an ensuing arrest based on that evidence. The law should encourage police to give those warnings when questioning a suspect, n ot discourage them by regarding the warnings as converting a good Terry stop into a ba d arrest. In summary, Cotton s reliance on the facts that he was handcuffed, placed under guard, and given Miranda warnings as establishing that he was de facto arrested either upon his initial detention or after fifteen to twenty minutes of it finds no su bstantial supp ort in either Federal o r this Court s current jurisprudence. Acceptance of that view would place both po lice off icers an d innoc ent bystan ders at c onside rable risk . JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. 5 (...continued) it is evidence that the nature of the detention had grown more serious and that the agents did not intend to release Diaz from their custody. Diaz-Lizaraza, supra, 981 F.2d at 1222. (Emphasis added). Here, of course, the Miranda warnings were given before Detective Henning questioned Cotton, and the evidence was that, at that point, but for Cotton s voluntary admission that he was carrying contraband, he would have been release d, as w as Ald redge. -20- IN THE COURT OF APPEALS OF MARYLAND No. 29 September Term 2004 __________________________________ STEVEN TERRY COTTON V. STATE OF MARYLAND __________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene JJ. Dissenting Opinion by Battaglia, J. which B ell, C.J. and G reene, J., join Filed: April 11, 2005 I dissent. This case involves the detention and search of a nonresident who was outside of a dwelling during the execution of a no-knock warrant. T he Majo rity is, despite its protestations to th e con trary, adopting an overly broad interpretation of Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), so that a person present anywhere outside on property where a search warrant is executed may be detained in the absence of independent probable cause or individualized reasonable articulable suspicion. I would find, however, that because the police co uld not enu merate an y articulable facts creating individualized reasonable suspicion to support their detention, Cotton was subject to an unlaw ful de facto arrest, under the totality of the circumstances presented in this case. On February 21, 2002, at approximately 4:00 p.m., the Caroline County Drug Task Force [hereinafter Drug Task Force ], in conjunction with the Maryland State Police Tactical Unit [hereinafter Tactical Unit ], executed a no-knock warrant at 32 9 Brook lyn Avenue in Federalsburg, Maryland. The issuance of the warrant was based upon surveillance by Detective James Henning of the Caroline Drug Task Force, who concluded that the residence was being used as an open air dru g market a nd that three individuals resided there: Don Antonio Jones, Calvileen Denise Bolden, and Calvin Edgar Bolden, a ll of wh om w ere nam ed in the affida vit. When the Drug Task Force and Tactical Unit arrived at 329 Brooklyn Avenue, police observed four people, two of whom were Jones and Cotton, standing together outside the home within two or th ree feet of the front porch. When the twenty to twenty-five police officers approa ched th e hom e, Jones fled on foot, w hile the others, including Cotton, remained. The police detained everyone present, placed them in handcuffs, and entered the residen ce with guns d rawn. Detective Henning did not interview Cotton until the property was secured, at least ten to twenty minutes after Henning s arrival. During that time, Cotton was guarded by at least one officer while seated on a log or a bucket. Detective Henning advised Cotton of his rights pursuant to Miran da v. A rizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L .Ed.2d 694 (196 6), and asked whether he had any weapons or other objects that would hurt [Detective Henning] or anything else that he wasn t supposed to have. Cotton stated that he was carrying a bag of marijuana. Detective Henning frisked Cotton for weapons and found none; however, he did recover a bag of marijuana from Cotton s pock et. At that time , Cotton w as forma lly arrested. I. The Fourth A mendm ent, applicable to the States thro ugh the F ourteenth A mendm ent, provides that the right of the people to be secure in their persons, houses, papers, and effects, against unr easonab le searches a nd seizures shall not be violated. . . . U.S. C ONST. amend. IV. The Fourth Amendment is not, however, a guarantee against all searches and seizures, only thos e that are unreas onable . United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605, 613 (1985). Generally, any seizure of a person, whether by arrest or detention, must be sup ported by proba ble cau se. Stanford v . State, 353 Md. 527, 532, 727 A.2d 938, 941 (1999), citing Summers, 452 U .S. at 700, 101 S.Ct. at 2593, 69 2 L.Ed.2d at 348; Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824, 832-33 (1979). The Supreme Court, however, has created certain exceptions to the probable cause requirement. Stanford, 353 Md. at 532, 727 A.2d at 941. These include a stop and frisk under Terry v. O hio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, 911 (1968), where th e police hav e reasona ble suspicio n that the sus pect is enga ged in criminal activity an d prese ntly arme d and d angero us. Stanford, 353 Md. at 532, 727 A.2d at 941; see also United States v. Brignoni-Ponce, 422 U .S. 873 , 881, 95 S.Ct. 2574, 2 580, 45 L.Ed.2d 607, 61 6 (1975) (holding that B order Patrol agents may lawfully stop persons they reasonably suspect of being illegal immig rants and q uestion them about their citizenship); Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972) (extending the holding of Terry to a stop bas ed on a relia ble informant s tip that the defendant m ight be armed and carrying illegal drugs). The Supreme Court also created an exception in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.E d.2d 340 (1981 ), where th e Court fo und that a warrant to search for contraband founded on proba ble cause im plicitly carries with it the limited au thority to detain the occupan ts of the prem ises while a proper sea rch is being conducte d. Id. at 705, 101 S.Ct. at 2595, 69 L.Ed.2d at 351. In so doing, the Court noted three law enforcement justifications for such a detention : (1) preven ting the susp ect from f leeing shou ld contraband be found; (2) minimizing the risk of harm to the officers ; and (3) gaining the assistance of the occupants to facilitate an orderly and quick search, for example by opening locked 3 doors or cont ainers. Id. at 702- 03, 101 S.Ct. at 2 594, 69 L.Ed.2d a t 349-50. T he Cou rt, however, left open the question of who can properly be characterized as an occupant, and, as we noted in Stanford, there now exists a split of a uthority in many jurisdictions as to the scope of Summers. Stanford, 353 M d. at 535 , 727 A .2d at 94 2. In Stanford, we noted that there are three different approaches to applying Summers. Id. First, some ju risdictions lim it Summers solely to the actual residents of the premises being search ed. See, e.g., United States v. Reid, 997 F.2d 1576, 1 579 (D .C. Cir. 1 993), cert. denied, 510 U.S. 1132, 114 S.Ct. 1105, 127 L .Ed.2d 417 (199 4); State v. Carrasco, 711 P.2d 1231, 1234 (A riz. Ct. App . 1985); State v. Williams, 665 So.2d 112, 115 (La. Ct. App. 199 5); People v. Burbank, 358 N.W.2d 348, 349 (Mich . App. 1 984), cert. denied, 469 U.S. 190, 105 S.Ct. 962, 83 L.Ed.2d 9 67 (1985 ); Lippert v. State, 664 S.W.2d 712, 720 (Tex. Crim. App. 1984). Another group of jurisdictions has held that a visitor to the property may not be detained under Summers unless the police can point to reasonably articulable facts that associate the visitor w ith the residen ce or the crim inal activity being in vestigated in the warra nt. Stanford, 353 Md. at 536, 707 A.2d at 943. To determine whether such a connection exists, these cases have recognized that police must make a minimal intrusion to ascertain the visitor s identity. Id.; see, e.g., Baker v. M onroe To wnship , 50 F.3d 1186, 1192 (3d Cir. 19 95); United States v. McEaddy, 780 F .Supp . 464, 471 (E.D. Mich. 19 91), aff d sub nom . United Sta tes v. Foun tain, 2 F.3d 656 (6th C ir.), cert. denied, 510 U.S. 1014, 114 S.Ct. 608, 126 L.Ed.2d 5 73 (1993 ); People v. Glaser, 902 P.2d 729, 734 (1995); Claffey 4 v. State, 433 S.E.2d 441, 442 (Ga. App. 1 999), aff d, 439 S.E.2 d 516 (G a. App. 19 93); State v. Graves, 888 P .2d 971 , 974 (N .M. Ct. App. 1 994); State v. Schu ltz, 491 N.E.2d 735, 739 (Ohio App. 19 85); State v. Curtis, 964 S.W.2d 604, 612-14 (T enn. Crim . App. 199 7); State v. Broadnax, 654 P.2d 96, 103 (Wash. 1982). Finally, a third group of jurisdictions defines occupa nt most broa dly to include all visitors within a d welling, or v iewed lea ving it, provided that the law enforcement interests at stake outweigh the level of the police intrusion. See, e.g., United States v. Pace, 898 F.2d 1218, 1239 (7th Ci r. 1990 ), cert. denied, 497 U.S. 1030, 110 S.Ct. 3286, 111 L.Ed.2d 795 (1990) (noting that Pace was detained within the building subject to the warrant); United States v. Taylor, 716 F.2d 701, 707 (9th Cir. 1983) (permitting the detention of the visitor who wa s observed leaving the dwelling); State v. Phipps, 528 N .W.2d 665, 66 8 (Iow a Ct. A pp. 199 5) (sam e). The Majority claim s to be adopting a synthesis of the latter two approaches: one requiring reasonably articulable facts that associate the visitor with the residence or criminal activity being in vestiga ted in the search warra nt, Stanford, at 536-37, 727 A.2d at 943, and the other permitting any visitor to the premises to be searched if the valid law enforcement interests outweigh the nature of the police intrusion. Id. at 538, 727 A.2d at 944. Ultimate ly, after applying this test, the Majority concludes that the inherent threat to police safety during the execution of this warrant permitted the police to detain Cotton during the search. This conclusion, how ever, mischaracterizes the circumstances surroun ding Cotton s detention. 5 I agree with the Majority that the appropriate standard should require reasonable articulable suspicion.1 The M ajority, in support of its conclusion that reasonab le articulable 1 In State v. Nieves, 383 Md. 573, 589-91, 861 A.2d 62, 72-73 (2004), we said of reasonable articulable suspicion, it is: being more than a mere hunch but is a less demanding standard than probable cause and requires a showing considerably less than prepond erance of the eviden ce. In discussing the concept of reasonable suspicion, the United States Sup reme Co urt has opin ed that, [a]rticu lating precise ly what reasonable suspicion and probable cause mean is not possible, but such terms are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act. A determination of whether reasonable suspicion exists to justify a search is made by looking at the totality of the circumstances. In this regard, the Court stated: When d iscussing ho w review ing courts sh ould make reasonable-suspicion determinations, we (contin ued...) 6 suspicion existed and that the threat to police safety was so great as to justify detaining everyone inside the dwelling and outside on the property, states: [I]n executing a warrant such as that issued here, for a premises known to be an open-air drug market where th e police are lik ely to encounter people who may well be dangerous, they are entitled, for their own safety and that of other persons, to take command of the situation and, excep t for persons who are clearly unconnected with any criminal activity and who clea rly present no potential danger, essentially immobilize everyone until, acting with reasonable expedition, they know what they are confronting. Maj. op. at 10. Although the Majority pays lip service to the standards of reasonable 1 (...continued) have said repeatedly that they must look at the totality of the circu mstances of each c ase to see whether the detaining officer has a particularized and objective basis for suspecting wrongdoing. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative informatio n available to them that m ight well elude a n untra ined pe rson. (Internal citations omitted). 7 articulable suspicion and the use of a balancing test for comparing the law enforcement interests against those of the individual, it is actua lly creating a stand ard by whic h all individuals present are presumed suspicious, and in which the p erson being detained bears the burden of proving a lack of wrongdoing. Cotton, who was outside the house, did not give the police any reas on to susp ect that he posed a danger to th em, that he w as involved in criminal activities when police arrived at the property, did no t flee, and co operated f ully with instructions from the officers who handcuffed him and sat him on the ground. Under these circumstances, would, then, a person with a diaper bag and to ddler in tow , or a teenage r with a book ba g curious a bout the sce ne have b een suspe cted of po sing a dan ger to police or possibly being involved in criminal activity? There was no indication from his conduct or appearance that Cotton possessed weapons or contrab and. On e would be hard p ressed to imagine other conduct by which Cotton could have proven that he posed no danger to the police. It is disingenuous to assert that the danger posed to police under such circumstances was of such magnitude as to warrant the detention of all persons merely present in some capacity on the p remise s. Surely, the overwhelming number of officers on the small prop erty dispelled any such need to engage in a wholesale detention. In light of the overwhelming number of officers at the scene and the diminutive size of the p roperty, the M ajority cannot in good faith argue that the threat to police outweighed Cotton s interest in being free from a warrantless seizure. Moreover, apart from the characterization of the premises as an open- 8 air drug market, and Cotton s presence thereon, the Majo rity can point to n o facts spe cific to Cotton that would give rise to reasonable articulable suspicion that Cotton posed a danger to them. As the Supreme Court stated in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 245 (1979), a person s mere propinquity to others independently suspected of criminal activity do es not, w ithout m ore, giv e rise to p robabl e cause to searc h that pe rson. Id. at 91, 10 0 S.Ct. a t 342, 62 L.Ed.2 d at 245 . There fore, I can find no justification under the Majority s so-called hybrid test under Summers. Furthermore, the Majority s position is troubling in th at it provides n o guidanc e as to the spatial boundaries beyond which Summers no longer applies. In the present case, Cotton was detained outside of the building, but still on the prop erty. Although Cotton w as only a few feet from the front do or, the Ma jority provides n o guidanc e as to wh ether the resu lt would have been the same if Cotton had been standing on the sidewalk in front of the residence, on public property, or if he had been a common carrier merely delivering a package or food to the house and had the misfortune of being present when the warrant was executed. Under the Majority s reasoning there is no apparent check on the power of police to detain anyone, regardless of their obvious lack of any meaningful connection to the property and the persons upon whom the warrant is being executed . Although it claims to be relying on reasonable articulable suspicion and a balancing test, the Majority has not pointed to a single fact beyond Cotton s presence to justify its conclusion. In Maryland v . Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), the 9 Supreme Court recognized the important distinction between a confined space and one that is incrementally larger with respect to the existence of probable cause: [A] car passenger unlike the unwitting tavern patron in Ybarra will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. Id. at 373, 124 S.Ct. at 801, 157 L.Ed.2d at 776-77. The same difference operates in the facts of the case sub judice. Absent an indication that Cotton was in possession of contraband or weapons prior to his detention, his mere presence is not sufficient to create a ne xus with th e underlying re asons of th e warran t so as to justify his detention when he is neither an occupant of a vehicle or a dwelling.2 To hold otherwise would effectively render the reasonable articulable suspicion requirement for a lawful Terry stop a nullity. In support of its conclusion, the Majority cites the recent Supreme Court case of Muehler v. Mena, __ U.S. __, __ S.Ct. __, __ L.Ed.2d __ (decided March 22, 2005), as so analogous to the case at bar as to mandate the conclusion that Cotton s detention was law ful. There is, however, a significant difference between the circumstances in Muehler and those in the present case. The facts in Muehler are as follows: At 7 a.m. on February 3, 1998, [the officers whom Ms. Mena 2 The spatial aspect of arrests of individuals in vehicles continues to pose significant questions, even af ter Pringle. 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). 10 sued], along with the SWAT team and other officers, executed a warr ant. Mena was asleep in her bed when the SWAT team, clad in helmets and black vests adorned with badges and the word POLIC E, entered her bedro om and placed her in handcuffs at gunpoin t. The SWAT team also handcuffed three other individuals found on th e pro perty. The SWAT team then took those individuals and Mena into a converted garage, which contained several beds and some other bedroom furniture. While the search proceede d, one or two officers guarded the four detainees, who w ere allowed to move around the garage but remained in handcuffs. Muehler, __ U.S. at __, __ S.Ct. at __, __ L.Ed.2d at __. Ms. Mena was discovered asleep in a bedroom at 7 a.m. in a home owned by her family. Th e fact that she was in the house creates a significant connection between her and the property, unlike Mr. Cotton. Con vers ely, in the case sub judice, Cotton was apprehended outside the dwelling on the premises, and police had never observed him there during their years of surveillance. There was absolutely no fact other than Cotton s presence at the location during the time of the execution of the w arrant connecting him to the home or the w rongdoing that allegedly occurred there. Under the circumstances in Muehler, Ms. Mena was clearly more than a passing visitor to the home, the residence of a gang member suspected of being in volved in a drive-by shooting, so that the level of force used by police and the length of the detention could reasonably be justified as necessary for police safety. Those same connections do not exist in the presen t case and a s such, a sim ilar level of force cannot be supported on these facts. II. 11 The United States Supreme Court in Michigan v. Chesternut, 486 U.S . 567, 108 S .Ct. 1975, 100 L.E d.2d 565 (1988), set f orth the test used to determine whether a person has been seized w ithin the mea ning of the Fourth Ame ndme nt. Id. at 573, 108 S.Ct. at 1979, 100 L.Ed.2d at 571-72. That test establishes that the police can be said to have seized an individual only if, in view of all of the circu mstances surround ing the incid ent, a reason able person would have believed that he was not free to leave. Id., quoting United States v. Mende nhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509 (1980). Whether a seizure is a de facto arrest turns on whether t here was a restraint on freedom of movem ent of the degree associated with a formal arrest. Stansbury v. California , 511 U.S. 318, 322, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293, 298 (1994), quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 12 75, 1279 (1983 ), quoting in turn Oregon v. Mathiason, 429 U .S. 492 , 495, 97 S.Ct. 71 1, 714, 5 0 L.Ed .2d 714 , 719 (1 977). In Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), the Supreme Court applied its test for seizure and arrest under the Fourth Amendment and found that Dunaway s seizure constituted a de facto arrest because, although he was not told he was under arrest, he would have been physically restrained if he had attempted to leave. Id. at 203, 99 S .Ct. at 2252, 6 0 L.Ed.2d at 830. Du naway w as taken to th e police station in a police car, was not aware that he was free to go, and would have been physically restrained had he attempted to leave. Id. According to the Court, these circumstances clearly indicated that Dunaw ay was not b eing detained as envisioned in Terry, but rather, was subject to an 12 arrest. Id. Moreo ver, the Co urt stated that d ifferences in form [of a de facto arrest] must not be exalted over substance. Id. at 215, 9 9 S.Ct. a t 2258, 6 0 L.Ed .2d at 82 7. Gen erall y, this Court has defined an arrest as the taking, seizing or detaining of the person of anothe r, inter alia, by an act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest. Barnhard v. State, 325 Md. 602, 611, 602 A.2d 701, 705 (1992), quoting Little v. State, 300 Md. 485, 510, 479 A.2d 903, 915 (1984), quoting in turn Morton v. State, 284 Md. 526, 530, 397A.2d 1385, 1388 (1979). The action indicating an intention to take into custody includes the touching or putting hands on [the suspect]. Bouldin v. State, 276 Md. 511, 515-16, 350 A.2d 130, 133 (1976). In determining whether an investigatory detention is actually an arrest requiring probable cause, courts must consider the totality of the circumstances. See In re David S., 367 Md. 523, 535, 789 A.2d 607, 614 (2002); Ferris v. State , 355 Md. 356, 376, 735 A.2d 491, 501 (1999). Under the totality of the circumstances, we have recognized that no single f actor is d ispositiv e. See In re David S., 367 Md. at 535, 789 A.2d at 61 4; Ferris, 355 M d. at 376 , 735 A .2d at 50 1. Rec ently, in In re David S., this Court was asked to determine whe ther the seizure of David S . was tantam ount to an arrest requiring probable cause, or whether it amounted to a Terry stop. Id. at 528, 789 A.2d at 609. In that case, police were conducting surveillance and observed David S. come from behind a bu ilding, show an object to his companion, who was believed to be a drug dealer, and stuff the object into his waistband. 13 Id. at 530, 789 A.2d at 611. Police believed the object to be a weapon, and therefore, stopped David S. and his companion, forced them to lie face down on the ground, and handcuffed them. Id. With guns drawn, the officers searched David S. Id. After on e officer fe lt what was believed to be a gun, he removed the object fro m Da vid S. s waistb and. Id. Upon openin g a bag contain ing the o bject, the police f ound c ocaine . Id. On appeal, this Court determined that the police had reasonable suspicion, supported by articulab le facts, to believe that Da vid S. h ad committed, or w as attemptin g to comm it, a crime, and that he had a gun in his w aistban d. Id. at 539, 789 A.2d at 616. Moreover, we held that the stop was not tantamount to a formal arrest because the police reasonably believed David S. posed a threat to their safety so as to justify the use of force unde r Terry. Id. Therefore, under the totality of the circumstances, we determined that although th e intrusion was seve re, it did not convert the investigato ry stop into the equivalent of a formal arrest un der the F ourth A mend ment. Id. at 539-40, 789 A.2d at 611. Similarly, the facts in Lee v. State , 311 Md. 642, 537 A.2d 235 (1988), are also instructive as to those circum stances fo und insuf ficient to con vert an inve stigatory stop into an arrest. In Lee, police, responding to an anonymous tip providing specific information about the presence of weapons and the suspects involvement in a violent crime, conducted surveillance of a group of men playing b asketb all. Id. at 651, 537 A.2d at 239. Police, some of whom were armed, swarmed the basketball court and ordered the men to lie face down on the ground. Id. The officers frisked the young men, and one of the officers found a gun 14 in a gym bag that had been described by the an onymou s inform ant. Id. Lee and two other men w ere arre sted. Id. at 652, 537 A.2d at 239. After analyzing the reliability of the information provided by the ano nymous informan t, this Court determined that the inform ant s informatio n provide d the police with a high deg ree of reaso nable and articulable suspicion that the [suspects] were the robbers and wer e car rying a han dgun in the gym bag. Id. at 657, 5 37 A.2 d at 242 . Ultimately, we held that be cause the p olice had re liable inform ation that the s uspects were armed, and the detention lasted no more than two minutes, the use of guns and a hard take down were justified. Id. at 667, 537 A.2d at 247. Therefore, we determined that the detention was proper under Terry and did not rise to the level of a de facto arrest. Id. In State v. Evans, 352 Md. 496, 723 A.2d 423 (1999), we concluded that under the totality of the circumstances, the detention at issue was a de facto arrest. Officer Rowell, as part of a police operation, purchased a dime-bag of cocaine from Evans using traceable currency. Id. at 501, 723 A.2d at 425. The two then parted ways, and Officer Rowell called other officers in the vicinity to stop Evan s. Id. The officers searched Evans and recovered the marke d bill fro m Of ficer R owell a nd nine vials of cocain e. Id. at 502, 723 A.2d at 425. The police d id not tak e Evan s to the p olice sta tion no r did the y formal ly charge him. Id., 723 A.2d at 426. When Evans was eventually formally arrested, he was charged and convicted of distribution of cocaine and possession of cocain e with a n intent t o distrib ute. Id. at 503, 723 A.2d at 426. 15 After considering the totality of the circumstances, we determine d that Evans s detention was tantamount to a formal arr est. Id. at 515, 723 A.2d at 432. To support our conclusion, we emphasized that Evans was physically restrained, subject to police custody and control, detained for a significant period of time until his identity could be verified, and searched and ph otogra phed. Id. at 515, 723 A.2d at 432. Based on those facts, we stated that the initial [detention] of [Evans] by the police constituted [an arrest]. Id. We did n ot, however, find that arrest to be illegal because we determined that the arrest, although not forma l, was su pporte d by prob able ca use. Id. at 515- 16, 723 A.2d a t 432. Like our conclusion in Evans and distinguishable from our decisions in David S. and Lee, in the case at bar, I believe that under the totality of the circumstan ces the investigatory detention of Cotton was tantam ount to an a rrest becaus e the restraints on his freedom and the con duct of the polic e were consiste nt with a form al arrest. Specific ally, twenty to twenty-five officers descended upon 329 Brooklyn Avenue, a dwelling and surrounding property which was not very big. Cotton w as standing two to three feet from the front door, where in accordance w ith police procedure, office rs were entering with their weapons drawn. Cotton was handcuffed and sat on a log or bucket near the front porc h of the res idence, w hile being guarded by at least one officer. When Detective Henning approached Cotton, he read him his Miranda rights. Detective Henning testified that Cotton was cooperative and that there was nothing from Cotton s a ppearanc e to indicate that he possessed contraband or weapons of any sort. Considering the totality of the 16 circumstances, as they appeared to the officers at the time, handc uffing C otton, placing him under police guard, and Mirandizing him, in the presence of an overwhelming number of officers, without reasonable articulable suspicion that Cotton was in possession of contraban d or wea pons, wa s tantamou nt to an arrest. The Majority relies upon the Supreme Court s decision in United States v. Sharpe, 470 U.S. 675 , 105 S.Ct. 1 568, 84 L .Ed.2d 60 5 (1985), f or the prop osition that a tw enty-minute stop is not a de facto arrest. This reliance is m isplaced. W hen the Su preme C ourt in Sharpe determined that the twenty-minute stop at issue was not unreasonable, it was not announcing a per se rule, as the Court s opinion emphasized. In Sharpe, police were following a susp iciou s car and truck on the h ighw ay. Id. at 678, 105 S.Ct. at 1571, 84 L.Ed.2d at 610. When the police indicated to the driver of the car to pull over onto the sh oulder, the truck fled the scene, narrowly missing a patrol car. Id. On appeal, Sharpe challenged the length of the Terry stop as indicative of a de facto arrest. Id. at 683, 105 S.C t. at 1574, 84 L.Ed.2d at 613. The Suprem e Court state d that in ma king its determ ination, it was approp riate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during the time it was necessary to detain the defen dant. Id. at 686, 105 S.Ct. at 1575, 84 L.Ed.2d at 615-16. The question, as stated by the Court, was whether the police acted unreasonably in failing to recognize or pursue [an alternate, less intrusive means]. Id. at 687, 105 S.Ct. at 1576, 84 L.Ed.2d at 616. Ultimate ly, the Supreme Court concluded that the delay in the detention was the result of the 17 actions of Sharpe and his co-defendant rather than an unreasonable failure to recognize any alternate , less intru sive me ans. Id. at 687-88, 105 S.Ct. at 1576, 84 L.Ed.2d at 616. In the present case, the twenty-minute delay is one more indicia, in a host of factors, that collectively yield the co nclusion tha t Cotton w as under a rrest. In a case factually similar to the one at b ar, Baker v. M onroe To wnship , 50 F.3d 1186 (3d Cir. 1995), an action brought under 42 U.S.C. §1983 (2000), the United States Court of Appea ls for the Th ird Circuit concluded that the detention at issue was also a de facto arrest. In that case, the Bakers were outside the home of Clementh Griffin, Mrs. Baker s son, when police descend ed upon the property to e xecute a no-knock search warra nt. Id. at 1188. As the Bakers approached the front door, police officers ran in front of them with guns drawn, shouting, Get d own. Id. at 1189. The Bakers were then forced to the ground and remained there, handcuf fed, for tw enty-five min utes. Id. Members of the Baker family were then subjec ted to a s earch. Id. Examining the totality of the circumstances, the Third Circuit determined that the use of guns and handcuffs and, indeed, the length of the detention, shows a very substantial invasion of the Bakers personal security. Id. at 1193. Moreo ver, the court held that there [was] simply no evidence of anything that should have caused the officers to use the kind of force they are alleged to have used. Id. Therefore, the court determined that the facts of the case would support a finding that the Bakers Fourth Amendment rights were violated. The Majo rity, in its analysis concerning the circumstances surround ing Cotton s 18 detention, is particularly persuaded by the Court of Appeals for the Tenth Circuit s reasoning in United States v. Maddox, 388 F.3d 1356 (10th Cir. 2004). See Maj. Op. at 15-16. The facts before the Tenth Circuit in Maddox are easily distinguishable from those in the case at bar. Maddox exhibited erratic and potentially violent behavior both prior to and during his detention, leading an officer at the scene to consider him a critical and deadly threat to the officers safety. Id. Conversely, here, Cotton was compliant with the officer s demands, was not behaving abnormally, and the officers on the scene had no specific reason to believe that he posed any danger to their safety beyond his mere presence at the sc ene. Moreov er, Maddox was not handc uffed or Mirandized, where as Cott on wa s in this c ase. The Majority attem pts to characterize various cou rts, including the Court of Special Appeals, as stating, unambiguously, that a cautious or gratuitous recitation of Miranda warnings is irrelevant to whether there has been an arrest, and cites Sydnor v . State, 39 Md. App. 459, 387 A.2d 297 (1978); Cummings v. State, 27 Md. Ap p. 361, 341 A.2d 294 (1975); Com. v. Alicea, 381 N.E .2d 144, 14 9-50 (M ass. 1950); People v. Wipfler, 368 N.E.2d 870 (Ill. 1977); People v. Dozier, 385 N.E.2d 155, 158 (Ill. App. 1979); and cf. United States v. Diaz-Lizaraza, 981 F.2d 1216, 1222 (11th Cir. 1993). See Maj. Op. at 19. This assertion, however, grossly distorts the actual reasoning contained in the opinions cited therein. The cases cited by the M ajority merely support the pr oposition th at Miranda alone is not sufficient to transform a non-cu stodial interrog ation into a custodial interrogation or a lawful detention into a de facto arrest, see Sydnor, 39 Md. App. at 463-64, 387 A.2d at 301 (stating 19 that Miranda warnings . . . [do not] operate to convert an otherwise non-custodial situation into a custodial o ne ); Cummings, 27 Md. App. at 376, 341 A.2d at 304 (determining [A] custodial situation cannot be created by the mere giving of modified Miranda warnings ), quoting United States v. Akin, 435 F.2d 101 1, 1013 (5 th Cir. 1970 ); Alicea, 381 N.E.2d at 149-50 (providing that [t]he imparting of Miranda warnings was not tantamount to or suggestive of an arrest under the circumstances of that case); Wipfler, 368 N.E.2d at 875 (holding that [a] custodial situation cannot be created by the mere giving of Miranda warnings ); Dozier, 385 N.E .2d at 158 (s tating that [t]h e fact that Miranda warnings were given is only indicative of the cautiousness of the officers and not determinative of whether the interrogation was c ustodial ); Diaz-Lizaraza, 981 F.2d at 1222 (h olding that mirandiz ing a detainee does not con vert a Terry stop into an arrest . . . , rather than the proposition that Miranda is irrelevant as to whether an individual is arrested. Although Miranda is not dispositive as to the existence of an arrest, and nor should it be, it must be c onsidered with the rest of the circumstances surrounding a detention and interrogation under the totality of the circumstances standard. Because I would find that Cotton s detention resulted in a de facto arrest, I would address whether the arrest was justified under the provisions of the no-knock warrant, and if not, w hether th ere wa s indep enden t proba ble cau se for th e arrest. The no-knock warrant executed in the instant case named three individuals who the police were empo wered to arrest, and also pe rmitted them to [a]rrest all pe rsons fou nd in 20 or upon said premises and vehicles who are participating in violations of the statutes hereinbefore cited. This Court has interpreted the meaning of this lan guage in the past. In our opinion in Griffin v. State , 232 Md. 389, 194 A.2d 80 (1963), we determined that the above-stated provision is [N]o more than a directive to the police to perform duties that they should perform in the absence of any command in the warrant to th at effect; namely, that in the execution of a search warrant they should arrest all person committing misdemeano rs in their presence, and, after a valid arrest, they may search the arrestee as an incident thereto and seize any relevant evidence that pertains to the criminal activities of said arrestee. Id. at 393, 194 A .2d at 82-83 . In the presen t case, the po lice did not k now un til after Cotton s de facto arrest that he was committing a crime in their presence. The State cannot rely on the directive in the warrant to justify Cotton s arrest. 3 Therefore, I would find that this provision of the warrant does not provide justification independent of probable cause for Cotton s a rrest. For a warrantless arrest to be legal it must b e based on pro bable c ause. See Pring le, 540 U.S. at 369, 124 S.Ct. at 799, 157 L.Ed.2d at 774 (describing the probable cause stan dard as long-prevailing to protect citizens from rash and unfounded interferences with privacy 3 Any argument based on good faith reliance on the provisions in the warrant must also fail because the Griffin opinion has been controlling since 1963, and pursuant to Benik v. Hatcher, 358 Md. 507 , 531-32, 750 A .2d 10, 23-24 (200 0), the police officers are presum ed to know the limitations o f the warra nt. 21 and from un founded charges o f crime. ); Dunaway, 42 U.S. at 2 07-08, 99 S.Ct. at 2254, 60 L.Ed.2d at 832-33 (observing that prior to the limited exception carved out in Terry, probable cause was the standard for all seizures under the Fourth Amendment). We have held that a police officer can arrest an accused without a warrant if the officer has probable cause to believe that a crime has been or is being committed by an individual in the officer s presence. State v. Wallace, 372 Md. 137, 147, 812 A.2d 291, 297 (200 2); Woods v . State, 315 Md. 591, 611-12, 556 A.2 d 236, 24 6 (1989); Nilson v. Sta te, 272 Md. 179, 184, 321 A.2d 301, 304 (1974). 4 4 Md. Code (2001), §2-202 of the Criminal Procedure A rticle states: § 2-202 Warrantless arrests In general (a) Crime committed in presence of police officer. A police officer may arrest without a warrant a person who commits or attempts to commit a felony or misdemeanor in the presence or within the view o f the police officer. (b) Probable cause to believe a crime committed in presence of officer. A police officer w ho has pro bable cau se to believe that a felony or misd emeano r is being co mmitted in the presence or within the view of the police officer may arrest without a warrant any person whom the police officer (contin ued...) 22 Probab le cause, we have freq uently stated, is a no ntechnical c onception of a reasonab le ground for belief of guilt. Wallace, 372 Md. at 148, 812 A.2d at 297-98, quoting Doering v. State, 313 Md. 384, 403, 545 A.2d 1281, 1290 (19 88); Pringle, 540 U.S. at 370, 124 S.Ct. at 799 , 157 L.Ed .2d at 775; Edwar dsen v. State , 243 Md. 131, 136, 220 A.2d 547, 551 (1966). A findin g of prob able cause requ ires less evide nce than is n ecessary to susta in a conviction , but more e vidence th an wou ld merely ar ouse su spicion . Wallace, 372 Md. at 148, 812 A.2d at 298; Woods, 315 Md. at 611, 556 A.2d at 246; Sterling v. Sta te, 248 Md. 240, 245, 235 A.2d 71 1, 714 (19 67); Edwardsen, 243 M d. at 136 , 220 A .2d at 550. Our determination of whether probable cause exists requires a nontechnical common sense 4 (...continued) reasonably believes to have committed the crime. (c) Probable cause to believe felony committed. A police officer without a warrant may arrest a person if the police officer has probable cause to believe that a felony has been committed or attempted and the person has committed or attempted to commit the felony whether or not in the presence or within the view o f the police officer. This se ction is d eclarativ e of the Marylan d com mon la w gov erning warra ntless ar rests. Collins v. Sta te, 322 M d 675, 67 9, 589 A .2d 479, 48 1 (1991); Woods, 315 Md. at 611, 556 A.2d at 246. 23 evaluation of the totality of the circumstances in a given situation in light of the facts found to be cred ible by the trial judg e. Doering, 313 M d. at 403-04, 545 A.2d at 1290-91. Probable cause exists where the facts and circumstances taken as a whole would lead a reasonab ly cautious person to believe that a felony had been or is being committed by the person arrested . Pringle, 540 U.S. at 370-71, 1 24 S.Ct. at 8 00, 157 L .Ed.2d at 77 5; Wallace, 372 Md. at 148, 812 A.2d at 298; Woods, 315 M d. at 611, 55 6 A.2d a t 246; Duffy v. State, 243 Md. 425, 432, 221 A.2d 653, 657 (1966). Therefore, to justify a warrantless arrest the police must point to specific articulable facts which, taken together with rational inferences from those facts, reasonably warranted the intrusio n. Wallace, 372 Md. at 148, 812 A.2d at 298; Collins, 322 M d. at 680 , 589 A .2d at 481. To determine whether an officer had probable cause in a specific case, here probable cause to arrest, the rev iewing court necessarily mu st relate the information known to the officer to the elements of the offense that the officer believed was being or had been committed. Wallace, 372 Md. at 148-49, 812 A.2 d at 298; DiPino v . Davis, 354 Md. 18, 32 , 729 A.2d 354 , 361 (1999). In the case at bar, in order for Cotton s warrantless arrest to be valid, the officer must have had probable cause at the time of the arrest to believe Cotton was in possession of a controlled dangerous substance or concealed weapon. Section 5-101(u) of the Criminal Law Article defines possession as exercis[ing] actual or constructive dominion or control over a thing by one or more persons. Md. Code (2001, 2003 Supp.), § 5-101(u) of the Criminal Law Article. 24 In Collins v. Sta te, 322 Md. 675, 589 A.2d 479 (1991), we addressed a situation involving a warrantless arrest for possession of drugs and subsequent challenge to probab le cause for that arrest. In that case, at 3:00 a.m. on September 20, 1988, Officer Holmes of the Salisbury Police Department observed five men standing by a grey Ford Mustang parked at the entrance to a car dealers hip. Id. at 677, 589 A.2d at 479-80. A second officer, Officer Ewing, arrived at the scene and, on the back seat of the Mustang, saw a 35mm film canister, which he believed contained controlled dange rous su bstanc es. Id. Officer Ewing asked one of the me n to retrie ve the c anister f rom the car for h im. Id. When the man stated that the canister was not his, Officer Ewing told him to open it and show him the contents, which turned out to be ov er twenty cellop hane pac kets of a w hite powd ered substa nce that the officer believe d to be c ocaine . Id. at 678, 589 A.2d at 480. All five men then were arrested for the p ossessio n of su spected cocain e. Id. At his suppression hearing and on appeal, Collins maintained that there was no probable cause for his arrest because the mere prox imity of an acc used to an offende r, or to incriminating evidence, would be insufficient to find the existence of prob able ca use. Id. He argued that there must be some factual basis to believe that a suspect committed a crime before that suspect may be arrested legally, and that mere suspicion, without more, would not establish probab le cause . Id. In our determ ination that the police lacke d probab le cause to a rrest Collins, we discussed the Supreme Court case of United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 25 L.Ed. 210 (1948). Id. at 682-83, 589 A.2d at 481-82. In Di Re, the Court held that we are not convinced that a person, by mere presence in a suspected car, loses immunities from the search of his person to which he would otherwise be entitled. Id. at 587, 68 S.Ct. at 225, 92 L.Ed. at 216. The Court explained: There is no evidence that it is a fact or that the officers had any information indicating that Di Re was in the car when Reed obtained ration coupons from Buttitta, and none that he heard or took part in any conversation on the subject . . . . An inference of participation in conspiracy does not seem to be sustained by the facts particu lar to this case. The argument that one who accompanies a criminal to a crime rendevous cannot be assumed to be a bystander, forceful enough in some circumstances, is farfetched when the meeting is not secretive or in a suspic ious hid e-out b ut in bro ad daylig ht, in plain sight of passers by, in a public street of a large city, and where the alleged substantive crime is one which d oes not ne cessarily involve any act visibly criminal. If Di Re had witnessed the passing of papers from hand to hand, it would not follow that he knew they were ration coupons, and if he saw that they were ration coupons, it would not follow that he wou ld know them to be counte rfeit. Indeed it appeared at the trial to require an expert to establish that fac t . . . . Di Re, 332 U .S. at 593 , 68 S.C t. at 228, 9 2 L.Ed . at 219- 20. In the pres ent case , relying upon our holding in Collins and the Suprem e Court s holding in Di Re, I would h old that probable cause to arrest Cotton did not exist at the time of the de facto arrest. During their four years of surveillance on the residence at 329 Bro oklyn Ave nue, poli ce ne ver o bser ved Cotton a t the p rope rty. When police executed the no-knock warrant, they did not know Cotton s identity. As in Di Re, Cotton was arrested 26 in broad da ylight, in the yard, by a pu blic street, in plain sight of passers by. Police did not observe him engaged in any illegal condu ct, and the sole basis for detaining Cotton derives from information known about Jones, who was standing near him when police arrived. There was no e vidence c riminally linking Cotton to the home or to the persons named in the warrant. As the Supreme Court noted in Di Re, [p]resumptions of guilt are not lightly to be indulged from mere meetings. Di Re, 332 U .S. at 593, 68 S.Ct. at 228, 92 L.Ed. at 220. Probable cause did not arise until after the de facto arrest and the search incident to arrest reveale d mariju ana on Cotton s perso n. Therefore, because I would find that, under the totality of the circum stances, the f acts surrounding Cotton s detention constituted a de facto arrest, which was not permitted under the warrant and was not supported by probable cause, I would suppress the admission of Cotton s statement and the drugs recovered during D etective Henning s sea rch of Cotton s person as fruit of the poisonous tree, and reverse the decision of the Court of Special Appeals. Chief Judge Bell and Judge Greene authorize me to state that they join in this opinion. 27
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