Lewis v. State
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Lamont A. Lewis v. State of Maryland, No. 95, September Term, 2006. CRIMINAL LAW SUPPRESSION OF EVIDENCE: Petitioner, Lamont Anthony Lewis, sought review of the denial of his motion to su ppress the seizure of marijuana discovered during a traffic stop. The marijuana was discovered by police stopped Lewis after he almost struck a police car when he pulled his vehicle away from a curb; Le wis was convicted of possession of a controlled dangerous substance, marijuana, in violation of Section 5601 (c)(2) of the Criminal Law Article, Maryland Code (2002). The Court of Appeals reversed, and held that the c ourt erred in denying Lewis s motion because the police did not have an a rticulable reason able su spicion to stop L ewis b ased up on the f act that h e almo st hit the car. IN THE COURT OF APPEALS OF MARYLAND No. 95 September Term, 2006 LAM ONT A NTHO NY LE WIS v. STATE OF MARYLAND Raker Cathell Harrell Battaglia Greene Rod ows ky, Lawren ce F. (Retired, Specially Assigned) Wilne r, Alan M . (Retired , Specially Assigned), JJ. Opinion by Battaglia, J. Raker, H arrell, and R odows ky, JJ., Dissent. Filed: April 12, 2007 Petitioner, Lamon t Anthon y Lewis, seek s review o f the denia l of his motion to suppress the seizure of marijuana discovered during a traffic stop after Lewis almost struck a police car. We hold that the court erred in denying Lewis s motion because the police d id not have an articulable reasonable suspicion to stop Lewis based upon the fact that he almost hit the car. I. Introduction On April 27, 2005,1 at appro ximate ly 10:45 p .m., Sergeant Jeffery Jocuns, Detective Anthony Vaith, and Officer Tisha Anderson2 of the Baltimore C ity Police Department we re in a marked police cruiser near the intersection of Oswego Avenue and Park Heights Avenue in Baltimore City, an area described as an open air drug market, and known for violent crime and drug distribution ac tivity. Sergeant Jocuns accompanied Detective Vaith and Offic er Cam pbell w hile they w ere look ing for a rape s uspect describ ed in a flyer. Detective Vaith, the driver, an d Sergea nt Jocuns, th e passeng er in the fron t seat, observed a tan sports u tility vehicle parked on the side of the road, which was occupied by two individuals: a man in the driver s se at, later identified as Lewis, and a woman in the front passenger s seat, subsequently identified as Ms. Parksdale. According to the officers, Lewis and Ms. Parksdale started acting nervously, abruptly pushing their hands down under the vehicle s console. Sergeant Jocuns testified that he immediately thought about the flyer and was concerned that a rape could be in progress. According to Sergeant Jocuns, the 1 2 All of the facts, as herein set forth, were developed at the suppression hearing. Officer Anderson remained inside the police cruiser during the entire incident and did not testify during the suppression hearing. officers then proceeded past Lewis s vehicle, and stopped the police cru iser in the stree t . . . not at the curb, a little bit in front of the SUV. Detective Vaith, the driver, recounted the events that transpired thereafter: [W]e pulled dow n a little bit farther. I didn t want to stop the vehicle directly next to the defendant s vehicle because I didn t know if there wa s a weap on and I d idn t wan t to put myself or anyone else in th e vehic le in harm s way. So I pulled down . At that point the defenda nt activated h is turn signal a nd started to pull out into the street nearly striking the back of my vehicle. That was -- at that point that s when Se rgeant Jocuns said [H ]e almost hit your ve hicle wha t s th is gu y doing? So I pulled to the side and parked and got out as well as Sergeant Jocuns. We both approached the vehicle. Sergeant Jocuns advised that he observed the defen dant still mak ing mov ements in th e console area. At that point for officer safety Sergeant Jocuns requested the defenda nt to exit the vehicle. When he did so a cell phone and a plastic b ag fell to the gro und. My attention was diverted at that point. Be cause at tha t point the ve hicle was n ot placed in gear and it started to drift down the street. I ran and jumped in the vehicle. Put the brakes on it. Put the car in park. Sergeant Jocuns was dealing with the defendant at that point. I walked around the other side of the vehicle and requested that the passenger exit the vehicle. And then that s when I was notified by Sergeant Jocuns that there was marijuana in the vehicle -- or it came out of the vehicle when the driver exited. *** I went back to the vehicle to see if there was anything in the general area that I observed the de fendant m aking mo vements at, which w as a conso le area. An d there w as between the passenger side seat and the center console was a marijuana cigarette . I recov ered tha t. There was no other items found in the vehicle. When I returned back to the area where the defendant -- Ms. Park sdale was I began to explain the situation that there was marijuana found falling from the defendant as he exited the vehicle. And then there was marijuana found in the passenger side of the vehicle. And that s when the defendant -2- had said everything in the vehicle was his . She didn t have anything to do with it. And explained on several occasions that it was all his. This testimony, thus, reflects that after seeing the two individuals in a car parked on Oswego Avenue, the officers drove the police cruiser slowly by Lewis s SUV and stopped the police cruiser wh ile in the street just in front of the SUV . At that poin t, Lewis activated his left turn signal and started to pull his vehicle into the street, almost striking the back of the police cruise r. Lewis the reupon sto pped his vehicle, and Detective Vaith pulled to the side of the street and parked the police cruiser fifteen to twenty feet in front of the SUV. Detective Vaith and Sergeant Jocuns both got out, and Se rgeant Jocu ns requeste d that Lew is get out of the vehic le after he an d the Dete ctive observ ed more m ovemen ts in the cons ole area. When L ewis stepp ed out, a plas tic bag con taining ma rijuana fell to the ground, and the SUV, driverless, drifted approximately twenty feet down Oswego Avenue. Lewis was subsequently charged with possession of a controlled dangerous substance, marijuana, in violation of Section 5-601 (c)(2) of the Criminal Law Article.3 Prior to trial, 3 Section 5-6 01 states in p ertinent part: (a) In general. Except as otherwise provided in this title, a person m ay not: (1) possess or administer to another a controlled dangerous substance, unless obtained directly or by prescription or order from an authorized provider acting in the course of professional practice; or (2) obtain or attem pt to obtain a controlled dangerous substance, or procure or attempt to procure the administration of a controlle d dangerous subs tanc e by: (contin ued...) -3- Lewis filed a motion to suppress the marijuana that was seized from him, as well as the subsequent statements. During the hearing on the motion, only Sergeant Jocuns and Detective Vaith testified. Follow ing this testimo ny, the State argued tha t the incident w ith Lewis was equivalent to an investigatory traffic stop because the officers had the right to stop Lewis when his SUV almost h it the police cruiser when Lewis pulled away from the curb. The State also ass erted that it was appropriate for officer safety for Sergeant Jocuns to ask Lewis to get ou t of the S UV. Additi onally, the State postured that the plastic bag of marijuana provided the officers with probable cause to arrest Lewis and, therefore, the subseque nt search of his vehicle q ualified as a s earch incid ent to an arre st. 3 (...continued) (i) fraud, deceit, misrepresentation, or subterfuge; (ii) the counterfeiting or alteration of a prescription or a written order; (iii) the concea lment of a material fac t; (iv) the use of a false name or address; (v) falsely assum ing the title of o r representing to be a manufacturer, distributor, or authorized provider; or (vi) making, issuing, or presenting a false or counterfeit prescription or written order. *** (c)(1) Penalty. Except as provided in p aragraph ( 2) of this subsection, a person who vio lates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 4 years or a fine not exceeding $25,000 or both. (2) A person whose violation of this section involves the use or possession of marijuana is subject to imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both. Maryland Code (2002), Section 5-601 of the Criminal Law Article. -4- Con vers ely, Lewis s counsel argued that the fact that Lew is put on his tu rn signal, looked at the officers, and then pulled into th e street almo st hitting the p olice car did not provide reasonable articulable suspicion to effectuate a stop because there was no traffic infraction. His counsel also asserted that Lewis was not issued any traffic citation, reflecting that he broke no law. At the conclusion of the suppression hearing, the Judge granted the suppression motion as to the evidence of the discarded marijuana cigarette and Lewis s statements of ownership,4 but denied the motion as to the plastic bag of marijua na that fell fro m the veh icle when Lewis got out of the SUV; the judge, in so doing, ruled that the officers had a reasonable suspicion to stop Lewis becau se he almost hit the police ca r: I find from the eviden ce that the po lice officers w ere cruising in northwest Baltimore in the vicinity of Park Heights Avenue and Oswego Avenue. When they made a turn into Oswego and saw a vehicle being operated by the defendant, which was stopped or parked . And they saw some hand motions, which gave them some suspicion. I won t ca ll it reasonable s uspicion. I ll ca ll it a hunch. There was utterly no evidence whatsoever or no reason to think there was any po ssible attempted rape going on. And, but for one fact I would rule that the police officer had no right to ask the defendant to come out of the c ar. However, once the car moved forward, which it had a right to do and acco rding to -- well, I m going to Officer Vaith -- he said -- one of them said what s wrong with this gu y, what s he up to. Almost hitting the police car. Saying what s this guy doing. It was Officer Vaith s testimony. They had a right to investigate for purposes of a traffic stop. Now, before then I would say they did not have articulable suspicion based on same hand movement. The most 4 The State did not raise, by way of cross-appeal, whether the suppression court erred when it granted the motion to suppress with regard to the marijuana cigarette or Lewis s statements of ownership. Therefore, we do not address these issues. -5- troubling part for is does he have a right to ask the defen dant to get out of the car. Okay. A high crime area. We know that some p eople d o have weap ons. They do have guns. We know that police officers have been killed made traf fic stops by pe ople who had gun s. I don t rem ember the year, but there w as a State Trooper, his I believe was Wolf, I think recently the defendant or one of the defenda nt s in this case was denied post-conviction relief. Not to the fact that case has anything to do with this other than would it be appropriate for officer saf ety to ask him to get out of the car? I say, yes. Now, but with the fact that according to the testimony the marijuana just rolled out -- it ju st fell out at that p oint in time. Asking him to get out for the investigative purpose in my view at that juncture was not a seizure. When the drugs rolled out there was reason to believe that a crime had been committed. Possession of a controlled dangerous substance, marijuana. Cause the reason I stated I m no t granting the motion to suppress that marijuana. Lewis was subsequently convicted of possession of a controlled dangerous substance, marijuana, and sentenced to one year im prisonme nt. Lewis n oted an ap peal to the Court of Special Appeals, and subse quently this Co urt issued, on its own initiativ e, a writ of certiorari prior to any pro ceedin gs in the interme diate ap pellate c ourt. Lewis v. Sta te, 396 Md. 11, 912 A.2d 647 (2006). Lewis s brief presents the following issue: Did the trial court err in denying A ppellant s m otion to suppress the marijuana? We hold that the trial court erred in denying Lewis s motion to suppress the marijuana because the police did n ot have justification to condu ct the investigatory traffic stop based upon the fact that Le wis almost hit the police ca r. II. Standard of Review When reviewing the denial of a motion to suppress evidence, we ordinarily consider -6- only the inform ation conta ined in the record of the suppression hearing, and not the trial record. Whiting v. S tate, 389 Md. 334, 345, 885 A.2d 785, 791 (200 5); State v. Nieves, 383 Md. 573, 581, 861 A.2d 62, 67 (2004); Laney v. S tate, 379 Md. 522, 533, 842 A.2d 773, 779 (2004); State v. Green, 375 Md. 595, 607 , 826 A.2d 486, 493 (2003); State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439, 443 -44 (2003 ); Carter v. State, 367 Md. 447, 457, 788 A.2d 646, 651 (200 2). Further, w e view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the prevailing party on the motion . Whiting, 389 Md. at 345, 885 A.2d at 79 1; Nieves, 383 Md. at 581, 861 A.2d at 67; Laney, 379 Md. at 533, 842 A.2d at 779; Green, 375 Md. at 607, 826 A.2d at 493; Rucker, 374 Md. at 207, 821 A.2d at 444; Carter, 367 Md. at 457, 788 A.2d at 651. Although we extend great deference to the hearing judge s fin dings of f act, we rev iew, indep endently the application of the law to those facts to determine if the evidence at issue was obtained in violation of the law and, acco rdingly, should be suppressed. Whiting, 389 Md. at 345, 885 A.2d at 791; Nieves, 383 Md. at 581-82 , 861 A.2d at 67; Laney, 379 Md. at 533-34, 842 A.2d at 77 9-80; Rucker, 374 Md. at 20 7, 821 A .2d at 444; Carter, 367 Md. at 457, 788 A.2d at 651. III. Discussion Lewis contends that the trial court erred in denying his motion to suppress the marijuana discovered when the plastic bag containing such fell from his lap while he was getting out of h is car. Lewis argu es that a seizu re occurred when th e police stop ped their cruiser and asked him to get out of his SUV, because he was prevented from driving away by the police s presence, and that s uch seizure was unre asonable u nder the F ourth -7- Amen dment; L ewis ma intain that, even if he almost hit the police car, he did not viola te any law, and th erefore his a ctions did no t provide the police with a reasonable suspicion that he was operating his vehicle unlawfu lly. Additiona lly, Lewis sugg ests that a co mmun ity caretaking function justification for conducting an investigato ry traffic stop is not recognized under Maryland law, and even if it were, w as not app licable in this case because the police were acting within their investigative function. The State, conv ersely, argues tha t the trial court did not err in denying Lewis s motion to suppress the marijuana contained in the plastic bag. The State primarily argues that the police had justification to s top Lew is and con duct an inv estigatory traffic stop because they had a reasonab le suspicion to believe tha t Lewis w as operating his vehicle u nlawfully, pointing to the fact that Lewis almost hit the police cruiser when pulling into Oswego Avenue. This almost accident, a ccording to the State, aff orded the o fficers the rig ht to conduct an investigatory traffic stop for the purpose of determining whether Lewis was negligently or recklessly driving in violation of Section 21-901.1 of the Transportation Article,5 or driving under the influence in violation of Section 21-902 of the Transportation 5 Section 21-901.1 states: (a) Reckless driving. A person is guilty of reckles s driving if he drives a motor vehicle: (1) In wanton or willful disregard for the safety of persons or property; or (2) In a manner that indicates a wanton or willful disregard for the safet y of perso ns or prop erty. (b) Negligent driving. A person is guilty of negligent driving (continued...) -8- Article.6 Further, the State opines that the officers, out of a concern for their own safety, had the right to request that Lewi s get ou t of his v ehicle. Alternatively, the State argues that the (...continued) if he drives a motor vehicle in a careless or imprudent manner that endangers any prope rty or the life or person of any individual. Maryland Code (1977, 2006 Repl. Vol.), Section 21-901.1 of the Transportation Article. 6 Section 21 -902 prov ides in pertine nt part: (a)(1) A person may not drive or attempt to drive any v ehicle while und er the influen ce of alcoh ol. (2) A person may not drive or attem pt to drive an y vehicle wh ile the person is under the influence of alcohol per se. *** (b)(1) A person may not drive or attempt to drive any veh icle while imp aired by alcoh ol. *** (c)(1) A person may not drive or attempt to drive any vehicle while he is so far im paired by any dru g, any comb ination of drugs, or a comb ination of o ne or mo re drugs an d alcohol that he ca nnot driv e a ve hicle safe ly. *** (d)(1) A person may not drive or attempt to drive any ve hicle while the person is impaired b y any controlled dangerous substance, as that term is defined in § 5-101 of the Criminal Law Article, if the person is not entitled to use the controlled dangerous substance under the laws of this State. Maryland Code (1977, 2006 Repl. Vol.), Section 21-902 of the Transportation Article. -9- seizure was justified under the police s community caretaking function, articulated by the Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 70 6 (1973). The Fourth Amendment to the United States Constitution,7 made applicable to the States by the Fourtee nth Am endmen t, protects aga inst unreaso nable searches and seizures. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95 (1996); United States v. Mende nhall, 446 U.S. 544, 550, 100 S.Ct. 1870, 1875, 64 L.Ed.2d 497, 507 (1980); Terry v. O hio, 392 U .S. 1, 8, 8 8 S.Ct. 1 868, 18 73, 20 L .Ed.2d 889, 898 (1968). The Supreme Court has iterated that the [t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of persons within the me aning o f [the F ourth A mend ment]. Whren, 517 U.S. at 809-10, 116 S.Ct. at 1772, 135 L.Ed.2d at 95. The Fourth Ame ndment, how ever, is not a guarantee against all searches and seizures, but only against unreason able searches and seizures. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605, 613 (1985) (emphasis added ). Therefore, [t]he touchstone of our analysis under the Fourth Amendment is always the 7 The Fourth Amendm ent to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be vio lated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., Amed. IV. -10- reasonableness in all the circumstances of the particular governmental invasion of a c itizen's personal security . Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 332, 54 L.Ed.2d 331, 335 (1977), quoting Terry, 392 U.S. at 19, 88 S.Ct. at 1878, 20 L.Ed.2d at 904. In assessing the reasonableness of a traffic stop, the Supreme Court has adopted a dual inquiry, examining w hether the officer s action was justified at its inception, and whether it was reasonably related in scope to the circumstan ces whic h justified the interferenc e in the first place. Sharpe, 470 U.S. at 682, 105 S.Ct. at 1573, 84 L.Ed.2d at 613, quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905. The case sub judice concerns the first inquiry whether the police had justification to stop Lewis. A traffic stop is justified under the Fourth Amendment where the police have a reasonab le suspicio n supp orted b y articulab le facts th at crimin al activity is a foot. Whren, 517 U.S. at 812-13, 116 S.Ct. at 1774, 135 L.Ed.2d at 97-98; Myers v . State, 395 Md. 261, 281, 909 A.2d 1048, 10 60 (2006 ); Cartnail, 359 M d. at 284 -85, 75 3 A.2d at 526. T hus, a traffic stop violates the Fourth Amendment where there is no reasonab le suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seiz ure or deten tion in connection with the violation of any other applicable laws. Delaware v. Prouse, 440 U.S. 648, 650, 99 S.Ct. 1391, 139 4, 59 L.Ed.2d 66 0, 665 (1979); Rowe v . State, 363 Md. 424 , 433, 769 A.2d 8 79, 884 (2001). We have recognized that the reasonable suspicion standard re quires the p olice to possess a particularized and objective basis for suspecting legal wrongdoing. Myers, 395 -11- Md. at 281, 909 A.2d at 10 60; Nathan v. State, 370 Md. 648, 660, 805 A.2d 1086, 1093 (2002); Stokes v. Sta te, 362 Md. 407, 415, 765 A.2d 612, 616 (2001), quoting United States v. Cortez, 449 U .S. 411, 41 7-18, 1 01 S.C t. 690, 69 5, 66 L .Ed.2d 621, 62 9 (198 1). See Cartnail v. State, 359 Md. at 287, 753 A.2d at 527 (requiring more than an inchoate and unparticularized suspicion or hunch ), quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 15 85, 104 L .Ed.2d 1, 1 0 (1989). In assessing w hether the a rticulable reaso nable suspicion standard is satisfied, this Court has adopted the LaFave factors : (1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender's flight; (5) observed activity by the particular person stopped; and (6) kn owledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation. Cartnail, 359 Md. at 289, 753 A.2d at 528 (em phasis added), quoting 4 Wayne R. LaFave, Search and Seizure § 9.4 (g), at 195 (3d ed. 1996 & 2000 Supp .). See also Myers, 395 Md. at 281, 909 A.2d at 10 60; Stokes, 362 Md. at 420, 765 A.2d at 619. Clea rly, under the observed activity factor, the police have the right to stop and detain the operator of a vehicle when they witness a violatio n of a tra ffic law . See, e.g., Byndloss v. State, 391 Md. 462, 481, 893 A.2d 1119, 1130-31 (2006) ( Sergeant Hughes conducted a lawful stop of Ms. Malone s green Chevrolet Malibu, in which petitioner was the front seat passenger, after observing that the car s license plate was obscured by a plastic license plate cover [in violation o f Section 1 3-411 of the Transportation A rticle]. ); Green, 375 Md. at -12- 614, 826 A.2d at 497 ( In the case sub judice, like in Ferris, the parties do not dispute that Deputy Meil stopped Green because he had probable cause to believe he had violated the law by exceeding the posted speed limit. ); State v. Wallace, 372 Md. 137, 141, 145, 812 A.2d 291, 294, 296 (2003) (stating that it was agreed that stop was justified after officer witnessed vehicle exceed speed limit and run a red light); Nathan, 370 Md. at 661, 805 A.2d at 1094 (determining that stop w as justified af ter officer witnessed vehicle spe eding on a public highway); Wilkes v. Sta te, 364 Md. 554, 572, 774 A.2d 420, 431 (2001) (finding that stop was justified for vehicle exceeding the posted speed limit); Ferris, 355 Md. at 369, 735 A.2d at 498 ( It is without dispute that the stop of Ferris by Trooper Smith for exceeding the posted speed limit constituted a seizure fo r Fourth Amendment purposes, but that such a seizure was justified by the probab le cause po ssessed by the trooper in h aving witnessed Ferris s traffic violatio n. ); Derricott v. State, 327 Md. 582, 584, 611 A.2d 592, 594 (1992) (stop justified when officer witnessed vehicle traveling 89 miles per hour in 55 miles per hour zone). See also Myers, 395 Md. at 277 n.7, 909 A.2d at 1057-58 n.7 (stating in dicta that a police of ficer s me ntal impression of [a vehicle s] speed, under the circumstances, might have been adequate probable cause or, at a minimum, reasonable suspicion that [the vehicle] was traveling in excess of the posted speed to justify a traffic sto p); Stokes, 362 Md. at 426-27, 765 A.2d at 622-23 (remarking in dicta that speeding into a parking lot and parking diagonally acro ss several sp ots would provide a reasonab le articulable su spicion to office rs that dr iver wa s violatin g traffic laws). Con vers ely, mere hun ches that un lawful ac tivity is afoot do n ot support a traffic stop. -13- Prouse, 440 U.S. at 648, 99 S.Ct. at 1391, 59 L.Ed.2d at 660. In Prouse, the reasonableness of discretionary spot checks of operator licenses and vehicle registrations was in issue. In rejecting the use of entirely discretionary spot checks, the Court remarked that the foremost method of enforcing traffic and vehicle safety regulations . . . is acting upon observed violatio ns, and that [t]o insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor up on some other su bstantial and objective standard or rule to gove rn the exerc ise of discretio n would invite intrusions up on constitutio nally guaranteed rights ba sed on nothin g more substan tial that in articulate hunch es . Id. at 659, 661, 99 S.Ct. at 1399, 1400, 54 L.Ed.2d at 671, 672. Further, Justice Byron White, writing for the Court, stated: By hypothesis, stopping appa rently safe drive rs is necessar y only because the danger presented by some drivers is not observ able at the time of the stop. When there is not probable cause to believe that a driver is v iolating any one of the multitude of applicable traffic and eq uipment re gulations o r other articulable basis amounting to reaso nable susp icion that the d river is unlicenced or his vehicle unregistered we cannot conceive of any legitimate ba sis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some ex tent. Id. at 661, 99 S.Ct. at 1400, 54 L.Ed.2d at 672. We also had the oppor tunity to address the unreasonableness of a traffic stop based upon mere hunches in Cartnail v. S tate, 359 Md. at 272, 753 A.2d at 519, in which the police -14- stopped a vehicle lawfully driven by Cartnail based up on a suspic ion that he a nd his passenger were involved in a robbery; the police subsequently discovered tha t Cartnail s driver s license had been revoked. Cartnail challenged the validity of the traffic stop, and we agreed, holding tha t the suppre ssion hearin g record f ails to establish that a reasonab le and prudent police officer would have reasonable suspicion to stop Petitioner and, therefore, the stop was constitutionally illegal under the Fourth Amendment. Id. at 289, 753 A.2d at 528-29. In reaching our conclusion, we applied the LaFave factors, noting that Cartnail was not engaged in any suspicio us activity, that there w as no reaso n to believe that [Cartn ail] was involved in another c riminal case , and that he a ppeared to be operatin g his vehicle in compliance with the apparent rules of the road. Id. at 290, 753 A.2d at 529. Further, we explained that lawfu lly operating a vehicle was an innocent activity, which could only raise an articulable reasonable suspicion that criminal activity was afoot when coupled w ith suspicious circumstances: Here, a reasonable police officer had only facially innocent activity to generate reasonable suspicion because no suspicious activity had been personally observed. In Ferris, we considered the issue of innocent activity and when it can lead to a reasonab le articulable su spicion if placed in proper context. We observed that the Sup reme Co urt, in Reid v. Georg ia, explained that factual circumstances which describe a very large category of presumably innocent travelers' cannot, in and of themselves, justify a seizure. We contrasted Reid against Sokolow where the Court explained that a series of acts which could appear naturally innocent if viewed separately may collectively warrant fu rther investiga tion by grounds of reasonab le suspicio n. Ferris reconciled the two parallel decisions by adopting the reasoning of Karnes v. Skrutski: The Third Circuit reasoned that, although the -15- factors relied upon in Sokolow to find reaso nable suspicion were consistent with innocent tra vel, they were nonetheless out of the ordinary. Karnes emphasized the distinction between individual factors w hich are co nsistent with innocent travel, b ut nonetheless out of the ordinary, and individual factors which are both consistent with innocent trave l and too commonplace to be probative in tending to show criminal activ ity. Th e Th ird C ircuit's decision in Karnes also recognized that the reasonable suspicion standard, as applied to the totality of the circumstances, must be narrow enough to eliminate a great num ber of ob jectively innocent individuals: Reid and Sokolow, taken together, demons trate it is not enough that law enforcement officials can articulate reasons why they stopped someone if those reasons are not probative of behavior in which few innocent people would engage-the factors together m ust serve to eliminate a substantial portion of innocent travelers before th e r e q u i r e m e n t o f r e as o n a b le suspicion will be satisfied. *** Furthermore, [a]lthough the nature of the totality of the circumstances test makes it p ossible for individually innocuous factors to add up to reasonab le suspicion , it is impossible for a combination of wholly innocent factors to combine into a suspicious conglom eration unle ss there are co ncrete reasons for such an interpretation. *** The record clearly shows that Petitioner gave no indication he was engaged in criminal activity, nor did he commit a moving -16- traffic violation, that would have triggered immediate police reaction. For as much as the suppression hearing record reveals, Petitioner s vehicle evidenced no outward violations of motor vehicle laws, such as a malfunctioning light, missing license plate, or the like. We note that despite the fact that there are usually less peo ple in pu blic dur ing the e arly morn ing hou rs, a driver is still entitled to privacy at any time of the day and should not be disturbed by the police without constitutional auth ority. Cartnail, 359 Md. at 290 -91, 294, 296, 753 A .2d at 529-30, 531, 53 2 (citations omitted). We have upheld investig atory traff ic sto ps of vehicles bein g operate d law fully, however, when lawfulness was accompanied by suspicious behavior or information regarding criminal activity. In Mosley v . State, 289 Md. 571, 42 5 A.2 d 1039 (1981), the police observed two young men, one of them la ter identified as Mosley, standing outside of a department store, pacing back and forth, glaring through the windo w in the direction of the store s cash registers, and alternately entering the store severa l times, walking around the cash registers, and then venturing outside. The men sub sequently w alked to the ir vehicle and proceeded slowly down the shopp ing center p arking lot in their car. The police stopped the vehicle and subsequently discovered evidence linking the men to an armed robbery. Mosley challenged the legality of the stop; we found that Mosley s, and his companion s, conduct was so similar to the suspicious conduct involved in the Terry case that we believe that opinion is clearly dispositive of Mosley s fo urth amen dment co ntention, an d that their actions outside of the departme nt store prov ided the po lice with sp ecific and a rticulable facts that would warrant a person of reason able caution in the belief that criminal activity was afoot. Id. at 574, 575, 576, 425 A.2d at 1041, 1042. -17- Almost committing a traffic violation, however, does not justify a traffic stop. In Rowe, 363 Md. at 439, 769 A.2d at 88 8, a state troop er witnesse d a vehicle traveling sou th on Interstate 95 at a speed less than the 65 miles per hour speed limit; the vehicle also crossed the white sh oulder line o nto the rumble strip and swe rved back into the lane, o nly to subseque ntly return and touch the shoulder line again. The trooper stopped the car for failing to drive in a single line in violation of Section 21-309 of the Transportation Article.8 In considering whether Rowe s operation of his vehicle was unlawful, we noted that Section 21-309 does not render conduct not endangering other vehicles or individuals unlawful, so that Rowe s conduct did not constitute an infraction, and his almost violation could not alone justify the stop: The cases in which courts have upheld traffic stops based on violation of statues similar to § 21-309 involve conduct much more egregious than that in which the petitioner eng aged in this case . . . . *** We conclude that the petitioner s momentary crossing of the edge line of the roadway and later touching of that line did not amount to an unsafe lane change or unsafe entry onto the 8 Section 21-309 (b) of the Transportation Article, as applied in Rowe, stated in pertinent pa rt: A vehicle sha ll be driven a s nearly as practicab le entirely within a single lane and may not be moved from that lane or moved from a shoulder or bikeway i nto a lane until the driver has determined that it is safe to do so. Maryland Code (1977, 1999 Repl. Vol.), Section 21-309 (b) of the Transportation Article. -18- roadway, conduct prohibited b y § 21-309, and, thus, cannot support the traffic stop in this case. Id. at 439, 441, 769 A .2d at 888, 889 (emp hasis added). What the State in the present case attempts to do, however, is skirt hunch, cruise past almost unlawful, and arrive at almost accident to permit investigatory traffic stops in situations in w hich a drive r of a car is a lmost invo lved in a traff ic accident. The State s attempt to do so runs afoul of Fourth Amendment jurisprudence because there is no basis for conducting an investiga tory traffic stop w hen it is evident that the driver is lawfully operating his vehicle without any accompanying illegal activity. The State s proposed principle w ould permit the police to exercise unre strained discretion when deciding to make a traffic stop, based upon a belief that the driver has almo st been inv olved in a traffic accident. Such a standardless chimera practically destroys the objective basis of the reasonable suspicion requirement. 9 Almost c ausing an accident co uld include driving less th an the spee d limit, passing another car appropriately or merely parallel parking. In the present case, Lewis was stopped on the road and p ulled into the s treet, activating his left turn sign al. That he almost hit the police car d id not cons titute a traffic infractio n nor illeg al activity. A number of our sister states have reached a similar conclusion, not permitting investigatory traffic stops amidst an alleged almost accident, absent a violation of the law. 9 An officer may, of course, initiate a stop upon observation of reckless or negligent driving that almost causes an accident, but the stop, in such case, is for reckless or negligent driving , not alm ost cau sing an accide nt. Neither officer ever suggested reckless or negligent driving as the basis for the stop. -19- In Smith v. Sta te, 21 S.W.3d 251 (Tenn. C rim. App . 1999), the p olice effec tuated a traff ic stop after a veh icle change d lanes to pa ss another v ehicle, witho ut signaling. In assessing the reasonableness of the traffic stop, the court remarked that such passing, when done when there is minimal traffic on the road, is [not] an unusual occurrence, and that making a lawful lane chan ge could n ot give an o fficer reas onable su spicion to be lieve that an [individua l] is either drunk or tired or tha t the individu al is unlawfully operating the vehicle: Similarly, Trooper Norrod did not have reasonab le suspicion to believe that the De fendant w as involved in or about to be involved in criminal activity, which would have also justified the seizure. He apparently suggested to the Defendant that he thought the Defendant might have been drunk or tired, but he insisted in the suppression hearing that the only reason he stopped the Defendant was because of an improper lane change. As alread y noted, the D efendan t did not violate any traffic provision by changing lanes without signalin g. Making a lawful lane change, which we equate somewhat to a proper lane change, as described herein, could not give any officer reasonable suspicion to believe that an individual is either drunk or tired. *** There was no evidence that the Defendant was driving erratically, weaving, or otherwise causing a hazard to other vehicles. . . . We are reluctant to conclude that a person driving in a manner that an officer d eems impro per, when the driving is not erratic or haphazard and does not create a dangerous situation, is subject to seizure while proceeding along a highway in a lawful manner. Id. at 257, 2 58 (em phasis a dded). See State v. Brew, 593 So.2d 447, 451 (La. Ct. App. 1992) (remarking that traffic stop was justified after officer witnessed traffic violation, and the fact that violation alm ost caused an acciden t did not have any bearing on whether the stop was -20- justified); Whitson v. Dep t of Pub. Sa fety, 346 N.W.2d 454, 456 (S.D. 1984) (stating that the stop was justified for committing a traffic violation by carelessly cutting in front of other vehicles approaching an intersection, which on ly incidently almost caused an acciden t). In another attem pt at justification , the State also c ontends th at the police a ppropriately stopped Lewis in order to foil an attempted rape, pursuant to their community caretaking function, postulated by the Supreme Court in Cady v. Dombrowski, 413 U.S. at 433, 93 S.Ct. at 2523, 37 L.Ed.2d at 706. In Cady, the Court addressed the reasonableness of a warrantless search of the trunk of an impounded vehicle, and held that the search was not unreason able under the Fourth Amendment because the police, in searching the trunk, were not collecting evidence, but were acting out of concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle. Id. at 447-48, 93 S.Ct. at 2531, 37 L.Ed.2d at 718. In reaching its conclusion, the Court discussed the community caretaking function: Because of the extensive regulation of motor vehicles and traffic, and also because of the frequenc y with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may b elieve the operator has violated a criminal statute, but many more will not be of that nature. Local police officers . . . freq uently investiga te vehicle ac cidents in which there is no claim of crim inal liability and enga ge in wh at, for want of a better term, may be described as com munity caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. -21- *** Here the justification [for the search] . . . was as immediate and constitutionally reasonable as those in Harris and Cooper: concern for the safe ty of the gene ral public w ho might be endangered if an intruder removed a revolver from the trunk of the veh icle. *** The Court's previous recognition of the distinction between motor vehicles an d dwelling places lead s us to conclude that the type of caretaking search c onducted here of a v ehicle that was neither in the custody nor on the premises of its owner, and that had been placed where it was by virtue of lawful police action, was not unreasonable . . . . Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vuln erab le to i ntrusion by vandals, we hold that the search was not unreason able with in the mea ning of the Fourth and Fou rteenth Am endmen ts Id. at 447-48, 93 S.Ct. at 2531, 37 L.Ed.2d at 714-15, 718. The State, extolling the application of the logic utilized by the Sup reme Co urt in Cady, points to Stanberry v. State, 343 Md. 720, 684 A.2d 823 (1996), and Rowe, 363 Md. at 424, 769 A.2d at 879, contending that we also have recognized a community caretaking justification for investigatory traffic stops. In Stanberry, the police conducted a drug interdiction investigation at a highway rest stop. During the investigation, the police, without first obtaining a warrant, searched a suit bag found on a luggage rack of a bus, after none of the bus s passengers claimed ownership of it, and discovered heroine and cocaine. We concluded that the warrantless search implicated th e Fourth Amendment guarantees and was unreasonable. Id. at 739, 740, 684 A.2d at 832, 833. Moreover, although we recognized that -22- the community caretaking function was not involved in the case, we articulated, in dicta, the distinction between the caretaking function and the investigatory role of the police: Moreover, although we find today that, under the circumstances presented in the instant case, the police search of P etitioner s luggage was unlawful, we stress that our holding is limited to the conduct of the police when they are acting in their criminal inve stiga tory capac ity. *** In essence police officers function in one of two roles: (1) appreh ension of criminals (investigative function); and (2) protecting the public and rescuing those in distress (caretaking function). Courts have noted that preservation of human life is para mou nt to the right of privacy protected by the fourth amendment. Thus, the [community caretaking function] is justified because the motivation for the intrusion is to preserve life rather than to search for evidence to be used in a criminal investigation. Our holding d oes not ap ply to situations in which the police are acting to protect pu blic safety pursuant to their comm unity caretak ing fun ction . . . . Id. at 742-43, 684 A .2d at 834 (citations omitted). In Rowe, however, we rejected the community caretaking function as a justification for a traffic stop to ensure the safety of the occupant. After we determined th at the traffic stop was not justified as an observed traffic violation, we noted: Several states have re cognized that, under the co mmun ity caretaking function discussed in Cady v. Dombrowski, a police officer may stop a vehicle to ensure the safety of the occupant withou t a reaso nable s uspicio n of crim inal activ ity. Neither this Court nor the General Assembly has adopted the commu nity caretaking function in this context, and the State has -23- not urg ed us to do so in this case . Id. at 442-43, 769 A.2d at 890. Whether or not the comm unity caretaking function h as been rec ognized b y this Court, in dicta or in a holding, it is not applicable in the present case. Although the State argues that the police had justification to conduct the traffic stop under the community caretaking function to protect the general public because the police were looking for a suspect wanted in connection with a rape, and to protect Ms. Parksdale because Sergeant Jocuns testified that he thought that a rape could be in progress, the suppression hearing judge totally rejected such factual findings in stating there was utterly no evidence whatsoe ver or no re ason to think there was any possible attempted rape going on. We agree. In conclusion, the police did not have an articulable reasonable suspicion to stop Lewis based up on the fac t that he alm ost struck a police car and so, we hold that the trial court erred in denying Lewis s motion to suppress the marijuana. JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. COSTS TO BE P AID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE. -24- IN THE COURT OF APPEALS OF MARYLAND No. 95 September Term, 2006 LAM ONT A NTHO NY LE WIS v. STATE OF MARYLAND Raker Cathell Harrell Battaglia Greene Rodowsky, Lawrence F. (Retired, specially assigned) Wilner, Alan M. (Retired , speciall y assigne d), JJ. Dissen ting Op inion b y Rodow sky, J., which Raker and Harrell, JJ., join. Filed: April 12, 2007 I respectfully dissent. In m y opinion, the ev idence w as sufficien t to permit the suppression court to find justification for the traffic stop because the misdemeanor of negligent driving was committed in the presence of the police officers. The facts are critical, and the testimony must be taken in a light most favorable to the State, as the p revailin g party on the sup pressio n motio n. Three officers were on routine patrol in a marked police cruiser at about 10:45 p.m. in the lower Park Heights area of Baltimore City. Detective Vaith was driving and Sergeant Jocuns was in the front passenger seat. The cruiser turned from Park Heig hts Avenue to proceed westbound on Oswego Avenue. Oswego Avenue is four lanes wide, with parking permitted in the lanes adjacent to the north and south curbs, leaving one lane for traffic westbound and one lane for eastbo und tra ffic. For reasons tha t are immate rial to this appeal, the police witnesses' attention was directed to an SUV parked at the north curb. Detective Vaith drove slowly past the SUV and the officers looked inside it at the driver, later determined to be the appellant, Lamont Anthony Lewis, and at a woman in the front passenger seat. Detective Vaith stopped the police cruiser in the westbound traffic lane, sufficiently beyond the SUV to take the police cruiser out of the direct line of fire by an occupant of the SUV, in the event that the situation turned bad. Detec tive Va ith desc ribed w hat then occurr ed. "At that point the defendant activated his turn signal and started to pull out into the street nearly striking the back of my vehicle. That was--at that p oint that's when Sergeant Jocuns said , '[H]e almost hit your vehicle[. W]hat's this guy doing?' So I pulled to the side and parked and got out as well as Sergeant Jocuns. We both approached the vehicle." The unarticulated , but necessa rily included, fac t in this descriptio n is that Mr. Lew is stopped the SUV without any order by the po lice to sto p. Detective Vaith's testimony that he and Sergeant Jocuns "approached" the SUV means that they approached it on foot. Con sequ ently, the SUV remained stopped while Detective Vaith pulled from the second westbou nd lane an d parked and wh ile the officers alighted the cruiser. In other words, the SUV did not swing fully past th e police cruiser in order to procee d wes terly on O sweg o. When the officers approached the SUV, Mr. Lewis was ordered to step out of the vehicle. It was at that point that there was a police initiated traffic stop. Mr. Lewis got out of the driv er's side, and his cell phone and the plastic bag of marijuana fell to the ground. Mr. Lewis apparently failed to secure the parking brake when he exited the SUV. It began to drift westerly on Osweg o. Detective Vaith pur sued on f oot and w as able to ge t into the SUV , stop it, an d put th e vehic le in park gear. Mr. Lewis's operation of the SUV, as above described, falls within the prohibition of Maryland Code (1 977, 200 6 Repl. V ol.), § 21-901 .1(b) of the T ransportation Article (TR) which re ads in releva nt part: "A person is guilty of negligent driving if he drives a motor vehicle in a careless or imprudent m anner that endange rs any property[.]" The opinion of the Court in this case would have the reader conclude that the "almos t" accident, above described, was no more than the successful navigation of the narrow clearances regularly encounte red in traffic-con gested, urba n areas. Th e suppress ion court, as I believe it properly could do, focused on Detective Vaith's description of what Sergeant -2- Jocuns said, i.e., "[H]e almost hit your vehicle[. W]hat's this guy doing?" The testimony has the reliability indicia of an excited utterance. The suppression court saw and heard the witnesses, and was in a better position than is this Court to consider the volume and inflection of the voice in which the quoted testimony was given.1 Defense counsel also saw and heard the witness es. Review ing the evid ence in argument to the court, defense counsel described the testimony as follows: "You have Officer Jocuns['s] testimony that he looked--that he saw the car coming into--saw Mr. Lew is's car coming into their car. You had Officer Vaith's testimony that Officer Jocuns looked back and saw Mr. Lew is almost coming into their car ." (Empha sis added). Defense counsel argued that little or no weight should be given to this evidence because Mr. Lewis ac tivated his left turn signal before pulling away from the c urb and because the police officers issued no traffic citations. To this argu ment the c ourt replied: "Th ere's no traffic citations. But, if somebody is in a car and they almost hit another or almost hit a police car that's not reason enough to make a further inquiry? "[Def ense C ounse l]: No, Y our H onor. "THE COURT: What are you suppos ed to do; ign ore it? The majority bolsters its conclusion that, as a matter of law , the suppression court could not find a violatio n of T R § 21 -901.1 (b), by noting that "[n]either officer ever 1 It is immaterial whether Mr. Lewis, to a void the co llision, either sud denly applied his brakes and stopped just short of the rear of the cruiser or w hether he sw erved at the last splitsecond and stopped with some part of the SUV beyond the rear of the cruise r. The poin t is that Mr. Lewis's driving was such that it provoked an excited utterance from Sergeant Jocuns. -3- suggested reckless or negligent driving as the basis for the stop." Slip opinion at 22 n.11. Of cou rse, once the drugs hit the street, the of ficers had a more serio us offen se with which to be concerned. Apropos is United States v. Atkinson, 450 F.2d 835 (5th Cir. 1971), where the court said: "That the officer elected to charge Atkinson with the more serious of the two crimes involved does not prevent the validity of the arrest from resting on the lesse r crime. ... Any other ru le would f orce police officers to routinely charge every citizen taken into custody with every offense they thought he could be held for in order to increase the chances that at least one charge would survive the test for probable cause. Such a clogging of the criminal process already heav ily encum bered, w ould be pointles s. We thus decide that there was probable cause to arrest for the improperly displayed license tag, and we loo k no fu rther." Id. at 838 ( citations omitted ). In any event, the constitutionality of a search or seizure under the Fourth Amendment is to be determ ined by the objective facts and is not limited to the legal theory which the police officer believed, even erroneously, justified the invasio n. See Devenpeck v. Alford, 543 U.S. 146, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004) (sustaining, because of probable cause to believe arrestee was impersonating a police officer, warrantless arrest assertedly for violation of state privacy statute); Lee v. State, 311 Md. 642, 669, 537 A.2d 235, 248 (1988) ("Nor is a search incident analysis ... precluded by Officer Baughman's belief that his legal justification for open ing the gym b ag was a protective search for w eapons."); Marbury v. United States, 540 A.2d 114, 115 (D.C. App. 1985) (upholding traffic stop as supported by the evidence and findings by the trial court, although the arresting officer "stated that he had not pulled appellant's car over because of a traffic violation (driving without lights); and he -4- made no mention o f the traffic violation in any police department form."); 1 W.R. LaFave, Search and Seizure § 1.4(d) (2004). Based on Sergeant Jocuns's excited exclamation, on the position of the vehicles when the SUV "alm ost" hit th e police c ruise r, and on M r. Le wis's recognition that he should stop, rather than proce ed weste rly on Osweg o, the suppression court co uld conclude that there was justification for the traffic stop. In the language of TR § 21-901.1(b), the suppression court could find that Mr. Lewis had driven the SUV "in a careless or imprudent manner that endanger[e d]" p rope rty. I find it unfortunate that the theme, recurring throughout the majority opinion, is that the subject occurrence was merely an "almost" accident. This case will be cited for the proposition that there can be no traff ic stop for v iolating the prohibition against negligent driving, unless there has been a collision. TR § 21-901.1(b) makes plain that the negligent driving n eed m erely endanger person or p roperty. There is no require ment for im pact. Particularly unfortunate, in my opin ion, i s the majo rity's reinforcement of its position by finding the police off icers' testimony in th is case too su bjective to satisfy Fourth Amendment jurisprudence. The factual premise of the argument is that the lack of any illegal activity is "evident." Slip opinion at 19. I have discussed this, above. In the majority's view, to allow a traf fic stop based on an officer's belief that there has "almost" been a collision "practically destroys the objective basis of the reasonable suspicion require ment." Slip opinion at 19. There are, of cou rse, rules of the road that similarly could be criticized as being subjective. For example, a motorist may violate a speed restriction when traveling -5- below the pos ted spe ed limit. See TR § 21-801(a) ("A person may not drive a vehicle on a highway at a speed th at, with regard to the actual and p otential dangers existing, is more than that which is reasonable and prudent under the co nditions."). See also TR § 21-310(a) ("The driver of a motor vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the other vehicle and of the traffic on and the condition of the highway."). These are the kinds of violations that can lead to the appreh ension of mo torists dri ving un der the in fluenc e of alc ohol or drugs. For the fo regoing rea sons, I dissen t. Judges Raker and Harrell authorize me to state that they join in this dissenting opinion. -6-
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