Ransome v. State
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Deshawn Ransome v. State of Maryland No. 19, September Term, 2002 Circ ums tanc es did not suffice to justify Terry frisk. Circuit Co urt for Baltim ore City Case No. 200256019 IN THE COURT OF APPEALS OF MARYLAND No. 19 September Term, 2002 ______________________________________ DESHAWN RANSOME v. STATE OF MARYLAND ______________________________________ Bell, C.J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. _____________________________________ Opinion by Wilner, J. Raker, J., concurs. Cathell and Battaglia, JJ., diss ent. _______________________________________ Filed: February 14, 2003 The State of Maryland contends that it is permissible for a police officer who observes a man doing nothing more than standing on a sidewalk on a summer night talking with a friend, to stop and frisk that person because (1) they were in a high-crime area, (2) the man had a bulge in h is front pan ts pocket, (3) th e man ga zed at the un marked p olice car containing three plain-clothed officers as it drove by and slowed to a stop, and (4) when the three officers got out of the ca r, approached the man, identified themselves as police officers, and one began to ask him q uestions, the m an appea red nervo us and av oided eye co ntact with the officer. The State is wrong. Terry v. O hio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) does not go quite that far. BACKGROUND The relevant facts, taken from testimony presented at a suppression hearing, are essentially undisputed. At around 11:20 p.m. on July 28, 2000, Officer Javier Moro and two other officers were cruising in an unmarked police car along the 100 block of North Decker Street in Baltimo re City an are a that had produced numerous complaints of narcotics activ ity, discharging of weapons, and loitering. They were looking for loitering activity, congregation on vacan t steps, [and] lo ud group s of peop le hanging around the corners. As they proceeded down the street, Moro noticed petitioner, Deshawn Ransome, with another man, either standing or walking on the sidewalk. Moro did not know petitioner or the other man and did not see them do anything unusual petitioner did not reach into his pocket or exchange anything with the other man. They were not loitering or congregating on steps, and there is no evidence that they were loud or boisterous or hanging around a corner. They were simply there. As the car approached the pair, it slowed to a stop and petitioner turned to look at the car. Officer Moro, for some reason, regarded that as suspicious. He also noted that petitioner had a large bulge in his left front pa nts pocket, which Moro took as an indication that petitioner might have a gun. The three officers promptly exited the car, and M oro approached petitioner. A second officer engaged the other man while the third remained close by observing both en counters. Moro said that based upon the bulge, I was goin g to conduct a stop and frisk, but he decided to ask petitioner some questions first, to buy me time to feel him out. (Em phasis added). H e asked p etitioner first w hether M oro could talk to him, to which petitioner gave no response. He then asked petitioner s name and address, which petitioner gave. The address was about six or seven bloc ks away. Both answ ers were truthful. At that point, pursuant to his admitted intention, M oro directed petitioner to p lace his hands on top of his head and proceeded to pat down his waist area not the pocket area where he had noticed the bulge. That was the moment, according to Officer Moro, that petitioner was no longer free to leave. Moro detected a small bulge, which he suspected was a controlled dangerous substance, and that led him to search further. When he discovered a bag of marijuana in the waist area, he placed petitioner under formal arrest and continued his search incident to that arrest. The extended sea rch revealed that the bulge in petitioner s -2- pants pocket consisted of a roll of money $946. In other parts of his clothing, Moro found 72 ziplock bags and some cocaine. Petitioner was charged with simple possession and posse ssion with in tent to distribute marijuana and coca ine. Upon the denial o f his motion to suppress the evidence taken from him, petitioner proceeded to trial on an agreed statement of facts, was convicted, and was sentenced to 10 years in prison. The Court of Special Appeals affirmed that judgment, and we granted certiorari to consider whether Officer Moro had reasonable suspicion to conduct the stop and frisk that led to the discovery of the challeng ed eviden ce. Believin g that he did not, we shall hold that the evidence was inadmissible and shall therefore reverse the judgmen t of the interm ediate appe llate court. DISCUSSION The State does not even suggest, much less argue, that Officer Mor o had pro bable cause to seize a nd sear ch petitio ner. The issue is whether, under the rules of engagement announced in Terry v. Ohio, supra, he had rea sonable su spicion to fris k petitioner for possible weapons. Although hundreds perhaps thousands of stop and frisk cases have been decided since Terry was filed in 1968, the pronouncements in that case still provide both the Constitutional rationale and the basic Constitutional boundaries of the street-encounter stop and frisk, and it is therefore helpful to start by looking at what the Court said there. The stop -3- and frisk in Terry took place after a seasoned police officer had observed two men, occasiona lly joined by a third, pacing ba ck and fo rth along a s hort stretch of the street, pausing each time to look into a particular store window. This occurred about a dozen times over a twelve minute period. Suspicious that the men were casing the store in preparation for a robbery and concerned that they may therefore be armed, the officer confronted them and patted down their outer clothing, finding that each was in fact armed. The issue, as here, was the admissibility of the fruits of the pat-down search. The Court beg an its analysis by con firming tha t, although a mere accosting and engagement of a person in conversation may not in voke F ourth A mend ment p rotectio ns, a stop and frisk does that when the officer grabbed Mr. Terry, the re was a F ourth Ame ndme nt seizu re, and that when he conducted his pat-down frisk, there was a search. Terry, supra, 392 U .S. at 19, 88 S. Ct. at 1879, 20 L. Ed. 2d at 904-05. Noting that the Fourth Amendment proscribes unreasonable searches and seizures, the Court viewed the question as whether those actions, judged against an objective standard, were reasonable: would the facts available to the officer at the moment of the seizure or the search warrant a [person] of reasonable caution in the belief that the action taken was appropriate? Id. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906 ( quotin g, in par t, Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 ( 1925) ). In that regard, the Court conclude d that: When an office r is justified in believing that the individual whose suspicious b ehavior he is investigating at close rang e is -4- armed and presently dangerou s to the offic er or to others , it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physic al harm . Id. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908. It iterated that point and restated its conclusion thusl y: [T]here must be a narrowly drawn authority to permit a reasonab le search for weapons for the protection of the police officer, where he has reason to believe that he is dea ling with an armed and dangerous individual, regardless of whether he has probable cause to arrest th e individ ual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of oth ers was in d anger [citati ons omitted]. And in determining whether the officer acted reasonably in such circumstances, due weight must be given , not to his inch oate and unparticula rized suspic ion or hun ch, but to the specific reasonab le inferences which [the officer] is entitled to draw from th e facts in light of h is expe rience. Id. at 27, 88 S. Ct. at 1883, 2 0 L. Ed . 2d at 90 9. Earlier in the opinion, the Court made clear that, in justifying the particular intru sion the po lice officer m ust be able to point to spec ific and articulable fa cts which, taken together with rational inferences from those facts, reasonab ly warrant that intrusion, no ting in a footnote that [t]his de mand fo r specificity in the information upon which police action is predicated is the central teaching of this Court s Fourth Amendment jurisprudence. Id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. The case law since Terry has refined , in a myriad of contexts, the circumstances under which a seizure actually occurs, when a search exceeds the proper bounds of a Terry frisk, -5- and how the factual circu mstances know n to and articulated by the officer are to be viewed in determinin g wheth er they suffice to engender a reasonable suspicion, but the fundamental contours of Terry remain in place . See United States v. Arvizu, 534 U.S. 266, 273-74, 122 S. Ct. 744, 750-51, 151 L. Ed. 2d 740, 749-50 (2002); Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673, 675-76, 145 L. Ed. 2d 5 70, 575-7 6 (2000); Ornelas v. United States, 517 U.S. 690, 695-96, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918-19 (1996 ); Nathan v. State, 370 Md. 648, 659-60, 805 A.2d 1086, 1093 (2002); Cartnail v . State, 359 Md. 272, 285-86, 753 A .2d 519, 526-27 (2 000). One of the clarifications m ade by the Su preme C ourt is that, in determining whether an officer possessed a reasonable suspicion sufficient to justify a stop and fris k, the court must look at the totality of the circumstances and not parse out each individual circumstance for separate consi deration , Arvizu, supra, 534 U.S. at 274, 122 S. Ct. at 751, 151 L. Ed. 2d at 750; United States v. Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581,1585, 104 L. Ed. 2d 1, 10 (1989), and that it must allow the police officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. Arvizu, supra, 534 U .S. at 273 , 122 S . Ct. at 75 0-51, 1 51 L. E d. 2d at 7 50-51 (quotin g, in part, United States v. Cortez, 449 U.S . 411, 418, 1 01 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)). A factor that, by itself, may be entirely neutral and innocent, can, when viewed in combination with other circumstances, raise a legitimate suspicion in the mind of an -6- experienced office r. Seizing upon that, th e State urges that we take into account not only Officer M oro s observation and concern about the bulge in petitioner s left front pocket, but also the fact that this was a high-crime area from which complaints about drug activity, loitering, and shootings had com e, that it was late at night and the lighting was poor, that petitioner gazed upon the police car as it approached th e pair but then declined to keep eye contact when confronted by Officer M oro, and tha t petitioner app eared nerv ous wh en the off icer briefly questioned him. Viewing all of those circumstances together, it argues that Officer Moro had reasonab le suspicion to believe that p etitioner wa s armed an d danger ous and th at the patdown for weapons was therefore justified. It is true that, in his testimony at the suppression hearing, Officer Moro noted that the area was a high-crime one, which is why he and his fellow officers were assigned to patrol it. He also recounted that petitioner stopped and looked at the car as it approached, and that, as Moro questioned petitioner, he ceased making eye contact and his voice was getting real nervou s. At one point, he stated that his decision to conduct the frisk was based upon what I m seeing w ith the bulge in his pocket and the way the defendant s mannerism, the way he s talking to me. Although, for purposes of this appeal, we shall assume that all of those circumstances went into th e mix, we do pause to note that the extent to which they, or indeed any of them, were truly a factor in the decision to stop and frisk petitioner is not at all clear. In response to questions f rom the co urt, Officer Moro stated that his decision to stop and -7- frisk petitioner was based solely on his observation of the bulge in petitioner s pocket and his immediate conclusio n from that bulge that petitioner may be armed. He said first that based upon just observing the bulge alone of being possibly a hard object or weapon that that would give me enough reasonable suspicion as well as becoming [fearful] of my safety and my other officers, that I had enough to go do a stop and frisk on this gentleman. A moment later, he confirmed that [b]ased upon the bulge, I was going to conduct a stop and frisk. The reaso n I asked th ese questio ns was jus t to buy me time to feel him out, but I was at that p oint, I w as goin g to do a stop an d frisk. 1 1 These questions were prompted by Moro s admission that, in preparing his Statement of Probable Cause, he never mentioned anything about eye contact or the lack thereof, about petitioner being nerv ous, or abo ut his asking petitioner his name or address. In that Statement, Officer Moro noted his observa tion of the b ulge in petition er s pocke t and said that due to the violent crim es that occu r in this block, a nd the lightin g being ve ry poor, this officer became fearful that Mr. Ransome possessed a gun. This officer exited the vehicle to investigate and for officer safety conducted an outer garment patdown. It is of interest that, although Officer Moro recited in his Statement that the lighting was poor, he stated in court that, although the north side of the street was not well lit, the south side, where petitioner was standing, was better lit and that he had no trouble seeing. It is also noteworthy that, although the actual fear expressed by Officer Moro came from the bulge in petitioner s left front (contin ued...) -8- Perhaps in recognition of the central role that the pocket bulge played in Officer Moro s decision to conduct the stop and frisk, the State asks us to look at the plethora of cases in which courts have sustained such conduct in factually similar circumstances. It turns our attention first to Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), which, in its view, stands for the proposition that a bulge alone may justify a frisk. We think that the State gives Mimms too expansive a reading. In Mimms, the police observed the defendant driving on an expired tag. They pulled him over and ordered him out of the car. As he alighted, they noticed a large bulge und er his sport coat, apparently in his waist area, and, fearful that the bulge might be a weapon, patted down that area and discovered a loaded revolver. The Pennsylvania Supreme Court reversed Mimms s conviction for carrying a concealed weapon on the ground that the police had no authority to order M imms ou t of the car an d that their do ing so con stituted an im permissible seizure. In a per curiam opinion, the Suprem e Court reversed that decision, holding that the hazards facing officers when engaged in traffic stops justified the minor intrusion of removing the driver from the car. The Court further concluded that the bulge in the waist area of the jacket permitted the officer to conclude that Mimms was armed and dangerous 1 (...continued) pocket, that was not the first place he patted. Moro went, instead, for the petitioner s waist area and, only after finding a soft bulge there and concluding that it likely consisted of a contro lled sub stance, d id he se arch the pocke t. -9- and that it was the refore reaso nable for th e officer, in th at circumsta nce, to conduct th e patdown. It is that part of Mimms upon which the State relies. The Court recognized in Terry that encounters betw een the police and citizens a re incredibly rich in diversity, that [n]o judicial opinion ca n compr ehend the protean va riety of the street encounter, and that we c an only judge the facts of the case before us. Terry, supra, 392 U.S. at 13, 15, 88 S. Ct. at 1875, 1876, 20 L. Ed . 2d at 901, 9 02; see also Ornelas, supra, 517 U.S. at 696, 116 S. Ct. at 1661-6 2, 134 L. E d. 2d at 919 ; Cortez, supra, 449 U.S. at 417, 101 S. Ct. at 695 , 66 L. Ed. 2d at 628 -29. Gertrude Stein s characterization of the rose does not fit: when judging the facts under the Fourth Amen dment Terry rubric, we reject the notion that a bulge is a bulge is a bulge is a bulge, no matter where it is, what it looks like, or the circumstances surrounding its observation. We accept, as Mimms and our own knowledge of wha t occurs w ith alarming frequenc y on our streets re quire us to do, th at a noticeable bulge in a m an s waist a rea may we ll reasonab ly indicate that the man is armed. Ord inarily, men do n ot stuff bu lky objects into the waist areas of their trousers and then walk, stand, or drive around in that condition; regrettably, the cases that we see tell us that those who go armed do often c arry handgu ns in that fash ion. We c an take judicial notice of the fact, howev er, that, as mos t men do not carry purses, they, of necessity, carry innocent personal objects in their pants pockets wallets, money clips, keys, change, c redit cards, cell phones, cigarettes, and the like ob jects that, given the immu table law of physics that matter occupies spac e, will cre ate some sort o f bulge. T o apply Mimms, which involved a large -10- bulge in the waist area observed upon the stop of a man who had been driving on an expired tag, uncritically to any large bulge in any man s pocket, would allow the police to stop and frisk virtually every man they encounte r. We do n ot believe tha t Mimms, or any other Supreme Court decision, was intended to authorize that kind of intrusion. There have been, to be sure, many cases in which a bulge in a man s clothing, along with other circumstances, has justified a frisk, and those cases are entirely consistent w ith Terry. See, for example, United States v. Hassan El, 5 F.3d 72 6 (4th Cir. 1993) (after traffic stop in high-crime area, police observed defendant, a passenger in the car, moving his hands toward a bulge in the center of h is waistban d); United States v. Baker, 78 F.3d 135 (4th Cir. 1996) (police stopped car after it ran red light and, together with other cars apparently driving in tandem, took evasive action, observed triangular shaped bulge under front of driver s shirt near waistband of pants, ordered driver to raise shirt and saw gun when h e did so); United States v. $84,0 00 U.S . Currency, 717 F.2d 1090 (7th Cir. 1983) (defendant, meeting drug courier profile, questioned at airport and admitted his luggage contained some marijuana and cocaine; officer noticed bulge in pants legs near top of boots; patted down f or safety); People v. DeBour, 352 N.E.2d 562 (N.Y. 1976) (defendant encountered on deserted street after midnight in mid-October; said he had no identifica tion; police no ted waist-h igh bulge in defendant s jacket; when, at officer s request, defendant unzippered jacket, police saw handgun); State v. Sleep, 590 N.W.2d 235 (S.D. 1999) (defendant stopped for erratic driving; while he accompanied officer to patrol car, officer noticed bulge in right front pocket and -11- asked if he had a weapon; defendant admitted having a knife and gave it to officer; officer then noticed two bulges in left pocket and when defendant refused to say what they were, officer patted the are a); Woody v. State, 765 A.2d 1257 (D el. 2001) (de fendant sp otted with two other men behind residence in high-crime area at 9:30 on January night, ran away when he noticed uniformed officers and was seen clutching bulge in left front coat pocket; when apprehended, police patted area); State v. Schneider, 389 N.W.2d 604 (N.D. 1986) (as defendant sat in patrol car awaiting issuance of traffic ticket, officer noticed bulge under defendant s coat that appeared to be a revolver in a shoulder ho lster and patted the area); Comm onwea lth v. Graham, 721 A.2d 1075 (Pa. 1998) (at 1:45 a.m., officer noticed three men on porch of da y care center, recognized the men and knew that warrant was outstanding for one of them; as men walked away, officer stopped them, noticed bulge in left front pocket of second man and cond ucted pat-d own); United Sta tes v. Trullo, 809 F.2d 108, 113-14 (1st Cir. 1987) (after obser ving appe llant engag e in what officer believed was drug transaction in high-crime area, officer stopped defendant s car and had him get out, in the process noticed bulge in his right front pocket and patted it; court stressed that generalized suspicions about those engaged in drug trade being armed became particularized upon observation of bulge); United States v. Roggeman, 279 F.3d 573 (8th Cir. 2002) (as defendant was alighting from truck following traffic stop, officer noticed bulge in right front pocket of a size consistent with small caliber han dgun). Each of those cases presents a combination of circumstances justifying a reasonab le -12- belief that the bulge noticed by the officer may be a weapon or that criminal activity may be afoot, a combination lacking here. Officer M oro never explained why he thought that petitioner s stopping to look at his unmarked car as it slowed down was suspicious or why petitioner s later nervousness or loss of eye contact, as two police officers accosted him on the street, w as susp icious. A s noted , Terry requires the officer to point to specific and articulable facts justifying his conduct. Unlike the defendants in the cited cases, or indeed in Terry, petitioner had done nothing to attract police attention other than being on the street with a bulge in his pocket at the same time Officer Moro drove by. He had not committed any obvious offense, he was not lurking behind a residence or found on a day care center porch late at night, was not without identification, was not a known criminal or in company with one, was not reaching for the bulge in his pocket or engaging in any other threatening conduct, did not take evasive action or attempt to flee, and the officer was not alone to face him. The Fourth Circuit Court of Appeals made the point quite well in United States v. Wilson, 953 F.2d 116 (4th Cir. 199 1). There, the district court found that an officer had reasonab le suspicion to conduct a stop and frisk, based in part upon the observation of a bulge in the def endan t s coat p ocket. Id. at 120. In reversing th e district court s re fusal to suppress evidence obtained from the frisk, the Court of Appeals stated: The bulge is not the sort of observation that has any significance. A coat pocket is a quite usual location for a bulky object, and there is n o indication that Wilson attemp ted to obscure the age nts view of the b ulge. See Un ited States v. -13- Millan, 912 F.2d 1014, 1017 (8th Cir. 1990) (observation of two bulges in suspect s inner coat pockets not of a suspicious nature). Our decisions that mention bulges as a factor in the reasonable suspicion analysis all involve attempts by a suspect to hide the bulge and/or the observation of a bulge in an unusual location. Id. at 125; see also United States v. Cooper, 43 F.3d 140 (5th C ir. 1995) ( [w]hile the district court rejected the p osition that the suspicious bulge w as an articula ble fact con tributing to the officer s reasonable suspicion that criminal activity was afoot, we disagree. A large bulge located in such an unusual place on a suspect may be a factor w arranting rea sonable suspicion. ); United Sta tes v. Pow ell, 886 F.2d 81 (4th C ir. 1989); United States v. Aguiar, 825 F.2d 39 (4th Cir. 1987); United States v. Lehmann, 798 F.2d 692 (4th C ir. 1986); United States v. Harrison, 667 F.2d 1158 (4th Cir. 1982). The comma nd that we generally respe ct the inferen ces and co nclusions drawn by experienced police officers does not require that we abandon our responsibility to make the ultimate determination of whether the police have acted in a lawful manner or that we rubber stamp conduct simply because the officer believed he had a right to engage in it . We understan d that cond uct that wo uld seem innocent to an average la yperson ma y properly be regarded as suspicious by a trained or experienced of ficer, but if the of ficer seeks to justify a Fourth Amendment intrusion based on that conduct, the officer ordinarily must offer some explanation of why he or sh e regarded the cond uct as suspicious; otherwise, there is no ability to review the off icer s ac tion. See United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982) (although the court should consider the officer s subjective perceptions that may -14- escape an untrained observer, any such special meaning must be articulated to the courts and its reasonableness as a basis for seizure assessed independently of the police officers subjective assertions, if the courts rather than the police a re to be the ultimate enforcers of the principle. ) (citing Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357, 362 (1979 )). We are fully cogn izant of da ngers con stantly lurking on our streets and of the plight of conscientious police officers w ho have to make sp lit-second de cisions in ba lancing the ir duties, on the one hand, to detect and prevent crime and assure their own safety while, on the other, respecting th e dignity and C onstitutional rig hts of persons they confront. The conduct here, on the record before us, crossed the line. If the police can stop and frisk any man found on the street at night in a high-crime area merely because he has a bulge in his pocket, stops to look at an unmarked car containing three un-uniformed men, and then, when those men alight suddenly from the car and approach the citizen, acts nervously, there would, indeed, be little Fourth Amendment protection left for those men who live in or have o ccasion to v isit high-crime areas. We hold that Officer Moro did not have a reasonable basis for frisking petitioner and that the evidence recovered by him as a result of the frisk and subsequent extended search was inadmissible. JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE JUDGMENT OF CIRCUIT COURT FOR BALTIMORE CITY AND -15- REMAND TH E CASE TO THAT COURT FOR NEW TRIAL; COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS TO BE PAID BY MAYOR AND CITY COUNCIL OF BALTIMORE. Concurring Opinion follows: -16- Circuit Co urt for Baltim ore City Case No. 200256019 IN THE COURT OF APPEALS OF MARYLAND September Term, 2002 ______________________________________________ No. 19 DESHAWN RANSOME v. STATE OF MARYLAND ______________________________________________ Bell, C.J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. ______________________________________________ Concurring opinion by Raker, J. ______________________________________________ Filed: February 14, 2003 Raker, J., concurring: Today the Court holds that Officer Moro did not have a reasonable basis for frisking petitioner and that the evidence recovered by him as a result of the frisk and subsequent extended search was inadmissible. I agree. While I join in the Court s opinio n, I write separa tely for tw o reaso ns. First, it is important to note that w hile the circumstances do not support a Terry frisk, neither do the facts or circumstances support a Terry stop. See Carmo uche v. Sta te, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000) (noting that b y stating that def endant s p atdown search was justified because he had reasonable suspicion to believe that [defend ant] was invo lved in crim inal activity, the intermediate appellate court improperly conflated the legal standard justifying the initial stop with the legal authority to condu ct the fris k. Terry and its progeny have carefully distinguished the two and emph asized th e diffe rent justif ications for eac h. ). Second, I disagree with the majority s dicta that if the officer s eeks to justify a Fourth Amen dment intru sion based on that con duct, the off icer ordinarily must offer some explanation of why he or she regarded the conduct as suspicious; otherwise, there is no ability to review th e officer s a ction. M aj. op. at 14. The reasonable, a rticulable suspicion standard is an objective standard, not a subjective one, and does not hinge upon the subjective belief of an officer. There may be a reasonable, articulable basis for a stop or frisk even though that basis was not articulated at the suppression hearing. I. The Terry Stop In the instant case, the State s sole basis for the encounter between petitioner and the police is that [w]hen the officer saw the suspicious activity that led him to believe Ransome might have a han dgun, the officer w as entitled under Terry to stop him to investigate his suspicions and to frisk him to secure the offic er s saf ety. 1 Sufficient and articulable facts to justify the limited intrusion of a Terry investigative stop are lacking. In order to have a valid Terry frisk, there must first be a valid Terry stop. Once a valid Terry stop has been made, police may conduct a frisk of the suspect if they have a 1 Of course, the police may engage in consensual conversations with persons even if there is no ba sis to stop the pers on. See Florida v. Bostick, 501 U .S. 429, 434 , 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991) ( [A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. ). At the sup pression he aring in the instant case, the State argued that the initial encounter between the officers and petitioner was consensual, evolving into a Terry stop based upon the nervousness and demeanor of petitioner. Although the police may use information gathered during a consensual encounter to justify a Terry stop if they gather sufficient information to develop reasonable suspicion, the State does not make that argument before this Court to justify the stop or frisk. -2- reasonable, particularized, articulable suspicion th at the su spect is a rmed. See Terry v. Ohio, 392 U.S. 1, 21, 27, 88 S . Ct. 1868, 1880, 188 3, 20 L. Ed. 2d 88 9 (1968). To justify a Terry stop, an officer must have reasonable, articulable g rounds to believe that a particular person is committing, is about to commit, or has committed a crime. A Terry stop is a commonly used investigative tool of law enforcement, often necessary to permit an officer to investigate criminal activity effectively and safely. The reasonab le suspicion required for a Terry stop is more than a hunch, requiring at least some minimal level of objective justification based on the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 7-8, 109 S . Ct. 1581, 1585, 104 L. Ed. 2d 1 (198 9). In my view, su fficient grounds for a Terry stop are lacking in this case. The United States Supreme Court has stated repeatedly that it is n ot possible to articulate precisely the meaning of reasonable suspicion or probable cause. See Ornelas v. United States, 517 U .S. 690, 695, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911 (1996). The concepts are com monsen se, nontech nical conce ptions that de al with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Id., 116 S . Ct. at 16 61, 134 L. Ed. 2d 911 (quoting Illinois v. Gates, 462 U.S. 21 3, 231, 1 03 S. C t. 2317, 2 328, 76 L. Ed. 2d 527 (1983)). If R ansome s actions were sufficient to warrant a Terry stop, then anyone standing on a corner, talking with a friend in th e late evenin g, in a high-c rime area, w ith an unidentified bulge in a pocket, may be stopped. There is nothing in the record to indicate that Ransome was -3- about to commit a crime or that he was committing a crime. The frisk or pat-down of Ransome cannot be justified as a protective Terry frisk flow ing from a valid Terry stop. Moreover, a Terry frisk may not be used to see if a person is hiding something that may be evidence of illegal activity. In essence, a Terry frisk is a limited pat-down for the protection and saf ety of the o fficer d uring a n inves tigative d etention . See Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S. Ct. 338, 343, 62 L. Ed. 2d 238 (1979). The purpose of this limited search is not to discove r evidence of crime, b ut to allow th e officer to pursue his investigation without fear of violence. Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 192 3, 32 L. Ed. 2d 61 2 (1972). II. Reasonable, Articulable Suspicion In order to justify a stop or a frisk under the strictures of Terry, the police officer must be able to p oint to specif ic and articula ble facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion. 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d 889. The standard to determine the reasonableness of a particular search or seizure is an objective one. The question is whether the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate. Id. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d 8 89. A n inv estig atory Terry stop is perm issible if the of ficer has sp ecific and articulable cause to believe that criminal activity is afoot; a Terry frisk is perm issible if -4- the officer has specific and articulable cause to believe that the individual stopped is armed and therefore poses a danger to himself or others. Articulable does n ot mea n articul ated. See Dennis v. State, 345 Md. 649, 66062, 693 A.2d 1150, 1155-56 (1997) (Raker, J., dissenting). Reasonable suspicion is measured by an ob jective te st, not a su bjective one. See Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 176 9, 1774, 135 L. E d. 2d 89 (1996). 2 Therefore, the validity of the 2 In Whre n v. U nited States, the Supreme Court noted that the fact that the officer does not have the sta te of mind which is h ypothecated b y the reasons . . . [p roviding] the legal justification fo r the officer s action do es not invalid ate the action taken as long as the circumstances, viewed objectively, justify that action. 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L . Ed. 2d 89 (19 96) (cita tions om itted). Although Whren dealt with p robable cause, the reason ing has been a pplied e qually to re asonab le suspic ion ana lysis. See State v. Heminover, 619 N.W.2d 353, 360 (Iowa 2000) (noting that even though Whren deals with probable cause to stop in a traffic violation, Whren settles the question because we think there should be no distinction between a stop based on probable cause and a stop based on reasonable suspicion, i.e., a Terry stop ); see also D ennis v. State , 345 Md. 649, 660, 693 A.2d 1150, 1155 (1997) (Raker, J., dissenting) (noting, in regard to reasonable suspicion justifying a Terry stop, that Whren stands for the proposition that in determining the legitimacy of police conduct under the Fourth Amendment, a court must look to objective (contin ued...) -5- stop or the frisk is not determined by the subjec tive or articulated reasons of the of ficer; rather, the validity of the stop or frisk is determined by whether the record discloses articulable objective facts to support the stop or frisk. See, e.g., Un ited States v. M cKie, 951 F.2d 399, 402 (D .C. Cir. 1991) (noting that the stand ard under Terry is one of objective reasonableness, and thus we are not limited to what the stopping officer says or to evidence of his subje ctive rationale ; rather, we lo ok to the record as a whole to determine what facts were known to the officer and the n conside r whethe r a reasona ble officer in those circu mstances would h ave been suspicious ); United Sta tes v. Haw kins, 811 F.2d 210 , 212-15, 21 5 n.5 (3d C ir.) (holding tha t Terry stop may be justified when circumstances presented a reasonable objective basis for a stop even though the officer s stated reasons for the stop were pretextual), cert denied, 484 U.S. 833, 108 S. Ct. 110, 98 L. Ed. 2d 69 (1987); State v. Heminover, 619 N.W.2d 353, 356-62 (Iowa 2000) (holding that the State is not limited to reasons stated by investigating officer as grounds to justify a stop because reasonable suspicion is an objective standard, and an officer s subjective reasons for making a Terry stop are no t controlling); City of Fargo v. Sivertson, 571 N.W.2d 137, 139 , 141 (N.D . 1997) (no ting that subjective intent of arresting officer is not a factor in establishing reasonable suspicion for a Terry stop); State v. Hawley, 540 N.W.2d 390, 392 -93 (N.D . 1995) (ho lding that arre sting office r had reaso nable susp icion 2 (...continued) circumstances, and no t the subjective motivations of the police officer ). -6- justifying a Terry stop despite the fact that he did not form any suspicion of criminal activity because reasonable suspicion is an objective, not subjective, standard); 4 Wayne R. LaFa ve, Search and Seizure ยง 9.4(a) , at 138-40 (3d ed. 1996 & Supp. 2003) (stating that the reasonable suspicion test under Terry is "purely objective and thus there is no requirement that an actual suspicion by the officer be shown;" "the objective grounds as to one offense are not defeated because the officer either thought or stated he was acting with regard to som e other o ffense "). In this r egard, I agree with the dissent of Judge Battag lia and J udge C athell. See Diss. op . at 8-9. The appropriate test is not what the investigating officer articulates, but whether, looking at the record as a whole, a reasonable officer in those circumstances would have reasonab ly believed petitioner was engaged in criminal ac tivity or about to d o so. This is not to say that an officer s expertise gained from special training and experience can never be helpful. When an investigating officer has specialized training and testifies to inferences and deductions that may appear innocen t to the untrained observer, the co urt may take that testimony into consideration in determining whether reasonable suspicion exists. The court is not bound by such testimony, nor is such testimony required. The officer s perception s, deduction s or inferen ces do no t necessarily amount to objective facts. The majo rity s v iew that if the officer s eeks to justify a Fourth Amendment intrusion ba sed on tha t conduct, the officer ordinarily must offer some explanation of why -7- he or she rega rded the co nduct as su spicious; otherwise, there is no ability to review the officer s action is based on United States v. Gooding, 695 F.2d 78 (4th Cir. 1982), a case that pre-dated Whren. This notion does not ref lect the view of the m ajority of courts, and I have serious doubts that it is still viable in light of Whren. I join in the judgment of th e Court because I believe that, on this record as a whole, the officer did n ot have reasonable, articulable su spicion to stop or frisk petitioner. Dissenting Opinion follows: -8- IN THE COURT OF APPEALS OF MARYLAND No. 19 September Term, 2002 DESHAWN RANSOME v. STATE OF MARYLAND Bell, C.J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. Dissenting opinion by Battaglia, J. in which Cathell, J., Joins Filed: February 14, 2003 Battaglia, J., dissenting. I respectfully diss ent. The majority holds that, Officer Moro did not have a reasonable basis for friskin g petitioner and that the evidence recovered by him as a result of the frisk and subsequent extended search was inadmissible. To reach that result, the majority parses away at and ignores all of the circumstances surrounding the stop and frisk. Havin g eliminated the context within which the stop and frisk occurred, the majority then determines that Officer Moro s observ ation of the bulge in R ansome s pocket, without more, was insufficient to provide the officer with reasonable suspicion to justify a frisk. In my opinio n, this d ivide an d conq uer an alysis is inap propria te. Further, I believe that in the course of segmenting and discounting each of the factors surrounding the stop a nd frisk, the majority ignores the Sup reme Court s m andate that we pay due regard to the trial court s factual findings and inferences, as well as the tenets of our well-established standard for reviewing the denial of a motion to suppress. That standard requires us to consider the evidence and all reasonable inferences that may be drawn therefrom in a light most favorable to the prevailing party on the motion, which, in this case, was the State. For these reasons, and the reasons discussed herein, I am compelle d to respectf ully dissent. The Fourth Amendment protects against unreasonable searches and seizures. Nathan v. State, 370 Md. 648, 659, 805 A.2d 1086,1093 (2002)(citing United States v. Arvizu, 543 U .S. 266 , 122 S . Ct. 744, 151 L . Ed. 2d 74 0 (2002); Unites States v. Mende nhall, 446 U.S. 544, 551, 100 S. Ct. 1870, 1875, 64 L. Ed. 2d 497 (1980); Ferris v. State, 355 Md. 356, 369, 735 A.2d, 497, 49 1 (1999)). The touc hstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular government invasion of a citizen s personal security. Wilkes v. Sta te, 364 Md. 554, 57 1, 774 A .2d 420 , 430 (2 001)(q uoting , Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330, 332, 54 L. Ed. 2d 331 (1977)(quoting Terry v. O hio, 392 U.S. 1, 19, 88 S. Ct. 1868, 187 8, 20 L. Ed. 2d 88 9 (1968)). Reasonableness depends on a balance between the public interest and the individual s right to personal security free from arbitrary interference by law officers. Id. (quoting Mimms, 434 U.S. at 108-09, 98 S. Ct. at 332, 54 L. Ed. 2d at 336)(quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975)). With respect to a frisk for weapons, an offic er need no t be absolute ly certain that the individual is armed. Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. [I]n determining whether the officer acted reasonab ly in such circu mstances , due weig ht must be g iven, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Id. A frisk for weapons is justified when a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Id. Since Terry v. O hio, the Supreme Court h as said repeatedly that courts must look at the totality of the circumstances of each case in making reasonable-suspicion determinations. Arvizu, -2- 534 U.S. at 273, 122 S. Ct. at 750, 151 L. Ed. 2d at 749 (2002)(citing United States v. Cortez, 449 U .S. 411 , 417-1 8, 101 S . Ct. 690 , 66 L. Ed. 621 (1981)(stating that the essence of all that has been written is that the totality of the circumstances - - the w hole picture - - must be taken into accoun t )(citations om itted)); see also Nathan, 370 Md. at 660, 805 A.2d at 1093 (stating that [t]he determination of whether reasonable suspicion existed is made by looking at the totality of the circumstances in each case to see whether the off icer had a particu larized a nd obje ctive ba sis for su spectin g illegal a ctivity ). Because the totali ty of the circumstances is so crucial to a proper analysis of reasonab le suspicion, and is what the majority seemingly fails to consider, I shall briefly discuss the suppression hearing evidence regarding the circumstances surrounding the stop an d frisk in the insta nt case. Officer Moro was the only witness who testified at that hearing. He identified himself as a member of the Baltimore City Police Department s flex unit, a specialized force that targets area s of the city with high rates of violent crime, narcotic sales, and handgun use. At approximately 11:20 p.m on Friday, July 28, 2000, he and two other officers, all in plain clothes, were patrolling the 100 block of North Decker Street in an unmarked car. They were patrolling that area b ecause of numero us citizen co mplaints regard ing the d ischarg ing of g uns, na rcotics a ctivity, and loitering . Officer Moro s patrol car turn ed from F ayette Street onto North D ecker Stree t and headed south on that street. The night was dark, No rth Deck er was dim ly lit, and devoid -3- of pedest rian traf fic exc ept for R ansom e, who was about 10 to 12" feet from Officer Moro when the officer first noticed him, and one other individual next to whom Ransome was standing. As the patrol car approached and started slow ing dow n, Ranso me turned to his right to face the vehicle and gazed at Officer Moro for approximately 15 seconds. At that point, Officer Moro, seated in the rear passenger side of the vehicle, noticed a large bulge in Ransom e s left front p ants pock et. He testified that what d rew his atten tion to the bulge was [t]he fact it was so visible in the pants. He exclaimed to his fellow office rs that he suspec ted it wa s a gun . The officers then got out of the car and Officer Moro approached Ransome, and asked him, hey man, you mind if I speak to you? Ransome stared at Officer Moro, but gave no response. Officer Moro then asked Ransome his name and where he lived. Officer Moro testified that he did so in order to feel out the situation. He explained that [i]t s a tactical approach. Ransome answered both questions, and during the interaction, Officer Moro noted that Ransome avoided eye contact and that his voice indicated he was nervous.1 Officer Moro then told Ransome to place his hands on his head and proceeded to do a pat dow n search, startin g at Ransome s waistline. He explained that he started at the waistline, rather than going directly to the bulge in the pock et, because it s a systematic 1 Although the officer d id not includ e that inform ation in a probable cause report or a statement of charges, he testified that he does not always put all details in those reports. -4- pat-down. I m going off of what I was trained. I dire ctly go to the wa ist area. [Nin ety] percent of whatever is concealed, it s concealed in the waist area. Then I move into the left pocket and conducted my outer garment pat-down throughout the whole course of the body. He felt a bulge in the waist area, which he suspected to be narcotics. Officer Mo ro continued his search for weapons, eventually coming to the bulge in the pants poc ket, which felt hard. He then wen t back up to the bulge in the waist area, lifted Ransom e s shirt, and saw a plastic bag with what appeared to be marijuana. He recovered the drugs, arrested Ransome, and upon conducting a full search incident to the arrest, also recovered cocaine. The large bulge in the left front pants pocke t turned out to be over $ 9 00 dollars in cash com prised of 3 7 bills wad ded up into a ball. The trial court judge explic itly found Officer Moro s testimony to be credible and determined: [W]e have a bulge, a nervousness in response, we have the enviro nmen t, . . . we have the flex unit purposes, [and] the citizen complaints . . . of discharging of weapons and trafficking in drugs. The court then concluded that in light of all the circumstances, Officer Moro had a reasonable articulable suspicion to stop and frisk Ranso me. I ag ree. The Suprem e Court ha s declared th at in analyzing wh ether there w as reasona ble suspicion, a review ing court sh ould take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by -5- resident judges and local law enforcement officers. Ornelas v . United States, 517 U.S. 690, 699, 11 6 S. Ct. 1 657, 1663, 134 L. Ed. 2d 911, 920 (1996). Similarly, this Court has declared that in review ing the denial of a motion to suppress, w e give all fa vorable inferences to the State. In re David S., 367 Md. 523, 529, 789 A.2d 607, 610 (2002 ); see also Wilkes, 364 Md. at 569, 774 A.2d at 429 (stating that [w]e review the facts found by the trial court in the light most favorable to the prevailing party which is the State when a motion to s uppress is d enied); Stokes v. State, 362 Md. 407, 414, 765 A.2d 612, 615 (2001); Cartnail v. State, 359 M d. 272, 282 , 753 A.2d 519,525 (2000); In re Tariq A-R-Y , 347 M d. 484, 4 88, 701 A.2d 6 91, 693 (1997 ). Despite the trial judge s findings as to the circum stances con tributing to O fficer Moro s reasonable suspicion the bulge, nervousness, environment, flex unit purpose, and citizen complaints of weapons being discharged and drug activity the m ajority questions the extent to which they, or indeed any of them, were truly a factor in the decision to stop and frisk petitioner. T he majority refe rs to the following testimony from Officer Moro as the source of its speculation: [Court]: You testified here to what you observed about his demeanor as being a rele vant part o f your thinking process as an officer, a professional. Why w ouldn t that be in corpor ated . . . in your [probable cause] report? [Moro]: That s one part, your honor. The part I focused on in my report was that, based upon observing the bulge, that I became fearful at this point of the bulge and, based upon my training and experience, I know that weapons are concealed in the -6- waistband, concealed in pockets and based upon just observing the bulge alone of b eing possibly a hard object or weapon that that wo uld give me enough reasonable suspicion as well as becoming [fearful] of my safety and my other officers, that I had en ough to go do a stop and frisk o n this gentleman. The court continue d to press the officer: [Court]: Well, not to make a fine point of it . . . [i]f you drov e by him on north decker, you [would n t] be fearf ul [that] he w ould pull out a gun and start shooting at you? *** You must drive unfortunate ly. [Moro]: past people with guns Would I be fearfu l? *** Yes. [Court]: . . . Fearful of w hat? [Moro]: Of my safety. Fearful he might have a gun, would draw the gun and take my life. Based upon the bulge, I was goin g to conduct a stop and frisk. The reason I asked these questions were just to buy me time to feel him out, but I was at that point, I was going to do a stop and frisk. But that was not the only testimony from Officer Moro regarding his rationale for deciding to conduct a stop and f risk. The of ficer also testifie d: [Moro]: I approached the defendant and asked if I could speak with him. *** -7- [Q:] What did he say at that po int? [Moro]: He was looking at me, made no com men ts, just ma de eye contact with me. [Q]: What ha ppened n ext? [Moro]: At which point I approached him I asked him a couple of questions as what is your name? And he gave his name as Deshawn Ransome. Now, while he s talking to me I m noticing the defendant s eyes are not really, not making any more contact with me and it appears his voice was getting real nervou s at this point. *** [Q]: And wh at did you do at that point, officer? [Moro]: At that point, based on w hat I m seein g with the b ulge in his pocket and the way the defe ndant s mannerism , the way he s talking to me, at that point I advised him to place his hands on top of his head and conducted an outer garment pat down based upon all my observations and defendant s mannerisms. By focusing on the officer s testimony while being questioned by the court about his probable cause repo rt, and ignorin g portions o f his testimon y where he d escribes his rationale for stopping and frisking Ransome, the majority fails to review the facts found by the trial court in the light most favorable to the prevailing party, Wilkes, 364 Md . at 569, 774 A.2 d at 429, an d fails to obje ctify that review in light of the totality of circum stances in whic h the of ficers f ound th emselv es. The test is whether a reasonable officer, in light of all the circumstances known to him at the time, would have effectuated a stop and frisk. -8- The Supreme Court of Wiscon sin recently spoke of this in State v. McG ill, 234 Wis. 2d 560, 609 N.W.2d 795 (2000). There, the court observed that the record establishes a n umber o f very specific facts that support [a reasonable suspicion], although not all were relied upon by the officer as a part of his subjective analysis of the situation. Id. at 570, 609 N.W.2d at 801. But . . . this is an objective test, the court declared, and therefore certain factors, such as the time of night and the fact that the officer was alone, can and should be part of the equation. Id. The Supreme Court of Wis consin ex plained tha t Terry v. O hio, supra, did not restrict its reasonableness analysis to the factors the officer testifies to having subjectively weighed in his ultimate decision to conduct the frisk. N.W.2d at 801-02. Id. at 571, 609 T o the contra ry, the court reco gnized tha t Terry establishes an objective test: wou ld the facts av ailable to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Id., 609 N.W. 2d at 802 (internal quotations omitted). Thus, the court concluded that it could look to any fact in the record, as long as it was known to the officer at the time he conducted the frisk and is otherwise supported by his testimony at the suppression hearing. Id. See also Unites States v. Roggeman, 279 F.3d 573, 58 0 n.5 (8 th Cir. 2002) (stating that the objective, reasonable suspicion test is not based on what the searching officer actually believed but what a hypothetical officer in exactly the same circumstances reasonably could have believed ). Unfortunately, the majority in this case fails to a dhere to these ten ets. -9- Equally as unpersuasive is the majority s position that Officer M oro failed to adequate ly articulate why he found the circumstances surrounding the stop and frisk to be suspicious. Specifically, the majority complains that Officer Moro never explained why he thought that petitioner s stopping to look at his unmarked car as it slowed down was suspicious or why petitioner s later nervousness or loss of eye contact, as two police officers accosted h im on the stre et, was susp icious. Ad ditionally, the majority explains that it understand[s] that conduct that would seem innocent to an average layperson may properly be regarded as suspicious by a trained or experienced officer. But for an officer to justify a Fourth Amendment intrusion based on such conduct, the Court concludes, the officer must offer some explanation of why he or she regarded the conduct as suspicious; otherwise, there is no ability to review the officer s action. Terry requires, the majority continues, the officer to point to spe cific and artic ulable facts justifying his conduct. Terry does not require, howeve r, the law-enforcement officer performing the search to state the reasons justifying the search articulately, only that such reasons be articulable. Roggeman, 279 F.3d at 583-84. I disagree with the majority s conclusion that Officer M oro need ed to and d id fail to point to specific and articulable facts justifying the stop and frisk. Moreover, I also disagree with the very premise of the majority s statements, for it does not take a specially trained law enforcem ent officer to reasonab ly conclude that the factors here were suspicious. -10- At almost midnight on a deserted and dimly lit street in an area of Baltimore City plagued with gun fire and narcotics activity, Officer Moro and his fellow officers, while traveling in their unmarked patrol car, came upon Ransome and his companion. Ransome did not just glance at Officer Moro, he gazed directly at Moro for fifteen seconds, physically turning his body to the right to face the officer s unmarked car head on. And at that moment, still locked in Ransome s gaze, Officer Moro noticed the large bulge in Ranso me s left fro nt pants pocket. He immediately suspected that it was a weapon. These factors would appear suspicious to an objective reasonable person, even without any specialized law enforcement training or experience. That is, unless you change the scene to that of an airport, as the majority has done by relying on the case of United States v. Gooding, 695 F.2d 78 (4 th Cir. 1982). In that case, Gooding arrived at Washington National Airport on a flight from New York City at about 3:00 p.m. Id. at 79. Gooding caught the attention of officers who were patrolling the airport for drug couriers because most of the passengers on his flight were wearing business suits, while he was dressed in slacks, a sweater, and a c oat. Id. The officers followed Gooding and noted that he carried a briefcase and flight bag, but picked up no checked baggage. He also appeared nervous and suspicious to one o f the of ficers. Id. Another described him as appearing angry and distraught over someone s not being there. Id. Gooding made a telephone call, and appeared to get no response. Id. After making a second call, he we nt into a bar for one m inute, left, entered a restauran t and ate -11- for 25 minutes, a nd then made a third te lephon e call. Id. Thereafter, he departed the airport a nd starte d walk ing tow ards pu blic tran sportatio n. Id. At that point, two of the office rs who were followin g Gooding approached him, identified themselve s as police, an d eventua lly asked to search his briefcase and flight bag. Id. at 79-80. After Gooding consented, the officers recovered cocaine and arrested him. Id. at 80. Gooding was later charged with possession and intent to distribute, and after Gooding s pretrial motion to exclude that evidence was denied, he was convicted on those charges. Gooding appealed to the United States Court of Appeals for the Fou rth Circuit, which vacated the conviction and remanded because his seizure was impermissible under the fourth amendment. Id. at 84-85. The Gooding court explained that in ma king reasonable susp icion determinations, courts shou ld ta ke in to ac count that tra ined law enfo rcem ent o ffic ers m ay be able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer. Id. at 82 (quoting United Sta tes v. Men denhall, 446 U.S. 544, 563, 100 S. Ct. 1870, 1882, 64 L. Ed. 2d. 497 (19 80)(Powell, J., concurring)). Th e court cautioned, however, that any such special meaning must be articulated to the courts and its reasonableness as a basis for seizure assessed independently of the police officers subjective assertions, if the courts rather than the police a re to be the ultimate enforcers of the principle. Id. (quoting Brown v. Texas, 443 U .S. 47, 5 2, 99 S . Ct. 2637, 2641, 61 L. Ed. 2d 357 , 362 (1 979)). Applying these principles to objective criteria articulated by -12- the police for the detention of [a] citizen, the court concluded that the seizure was imperm issible under the fourth amendment. Id. at 84. Those objective criteria were as follow s: 1) [defendant] arrived from New York, a source city for drugs; 2) he was dressed casually on a 3:00 p.m. businessmen s flight; 3) he made a telephone call immed iately after arriving and subsequently made two other phone calls; 4) he scanned the concourse after deplaning; 5) he acknowledged the agent s presence in an alleged cat-andmouse game of mutual sur veillance, and 6) to two of the agents his demeanor appeared distraught and nervous. Id. at 83. The court noted that although many of these criteria appear in drug courier profiles, it had specifically held that a drug courier profile, without more, does not create a reasonable and articulable suspicion. Id. at 83. Thus, it concluded that the seizure w as uncon stitutional. If the facts in this case had taken place in an airport in the afternoon a fter a business flight, I would be more persuaded by the majority s position that Officer M oro had to articulate how, in light of his specialized training and experience, he had found certain factors to be suspicious. Indeed, an average layperson would not find it suspicious, in my opinion, to see Ranso me and his com panion walking through an airport together. And the bulge in Ransome s front pants pocket would not seem out of the ordinary or indicate anything suspicious, as most of us have experienced travel, if not on planes then on trains or buses, and understand that one carries more personal items when -13- traveling than one wou ld normally. Indeed, in hasty travel and wanting of baggage space, people often pack their pockets with bulky items. But our f acts did n ot tak e pla ce in an ai rpor t. Qu ite to the c ontrary, Ransome was located on a poorly lit city street, close to midnight, in an area in which complaints about the discharging of w eapons a nd narco tics trafficking had been received. V iewed w ithin those circumstances, it does not take the expertise of a police officer to know that an unusually large bulge in the front pocket of pants, coupled with a fifteen second gaze and subseq uent ne rvousn ess, is a su spiciou s set of c ircums tances. In Pennsylvania v. Mimms, two police officers on routine patrol observed Mimms driving an automobile with expired tags and stopped him because of that. 434 U.S. at 107, 98 S. Ct. at 3 31, 54 L . Ed. 2d at 334. One of the officers asked Mimms to step out of the car and produce his license and title. Id. When Mimms exited the car, the officer noticed a large bulge u nder [M imms s] sports jacket. Id. Fearing that the bulge might be a weapon, the officer frisked [Mimms] and discovered in his waistband a .38-caliber revolver loaded with fiv e round s of am munitio n. Id. Mimms was then arrested and indicted for c arryin g a co ncea led d eadl y weapon and for unlaw fully carrying a firearm without a license . Id., 98 S. Ct. at 331, 54 L. Ed. 2d at 335. Prior to trial, Mimms filed a motion to suppress , which w as denied, a nd he w as convicte d for the ab ove men tioned charge s. Id. -14- The Supreme Court of Pennsylvania reversed on the basis that the officer s ordering Mimm s to get out of his car wa s an imper missible seiz ure. Id. With resp ect to the bulge, howeve r, it was willing to assume, arg uendo, that the limited search for weapons was proper once the officer observed the bulge under [Mimms s] coat. Id., 98 S. Ct. at 3 31-32 , 54 L. E d. 2d at 3 35. The Supreme Court not only assumed, but specifically ruled that the search was justified. The Court stated that [u]nder the standard enunciated in [Terry v. O hio] whether the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken w as appropriate there is little question the officer was justified. Id. at 112, 98 S. Ct. at 334, 54 L. Ed. 2d at 337-38 (in ternal quota tions omitted ). The Co urt explaine d that [t]he b ulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer. Id. In these circumstances, the Court concluded, any man o f reasona ble caution would lik ely have con ducted the pat down. Id., 98 S. Ct. at 334, 54 L. Ed. 2d at 338. The majority s answer to Mimms is simply that each case mus t be judged upon its own fact s, and tha t to ap ply Mimms uncritically to an y large bulge in any man s p ocket, would allow the police to stop and frisk virtually every man they encounter. I do not suggest that the Mimms decision, or a ny other case, sh ould be ap plied uncritica lly. What I do strongly suggest, however, is that the circumstances of the instant case are at least as -15- compelling as those in Mimms. Mimms dealt with a traffic stop, w hich, by its nature , is particularly dangerous for officers. So also is a street encounter with a nervous citizen at night in an area specifically known for being infested with narcotics and having a problem with people discharging w eapons. Thus, in m y view, the combination o f factors here was at least as compelling as those in Mimms. Also, I am no more convinced by the majority s attempt to distinguish the many other cases cited by the State. [T]o be sure, the majority concedes, [t]here have been . . . many cases in which a bulge in a man s clothing, along with other circumstances, has justified a frisk. But [e]ach of those cases, according to the majority, presents a combination of circumstances justifying a reasonable belief that the bulge noticed by the officer may be a weapon or that criminal activity may be afoot, a combination lacking here. Unlike the defendants in those cases, the majority continues, petitioner had done nothing to attract police attention other than being on the street with a bulge in his pocket at the same time Officer Moro drove by. I respec tfully disag ree with the ma jority s san itization o f the fa cts. Ransome did not just happen to be strolling down the street with a companion when O fficer Moro drove by. Ransome was on a dimly lit street devoid of any pedestrian traffic except for himself and his companion, near midnight, in an area of the city known for narcotics dealing, gun fire, an d loitering. O fficer M oro did no t just, as the ma jority characterize s it, [drive] by. As a member of a specialized police unit that deals with violent crime, -16- Officer Moro and his fellow officers were patrolling North Decker Street in response to numerous citizen com plaints regard ing drugs, w eapons, an d loitering. It is w ithin this context (wh ich th e ma jority i nappropriately avoids) that Officer Mo ro noted Ranso me s gaze and identified the large bulge in Ranso me s left fro nt pants po cket. The majority asserts that Ransome had not committed any obvious offense ; he was not behind a residence2 or found on a day care center porch late at night. He was not without identification, was not a known criminal or in company with one, was not reaching for the bulge in his pocket or engaging in any other threatening conduct, did not take evasive action or attempt to flee, and the officer was not alone to face him. That the circumstances here are no t exactly the same a s those in the cases relied u pon by the S tate is inconsequential. Essentially, the majority is taking a cookie cutter approach to Terry stops. The combination of factors here is just as compelling, if not more persuasive, than those distinguished in the State s cases . For all o f the rea sons m entione d abov e, I respec tfully disse nt. Judge C athell authoriz es me to state that he joins in this dissent. 2 I take issue w ith the majorities r ecitation of th e facts on this point. Indeed, Officer Moro testified at the suppression hearing that when he stopped and searched Ransome, Ranso me w as in fro nt of [ a] dwe lling. -17-
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