Swift v. State

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In the Circu it Court for W icomico C ounty Case No. 22-K-03-001056 IN THE COURT OF APPEALS OF MARYLAND No. 98 September Term, 2005 LOGAN HAMILTON SWIFT v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: June 2, 2006 The sole issue in this appeal is whether the trial cou rt erred in denying petitioner s motion to suppress a controlled dangerous substance seized from him by the police. Petitioner Logan Hamilton Swift appeals the denial of his motion to suppress evidence of contraband obtained b y the police. Be cause a rea sonable person w ould not h ave felt free to leave under the circumstances in which the police officer encountered petitioner, and the police officer lacked any reasonable suspicion to stop petitioner, we shall hold that the Circuit C ourt fo r Wico mico C ounty erre d in den ying petitio ner s m otion to suppre ss. I. Swift was charged in the Circuit Court for Wicomico County in a criminal information with the following offenses: possession of a regulated firearm under the age of twenty-one in violation of Md. Code (1957, 1996 Repl. Vo l., 2001 Cum. Supp.), Art. 27 § 445(e)1 ; wearing, carrying, or transporting a handgun upon his person in violation of Md. Code (2002, 2003 Cum . Supp .), § 4-203 of the Criminal Law Article;2 possession of cocain e, a Sched ule II CDS, with sufficient quantity to indicate an intent to distribute within a 1000 feet of a school in violation of § 5-627(a); possession of cocaine with intent to distribute in violation of § 5- 602(2 ); and p ossessio n of co caine in violatio n of § 5 -601(c )(1). 1 Art. 27 § 445(e) was repealed by 2003 Md. Laws Chap. 5, § 1, effective October 1, 2003, and is now re-codified, without substantive change, at Md. Code (2003, 2005 Cum. Supp.), § 5-133(d) of the Public Safety Article. 2 Unless otherwise noted, all subsequent statutory references herein shall be to Md. Code (2002, 2003 Cum. Supp.) of the Criminal Law Article. Prior to trial, Swift filed a motion to suppress controlled dangerous substances that were seized from him,3 and a handgun re covered by the police w hich was abou t an arm s length from Swift when he was arrested.4 Deputy Dykes was the only witness to testify at the supp ression h earin g. Th e fol lowing f acts were elic ited. Dep uty Jason Dykes was on routine patrol in a marked cruiser in Fruitlan d, Ma ryland, in the early morning hours of August 9, 2003. On that particular night, Deputy Dykes had not received any reports of criminal activity in the area. At ap proximate ly 3:13 a.m., De puty Dykes was patrolling the area of Popla r Street and E lizabeth Stree t, an area he characterized as a high crime area w ith an open a ir drug market. While on patrol, he was wearing his uniform. He first saw Swift walking northbound on Poplar Street in the direction of Elizabeth Street. Deputy Dykes explained that he obse rved Sw ift probably three times, within three to five minutes, on Poplar Street and then on Elizab eth Street, and that Swift w ould look over his sho ulder contin ually 3 At the suppression hearing, defense counsel stipulated that contraband was found on Swift. 4 The only issue before this Court is the legality of the seizure of the controlled dangerous substance. At the mo tions hearing , the State challenged Swift s standing to object to the seizure of the handgun on the ground that it was abandoned property. Defense counsel advised the court that the defense agreed with the State that the gun was abandoned. Counsel stipulated that the firearm in question w as aband oned and that defen dant had n o reasona ble expectation of privacy in the handgun and the location from which it was seized. At the motions hearing, when the officer testified to the apprehension of Swift, the court sustained defense counsel s o bjection to an y testimony as to the recovery of the handgun and the location of the g un at the time of the seizu re. Before this Court, in a footnote in his brief, petitioner states that in conceding that the handgun was abandoned, defense counsel misund erstood the law on a bandonme nt. If petitioner believes that defense counsel erred below, petitioner is free to pursue that issue in a postconviction proceeding. The issue is not properly before this Court on this record. -2- at him as h e drove by. Swift w as walkin g five fee t from the e dge of the paveme nt, walking into wh at wou ld be the directio n of on comin g traffic , if any. Deputy Dykes stopped his cruiser about ten feet in front of Swift. Swift was walking down Elizabeth Street on his side of the road as the deputy drove up Elizabeth Street. At that time, Deputy Dykes stopped in front of Swift and got out of h is car. He did not activate his emergency equipment or his siren, nor d id he draw his weap on, but his headlights were on, and shining in the direction of Swif t. Swift continued to walk toward the deputy s car, and the deputy, with his gun holstered, asked Swift fo r permission to talk with h im in orde r to perform a field interview stop a nd obta in Sw ift s info rmation . Deputy Dykes observed that Swift was wearing a black ball cap, a long white tee shirt that concealed his waistband, and blue jeans. The area was fairly dark, and the de puty and Sw ift were the only two ind ividuals on the street. Deputy Dykes testified that Swift agreed to speak with him, and then explained his subsequent actions, as follows: [STAT E]: What did you do after asking him to stop and talk to you? [DEPUTY DYK ES]: Asked him f or ID, aske d him for h is informatio n. He gav e it to me. I called in a wanted check over the radio for him. At that time Officer Matt Brown with the Fruitland Police Department heard me call it in. Advised me over the radio that he was known for drugs and weapon s. [STAT E]: Let me sto p you there. How did you call in the warrant check to dispatch? [DEPUTY DYKES]: Called in over my radio. I was standing outside the car with him, called in over my hand he ld radio, his -3- name, date of birth , for a wan ted check to see if he had any warrants on him. [STAT E]: While you were running that wanted check were you restr ainin g him in an y way? [DEPUTY DYKES]: No. He was standing right with me, right in fron t of me , a coup le of fe et in fro nt of m e. [STATE]: A couple feet between you and him? [DEPUT Y DYK ES]: Yes. [STATE ]: What happened as you were waiting for the wanted check? [DEPUTY DYKES]: Officer Matt Brown contacted me on the radio, advised me that he s known for drugs and weapons. [STATE]: Who was he referring to? [DEPUTY DYKES]: The Defendant, Mr. Swift. At that time, I acknowledged him. [STAT E]: Did he tell you what type of weapon he s known f or? [DE PUT Y DY KES ]: Gun s, weap ons. He told me, advised me he s kn own f or CD S and g uns. Deputy Dykes exp lained that he used the p ertinent police codes to comp lete the war rants check, and that he used an ear piece to receive transmissions from the dispatcher to prevent people from h earing th e return transm issions. He asked Swift if he had any guns, knives, or -4- drugs on him, and Swift said that he did not. 5 Swift informed Deputy Dykes that he was on his wa y home. Deputy Dykes then asked Sw ift if he could search him. Swift did not reply to the deputy s request bu t took som e money ou t of his pock et, and then p ut his hands on the hood of Deputy D ykes s car, wh ich the deputy viewed as consent. Deputy Dykes testified as follows: The Defend ant kind of threw his arm s up in the air, p ut his hands on the hoo d of my car, I to ok that as consent. I w ent to put my flashlight a way and w ent to pat him down at that time. *** I went to secure my flashlight and approach him from behind to pat him do wn. At th at time Mr. Swift pushed off from my hood and fled from me. Deputy Dykes cha sed Sw ift, subsequ ently caught u p with him , and arrested him. Officer Mark Perdue o f the Fruitland Poli ce Depa rtment arrive d on the sc ene and s earched S wift, recovering four individually wrapped, small bags of crack cocaine in Swift s pant leg and eighty dollars. Prior to trial, Sw ift moved to suppress the evidence seized from him. Swift argued at the suppre ssion hearin g, that based on the totality of th e circumsta nces, a reaso nable person would not hav e felt fre e to leav e, and th us he w as detain ed illega lly by the dep uty. 5 On direct ex amin ation , Deputy D ykes testified that he received the results of the warrants check prio r to seeking consent to search Swift, but on cross-examination, he testified that he d id not re ceive w ord of the resu lts of the check until late r on. -5- The Circuit Court denied Swift s motion to suppress. The court ruled that under the facts of the case, a reasonable person would have felt free to leave, explaining as follows: Considering the totality of the circumstances what seems to me to be relevant is that there was one officer pre sent. The officer was in uniform , he was in a mark ed patrol car. Although Mr. Swift came over to the po lice car, that was not as a result of any direc tion or o rder fro m the D eputy. The Deputy did not indicate to Mr. Swift that he was suspected of any crime. There s nothing from which I can conclude that the Deputy had any of Mr. Swift s documents. The Deputy said that he could not say categorically that he did not have an ID card. That seems to me to be something short of evidence that he did have it considering the testimon y that his clear recollection is that he wrote the identification information down in his note pad. There s no indication of a display of weapon, of a tone of voice that w ould have indicated co mpliance with any requ est. There was no activation of emergency equipment. The encounter was a brief one, two to three minutes at most between the initial encounter and the time when Mr. Swift left the scene. There is evidence and defense relied in part on the blocking of the Defendant s path by the patrol vehicle. And there are cases in Maryland and other jurisdictions where using a car in an aggressive manner to block a Defendant s path or control the direction or speed of his movement is evidence of a seizure. The case , at least one tha t I recall, is one where the Defendant was walking and the police pulled the car across the Defendant s path and blocked the Defendant. In this particular case the evidence is the Defendant was in the highway, in the traveled lane of the highway, in the lane in which the officer was properly traveling. And tha t seems to me to be a far different factual predicate than was the case in Jones versus State, which is one where the blocking of the movement was found to be an indicia of seizure. -6- There was no frisk. And basically what I find to be under the totality of the evidence is that there was a voluntary encounter, an accosting, a field interview, whatever term you want to place on it, but it s one which I think a reasonable person under the facts of this case would have felt free to leave. And ind eed the ev idence is Mr. Sw ift did feel fre e to leave, he took off a t a certain poin t. So considering those facts I m going to deny the motion . Swift proceeded to a trial before the court on a not guilty plea, agreed statement of facts. The court found Swift guilty of the handgun violations and the controlled dangerous substance charge. Swift was sentenced to a term of incarceration on both charges. Petitioner noted a timely appeal to the Court of Special Appeals. In an unreported opinion, the court affirmed the judgment of the trial court denying the motion to suppress. The court held that because Officer Dykes did not seize Swift, eve n up to the point where Swift placed his hands on the patrol car as a show of conse nt, we hav e no occa sion to app ly the Fourth Amendment to the facts of this case. Judge Meredith dissented. Concluding that no reasonable person in Swift s position would have felt free to ignore Deputy Dykes, and that any reasonable person in those particular circumstances would have felt constrain ed to wait for the resu lts of the radio warrants check rather than simply ignore the deputy and walk away, pe titioner h ad bee n seized withou t justifica tion un der the F ourth A mend ment. This Court granted Sw ift s petition for a writ of certiorari, to answer the following question: -7- Whether an individual who is doing nothing other than walking down a public street at 3:00 a.m. is stopped for the purposes of the Fourth Amendment when a police officer pulls his car directly in front of him, blocking his path, asks the individual for identification and detains him while running a warra nt chec k. Swift v. State , 390 Md. 284 , 888 A.2d 341 (2005). II. The Fourth Amendment to the United States Constitution guarantees that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unr easonab le searches and seiz ures, shall no t be violated . . . . T he exclusio n of evide nce obtain ed in violation of these provisions is an essential part of t he Fou rth Am endm ent pro tections . See Mapp v. Ohio, 367 U.S. 643, 655-656, 81 S. Ct. 1684, 1 691, 6 L. E d. 2d 108 1 (1961); State v. Lee, 374 M d. 275, 2 97-98 , 821 A .2d 934 -35 (20 03). It is well established that the Fourth Ame ndment g uarantees a re not implic ated in every situation where the police have contact with an individ ual. See California v. Hodari D., 499 U.S . 621, 625-2 6, 111 S. C t. 1547, 155 0-51, 113 L. Ed. 2d 6 90 (1991 ); Scott v. State , 366 Md. 12 1, 133, 782 A.2d 86 2, 869 (20 01). Ma ny courts hav e analyzed the applicability of the Fourth Amen dment in te rms of thre e tiers of intera ction betw een a citizen and th e police. See, e.g., United States v. Werking, 915 F.2d 140 4, 1407 (10th Cir. 199 0); United States v. Black, 675 F.2d 1 29, 132 -33 (7th Cir. 198 2), cert. denied, 460 U.S . 1068, 103 S. Ct. 1520, 75 L. Ed. 2d 945 (198 3); Ferris v. State, 355 Md. 356, 374 n. 5, 735 A.2d 491, 500 n. 5 (1999); State v. Markland, 112 P.3d 507, 509 n. 1 (Utah 2005); Jefferso n v. State , 76 -8- S.W.3d 850, 854 -55 (Ark . 2002); Com. v. Sierra, 723 A.2d 644 , 646 n. 3 (Pa. 1999); Wilson v. State, 874 P.2d 215, 219-20 (Wyo. 1994). The most intrusive encounter, an arrest, requires probable cause to believe that a person has committed or is committing a crime. See Florida v. Royer, 460 U.S. 491, 499, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983); Dunaway v. New York, 442 U.S. 200, 207, 99 S. Ct. 2248, 2254, 60 L. Ed. 2d 824 (1979). The second catego ry, the investigatory stop or detention, known commonly as a Terry stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop and briefly detain a n indiv idual. See Berkemer v. McC arty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed . 2d 317 (1 984); Ferris, 355 Md. at 384, 735 A.2d at 506. A police officer may engage in an investigatory detention without violating the Fourth Amendment as long as the officer has a reasonable, articulable suspicion of crimina l activity. See Royer, 460 U.S. at 498, 103 S. Ct. at 1324. A Terry stop is limited in duration and purpose and can only last as long as it take s a police of ficer to con firm or to dis pel his suspicio ns. See Ferr is, 355 Md. at 372-7 3, 735 A .2d at 49 9-500 . A person is seized un der this categ ory when, in v iew of all the circumstances surrounding the incident, by means of physical force or show of authority a reasonable person would have believed that h e was no t free to leave or is comp elled to respond to questions. Factors that might indicate a seizure include a threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of lang uage or ton e of voice indicating that compliance with the officer's request -9- might be compelled, approaching the citizen in a nonpublic place, and blocking the citizen s path. See Michigan v. Chesternut, 486 U.S. 567, 575, 108 S. Ct. 1975, 1980, 100 L. Ed. 2d 565 (1988); United Sta tes v. Men denhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 49 7 (1980); cf. Royer, 460 U .S. at 502 -03, 10 3 S. Ct. a t 1327. The least intru sive po lice-citize n conta ct, a consensual encounter, and the category at issue in this case, involves no restraint of liberty and elicits an individual s voluntary cooperation with no n-coer cive po lice con tact. See Me ndenha ll, 446 U.S. at 553, 100 S. Ct. at 1876-77 ; Werking, 915 F.2d at 1408; Black, 675 F.2d at 133. A consensual encounter need not be supported by any suspicion and because an individual is free to leave at any time during such an encounter, the Fourth Amendment is not implicated; th us, an individ ual is not considered to have been seized within the me aning o f the Fo urth A mend ment. See Ferr is, 355 Md. at 373-74 n. 4, 735 A.2d at 500 n. 4. Encounters are consensual where the police merely app roach a pe rson in a pu blic place, engage the person in conversation, request information, and the person is free not to answ er and w alk aw ay. See, e.g., Royer, 460 U.S. at 497, 103 S. Ct. at 1324 ; Mende nhall, 446 U.S. at 553-54, 100 S. Ct. at 1876-77. The guarantees o f the Fourth Am endment are not implicated in such an encounter unless the police officer has by either physical force or show of authority restraine d the perso n s liberty so that a reasonable person would not feel free to decline the officer's requests or otherw ise term inate the encou nter. Id. at 554; see Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S. Ct. 1868, 1879 n. 16, 20. L. Ed. 2d 889 (1968). In Ferris, -10- 355 Md. at 373 n. 4, 735 A.2d at 500 n. 4, w e described a consen sual encou nter as simp ly the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement official. Because an individual is free to leave at any time during such an encounter, he is not seized within the meaning of the Fourth Amendment. (Citations omitted ). Although there is no litmus-paper test for distinguishing a consensual encounter from a seizure, the Supreme Court has made clear that [l]aw enforcement officers do not violate the Fou rth A men dme nt by merely approaching an individu al on the stree t or in anothe r public place, by askin g him if he is willing to answer som e questions, [or] by putting que stions to him if the person is willing to listen. . . Royer, 460 U.S. at 497, 506, 103 S. Ct. at 1324, 1329 (emphas is added). Consensual encounters, therefore, are those where the police merely approach a person in a public place, engage the person in conversation, request information, and the person is free not to answer and walk away. The request by a law enforcement officer to examin e a person s identification does not, in and of itself, make an encounter nonconsensu al. See INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247 (1984); Royer, 460 U.S. at 501, 103 S. Ct. at 1326. Neither does an officer s request to search an individual s belongings make an encounter per se non-co nsensu al. See Florida v. Bostick, 501 U.S. 42 9, 435, 111 S. Ct. 2382 , 2386, 115 L. Ed. 2d 3 89 (1991 ); Royer, 460 U.S. at 501, 103 S. Ct. at 1326. Fourth Amendment protections are implicated, however, when an officer, by either physical force or show o f authority, has restrained a person s -11- liberty so that a reaso nable person w ould not feel free to terminate the encounter or to decline the office r s requ est. See Me ndenha ll, 446 U.S. at 553-54, 100 S. Ct. at 1877. The United States Supreme Court explained in California v. Hodari D., 499 U.S . at 626-27, 1 11 S.Ct. at 1550-51, that under the Mende nhall standard, seizure based on a show of authority does not o ccur unle ss the sub ject yields to the aut hority. An encou nter has been d escribe d as a flu id situatio n, and one which begins as a consensual encounter may lose its consensual nature and become an investigatory detention or an arrest once a person s liberty has been restrained and the person w ould not fe el free to leave. As the Supreme Court observed in Terry, 392 U.S. at 19 n. 16, 88 S. Ct. at 1879 n. 16, [w]hen the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen [we may] conclude that a 'seizure' has occurred." In determining whether the person has been seized, "the c rucial test is wh ether, taking in to account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonab le person th at he was not at liberty to ignore the police presence and go about his business.'" Bostick, 501 U.S. at 437, 111 S. Ct. at 2387 (quoting Michigan v. Chesternut, 486 U.S. at 569, 108 S. Ct. at 1977). In Chesternut, 486 U.S. at 575, 108 S. Ct. at 1980, Justice Blackmun identified examples of police conduct that would communicate to a reasonable person that he would not feel free to leave, including the activation of a siren or flashers, commanding a citizen to halt, display of weapons, and operation of a car in an aggressive manner to block a -12- defendant s course or otherwise control the direction or speed of a defenda nt s move ment. In Ferris, 355 Md. at 377, 735 A.2d at 502, we noted factors that courts have identified as probative of whether a reasonable person would feel free to leave, including the time and place of the enc ounter, the n umber o f officers p resent and w hether they were uniformed, whether the police removed the person to a different location or isolated him or her from others, whether the person was informed that he or she was free to leave, whether the police indicated that the person was suspected of a crime, whether the police retained the person s documents, and whether the police exhibited threatening behavior or physical contact that would suggest to a reasonable person that he or she was not free to leave. If a reasonab le person would feel free to leav e under the circumstances, however, then there has not been a seizure within the me aning o f the Fo urth A mend ment. A pplying th ese prin ciples, we consider w hether petition er was seiz ed within th e meanin g of the F ourth Am endmen t. III. Petitioner argues that the trial court erred in denying the m otion to suppress evidence because the police officer seized him within the meaning of the Fourth Amendment without reasonable grounds to believe that he had committed a crime. He concedes, correctly, that a stop for purposes of the Fourth Amendment does not occur every time a police officer stops a citizen and asks questions, even when the officer has no cause for doing so, so long as the citizen is free to end the inquiry at any time. He argues that he was seized, for the -13- purposes of the Fourth Amendment, when the police officer pulled his car directly in front of him, blocked his path and asked him for identification. Petitioner argues that the contact in this case was not consensual because he was walking alone on a public street at 3:13 a.m. when a marked police car that he had seen circling the blo ck several tim es pulled up directly in front of him , and block ed his path. The officer got out of his car, and asked to speak w ith him. Petitioner contends that no reasonable person, under those circumstances, would have felt free to le ave. Alternatively, petitioner argues that the consensual encounter ended when Depu ty Dykes ca lled in th e warr ants ch eck. The State maintains that there was no seizure implicating the Fourth Amendment where, as here, an officer approaches a citizen on the street and asks to speak with him, without any command or show of force, and the person agrees to speak with the officer and to provide identification. Taking this position, the State essentially concedes that there was no basis for a Terry stop and frisk.6 IV. Our review of the circuit court s denial of a motion to supp ress is based on the record created at the su ppress ion hea ring. See Whiting v. State, 389 Md. 334, 345, 885 A.2d 785, 791 (2005); Blake v. State, 381 Md. 218, 230 , 849 A.2d 410, 417 (2004). Review of the trial 6 The State does not argue b efore this Court, as it did before the Court of Special Appeals and the Circuit Court, that Deputy Dykes had reasonable suspicion to stop petitioner. -14- court s ruling on a motion to suppress evidence presents a mixed question of law and f act. See Whiting, 389 Md. at 345, 885 A.2d at 791. The trial court is in the b est position to resolve questions o f fact and to evaluate the cred ibility of w itnesses . See State v. Green, 375 Md. 595, 607, 826 A.2d 486, 493 (2003). An app ellate court reviews the trial court s findings of fact only for clear error, giving due weight to the inferences fairly drawn by the trial court. Id. The legal conclusions, however, are not afforded deference, and are reviewed de novo. Ferris, 355 Md. at 368, 735 A.2d at 497; see also Ornelas v. United States, 517 U.S. 690, 698-699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996). The conclusion of the trial court as to whether a seizure has occurred for Fourth Amendment purposes is a question of law, reviewed de novo by this Court. To resolve the question presented in this case and to determine whether the encounter between petitioner and Deputy Dykes was a consensual encounter or a seizure, we ask, considering all of the circumstances surrounding the encounter, would the conduct of the police have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Chesternut, 486 U.S . at 569, 108 S. Ct. at 1977. After a review of all the facts and circumstances of the case sub judice, we agree with petitioner, and the dissent i n the C ourt of Specia l Appe als. In his dissent, Judge Mered ith reasoned as follows: The implied requirement that Swift w as to wait fo r the results of the warran t check ad ds weig ht to the other circumstances suggesting that Swift was not free to go about his business: Swift was accosted at 3:00 in the morning on a n otherwise -15- deserted street by a uniformed police officer who had blocked Swift s path with h is marked police car an d whos e request for a search was made under circumstan ces that wo uld have made it difficult for any person to say no. (Citations omitted). As to petitioner s submission to the officer s show of authority, Judge Meredith stated as follows: Here, the display of authority was the series of actions undertaken by Officer Dykes up to and including his query regarding outstanding warran ts for Swift. Swift s submission is evidenced by his cooperation in the entire process, including waiting while D ykes ask ed disp atch w hether to arrest Sw ift. We agree with Judge Meredith and conclude that a reasonab le person w ould not h ave felt free to leave the presence of the police officer and continue on his way home. Because a reasonab le person would have believed that he was not f ree to leave under the circumstances presented herein, we hold that petitioner was seized within the meaning of the Fourth Amen dment. Whether a reasonab le person w ould have felt free to leave police presence is a highly fact-specif ic inquiry. As the Supreme Court pointed out in Chesternut, [t]he test is necessarily imprecise, because it is designed to assess the coercive effect of p olice cond uct, taken as a whole, rather than to focus on particular details of that conduct in isolation. 486 U.S. at 573, 108 S.Ct. at 1979. The Court further emphasized that what constitutes a restraint on liberty prompting a person to conclude that he is not free to leave will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs. Id. -16- Based upon the testimony of Deputy Dykes, we conclude that petitioner was seized within the meaning of the Fourth A mendm ent. We cannot conclude that a reasonable person would have felt fre e to walk a way unde r all of the circumstances su rrounding this encoun ter. Indeed, Deputy Dykes made clear that petitione r was not f ree to leave a s evidence d by his testimony that when p etitioner wa s leaning ag ainst the car a nd he pu shed off the vehicle to leave, petitioner w as not free to go becau se I was n ot done, as I s tated in the cross there that the wanted check had not come back yet and due to Officer Matt Brown advising me that he s known for CDS and weapons, that I pursued after him. The facts in this record indicate that the interaction be tween petitioner and Deputy Dykes was in the nature of constructive restraint rather than a consensual encounter. The time of night of the encou nter, the offic er s condu ct before h e approac hed petitioner, the blocking of petitioner s path with the police cru iser, headligh ts shining on petitioner, the officer s testimony that he was conducting an investigatory field stop, and th e warran ts check, taken toge ther, lead us to conclude that petitioner was seized. After seeking permission from Sw ift to question him, Dep uty Dykes requested petitioner s identification information and initiated a wa rrants check . Merely asking fo r identification does not c reate a seizure. Nor does a warrants check necessarily convert a consensual encounter into a detention or a seizure. A warrants check, however, is a circumstance that must be viewed in light of all of th e other fac ts surround ing the encounter between Deputy Dykes and petition er. -17- Although petitioner was not restrained physically when Deputy D ykes asked f or his identification, once petitioner complied with his request and Deputy Dykes then ran the warrants check, a reasonable person would not have felt free to leave. Deputy Dykes described th e initial contact a s follows: I exited my vehicle. Exited my vehicle, asked him it if was okay if I talked to him, to get some information from him, to perform a field interview stop. And he agreed, he stopped, talked to me, ga ve me his info rmation . Although Deputy Dykes never told petitioner that he was free to leave, that factor do es not, in and of itself, determine that a seizure has occurred; however, it is a factor that we consider within the to tality of the circumstanc es analysi s as to w hether h e was in fact seiz ed. See United States v. Drayton, 536 U.S. 194, 206-07, 122 S. Ct. 2105, 2113, 153 L. Ed. 2d 242 (2002); Mende nhall, 446 U.S. at 558-59, 100 S. Ct. at 187 9; Ferris, 355 Md at 379-80, 735 A.2d at 503; see also Royer, 460 U.S. at 503, 103 S. Ct. at 1327 (observing, in determining whether a seizure occurred, that Ro yer was nev er informe d that he w as free to bo ard his plane if he so ch ose, and he reas onably b elieved that he w as bein g detain ed ). We note that the individual c ompon ents of the e ncounter b etween D eputy Dykes and petitioner, considered in isolation, may not be indicative of a seizure. The F ourth Amendment does not prevent an officer from approaching an individual and seeking permission to ask a few questions. An officer may ask a person for identification. And simply conducting a warrants check does not create a seizure. But we must heed the clear direction of the Supreme Court, that any assessment as to whether police conduct amounts -18- to a seizure implicating the Fourth Amendment must take into account all of the circumstances surrounding the incident in each individual case. Chesternut, 486 U.S. at 572, 108 S. Ct. at 1979 (citations and internal quotations omitted). Under the circumstances presented herein, we conclud e that petitioner yielded to the auth ority of the police and did not voluntarily consent to Deputy Dykes s requests. The Circuit Court erred in failing to suppress the controlled dangerous substance seized from petitioner. JUDGMENT OF THE COURT OF SPECIAL APPEALS AS TO THE CONVICTION FO R WEA RIN G , TRA NSP ORT ING , O R CARRYING A HANDGUN AFFIRMED. JUDGMENT OF THE COURT OF SPECIAL APPEALS AS TO T HE CO NVICTIO N FOR P O S S E SS I O N O F C O N T R O L L E D DANGEROUS SUBSTANCE REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY A S TO THE CONVICTION FOR POSSESSION OF CONTROLLED DANGEROUS SUBSTANCE. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY WICOMICO COU NTY . -19-

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