Longshore v. State
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Longshore v. State, No. 139, September Term, 2004. Opinion by Bell, C.J. CRIMINAL LAW - ARRESTS A person is under arrest, for Fourth Amendment purposes, when he is asked to step out of his car and placed in handcuffs, when no special circumstances, such as a risk of flight or danger to the police officers, exists justifying the use of handcuffs. IN THE COURT OF APPEALS OF MARYLAND No. 139 September Term, 2004 ______________________________________ REGINALD ANTHONY LONGSHORE v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Bell, C.J. ______________________________________ Filed: June 8, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. In Terry v. Ohio , the Supreme Court held that a police officer may stop and detain a person briefly for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot. 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 88 9, 911 (19 68); see also Quince v . State, 319 Md. 430, 433, 572 A.2d 1086, 1087-108 8 (199 0), Anderso n v. State, 282 Md. 701, 706, 387 A.2d 281, 284 (1978) ( [T]he real thrust of Terry is directed at instances in which th ere is reasonable suspicion that someone is about to commit or has just committed a crime ). In this case, we again consider under what circumstances a brief detention or investigative stop becomes a de facto arrest, for the justification of which, ra ther than m ere reason able articulab le suspicion , probable cause must b e show n. See United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989 ) (explaining that reasona ble suspicio n is a less demanding stan dard than probable c ause); see also Quince, 319 Md. 430, 433, 572 A.2d 1086, 1088 (holding that the level of suspicion required for a stop is less dem anding than that for pro bable cause), Watkins v. State, 288 Md. 597, 606, 420 A.2d 270, 275 (1980) (ho lding that the r easonab le suspicion justifying an investigative stop involves a significantly lower degree of objective evidentiary justification than does a proba ble cause for arrest). I. In the case sub judice, the Charles County Sheriff s Department received a tip from a confidential informant. Claiming that he had both witnessed and videotaped a drug transaction in front of the Saint Charles Towne Mall, t he informant produced a videotape showing two men , John Ca rlson, and the petitioner, Re ginald Longshore ( Longshore ), get into a Ford E xpedition, w hich was parked in th e mall park ing lot and re main there for a short time, while a third pe rson sto od by the driver s door. No dr ugs, paraphernalia, or money could be seen on the videotape. The police detective, Smith, nonetheless, set up surveillance at the mall and with regard to Carlson s vehicle, a Toyota. Longshore drove away from and, a short time later returned to, the mall. Upon his return, he was followed into the mall by a sec ond detec tive, Clark, w ho then ob served him meeting with the two people with whom he earlier had been seen, and recorded, in the videotape. As was the case in the videotape, although the three people were together, no drugs actually were observed on this occasion. When Carlson drove away from the mall, his car was stopped by the police. He consented to being searched. According to the officers, uncovered in the search was a quan tity of mar ijuana a nd coc aine. 1 At about th e same time, a certified drug sniffing dog, Tonya, was brought to the mall to scan Longshore s Ford E xpedition, w hich was again park ed on the m all parking lo t. Longshore was, at the time, still inside the mall. Tonya scanned Longshore s Expedition and two other cars in the parking lot, with negative results; Tonya did not alert to the presence of any drugs in any of the cars. Sub sequ ently, Longsh ore left the m all, driving his Expedition. He w as sto pped by a third detectiv e, Dete ctive E dge. Detective Edge in formed Lon gshore that he believed that there were drugs in his vehicle. When Longshore declined to consent to a search of the 1 Only trace amounts, insuff icient for chemical analysis, of cocaine a nd marijuana w ere found in Carlson s car. 2 vehicle, Detective Edge, although aware of the prior negative scan, called for Tonya to scan the Expedition again. While waiting for Tonya to arrive, Longshore was placed in handc uffs. Ton ya arrived within two minutes and the scan was conducted. During this second scan, the driv er s side win dow w as down , and, as with the first one, the engine was turned off. Upon scanning the exterior of the vehicle, this time, Tonya alerted, indicating the presence of drugs in the area of the rear wheel w ell underne ath the vehicle. A subsequent search uncover ed no dru gs in the rear area of th e veh icle o r und erne ath it , how ever . Ton ya then was allowed into the vehicle, at which time she alerted to the center console area of the ceiling. A search of that area uncovered a pill bottle containing crack cocaine.2 Longshore was indicted by a Charles County grand jury on charges of possession of cocaine with intent to distribute and possession of cocain e. He mo ved, prior to trial, to suppress the pill bottle and the cash as the fruits of an illegal search of his truck an d of his person. The Circuit Court for Charles County denied the motion. Regarding the stop of Longshore s vehicle, the court ruled that the in formant s videotape and the dru gs found in Carlson s car provided sufficient reasonable suspicion to warrant the stop, which it found continued for no more than 15 minutes before the discovery of the drugs in the ceiling console. The court did find tha t Longshore had been handcuffed at the scene befo re To nya arrived to perform the second scan. 2 A sub sequen t search of Lo ngsho re s per son rev ealed th at he po ssessed $1,091 in cash . Longsh ore, at trial, offere d the testimo ny of witnes ses to expla in his posses sion of this mon ey. 3 The suppression court also addressed Tonya s reliability. It noted that Tonya s training officer an d custodian testified at great length as to Tonya s training and certifications and they weren t really challenged by anyone at the hearing. The court concluded that Ton ya is a reliable indicator as to the presence of controlled dangerous substances. Regarding the search o f Longs hore s veh icle, the court ru led that probable cause existed once the dog alerted to the presence of drugs. It also indicated that the videotape alone gave the police probable cause to search. At trial, the officers involved gave testimony that was generally consistent with the evidence adduced at the suppression hearing. Longshore was subsequently found guilty of possession of cocaine with the in tent to distribute and was senten ced to fifteen years incarceration, the first ten of which were to be served without parole. An appeal to the C ourt of Special Appeals was noted by Long shore. That Court, in an unreported decision, affirmed the trial court jud gment. The Court of Special Appeals addressed the question, Did the suppression court err in denying the appellant s motion to suppress the evidence seized from his vehicle a nd his person? Longshore s argument was similar to the one he makes sub judice, namely, that, when he was h andcuff ed, he wa s effectively arre sted, and tha t the police did not, at that time, have probable c ause to eff ectuate a w arrantless arre st. The State argued, in response, that the initial stop was simply a detention and that it w as suppor ted by reasona ble articulable suspicion. Even if the detention constituted an arrest, it maintained, the police possessed 4 probable cause to justify it. The Court of Special Appeals held that the stop was a n arrest, not a detention, but concluded, ultimately, that the stop was supported by probable cause. Longshore filed, in this Co urt, a petition for writ of certiorari, and the State filed a conditional cross-petition.3 Both petitions were granted by this Co urt. Longsh ore v. State, 385 Md. 16 1, 867 A.2d 10 62 (2005). A. When an appellate court reviews a trial court s grant or denial of a motion to suppress evidence under the Fourth Amendment, it will consider only the facts and information contained in the record of the s uppres sion he aring. State v. Nieves, 383 Md. 573, 581, 861 A.2d 62, 67 (20 04); Laney v. State , 379 Md. 522, 533 , 842 A.2d 773, 779 (2004); Dashiell v. State, 374 Md. 85, 93, 821 A.2d 372, 376 (2003) (quoting State v. Collins, 367 Md. 700, 706-07, 790 A.2d 66 0, 663-64 (2002)); Wilkes v. S tate, 364 Md. 554, 569, 774 A.2d 420, 429 (2001). An appellate court further w ill view the evidence and all reasonable inferences drawn from that e vidence in the light mo st favorab le to the party preva iling on the m otion, in this case, the State. Nieves, 383 M d. at 581, 86 1 A.2d a t 67; Laney, 379 Md. at 533, 842 A.2d at 779; Dashiell, 374 Md. at 93, 821 A.2d at 376-77 (quoting Collins, 367 Md. at 707, 790 A.2d at 664); Wilkes, 364 Md. at 569, 774 A.2d at 42 9; Riddick v . State, 319 Md. 180, 183, 3 The Petition er argues a nd, in doing so, provide s the secon d issue in this c ase, that, [a]ssuming an arrest, was probable cause lacking[?] The State s conditional crosspetition, in response to Longshore s petition, strangely enough, actually forms the first issue in this case, that the Court of Special Appeals erred in finding that the initial detention of Longshore amounted to an arrest.... 5 571 A.2d 1239, 1240 (1990). Moreover, when there is a conflict in the evidence, an appellate court will give great deference to a hearing judge s determination and weighing of first-level findings of fact. It will not disturb either the determinations or the weight given to them, unless they are shown to b e clearly er roneou s. Nieves, 383 Md. at 581-582, 861 A.2d at 67; Laney, 379 M d. at 533-34 , 842 A.2d at 779-80 ; Dashiell, 374 Md. at 93-94, 821 A.2d at 378; State v. Rucker, 374 Md. 199, 207, 821 A.2d 439, 444 (2003); Riddick, 319 Md. at 183, 571 A.2d at 1240; Perkins v. S tate, 83 Md. App. 341, 346, 574 A.2d 356, 358 (1990). See Rule 8-131.4 An appellate co urt, howev er, under an independ ent de novo review standard, must consider the application of the law to those fac ts in determining whether the evidence at issue was obta ined in violati on of the law, and , accordingly, should be suppressed. Nieves, 383 Md. at 581-582, 861 A.2d at 67; Laney, 379 Md. at 53 3-534, 84 2 A.2d a t 779-780 ; Dashiell, 374 Md. a t 93-94 , 821 A .2d at 37 8, Rucker, 374 Md. at 207, 82 1 A.2d a t 444; Stokes v. State, 362 Md. 407, 413-14, 765 A.2d 612, 615 (2001); Ferris v. State, 355 Md. 356, 368, 4 Maryland R ule 8-131 provides, as relevant: (a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court wh ether or not ra ised in and d ecided by the tria l court. Ordinarily, the ap pellate court w ill not decide a ny other issue u nless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another ap peal. **** (c) Action Tried Without a Jury. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will giv e due rega rd to the opp ortunity of the trial c ourt to judge the credibility of the w itnesses . 6 735 A.2d 491, 497 (1999). Indeed, appellate courts make their own independent constitutional appraisal, by reviewing the law and applying it to the peculiar facts of the particular case. Jones v. Sta te, 343 Md. 448 , 457, 682 A.2d 2 48, 253 (1996). With this in mind, we turn to the case sub judice. The Co urt of Spe cial Appe als held that, when Longshore was placed in handcuffs, he was effectively arrested. Having so held, it neede d also to decide wheth er there was p robabl e cause to supp ort that a rrest. The power of the C ourt of Special Appea ls, as an appellate court, is, like this Court s and any appellate c ourt s, plenary; it is bound by the record in making those determinations, however. Makin g factual determinations , i.e. resolving conflicts in the evidence, and weighing the credibility of witnes ses, is pro perly rese rved fo r the fac t finder . See Binnie v. State, 321 Md. 57 2, 580, 583 A.2d 10 37, 1041 (1991); McK inney v. State, 82 Md. App. 111, 117, 570 A.2d 360, 363, cert. denied, 320 M d. 222 ( 1990) . In performing this role, the fact finder has the discretion to decide w hich evidence to cre dit and w hich to r eject. See State v. Stanley, 351 Md. 733, 750, 720 A.2d 323, 331 (1998) ( Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder ). See also Velez v. S tate, 106 Md. A pp. 194, 202, 664 A .2d 387, 391 (199 5), cert. denied, 341 Md. 173, 669 A.2d 1361 (1 996). The Court of Special A ppeals did not err in deciding that the petitioner was arrested, rather than, as the trial court fo und, mere ly detained. As we shall see later, however, there was no substan tial basis for its conclusion, if not finding, that probable cause existed when the petitio ner wa s arreste d. 7 B. The Fourth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, provides that the right of th e people to be secure in their persons, houses, papers, and effects, aga inst unreaso nable searc hes and se izures, shall not be violated . . . and no Warrants shall issue, but upon p robabl e cause . . . . U.S. Co nst. amend. XIV. See also Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 ( 1961) , Dashiell v. S tate, 374 Md. 85, 94, 821 A.2d 372, 37 7 (200 3), Wallace v. State, 373 Md. 69, 79, 815 A.2d 883, 889 (2003), State v. Wallace, 372 Md. 137, 145, 812 A.2d 291, 296 (200 2). The Fo urth Am endmen t is not a guarantee against all searches and seizures, howe ver, onl y those tha t are unr easona ble . United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573, 84 L. Ed. 2d 605 (1 985). See also Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1 772, 135 L. Ed. 2d 8 9 (1996); United States v. Mend enhall, 446 U.S. 54 4, 550- 51, 100 S. Ct. 18 70, 187 5, 64 L . Ed. 2d 497, reh'g denied, 448 U.S. 908, 100 S . Ct. 305 1, 65 L . Ed. 2d 1138 ( 1980) . See also State v. Collins, 367 Md. 700, 708, 790 A.2d 660, 664 (2002 ) (quoting United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573, 84 L. Ed. 2d 605, 61 3 (1985), stating that the Fourth Amendment guards against unreason able searches a nd seizures ); Little v. State, 300 Md. 485, 494, 479 A.2d 903, 907 (1984) (holding that the reasonableness standard of constitutional validity of a seizure usually requires, at minimum, that facts upon which intrusion is based be capable of measurement against objective standard, w hether this be probable cause or less stringent test); Givner v . State, 210 Md. 484, 494-495, 124 A.2d 764, 769 (1956) (holding that 8 prohibitions against unreasonable searches and seizures do not prohibit reasonable searches and seizures). A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in an offic er s presenc e, is consistent w ith the Fourth Amen dment if th e arrest is supported by probable cause . United States v. Watson, 423 U.S. 411, 418, 96 S. Ct. 820, 825, 46 L. Ed. 2 d 598, 6 06 (19 76), see also Atwater v. Lago V ista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 549, 577 (2001) (stating [i]f an officer has probable cause to believe an individual has committed even a very minor offense in his presence, he may, without violating the F ourth Am endmen t, arrest the offen der ), State v. Evans, 352 Md. 496, 723 A.2d 423 (1999) (for lawful arrest for commission of felony to occur under Maryland law, police officer must have probable cause to believe suspect has committed a felony, and must either physically restrain suspect, or otherwise subject suspect to his or her custody and control), Wood s v. State, 315 Md. 591, 556 A.2d 236 (1989) (warrantless arrest w as proper, where police knew that felonious homicide had been committed and had received from several reliable sources defendant's statements, both before and after murder, which implicated defendan t). Moreover, [p]robable cause exists where the facts and circumstances within [the officers ] knowle dge and o f which th ey had reason ably trustworthy information [are] sufficient in themselves to warrant a man of reason able caution in the belief that an offense has been or is being committed [by the person to be arrested]. Brinegar v. United States, 338 U.S. 160, 175-176. 69 S. Ct. 1302, 1311-1312, 93 L. Ed. 2d 1879, 1890 ( 1949) , quoting 9 Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 2d 543, 555 (1925 ). See also Anderson v. State, 282 Md. 701, 387 A.2d 281 (1978) (invalidating an illegal search when the police lacked reasonable grounds to stop the suspec ts); State v. Wilson, 279 Md. 189, 367 A.2d 1223 (1977) (holding a search illegal when police observations w ere insufficient to support a prob able cause determina tion that goods were sto len). In Maryland, t he perimeters of an arrest were defined in Bouldin v . State, 276 Md. 511, 350 A.2d 130 (1976). There, this Court opined: It is generally recognize d that an arre st is the taking, seizing, or detaining of the person of another (1) by touching or putting hands on him; (2) or by any act that indicates a n intention to take him in to custody and that subjects h im to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested. . . . It is said that four elements must ordinarily coalesce to constitute a legal arrest: (1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person ; and (4 ) which is unde rstood b y the perso n arreste d. . . . We have defined an arrest in general terms as the detention of a known or suspected offender for the purpose of prosec uting h im for a crime. McChan v. State, 238 Md. 149, 207 A.2d 63 2 (1965); Cornish v . State, 215 Md. 64, 137 A.2d 170 (1957). Our cases make clear . . . that in ordinary circumstances there is a detention only when there is a touching by the arrestor or when the arrestee is told that he is under arrest and submits[, but where] there is no touching, the intention of the arrestor and the understanding of the arrestee are determinative, for in order for there to be an arrest in such case, there must always be an intent on the part of one to arrest the other and an intent on the part of such other to submit. 238 Md. at 157, 207 A.2d at 6 38. O rdinarily, therefore, there can be no arrest where there is no restraint or where the person sough t to be arr ested is n ot cons cious o f any restr aint. 276 Md. at 515-516, 350 A.2d at 133 (some citations omitted). Thus, generally, a display of force by a police officer, such as putting a person in handcuffs, is considered an arrest. See Grier v. State , 351 Md. 241, 252, 718 A.2d 211, 217 (1998) (holding that when the 10 defendant was put on the ground he wa s unde r arrest), Morton v. State, 284 Md. 526, 530, 397 A.2d 1385, 1388 (1970) (holding that the defendant was arrested when he was removed from a building and placed in a patrol car under guard), and Dixon v . State, 133 Md. App. 654, 673, 758 A.2d 1063, 1073 (2000) (holding that defendant was arrested when his car was blocked in, he was re move d, and th en han dcuff ed). But see Swift v. S tate, 393 Md. 139, 156, 899 A.2d 867, 877 (2006) (holding that defendant not in custody and was free to leave even though a police car m erely blocked the defend ant s). In Grier, 351 Md. 241, 718 A.2 d 211, the iss ue in this Court con cerned the propriety of the admission by the trial court of the defendant s post-arrest silence and whether, if that ruling was error, that error was harmless. The defe ndant was con victed in the Circuit Court for Baltimore City of attempted robbery with a deadly weapon, mayhem with the inte nt to disfigure, and other re lated of fenses . He had been arres ted after po lice officers, to whom it had been repo rted that Grie r had attack ed the ma n with whom he earlier was seen struggling and stolen that man s backpack, observed him enter a dead-end alley and throw something onto a porch . 351 Md. at 24 5, 718 A.2d at 21 3. When he e xited the alley, the officers got him and put him on the ground and then took him into custody. 351 Md. at 245, 718 A.2d at 213. Addressing the nature and effect of the evidence elicited by the question, Wha t, if any explanation did the defendant offer to you [as to] why he was or why this was taking place?, id. at 251-52, 718 A.2d at 216, this Court observed: After Grier came out of the dead-end alley, the officers immediately arrested him. The officers pursued Grier, got him, and put him on the ground. Once 11 [Grier] was on the ground and in the custody and control of the police officers, he was certain ly under arrest. See Bouldin v . State, 276 Md. 511, 515-16, 350 A.2d 130, 13 3 (197 6). Although Officer Harley may have had the right simply to detain a nd que stion [G rier] bef ore plac ing him in custo dy, he did not do s o. 351 Md. at 252, 718 A.2d at 216-17. Morton also involved the admissibility of challenged evidence. 284 Md. at 528, 397 A. 2d at 1387 . The defe ndant had been con victed in the C riminal Co urt of Baltimore of robbery with a dead ly weapo n and a related h andgu n charg e. Id. at 527, 397 A.2d at 138687. He was alleged to have been one of two men, each brandishing a gun, who robbed a cabdriver. 284 Md. at 528, 397 A.2d at 1387. One of the robbers escaped capture, while the other w as appr ehend ed. 284 Md. a t 528, 39 7 A.2d at 1387 . The day following the robbery, officers, ac ting on info rmation fro m a pharm acist, stopped the defendant and frisked him. 284 Md. at 528, 397 A.2d at 1387. At that time, the defendant was we aring a blac k leather jack et and carrying a plastic bag. 284 Md. at 528, 397 A.2d at 1387. Finding nothing, the officers told the defendant that he could leave, and he did; however, the officers kept the defendant under observation. 284 Md. at 528, 397 A.2d at 1387. Later, after receiving information that the defendant may have been wanted for someth ing, the officers surround ed a neigh borhood recreation ce nter that they saw him enter. 284 Md. at 528, 397 A.2d at 1387. An officer confronted the defendant inside the recreation center, informing the defendant of the information the police had received, 284 Md. at 528, 397 A.2d at 1387, and telling the defendant to accompany him, bringing all of his possessions, including the black leather jacket and plastic bag. 284 Md. at 528, 397 Md. at 1387. When the defendant responded that those items had been given to his cousin who 12 had left the recreation center, 284 Md. at 528, 397 A.2d at 1387, the officer, whose information was that no one had exited the recreation center since the defendant had entered, 284 Md. at 528, 397 A.2d at 1387, put the defendant in a patrol car with another officer. He then re-entered the recreation center to search for the jacket and the bag. 284 Md. at 528, 397 A.2d at 1387. T he items were found and searched, re vealing a h andgun and a qua ntity of marijuana. 284 Md. at 528-529, 397 A.2d at 1387. The officer subsequently returned to the patrol car and informed the defendant that he was under arrest, after which the defendant was tak en to po lice hea dquart ers. 284 Md. a t 529, 39 7 A.2d at 1387 . On this set of facts, this Court held: We think it clear that the app ellant was a rrested wh en Rice re moved h im from the recreation center and place d him under gu ard in the police patrol car. We said in Bouldin v. State, 276 Md. 511, 350 A.2d 130 (1976), that an arrest is the taking, seizing or detaining of the person of another, Inter alia, by any act that indicates a n intention to take him in to custody and that subjects h im to the actual control and will of the person making the arrest. On the record before us, R ice's manual seizure of the appellant and the subsequent restraint of his liberty plainly constituted an arrest, there being nothing to show that the appellant voluntarily consented to the restriction s placed up on his freedom by the arre sting of ficer. 284 Md. at 530, 397 A.2d at 1388. In a case decided by the Court of Special Appe als, Dixon v . State, 133 Md. App. 654, 758 A.2d 1063 (2000), the defendant was convicted of possession of marijuana with intent to distribute. An informant s tip led Montgomery County police to search the trunk of a car driven by the defendant. Recovered as a result of that search were nine bags of marijuana. 133 Md. App. at 657, 758 A.2d at 1065. The informant, in addition to describing the car that the defen dant wo uld be drivin g, had told police that the defendant would be transporting 13 ten pounds of marijuana to the second level garage at the Montgom ery Mall at 8:15pm that evenin g. 133 M d. App . at 659, 7 58 A.2 d at 106 6. After preliminary surveillance of the defenda nt, during which photographs were taken, the police arrived at the parking garage. 133 Md. App. at 660, 758 A.2d at 10 66. The defendant s car was already there, and at 8:15 pm, Dixon em erged from a side stairw ell, walked in the direction of his vehicle, looked around as if he was looking for someone, and exited the garage level by the way he had co me. He re turned a sh ort time later, an d got into his car. 133 Md. App. at 660, 758 A.2d at 1066. At that time, several police cars blocked in the defen dant s car, 133 Md. App. at 660, 758 A.2d at 1066, and the defendant was removed from the car by the officers and handcuffed. 133 Md. App. at 660, 758 A.2d at 1066. The defendant s car was searched without either a search warrant or the defendant s consent. 133 Md. App. at 660, 758 A.2d at 1066. Discovered, as a result of the search, were the nine gallon- size bag s of ma rijuana. 1 33 M d. App . at 660, 7 58 A.2 d at 106 6. The Court of Special Appeals, citing Terry and several cases that followed it, opined: As we see it, the events in the garage exceeded an investigatory stop under Terry and its progeny. Accordingly, we do not agree with either the State or the trial court that appellant was merely detained prior to the car search. Instead, we con clude that the officers arre sted appella nt at the time they blocke d his ca r, remov ed him from h is vehic le, and h andcu ffed h im. 133 Md. App. at 673-674, 758 A.2d at 1073, citing Grier, 351 Md. at 252, 718 A.2d at 216217, Morton, 284 Md. at 530, 3 97 A.2 d at 138 8, Wiegmann v. State, 118 Md. App. 317, 330, 702 A.2d 92 8, 934 (1997). 14 There are instances in which a person, who is not under arrest, may be detained. Without effecting an arrest, a police officer with reasonable suspicion, supported by articulable facts, that criminal activity may be afo ot, may stop a nd detain a per son, briefly, for investig ative pu rposes . Terry, 392 U .S. 1, 30, 88 S . Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968 ). See also Nathan v . State, 370 M d. 648, 6 61, 805 A.2d 1 086, 10 94 (20 02), Ferris v. State, 355 M d. 356, 3 84, 735 A.2d 4 91, 506 (1999 ), Derricott v. S tate, 327 Md. 582, 587, 611 A .2d 592 , 595 (1 992), State v. Lemmon, 318 Md. 365 ,377, 568 A.2d 4 8, 55 (1990). The reasonableness of a Terry stop is determined by considering [w]hether the officer s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Id. at 20, 88 S. C t. at 1879, 2 0 L. Ed . 2d at 905. Further, analysis of the scope of the stop requires balancing the nature and quality of the intrusion on personal security against the importance of the governmental interests allege d to justify the intrusion. United States v. Hensley, 469 U.S. 221, 228, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604, 61 1-612 (1985 ). See also Quince v . State, 319 Md. 430, 572 A.2d 1086 (1990) (holding that strong concerns for public safety and for effective crime prevention and detection clearly justify stop and frisk where there exists reasonab le suspicion of ongoing or imminent criminal activity), Jones v. Sta te, 319 Md. 279, 572 A.2d 169 (1990) (holding that an officer is entitled to make a forcible stop if the officer has reasonable grounds - he or she are able to point to specific and articulable facts that warrant such an intrusion - for doing so). 15 Reason able suspicion is, to be sure, a less demanding standard than probable cause. United States v. Sokolow, 490 U.S . at 7, 109 S. C t. at 1585 , 104 L . Ed. 2d at 10. Stokes v. State, 362 Md. 40 7, 765 A.2d 61 2 (2001), Graham v. State, 325 Md. 398, 601 A.2d 131 (1992), Quince, 319 M d. 430, 5 72 A.2 d 1086 , Jones, 319 Md. 279, 572 A.2d 169. In Stokes, we obse rved, in that reg ard: While there is no litmus test to de fine the reason able su spicion standa rd, see Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996) (noting that it is impossible to articulate, with precision, what reasonable suspicion means), it has been defined as nothing more than a particularized and objective basis for suspecting the particular person stopped of criminal activity, United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1 981); see also Ornelas, 517 U.S. at 695-96, 116 S. Ct. at 1661, 134 L. Ed. 2d at 918, and as a common sense, nontechnical conception that considers factual and practical aspects of daily life and how reasonable and pruden t people act. See Ornelas, 517 U.S. at 695, 116 S . Ct. at 16 61, 134 L. Ed. 2 d at 918 . Id. at 415, 765 A.2d at 616. Thus, an investigatory stop typically is justified where there is some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. Stated differently, if, under the totality of the circumstan ces, a police officer has a particularized and objective basis for suspecting criminal activity by the person stopped, then the stop an d temp orary dete ntion is ju stified. United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 , 628 (1 981), Stokes, 362 Md. 407, 413, 765 A.2d 612, 615, Graham, 325 Md. 398, 40 4, 601 A .2d 131 , 134, Quince, 319 Md. 430, 434, 572 A .2d 108 6, 1088 , Jones, 319 M d. 279, 287 , 572 A.2d 169, 173 . Moreo ver: The officer, of course, must be able to articulate something more than an inchoate and unparticularized suspicion or hunch . The Fourth Amendment requires some m inimal level o f objective justification for making the stop. That level of suspicion is considerably less than pro of of wr ongdoin g by a 16 preponderance of the evidence. We have held that probable cause means a fair probability that contraband or evidence of a crime will be found, and the level of suspicion required for a Terry stop is obvio usly less demanding than that for probab le cause . Sokolow, 490 U.S. at 7, 109 S. Ct. at 1585, 104 L. Ed. 2d. at 10 (cit ations o mitted). See also Dashiell v. State, 374 Md. at 97 , 821 A.2d at 379 (ho lding that, in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which he is entitled to draw from the f acts in light of his experience), Derricott v. S tate, 327 Md. 582, 593, 611 A.2d 592, 598 (1992 ) (requiring reasonable susp icion to be based on m ore than an inchoate and u nparticularized suspicion or hu nch ). In addition to stops and brief detentions, other intrusive police actions are permitted when they are conducted in furtherance of the g oal of p rotectin g the sa fety of th e offic er. See State v. Smith, 345 M d. 460, 4 65, 693 A.2d 7 49, 751 (1997 ), Graham, 325 Md. 398, 408, 601 A .2d 131 , 136, Quince, 319 M d. 430, 4 34, 572 A.2d 1 086, 10 88, Jones, 319 Md. 279, 283, 572 A.2d 169, 171. Pat-dow n searches , known commo nly as frisks, [are ] not to discover evidence, but rather to protect the police officer and bystanders from harm. Smith, 345 Md. at 46 5, 693 A.2d at 75 1. Pat-down search es are allowed w here the officer: ...has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain th at the individu al is armed; the issue is whether a reasonably prudent man in the circumstances would be warra nted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which he is en titled to d raw fr om the facts in light of h is expe rience. 17 Terry, 392 U .S. at 27, 8 8 S. Ct. a t 1883, 2 0 L. Ed . 2d at 90 9 (citatio ns omi tted). As the Court of Special Appeals noted in its unreported opinion sub judice, the permissib le scope of a Terry stop has expanded in the past few decades, allowing police officers to neutralize dangerous suspects during an investigative detention using measures of force such as placing handcuffs on suspects, placing the suspect in the back of police cruisers, drawing weapons, and other forms of force typically used during an arres t. United States v. Tilmon, 19 F.3d 1 221, 12 24-25 (7th Ci r. 1994 ). See also In re David S., 367 Md. 523, 533, 789 A.2d 607, 613 (2002) (no ting that in the three decades following the Supreme Cou rt's decision in Terry, the permissible scope of a Terry stop has bee n expa nded), Aguilar v. State, 88 Md. App. 276, 284, 594 A. 2d 1167, 1171 (1991) (noting that [t]he scope allowe d for a T erry searc h has b een ex pande d ). Nevertheless, Maryland h as recogn ized very limited instances in which a show of force, such as placing a suspect in handcuffs, is not an arrest. This Court has upheld the use of such force when done to protect the off icer, see In re David S., 367 Md. 523, 789 A.2d 607 (2002), an d the interm ediate appellate court has uphe ld use of su ch force w hen don e to prevent a suspect s f light, see Trott v. State , 138 Md. App. 89, 770 A.2d 1045 (2001). The specific circumstances of each of these cases informed the analysis in each of these cases. In In re David S., a juvenile defendant was adjudicated delinquent by the District Court of Ma ryland sitting in M ontgom ery County as a ju venile court, 5 based on a finding that 5 Previously, Montgomery County handled juvenile cases differently than any other jurisdictions in the State of Maryland. Maryland Code (1974, 1980 Repl. Vol., 1980 Supp.) § 3 -801 of th e Courts a nd Judicial P roceeding s Article pro vided that in Montgomery County, juvenile matters would be tried in the District Court, while in the 18 he possessed a controlled substance with the intent to distribute. Subsequently, an officer with the Rockville City Police Department was engaged in the surveillance of a house on Moore Drive, which was believed to be an open air drug market. 367 Md. at 529, 789 A.2d at 610. The officer sp otted one, Hall, a suspected d rug dealer, engage in a drug transaction, 367 Md. at 529, 789 A.2d at 610-611 , but before officers co uld arrest him, the suspect fled into a ho use, as o thers dis persed . 367 M d. at 529 , 789 A .2d at 61 1. Later that same evening, the officer spotted Hall and David S., a juvenile, walking together on Ashley Avenue. When they stopped in front of an abandoned building, 367 Md. at 529-530, 789 A.2d at 611, David S. walked behind the building and, upon returning, he had an object, w hich he sh owed to Hall befo re stuffing it in to the front w aistband of his pants. 367 Md. at 530, 789 A.2d at 611. The officer believed that David S. had placed a handg un into his wa istband . 367 M d. at 530 , 789 A .2d at 61 1. The office r radioe d other office rs to stop the indiv iduals. 367 Md. at 530, 789 A.2d at 611. The officers, up on appro aching D avid S. and Hall, drew their guns and ordered them to lie on the ground. 367 Md. at 530, 789 A.2d at 611. Neither suspect resisted. When a hard object wa s felt in the area of Dav is S. s waistband, the officers pulled out h is tucked-in other twen ty-two coun ties and Ba ltimore City, they w ould be tried in the Circu it Court. Section 3-8 01 read, at th at time, as relev ant: (h) Court - Court means the circuit court of a county or Baltimore City sitting as the juvenile court. In Montgomery County, it means the District Court sitting as the juve nile cou rt. That ch anged Marc h 1, 200 2, how ever. See 2001 Md. Laws Ch. 414. Maryland Code (1974, 2006 Repl. Vol.) § 3-801 (i) of the Courts and Judicial Proceedings Article now provides: (i) Co urt me ans the circuit co urt for a county sitt ing as th e juven ile court . 19 shirt and observed a black object protruding from his pants. 367 Md. at 530, 789 A.2d at 611. The object was removed from the waistband, and, upon inspection, w as found to contain cocain e. 367 M d. at 530 , 789 A .2d at 61 1. David S. claimed th at he was seized and arrested without probable cause. 367 Md. at 531, 789 A.2d at 61 1. The Sta te claimed, to the contrary, that the permissible scope of the Terry stop had not been exceeded notwithstanding that the officers effected the stop utilizing a hard or forceful take down and handcuffing of David S. 367 Md. at 530, 789 A.2d at 611. Reviewing Terry and its progeny allowing hard take downs, this Court concluded: In the case at bar, we hold that the police had reasonable suspicion, supported by articulable facts, to believe that [David S.] committed, or attem pted to commit, a crime and that he had a gun in his waistband. [The officer] saw [David S.] and Hall engage in what appeared to be a burglary, and he saw [David S.] place a d ark object, which loo ked like a h andgun , in the front of his waistband. Therefore, the police were justified in conducting an investigatory stop of [D avid S.] and Hall. We hold that the stop was a legitimate Terry stop, not tanta mount to a n arrest. Several police officers conducted a hard take down of [David S.]. . . . The officers, with their weapons drawn, forced [David S.] to the ground and placed him in handcuffs. This conduct was not unreasonable because the officers reasonab ly could have susp ected that [D avid S.] po sed a threat to their safe ty. Considering the totality of the circumstances, as they appeared to the officers at the time, in order to maintain their safety, handcuffing [David S.] and placing him on the ground f or a brief tim e was rea sonable and did not conv ert the investigatory stop into an arrest under the Fourth Amendment. Although this is a severe form of intrusion, we conclude that under the circumstances, it was re asonab le. 367 Md. at 539-540, 789 A.2d at 616. In Trott, the defendant was stopped by a police officer, when the officer noticed him, shortly after hearing a loud crash, pushing a woman s bicycle, with a kid s tote...attached 20 to the back and containing a number of items, including a snowblower, weedwacker, tire, and tow hit ch, tow ards him . 138 M d. App . at 94-9 5, 770 A .2d at 10 48. When the officer approached the defendant and asked what happened, 138 Md. App. at 95, 770 A.2d at 1048, the defendant explained that his car had broken down and that he did not wish to leave his belongings behind. 138 Md. App. at 95, 770 A.2d at 1048. The officer recognized the defendant s name, given at the officer s request, as someone who had been involved in numerous break- ins in the past. 138 Md. App. at 95, 770 A.2d at 1048. Moreover, when he radioed for backu p, he was informed to be careful because the defendant was wanted and to hold him, be cause h e was g oing to run. 13 8 Md . App. a t 95, 770 A.2d a t 1048. As the field interview progressed, the defendant became more nervous and jittery. Worried that the defendant may have heard his radio transmission, the officer placed the defendant in handcu ffs for, as h e put it, his and my safety. 138 Md. A pp. at 95-96, 770 A.2d at 1049. A warrant check revealed what he had been told, that there was an outstanding arrest warrant for the defe ndant. 138 M d. App. at 96, 770 A .2d at 1049. Thereaf ter, twelve minutes after first approaching him, the defendant was placed under arrest. 138 Md. App. at 96, 770 A.2d at 1049. The defenda nt claimed th at, even if the initial stop was justified, his being handcuffed turned the stop into an arrest that was not supported by probable cause. 138 Md. App. at 118, 770 A.2d a t 1061- 1062. The Court of Special Appeals disagreed. First, it noted that the handcuffing of [the defenda nt] was justifiable as a protective an d flight preventive mea sure 21 pursuant to a lawful stop and did not necessarily transform that stop into an arrest. 138 Md. App. at 118, 770 A.2d at 1062.6 6 The interm ediate appe llate court relied on federa l and state au thorities: United States v. Jones, 973 F.2d 928, 931 (D.C. Cir. 1992) (use of handcuffs during a stop after defendant attemp ted to ru n was reason able), United States v. Crittendon, 883 F.2d 326, 32 9 (4th Cir. 1989) (handcuffing burglary suspect to prevent flight was reasonable during investigative stop), United S tates v. Gil, 204 F.3d 1347, 1351 (11th Cir. 2000) (use of handcuffs on a female suspect was reasonable when there was no female officer to perform a pat down and w here of ficers w ere unc ertain if t he susp ect wa s armed ), United S tates v. Cam pbell, 178 F.3d 345, 349 (5th Cir. 1999) (handcuffing suspect who police feared was armed was reason able), Washington v . Lambert, 98 F.3d 1181, 1186 (9th Cir. 1996) (pointing a weapon at a suspect and handcuffing him will not automatically convert a stop into an arrest w hen the suspec ts are fe ared to b e arme d and d angero us), United States v. Shareef, 100 F.3d 1491, 15 02 (1 0th C ir. 19 96) ( whe re su spec ts we re w ante d for arm ed ro bbery, use of handc uffs an d firear ms doe s not ne cessarily tra nsform a stop in to an arr est), United States v. Sm ith, 3 F.3d 1088, 1096 (7th Cir. 1993) (no unreasonable search occurred when police b elieved suspec ts to be a rmed), United S tates v. Saff eels, 982 F.2d 1199, 1205 (8th Cir. 1992) (handcuffing suspect does not convert stop into arrest when defendant suspected of being armed), and United S tates v. Bau tista, 684 F.2d 1286, 1289 (9th Cir. 1982) (handc uffing appropriate in inv estigative stop when su spect is flight risk); Hicks v. United States, 730 A.2d 657, 660 (D.C. 199 9) (handc uffing su spects perm issible to secu re the sa fety of th e offic ers), People v. Foster, 85 N.Y.2d 1012, 1014 (1995) (handc uffing of susp ect wa s lawf ul whe n suspe ct fled u pon se eing an office r), Howard v. State, 664 P.2d 603, 60 6 (Alaska Ct. Ap p. 1983) (handcu ffs and drawn guns did not turn stop into an arrest where su spects were arme d and one fled u pon seeing an of ficer), Reynolds v . State, 592 So.2d 1082, 1085 (Fla. 1992) (placing a suspect in handcuffs allowe d durin g deten tion wh ere viole nt resista nce w as expe cted), State v. Du Valt, 131 Idaho 55 0, 553, 961 P.2d 641 , 644 (199 8) (handc uffing su spect durin g stop wa s allowab le to secu re the of ficers s afety), State v. Re id, 135 N.H. 376, 379, 605 A.2d 1050, 1051 (1992) (ha ndcuffin g allowed to detain ag itated suspec t during inve stigative stop u ntil identific ation co uld be m ade), Spenne r v. City of Siou x Falls, 580 N.W.2d 606, 609 (S.D. 1998) (handcuffing of suspect during stop was reasonable when officers suspected that defen dant w as arme d), State v. Wheeler, 108 Wash.2d 230, 235, 737 P.2d 1005, 1008 (1987) (handcuf fing appropriate to secure o fficers safety). 22 The intermediate appellate court held that, under the factual circumstances surrounding the defendant s detention, the police officer s use of handcuffs was appropriate. 138 Md. App. at 120, 770 A.2d at 1063. It reasoned that the facts that the defendant was known to be involved in break-ins, that the officer was warned by other officers that the defendant would run, and that the defe ndant ha d becom e inc reas ingly ner vous an d jit tery were a sufficient basis to allow the officer, who was alone and on foot, to handcuff the defen dant. 13 8 Md . App. a t 120-1 21, 770 A.2d a t 1063. The Co urt of Spe cial Appe als warne d, howe ver: This is not to suggest that every time a police officer handcuffs a suspect that that restraint is not an arrest. In fact, in most instances, placing a suspect in handcuffs does am ount to an a rrest, which must then b e supporte d by probab le cause. Id. at 121, 770 A.2d at 1063 -64, citing In re David S., 135 Md. App. 363, 369, 762 A.2d 970 (2000); Dixon v . State, 133 M d. App . 654, 67 3, 758 A .2d 106 3 (200 0). The petitioner argues, as he did in the Court of Special Appeals, that, when he was asked to step out of the car and placed in handcuffs before the drug dog s second scan, he was effectively arre sted. Like the Court of Special Appea ls, we agree with this arg ument. Having reviewed Grier, Morton, Dixon, In re David S., and Trott in context, we hold that Longshore was arrested when he was asked to step out of the car and placed in handcuffs, and that no special circumstances existed that justified the police off icers placing him in handcuffs. The officers conceded that he wa s stopped b ecause the y believed him to possess drugs. Unlike the circumstances in In re David S., there was no suspicion that a violent crime had occurred, nor any reason to believe that Longshore was armed or dangerous. The 23 arresting officer acknow ledged that, despite Long shore s nervousness, he was cooperative and did not exhibit any threatening behavior. The officers did not indicate that they were, in any way, conc erned for th eir safety. Mo reover, there was no re ason to be lieve that Longshore was a flight risk. There was no indication by the police that they believed, nor any objective basis for concluding, that Longshore would run. In addition, the incident occurred in the middle of the day, not at 3:30 a.m. as in Trott. We agre e with the C ourt of Special A ppeals that: There was no evidence elicited at the suppression hearing that the police handcuffed appellant b ecause of safety or flight co ncerns. D etective Edge testified that appellant was cooperative, and there was no evidence suggesting that he was a flight risk. Without more, we agree with appellant that when he was h andcu ffed, th e police had ef fectua ted an a rrest. Because Longsh ore was n either a flight n or safety risk, there was no justification for placing Longshore in handcuffs. This was, therefore, no mere detention; it was, in fact, an arrest. Cons equen tly, to be a v alid arre st, proba ble cau se was require d. Accordingly, we reject the State s argument that the arrest was nothing more than a detention. The State contends that [a] step-by-step analysis of the circumstances shows that the police initially conducted a brief detention, or Terry stop, that was justified by the reasonab le suspicion th at Longsh ore had d rugs in his vehicle and arrested him when the drug detection dog alerted to the presence of drugs in the vehicle. T he State ass erts that a totality of the circumstances analysis should apply. In re David S., 367 Md. at 535, 789 A.2d a t 614. 24 Citing In re David S. for the proposition that neither handcuffing nor pointing a gun at a suspect necessarily transforms a stop into an arrest, 367 Md. at 535, 789 A.2d at 614, the State notes th at the police a re permitted to take reaso nable me asures to neutralize the risk of physical harm and to determine whether the person in question is armed. 367 Md. at 535, 789 A.2d a t 614, citing United States v. Alvarez, 899 F.2d 833, 838 (9th Cir. 1990) (holding that the defendant was not under arrest whe n the offic ers approa ched his v ehicle with guns drawn and ordered him out of the car). While we agree that reasonable measures can be used to neutralize harm, we ha ve alrea dy concl uded th at, and e xplaine d why, In re David S. is inapposite. Longshore was suspected neither of being dangerous nor of being armed. The State s reliance on Farrow v . State, 68 Md. Ap p. 519, 514 A.2d 35 (1986), also is unavailing. The distinction between a Terry stop and an arrest is not defined simply by the length of detention, the investigative activities during the detention, and whether the suspect was removed to a detention or interrogatio n area. Inde ed, despite th e change s in the contours of the Terry doctrine, there currently still are no bright lines to determine when an investigatory stop and frisk beco mes an arr est and is elevated to the point that probable cause is require d. See Sharpe, 470 U.S. at 685, 105 S. Ct. at 1575, 84 L. Ed. at 615-616 (concluding that [m]u ch as a brig ht line rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid crite ria, and that [a] court m aking this assessm ent should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulg e in unr ealistic se cond g uessing ). Instea d, Terry dictates that each 25 detention be evaluated within the factual circumstances of individual cases. 392 U.S. at 29, 88 S. Ct at 1884, 20 L. Ed. 2d at 910. See State v. Sm ith, 345 Md. at 468, 693 A.2d at 753 (noting that the reasonableness of a Terry stop and frisk must be assessed on a case-by-case basis ). In Farrow, the p olice set up sur veill ance on a jewelry store property that had been robbed by two African-American men, and, over the course of two days, observed two men, one of whom was the defendant Farrow, acting suspiciously, walking and driving back and forth in front of the store. 68 Md. App. at 521-522, 514 A.2d at 36. Using binoculars, police noticed a bulge underneath Farrow s sh irt. 68 Md. App. at 522, 514 A.2d at 36. They thereafter surrounded Farrow s car at an intersection, approached the car with guns drawn, opened the door, pulled Farrow face down on the pavement, and handcuffed him. 68 Md. App. a t 522, 51 4 A.2d at 36. A search of the car yielded a .32 caliber handgun. 68 Md. App. a t 522, 51 4 A.2d at 36. Farrow argued that, even if the stop w ere justified, the means used to d etain him were unreasonable, and converted the stop into an arrest that lacked probable cause. 68 Md. App. at 524, 514 A.2d at 37 . The Co urt of Spe cial Appe als noted tha t, when jus tified by the circumstances, flexible police responses are approp riate while conducting a Terry stop. 68 Md. App. a t 525, 51 4 A.2d at 37-3 8, citing, e.g., Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (police a pproac hing su spect s c ar with guns d rawn) , United States v. Taylor, 716 F.2d 701 (9th Cir. 1983) (officers approached car with drawn guns, ordered 26 uncooperative suspect to lie in ditch, and h andcuff ed him did not transform the stop into an arrest). On the question of Farrow s arrest, the intermediate appellate court opined: The distinction between a Terry stop and an arrest, then, is not in the method of detentio n, but rather h as to do w ith the length of the detention, the investigative activities during the detention , and wh ether the sus pect is remov ed to a d etention or interro gation a rea. . . . **** ...we hold that, in this situation, where police were facing m en that were strongly suspected of being armed robbers, the officers were justified in taking comple te control o f the situa tion for that p eriod of time nece ssary to accomplish the frisk. The need for further investigation was pre-empted when an illegal handgun turned up within the lawful perimeters of the frisk. 68 Md. App. at 526-527, 514 A.2d at 38-39. The State does not explain how this case is any different than Trott or In re David S. We have already confirmed that police officers, in certain situations, such as those evidencing the need for officer safety and to prevent flight, have authority, albeit limited auth ority, to use force to enforce a stop. Neither of those circumstances is present in the case sub judice. Farrow, therefore, is inapplicable, as Longshore was not suspected of being armed and, unlike in Farrow, an illegal handgun w as not later discovered, thus providing some validation fo r any suspecte d danger ousness. N or is Lee v. State, 311 Md. 642, 537 A.2d 235 (1988) helpful. This Court pe rmitted a hard take down where the defendant had been suspected of murder and was believed to be carrying a concealed weapon. Neither factor is present in the case sub judice. The State also cites Ferris v. State , 355 Md. 356, 376, 735 A.2d 491, 501 (1999), for the proposition that no one factor is dispositive under a totality of the circumstances 27 analysis. This Co urt, howev er, while ack nowled ging, in that case, that the facts of each case are different re sulting in there never bein g one par ticular factor th at is dispositive, also opined that there did exist certain factors of which courts could take note that would be probative of the question whether the police action was reasonable: Although the inquiry is a hig hly fact-specific one, courts have identified certain factors as probative of w hether a rea sonable p erson wo uld have f elt free to leave. . . . The se factors inc lude: the time and place of the en counter, the number of of ficers present and whether 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 o r she w as not f ree to lea ve. 355 Md. at 377, 735 A.2d at 502. The State ultimately argues that [u]nder the totality of circumstance s here, where Longshore was placed in handcuffs for several minutes pending the arrival and the scanning of the vehicle by the drug d etection do g; where Longsh ore appea red to be ex tremely nervou s, and the police were aware of Longshore s prior drug arrests, the actions of the police were reas onable. T his argum ent is unava iling. Firs t, as already noted, Longsho re was not a flight risk nor was he considered dangerous. There was no reason to put him in handcuffs while awaiting the drug detection dog s arrival. Moreover, this Court has cautioned against, placing too much reliance upon a suspect s nervousness when analyzing a determination of reasonable suspicion. Ferris, 355 Md. at 389, 735 A.2d at 509 (citations omitted). Finally, this Court has also stated: 28 Prior drug arrests do not necessarily yield reasonable suspicion that an individual is secreting weapons or drugs o n his person at the time of his arrest on a drug offense, because to allow the reasonable, articulable suspicion standard to be satisfied based upon a person's status, rather than an individualized assessment of the circumstances, would undermine the purpose for requiring officers to justify their reasons for searching a particular individ ual. Nieves, 383 Md. at 597, 861 A.2d at 77.7 7 None of the cases that the State cites from federal and state jurisdictions regarding the reasonable use of physical force in a detention is applicable here, as, in each case, the suspect was suspected of being either armed and dangerous, or a flight risk, circumstan ces that do n ot exist sub judice. See United States v. Crittendon, 883 F.2d 326, 328 (4th Cir. 1989) (where defendant was handcuffed and searched for a weapon after cosuspec t attemp ted to fle e from the polic e), United States v. Jones, 973 F.2d 928, 929 (D.C. Cir. 1992) (where was handcuffed and put into a police car after defendant ostensibly walked in one direction to obtain student identification and suddenly took off runnin g ), United S tates v. Gil, 204 F.3d 1347, 1351 (11th Cir. 2000) (where the trial court allowed a detention where defendant was handcuffed and placed in a police car because o fficers w ere conce rned for th eir safety and a female o fficer wa s not availab le to search defen dant fo r weap ons), United S tates v. Cam pbell, 178 F.3d 345, 34 9 (5th Cir. 1999) (where defendant was handcuffed where he was suspected of armed robbery and surveilla nce rev ealed th at defe ndant m ight be a rmed), Washington v . Lambert, 98 F.3d 1181, 1183 (9th Cir. 1996) (where police drew guns and handcuffed two men suspected of com mitting a rmed ro bbery), United States v. Shareef, 100 F.3d 1491 , 1502 (10th Cir. 1996) (wher e suspe cts han dcuff ed we re know n to be armed and da ngerou s ), United States v. Sm ith, 3 F.3d 1088, 1096 (7th Cir. 1993) (where the trial court allowed handcuffing of defendants because of safety concerns, given the time of night, the general environment of the investigation and the nature of the alleged offenses, noting also one defen dant s p rior invo lveme nt in an a rmed ro bbery), United S tates v. Saff eels, 982 F.2d 1199, 1202 (8th Cir. 1992) (where defendant was handcuffed because he was suspected of arm ed robb ery and a large kn ife wa s seen in side his c ar), United S tates v. Bau tista, 684 F.2d 1286, 1287 (9th Cir. 1982) (where defendants were handcuffed under suspicion of armed robber y), Hicks v. United States, 730 A.2d 657 , 658 (D.C. 1999 ) (where defendants were handcuffed under suspicion of armed robbery and where a sawed off shotgu n was discov ered in th eir vehic le), People v. Foster, 85 N.Y.2d 1012, 1014 (1995) (wher e suspe ct was h andcu ffed a fter he r an upo n seein g a polic e offic er), Howard v. State, 664 P.2d 603, 60 6 (Alaska Ct. Ap p. 1983) (where d efendants hand cuffed were wanted for violent assaults and where, upon seeing police officers, co-suspect grabbed a gun an d ran aw ay), Reynolds v . State, 592 So.2d 108 2, 1084 (Fla. 1992) (w here defendant was handcuffed for police safety based on officer s previous experience of 29 Penultim ately, the cases that the State cites for the propo sition that it wa s reasonab le for officers to assume that, where drugs are, weapons are as well, are negated by the State s evidence, the testimony of the police officers, that Longshore was not suspected of a violent crime and that he d id not exhibit violent behavior. Finally, the State questions the applicability of Grier, noting that the issue of the validity of the arrest was not the paramount issue in the case. It finds Morton similarly unhelpfu l, noting that it is factually distinguishable. The State also p oints out that the Court of Special Appeals discussion of the arrest issue in Dixon was largely dicta and not central to the ca se. We reject these arguments. We hold that, notwithstanding some factual differences to the case sub judice, Grier, Morton, and Dixon each provide the appropriate model for determining when someone is arrested. C. When there is a conflict in the evidence, an appellate court will give great deference to a hearing judge s first-lev el factu al and c redibility de termina tions. See, e.g., Nieves, 383 violent resistan ce during c ocaine traff icking bus ts, further hold ing that, once safety conce rn had p assed, c ontinu ed use o f hand cuffs w as illega l), State v. Du Valt, 131 Idaho 550, 553, 961 P.2d 641, 644 (1998) (where the court found reasonable the use of handcuf fs during a detention b ased on o fficers belie f that the occ upants of the car cou ld pose a d anger to the off icers' saf ety), State v. Re id, 135 N.H. 376, 379, 605 A.2d 1050, 1051 (N.H. 1992) (where defendant was handcuffed during detention after he became angry, agitated, and began yelling at officers, where the officers believed that handcuffing was n ecessa ry for saf ety purpo ses), Spenne r v. City of Siou x Falls, 580 N.W.2d 606, 609 (S.D. 1998) (where police handcuffed defendant suspected of armed robbery during investig atory dete ntion), State v. Wheeler, 108 Wash.2d 230, 233, 737 P.2d 1005, 1006 (1987) (where police handcuffed a suspect who was seen running from a crime scene during an investigatory detention). 30 Md. at 581- 582, 86 1 A.2d at 67, Laney, 379 Md. at 533-534, 842 A.2d at 779-780. Findings of fact and cr edibility determin ations are to be made by trial courts, not appellate courts. See State v. Green, 375 Md. 595, 607, 826 A.2d 486, 493 (2003). Conclusions of law, while permissibly drawn by the trial courts, are not e ntitled to the sam e defe rence. Ferris, 355 Md. at 368, 7 35 A.2d at 497. The probable cause determination is neither entirely a factual determination nor a que stion of law ; rather, it is a mixe d question of fact an d law, see Whiting v. State, 389 Md. 334, 345, 885 A.2d 785, 791 (2005), an application of the applica ble law to the fa cts, as fo und. Green, 375 Md. at 607, 826 A.2d at 493. The proposition that a trial court s determination of whether there is probable cause is entitled to great deference from a reviewing court was stated in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). In Gates, the Supreme Court said , on this point: The task of the issuing magistrate is simply to make a practical, common-sense decision w hether, give n all the circum stances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying he arsay informa tion, there is a fa ir probability that contraband or evidence of a crime will be found in a particular place. And the duty of a review ing court is simply to ensure that the magistrate had a substa ntial bas is for ... co nclud[ ing] tha t proba ble cau se existe d. 462 U .S. at 238 -239, 1 03 S. C t. at 2332 , 76 L. E d. 2d at 5 48, citing Jones v. United States, 362 U.S. 257, 27 1, 80 S. Ct. 725, 736, 4 L . Ed. 2d. 697, 708 (19 60). This Court recently repeated this standard: The applicable standard of review of a probable cause determination is: so long as the magistrate h ad a substa ntial basis for [ ] concludin g that a search would uncover evidence of wrongdoing, the Fourth Amendment [of the U.S. Constitution] requires no m ore. 31 Abeok uto v. State, 391 M d. 289, 3 38, 893 A.2d 1 018, 10 46 (20 06), citing Potts v. State , 300 Md. 567, 571, 479 A.2d 1335, 1337-38 (1984) (Internal quotations an d citations omitted). See also Williams v. State, 342 Md. 724, 755-756, 679 A.2d 1106, 1122 (1996) (holding that appellate review o f probab le cause de termination, made in connection with issuance of search warrant, is lim ited to determ ining wh ether issuing magistrate h ad a substa ntial basis for concluding that search would uncover evidence of w rongdoing), Minor v . State, 334 Md. 707, 716, 641 A.2d 214, 218 (1994) (restating the Gates standard). 8 See also Birchead v. State, 317 Md. 691, 701, 566 A.2d 488, 492-493 (1989), in which we opined: Our review of the judge's decision to issue the search warrants is limited to whether there was a substantial basis for concluding that the evidence sought would be discovered in the place described in the ap plication for the w arrant.... Moreover, we generally pay great deference to a magistrate's determination of pro bable c ause. (C itations o mitted). Deference to probable cause determinations, so long as there is a substantial basis for the finding, has been discussed a nd accep ted by the Co urt of Spe cial Appe als, as well. In State 8 We hav e addresse d mixed q uestions fa ct and law in the adm inistrative law context, stating: ...[w]hen the agency decision being judicially reviewed is a mixed question of law and fact, the reviewing court applies the substantial evidence test, that is, the same standard of review it would apply to an agenc y factual f inding . Charles County Dept. Of Social Services v. Vann, 382 Md. 286 , 855 A.2d 313 (2004), citing Pollock v. Patuxent, 374 Md. 463 , 469 n. 3, 823 A.2d 626, 630 n. 3 (200 3); Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 837-38, 490 A.2d 1296, 1302-03 (1985 ), as has th e Cou rt of Sp ecial A ppeals , Kohli v. LOOC, Inc., 103 Md. App. 694, 654 A.2d 9 22 (19 95), rev'd in part on other grounds and remanded, 347 Md. 258, 701 A.2d 92 (1997); Strother v. Board of Education, 96 M d. App . 99, 623 A.2d 7 17 (19 93). See also Department of Human R esources v. How ard, 168 Md. App. 621, 669, 897 A.2d 904, 931 (2006) (holding that a reviewing court extends the same deference to an administrative law jud ge on m ixed qu estions a s it does o n pure q uestion s of fac t). 32 v. Blackman, 94 Md. App. 284, 617 A.2d 619 (1992), a sto p and frisk case, the interm ediate appellate court, addressing the level of appellate scrutiny that applies to a decision of a suppression hearing judge, explained: To the extent to w hich the sup pression he aring judge was called upon to make findings o f first-level fact and to assess the credibility of Officer Matthews, and others, those are decisions that the suppression hearing judge is at a vantage point to make far more com petently than we. Those are decisions, therefore, to w hich we, o n appellate review, extend great deference and reverse only when they, as a matter of law, are clearly erroneous. No such problem is involved in this case. Once credibility has been assessed and first-level findings of fact have been made, such as who d id what to who m and wh en, a very different issue emerges. It is a mixed question of law and fact. The issue is that of what significance shall be give n to the first-lev el facts as found. That is a question as to which all reviewing judicial tribunals-the suppression hearing court, the trial court, and the appellate court alike-are called upon to exercise an appellate-like discipline. At none of tho se levels of review w ill the court presume to decide, as if it were on the street, w hether articulable suspicion existed. A reviewing court, at whatever level, will not second-guess that initial decision that had to be made and that then became the object of judicial scru tiny. By analogy to the review of probable cause determinations made by an officer on the street, we hold that the reviewing court, trial and appe llate alike, must make the f ar more deferential determination of whether the officer had a su bstantia l basis fo r conclu ding th at articula ble susp icion ex isted. 94 Md. App. at 292-293, 617 A.2d at 623. This deferenc e was em ployed in ove rturning a state appellate decision in Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795,157 L. Ed. 2d 769 (20 03). In Pringle, a passenger car in which three men were riding was stopped for speeding in the early morning. 540 U.S. at 368, 124 S. Ct. at 798, 157 L. Ed. 2d at 773. When the officer asked the driver for his license and registration, he observed a v ery large amount of rolled-up money in the car s glove compartment. 540 U.S. at 368, 124 S. Ct. at 798, 157 L. Ed. 2d at 773. A license and 33 registration check for outstanding violations revealed nothing. 540 U.S. at 368, 124 S. Ct. at 798, 157 L. Ed. 2d at 773. Nevertheless, the officer had the driver step out of the car, 540 U.S. at 368, 124 S. Ct. at 798, 157 L. Ed. 2d at 773, and subsequently asked the drive r for, and received, permission to search the car. 540 U.S. at 368, 124 S. Ct. at 798, 157 L. Ed. 2d at 773. The search uncovered, wedged behind the upright armrest in the back seat, $763 and five glassine bags co ntaining cocain e. 540 U.S. at 368, 124 S. Ct. at 798, 157 L. Ed. 2d at 773-774. When no one claimed ownership of the cocaine and the cash, all three p eople in the car were placed under arrest and taken to the police s tation. 540 U .S. at 369, 12 4 S. Ct. at 798, 157 L. Ed. 2d at 774. Pringle, one of the passengers in the car, was seated in the front seat. He moved to suppress the evidence, arguing that any evidence obtained has resulted from an illegal arrest unsupported by probable cause. 540 U.S. at 369, 124 S. Ct. at 799, 157 L. Ed. 2d at 774. His motion was denied by the trial court, and he was convicted. 540 U.S. at 369, 124 S. Ct. at 799, 157 L. Ed. 2d at 774. The Court of Special Appeals, holding that there was probable cause at the time of the arrest, affirmed his conviction. 540 U.S. at 369, 124 S . Ct. at 79 9, 157 L . Ed. 2d at 774. This Court rev ersed, holdin g that, absent specific facts tending to show Pringle s knowledge, dominion, and control over the drugs, the mere finding of cocaine in the back armrest when [Pringle] was a front seat passenger in a car driven by its owner is insufficient to establish probable cause for an arrest of possession. Pringle v. S tate, 370 Md. 525, 545, 805 A.2d 10 16, 1027 (2002). W e reviewe d the trial cour t s probable cause determination de novo. Id. 34 The Supreme Court reversed. It first articulated the applicable standard for review of probable cause determinations, noting that [p]robable cause is a fluid concept-turning on the assessment of probabilities in particular fa ctua l con texts -not read ily, or e ven usef ully, reduced to a neat set o f legal rules. . . . it dea ls with probabilities and depends on the totality of the circumstances. 540 U.S. at 370-371, 124 S. Ct. at 799-800, 157 L. Ed. 2d at 775 (internal quotatio ns and citations omitted ). See also Woo ds v. State, 315 Md. at 611, 556 A.2d at 246 (whether an arrest f or a felony w ithout a wa rrant is constitutio nally valid necessarily turns upon whether, at the moment the arrest was made, the facts and circumstances within the officers knowledge and of which they had reasonably trustworthy information sufficient to warrant a prudent man in believing that the accused had committed or was comm itting a fe lony). Focusing on the totality of the circumstances as existed in Pringle, the Supreme C ourt concluded that it was entirely reasonable for the fact finder to infer that any or all three passengers in the car had knowledge, dominion, and control of the drugs. 540 U.S. at 372, 124 S. Ct. at 800-801, 157 L. Ed. 2d at 776. In other words, the Supreme Court held, consistent with its holding in Gates, that the trial court had a substantial basis for concluding that there w as prob able ca use. But see State v. Rucker, 374 Md. 199, 821 A.2d 439 (2003); Swift v. S tate, 393 Md. 139 , 899 A.2d 867 (2006). 9 9 In State v. Rucker, 374 Md. 199, 821 A.2d 439 (2003), based on a tip that the respondent Rucker was involved in drug trafficking, police parked behind Rucker as he was getting into his own parked vehicle in a shopping center parking lot. 374 Md. at 202, 821 A.2d at 441. Two more officers approached and questioned Rucker with regard to whether he posses sed an ything he was n ot supp osed to have. 374 M d. at 202 -203, 8 21 A.2 d at 441 . Thus confronted, Rucker admitted possessing cocaine, and was arrested. 374 Md. 20235 203, 821 A.2d at 441. He moved to suppress his admission, arguing that the police had not given him w arnings under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1 966), b efore m aking th eir inqu iries. 374 Md. a t 203, 82 1 A.2d at 441. A divided Court held that Rucker was not in custody, 374 Md. at 203, 821 A.2d at 441, relying mainly on the Supreme Court s decision in Berkem er v. McC arty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), a case in which the Supreme Court held that routine traffic stops, because of their similarity to Terry stops, rather th an arrests, did not require Miranda warnings, 468 U.S. at 440, 104 S. Ct. at 3150, 82 L. Ed. 2d at 334335. Pursuant to Berkemer, this Court reweighed the facts and circumstances of the case differently than the trial court, characterizing the exchange between the respondent and the police as a request, rather than, as the trial court had found, a demand, and concluded that Rucker s freedom of movement was not hindered in any way. Therefore, we held that there could not have been a formal arrest. 374 Md. at 220-221, 821 A.2d at 452. This hold ing did no t accord the trial court findin g any defere nce; it certainly did not address, or seek to assess how a reasonable man...would have understood the situation. Berkemer, 468 U.S. at 441-42, 104 S. Ct. at 3151, 82 L. Ed. 2d at 336. The dissent noted: ...because there was no actual arrest until after the recovery of the cocaine, the question to be answ ered was whether the circum stances w ere such tha t a reasonable person w ould have felt that he or sh e was in custody. After, evaluating the testimony adduced at the hearing, the trial judge found that the respondent was in custody, thus either rejecting that which supported that he was not or drawing inferences from the evidence that supported the factual conclusion that the trial judge made. Put another way, the trial judge found that the officers' conduct in the parking lot exceeded the scope of an investigatory stop under Terry, and was, in actuality, a de facto arrest, thus triggering the respondent's entitlement to Miranda warnings. The trial court's determination is entitled to deference and, in any event, should not easily be ignored. Althou gh it prof esse s to d o so, the m ajority fails to a ccep t the t rial c ourt's findings of fact and, in fact, views the sequence of events surrounding the respon dent's arr est quite differe ntly than d id the tria l court. . . . 374 Md. at 22 9, 821 A.2d at 45 6-457 (Bell, C.J., dissenting). Furthermore: Notwithstanding that they are never determined to be clearly erroneous, the majority all but ignores, and certainly does not apply, the facts as found by the trial court, and undoubtedly critical to its determination that the stop was tan tamou nt to an a rrest. . . 374 Md. at 23 1, 821 A.2d at 45 8 (Bell, C.J., dissenting). 36 Thus, Pringle dictates that the relevant inquiry is whether the particular factual contex ts, 540 U .S. at 371, 124 S. Ct. at 800, 157 L. Ed. 2d at 75, available in this case contribute to a valid finding of probable cause under the totality of the circumstances. 540 U.S. at 371, 124 S. Ct. at 800, 157 L. Ed. 2d at 775. In contrast, in Swift v. S tate, 393 Md. 139, 899 A.2d 867 (2006), the Court took a different approach. There, the petitioner Swift was walking down the street, and a police officer, suspicious of his behavior and presence in a high crime area, and after circling him three times, brought his police cruiser, with his lights shining on Swift, to rest directly in front of Swift, blocking his path. After an exchange in which the police officer asked Swift if he could search him, Swift fled the scene, only to be caught eventually and arrested. 393 Md. at 147, 899 A.2d at 871. Swift moved to suppress the evidence recovered as a result of the subsequent search of his person, arguing that he had been illegally detained when he was stopped. He maintained, in that regard, that when stopped, he was n ot free to leave. 393 M d. at 147, 899 A.2d at 872. The Circuit C ourt denied the motion, finding that, under the facts, a reasonable person would have felt free to leave. 393 Md. at 147, 899 A.2d at 872. This Court, in contrast, and unlike in Rucker, acknow ledged tha t trial courts are in the best position to resolve questions of fact, while also noting that legal conclusions, such as whether a reasonable person would have felt free to leave, can be reviewed de novo, after giving d ue weigh t to the factua l findings m ade by the trial co urt: Our review of the circuit court s denial of a motion to suppress is based on the record created at the suppression hearing. Review of the trial court s ruling on a motion to suppress evidence presents a mixed question of law and fact. The trial court is in the best position to resolve questions of fact and to evaluate the credibility of witnesses. An appellate 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. The legal conclusions, how ever, are not afforded d eference, and are reviewed de novo. 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 Co urt. 393 M d. at 154 -155, 8 99 A.2 d at 876 (citation s omitte d). Acknowledging that [w]hether a reasonable person would have felt free to leave police presence is a highly fact-specific inquiry, this Court, based on the factual testimony give n at trial, conclu ded that a re asonable p erson wo uld not hav e felt free to walk away under the circumstances. 393 Md. at 156, 899 A.2d at 877. 37 Applying Gates and Pringle, the standard of review in a probable cause determination is clear. A trial court s probable cause determination is entitled to deference, and, if the appellate court determines that there is a substa ntial basis for the trial court to have concluded, as it did, that there was probable cause, the trial court s d etermination will not be disturbed. If, on the other hand, the appellate court concludes that there is no such basis, then there is no pro bable c ause. See Swift v. State, 393 Md. 139 , 155, 899 A.2d 8 67, 876 (2006). This Court s scope of review of the probab le cause de cision of the Court of Special A ppeals is neither wider nor narrower than that applicable to that court s review of the same decision by a trial court. In this c ase, the interm ediate appe llate court s dec ision is the first occasion on which the circumstances of the petitioner s arrest and the subseque nt search of his vehicle and his person were subjected to a probable cause analysis.10 In the case sub judice, we hold th at, necessarily, hav ing determined that no arrest occurred when Detective Edge stopped Longshore, the trial court did not have a substantial basis for determining that probable cause existed at the time that he w as hand cuffe d. The suppression court view ed Longsho re s stop, when he was handcuffed, not as an arrest, but as a detention that only required reasonable suspicion, which was supplied, it opined, by the videotape and the drugs, marijuan a and trace amou nts of cocaine, found in Carlson s car. Probable cause, the court noted, existed once the drug dog alerted to the presence of drugs. 10 The trial court s analysis, as we have seen, was on the basis of a detention and the concomitant reasonable suspicious standard. To be sure, it did opine that the video-tape, by itse lf, w as su ffic ient t o constitute p roba ble c ause ; how ever , in co ntex t and logically, that dete rminatio n does not pas s the sub stantial b asis test. 38 Interestingly, and somewhat inconsistently, the suppression court also noted that the videotape alone was sufficient to establish probable cause to search the petitioner s vehicle. As we have seen, the Court of Special Appeals held that an arrest had occurred. The question that must be resolved is whether, in light of that holding, that court had a substantial basis to determine the existence of probable cause. The intermediate appellate court affirmed the petitioner s conviction, but it did not do so on the ground on which the trial court relied; it did not acc ept the trial cou rt s analysis with regard to the nature o f the petitioner s stop and detention. In fact, the Court of Special Appeals rejected the trial court s characterization of the petitioner s stop as a mere detention, holding, instead, that it was an arrest, for the justification of which probable cause was required to be shown. 39 Nevertheless, the intermediate appellate court concluded that there was probable cause to justify the arrest. 11 That con clusion was supported, the interm ediate appellate court explained, by the following factors, which it enumerated as informing its decision: 1. Detective Smith received a call from a confidential source who had provided reliable drug related infor mation in th e past. 2. The source informed the detective that he had observed and videotaped what he believed was a drug transaction involving appellant and Carlson, a man the source knew to have been involved in drug transactions. 3. The detective ob served the v ideotape twice an d conclud ed, based o n his experience, that in fact a drug transaction had occurred. 4. The police obse rved the thre e men sh own in the videotaped transaction meet again at a kiosk in th e mall. 5. The police fou nd, in a sub sequent sto p of Carls on s vehic le, a quantity of marijuana and a trace amount of cocaine. 6. The police learned that appellant had prior drug arrests. 11 In the case sub judice, the Court of Special Appeals relied on our holding in Collins v. State, 322 M d. 675, 589 A.2d 47 9 (1991), a s the basis fo r its evaluation of proba ble cause. In that case, this Court stated: A findin g of prob able cause requires less e vidence th an is necess ary to sustain a conviction, but more evidence than would merely arouse suspicion. *** Our determination of whether probable cause exists requires a nontechnical, common sense evaluation of the totality of the circumstances in a given situation in light of the facts found to be credible by the trial judge. Probable cause exists where the facts and circumstances taken as a whole would lead a reasonably cautious person to believe that a felony had been or is b eing com mitte d by th e per son a rrest ed. T here fore , to ju stify a warrantles s arrest the po lice must po int to specific a nd articulab le facts which, tak en togethe r with rationa l inferences from thos e facts, reaso nably warra nt the int rusion. 322 Md. at 67 9-680, 589 A .2d at 481(citations omitted). 40 7. During a subsequent stop of appella nt s car, appe llant acted ex tremely nervou s whe n asked if he w as transp orting d rugs. Not included in this list of factors, but clearly something to be taken into account in assessing probable cause, is the first of the three drug dog sniffs of the petitioner s vehicle. That sniff, which was singularly unsu ccessful, 12 occurred while the p etitioner s vehicle was parked on the shopping mall parking lot and he was inside the mall with Carlson and the third man, with whom he had been seen. Aware of that drug dog sniff and its lack of results, to be sure, the Court of Special Appeals disposed of it dismissively and without significant discussion, stating simply, the dog s failure to alert during the first scan does not weigh too heavily in the probable cause calculus. The intermediate appellate court did not explain why the failed sniff did not weigh too heavily in its analysis. But that is the crux of the case: because it is a factor militating against a finding of probable cause, did tha t failure, weig hed suff iciently, significantly ne gate or neutralize those several factors that militate in favor of such a finding. We have held, to be sure, that once a drug dog has alerted a trooper to the presence of illegal drugs in a vehicle, sufficient p robable ca use exist[s] to support a warrantless search of [a vehicle]. Wilkes v. S tate, 364 Md. 554, 586, 774 A.2d 420, 439 (2001) (internal 12 We note that there were two later drug dog sniffs, a second, of the exterior of the petitioner s ve hicle, that occu rred after the petitioner w as stopped and place d under a rrest, and the third one, of the interior of the vehicle. Because they were post-arrest, these latest drug dog sniffs cannot be considered in the probable cause analysis. They do constitu te, how ever, pa rt of the totality of th e circum stances surrou nding t he sear ch. Thus, to the extent that these sniffs may elucidate a relevant aspect of the probable cause constru ct, they ma y, and as w e will se e, will, be used. 41 quotations omitted). In addition, in McK ay v. State, 149 Md. App. 176, 188, 814 A.2d 592, 599 (2002), on which the State strongly relies, the Court of Special Appeals opined that a drug sniffing dog s failure to detect drugs does not autom atically negate pro bable cause. It is, instead, but one factor to be considered in the probable cause determination. The context in which the intermediate appellate co urt expresse d that opinio n is both enlightening and significant. In McKay, police obtained information from a named source that one of the defendants was the source of drugs for his mother. 149 Md. App at 180, 814 A.2d at 594. After confirming certain of this information as to that defendant s mother, an officer, having made several hand-to-hand purchases from the mother, advised her that he was a police officer and obtained from her an admission that the defendant was her source and her agreement to coop erate w ith the po lice. Id. Sub sequ ently, the defendant s mother arranged for the defendant to deliver cocaine hydrochloride to her place of employment; she informed the police of this arrang ement. 149 Md. App. at 181, 814 A.2d at 595. As planned, the defendant was stopped on a traffic violation, a missing front registration plate, on his way to make the delivery. The police request to search the car was refused, whereupon a drug sniffing dog was called to the scene. 149 Md. A pp. at 182, 8 14 A.2d at 595. Alth ough its scan of the v ehicle w as unsu ccessf ul, 149 M d. App. at 182, 814 A.2d at 595, the police searched the car anyway, finding the controlled dangerous substances they expected to find. 149 Md. App. at 182, 814 A.2d at 595. The defen dant moved to suppress the evidence, arguing initially that neither the informan ts nor the information they provided was reliable. Id. at 182, 814 A.2d a t 596. Alternatively, he argued that, even ass uming the police w ere 42 initially possessed of probable cause, it was dissipated when the dog failed to alert on the car. Id. The court rejected both argu ments. W ith respect to the first, applying a totality of the circumstances analysis, it concluded that the police had probable cause to search the defendant s car. 149 Md. A pp. at 18 5-86, 8 14 A. 2 d at 597 -98. That determination, it said, was not even a close call. Id. at 188, 8 14 A. 2 d at 599 . Giving deference to the trial court s factual determination with respect to the reasonableness of the explanation for the drug dog s non-alert, the Court of Special Appeals concluded that there was no merit in the defendant s alternative argument, either. It explained: The suppression court heard testimony that the dog's failure to alert was due to its being on medication. The court apparently credited that testimony, as reflected by the court's comment that sometimes you just have incompetent dogs. We treat that determ ination a s fact. State v. Brooks, 148 Md. App. 374, 402, 812 A.2d 342 (2002). Considered in the totality of the circumstances, the dog's non-alert-particularly in view of the reasonable explanation for it-did not negate the pro bable c ause ne cessary f or the se arch of the car. McKay, 149 Md. App. at 188, 814 A.2d at 599.13 13 The intermediate appellate court also relied on United S tates v. Jordo in, 672 F. 2d 232, 234 (1st Cir. 1992) and State v. Siluk, 567 So. 2d 26, 27 (Fla. App. 1990). In Jordoin, an explanation was given at trial, by the dog s handler s, presumably as expert witness for the dog s non alert. There, as related by the court, it was: Although a drug detecting dog did not react when it sniffed the suitcase, the agents pointed out that, according to dog handlers, the dogs are not foolproof, they are less accurate on h ot muggy days, and drug traffick ers have found ways to mask the odors of contraband to fool detection efforts. The dog's failure to react does not, in our view, destroy the probable cause that would otherwise exist. It is just another element to be consid ered by th e mag istrate. Id. at 236. In Siluk, the court held that, where a drug sniffing dog in Houston, Texas, earlier had alerted to the defendant s suitcase, a subsequent failure to alert by a second dog at the Orlando airport did not neutralize the probable cause provided by the first 43 While we agree that a failed dog drug sniff does not automatically negate probable cause, the trial court, altho ugh notin g the findin gs of the d rug dog, d id not consider the failed sniff as negative evidence in its probable cause determina tion. Furtherm ore, it is clear that the Court of Special Appeals either did not consider the fa iled sniff as a factor, as McKay dictates , or weig hed it ins ufficie ntly. We do not agree with either court s lack of consideratio n given to the failed sn iff in their probable cause determinations. The failed drug sniff is exactly the type of evidence that tends to undermine the conclusion of the presence of drugs. It is a negating factor that has a substantial impact on the determination of probable cause, and cannot be lightly ignored. Moreover, the weight to be given to the dog sniff is directly related to the credibility of the dog s abilities, which, in turn, can be inferred from the dog s performance under the circumstances. If a dog fails to alert to the presence of drugs, and no explanation for why such a failure occurred is given, the trial court should weigh this differently than it would a alert, explainin g: We do not accept the argument that the failure of the local narcotics dog to alert to the luggage neutralized the probable cause flowing from the alert in Houston, where, as here, it was improbable that anyone had access to the suitcase between the time it left police surveillance in Houston and came un der surveillan ce in Orlan do. Mo reover, altho ugh the of ficer in Houston was not known to the officer in Orlando, he provided such specific an d detailed inf ormation th at the Orlan do office r was reaso nable in his con clusion that th e sou rce o f inf ormation about the def endant's luggage was a fellow law enforcement officer whose information was truthfu l and reli able. 567 So.2d at 28. 44 failure of a drug dog to alert, accompanied by a plausible justification for the failure. Add ition ally, any inconsistencies between multiple alert results must be ta ken into consideration, under the totality of the circumstances. The first sniff was conducted while Longshore s car was parked in th e mall lot. The dog failed to alert. The dog handler explained at trial that this was not a surprise, since during the first scan there was no air exchange as the windows were up, the doors closed, and the engine was n ot runn ing. During the dog s second scan, however, where a window was down and, just seconds before , the eng ine had been ru nning, the drug dog alerted to the rear of the veh icle just underneath the rear bumper - a false alert. This second scan contradicts the rationale given by the police for Tonya s failed first snif f. It was on ly when the dog wa s actually let inside th e vehicle tha t she was a ble to alert to the presence of drugs. These three inconsistent alerts severely undermine dog s credibility as a reliable indicator of the presence of drugs. Thus, as a negating factor in the probable cause determination, we believe that the drug dog s failure to alert during its first scan of Longshore s car should have been given considerable weight in light of the other factors and circumstances. While we agree with the ho lding in McKay, it is not wholly applicable here, as the State asserts. The drug sniffing dog in McKay had been treated with medication, 149 Md. App. at 188, 814 A.2d at 599; thus, there was an explanation , a basis, f or the n on alert. Ton ya had not been medicated or, at least, no evidence to that effect was offered. As we have seen, the explanation that was offered did not prove to be credible, in light of subsequent scans. Ton ya s failed sniff certainly did not give the p olice any more reason to 45 search Longshore s vehicle. Indeed , in light of that failed sniff or scan, the subsequent police a ctions h ad the f eel and effect of fish ing. Given the lack of reliability of the drug dog and the other factual circumstances taken in concert, we cannot conclude that there is a substantial basis for the determination of the existence of probable cause. The police received a call from a confidential source who had provided reliable drug informatio n in the past, and this source informed the police detective that he had observed and videotaped what he believed was a drug transaction involvin g appellant and Carlson, a man the source knew to have been involved in drug transactions. While the informant claimed that the tape showed Longshore and Carlson making some sort of excha nge ins ide the v ehicle, it only displayed two men ge tting into a car while a third person waited outside of the car. Despite the obvious lack of visual proof, the detective observed the videotape twice, and concluded, based on his experience, that a drug transaction had oc curred . In a probable cause determination, the experience and special knowledge of police officers who are [attempting to establish probable cause] are among the facts which may be consid ered. Wood v. State, 185 Md. 280, 286, 44 A.2d 859, 861 (1945). The observations of the police, however, must be based on something factual. In the case sub judice, while the police did see two men enter a car and one man stand outside the car, the videotape did not reveal any actual hand to hand drug transfer, money transfer, or drug paraphernalia transfer. Moreover, aside from viewing three men on a videotape and congregating together at the mall, nothing suspicious and certainly nothing criminal was observed. 46 Trace amounts of drugs were discovered in the car of one of the three men, wh en it was stopped b y the police; that m an, how ever, did no t indicate that he had purchased the drugs from Longshore. Th e State emphasizes L ongshore s history of prior drug arrests. We have, however, previously cautioned, to be satisfied based upon a person's status [of having a prior drug arrest record], rather than an individualized assessment of the circumstances, would undermine the purpose for requiring officers to justify their reasons for searching a particular individual. Nieves, 383 Md. at 597, 861 A.2d at 77. Finally, the State notes that Longshore acted extremely nervous when asked if there were drugs in the car. We also have cautioned against placing too much weight on the perception of nervousness when assessing probable cause or reasonable suspicion, as certain behaviors are ordinary for any person when confro nted by p olice. Ferris, 355 Md. at 389, 735 A.2d at 509. What we are lef t with is a vide otape that, although coming f rom a prev iously reliable source, reflects no d rug activity, only innocuous or at w orst ambiguous, beh avior, occurring primarily in a public setting, trace amounts of drugs with no immediate or clear connection to Longshore, a prior criminal reco rd, nervou s behavio r, and incon sistent results - she twice failed to alert to the presence of drugs - from a drug dog. While these facts may have provided an officer reasonable suspicion to conduct further investigation, they do not provide a substantial basis for a determination of probable cause, the standard by which we are bound to evaluate the validity of the pe titioner s arrest. To agree that probable cause existed at the time of the petition er s arrest, as the State contends , would fo rce this Cou rt to fill in gaps in the r ecord, an e xercise w e are not pe rmitted to do . We reve rse on this po int. 47 II. The trial court also erred in admitting testimony that the petitioner refused to consent to a search of his vehicle. That evidence was inadmissible and it was prejudicial. The trial court abus ed its discretion in not grantin g a mistrial. During the State s case in chief, Detective Edge testified about the encou nter with petitioner. After Detective Edge stopped the petitioner s automobile, he asked him for consent to search the car. The following conversation took place: [PROS ECUT OR]: What, if anything, did you do when the car came to a stop? [DETE CTIVE ]: The patro l officer had I h ad him ask him to step to the rear of his vehicle. At which time I made contact with the suspect and advised him why he was being stopped, and asked him for consent to search his vehicle. [PRO SECU TOR ]: What, if an ything, happe ned at that p oint? [DET ECTIV E]: He denied consent. [DEFENSE CO UNSEL]: Objection. [THE COUR T:] Sustained. At the bench, defense counsel moved for a mistrial, which the trial judge denied. The cou rt instead gave the jury a curative instruction, stating as follows: Ladies and gentlemen, I instruct you to disregard what the Officer said with regard to the defendant s response to the request to search th e vehicle. For purposes of this proceeding that is im materia l. The Court of Special A ppeals rejec ted the petition er s argum ent that the trial co urt had abused its discretion in denying his motion for mistrial, noting: 48 [W]e see that it was a single, isolated statement; it was solicited by the State only in the sense that it was made in response to a question posed by the State, but it appears that the question was not intended to obtain the testimony given, and that the answer given was unexpected; Detective Edge was one of several witnesses; and there was a gre at deal of o ther eviden ce of app ellant s guilt, including the videota pe of the su spected dru g transaction and the fact that Carlso n s car c ontaine d drug s whe n stopp ed. The petitioner contends again, at this appellate level, that the trial court noted correctly that Detective E dge s testim ony that the pe titioner denied consent to search his car was inadmissible, but that the co urt abused its discretion in re fusing to g rant a mistrial. He asserts that the trial court erred in denying his motion for a mistrial when the Detective testified that the petitioner refused to consent to a search of his vehicle. The petitioner argues additionally that the curativ e instruction was insuf ficient to pro tect his right to a f air trial. We agree. In holding that evidence of a refusal to consent to search is inadmissible, many courts have drawn an apt analogy to United States Supreme Court cases that hold that a defendant s assertion of the Fifth Amendment right to remain silent may not be used against him or her at trial. See, e.g., Simmo ns v. State. 419 S.E.2 d 225, 22 6 (S.C. 19 92); Doyle v. O hio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); Griffin v. C alifornia, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed . 2d 106 (1 965). Tho se courts no te that a like principle applies to refusal to cons ent to se arch. See, e.g., Elson v. S tate, 659 P.2d 1195, 1197 (Alaska 1 983); Garcia v. State, 712 P.2d 1375, 1376 (N.M. 1986). In Reeves v. State, 969 S.W.2d 471 (Tex. App. 1998), the court noted as follows: Because the right to refuse entry is equally available to the innocent and the guilty, the refusal is as ambiguous as silence 49 which is maintained as a right under the Fifth Amendment. To allow the use of one s refusal to consent to entry into his home without a warrant would be to impose a penalty for exercising a constitutional right. Allowing evidence of [the defendant s] refusal to consen t to a warrantless search of his home was error. Id. at 495 (intern al citations om itted). An ind ividual s asse rtion of the c onstitutional right to refuse a search of his car cannot be used as evidence of his guilt if the constitutional protection against unreasonable search and seizure is to have any meaning. A person has a constitutional right to refuse to consent to a warrantless search of his or her automobile, and such refusal may not later be used to implicate guilt. An unfair and impermiss ible burden would be placed upon the assertion of a constitutiona l right if the State could use a refusa l to a wa rrantless search agains t an indiv idual. See, e.g., United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir.1978); Garcia v. State , 712 P .2d 137 5, 1376 (N.M . 1986). Moreover, a person s refusal to consent to a warrantless search can not form th e basis of reasonable suspicion or probable cause. See Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389 (1991) (noting that refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure ); Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983) (holding that a person may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grou nds ); United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997) (holding that [t]h e fai lure to co nsen t to a s earc h can not f orm any part of the basis for reason able suspicion ). See also Kenn eth J. M elilli, The Conseq uences o f Refus ing Con sent to a Search 50 or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S. Cal. L. Rev. 901, 937 (2002) (rejecting the c onstitutionalization of what the a uthor terms an eviden tiary issue, stating that evidence o f refusal to c onsent is ina dmissible o rdinarily, not nece ssarily because it punishes a person for assertion of a constitution al right, but bec ause refus al to consen t is not pr obative of guilt o r suspic ion and is thus irre levant). The petitioner was prejudiced by the inadmissible testimony and the instruction of the court to disregard the testimony did not cure the error. The State s argument that Detective Edge s testimony was not solicited or expected by the State does not diminish the prejudice to petitioner. This is not a question of good faith/bad faith on the part of the S tate. An important issue in the case was whether petitioner had knowledge of the contraband contained within the car. The jury may have considered his refusal to consent to search as evidence of knowledge that the drugs were within the automobile. We cannot say that the error was harmle ss beyon d a reas onable doubt. See Dorsey v. Sta te, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). JUDGMENT OF THE COURT O F SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND TO THE CIRCUIT COURT FOR CHARLES C O U N TY F O R FU R T H ER PROC EEDIN GS CONS ISTENT WITH T HIS OPINION; CASE REMANDED TO THAT COURT FOR NEW T RIAL. CO STS IN T HIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY CHARLES COUNTY. 51
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