Cox v. State
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Cox v. Sta te, No. 39, September Term, 2006 HEADNOTE: CRIMINAL LAW & PROCEDURE SEARCH & SEIZURE W ARRANTS INTERVENING CAUSE AT TENUATIO N Sergeant Jeff Bryant stopped Petitioner because he loosely fit the description of the perpetrator of a recent series of robberies. The Sergeant asked Petitioner for identification and, upon receipt, ran a check on that identification. He learned that Petitioner had an outstanding warrant for failure to appear on drug charges. Thereafter, the Sergeant arrested Petitioner and in the process discovered a baggie of marijuana on the gro und nex t to where P etitioner had b een seated . The State charged Petitioner w ith various d rug-related o ffenses. S ubseque ntly, Petitioner filed a motion to suppress on the grounds that the stop was illegal and that the evidence was unlawfu lly obtained. Even where the stop is arguably illegal, a police officer s subsequent discovery of an outs tanding arre st warrant m ay constitute an intervening circumstance so as to attentuate the taint of the illegal stop. In acco rdance w ith this Court s re cent decisio n in Myers v. State, 395 Md. 261, 909 A.2d 1048 (2006), the discovery of the outstanding warrant, subsequent lawful arrest on that warrant constituted an intervening circumstance that dissipated any taint stemming from the unconstitutional stop. CRIMINAL LAW & PROCEDURE PRESERVATION APPELLATE REVIEW Petitioner argued tha t the State did not preserve for appellate review the intervening cause argument because th e State failed to use the words attenuation and taint in its argument to the low er cour t. The State , however, argued to the motions court that Petitioner was arrested pursuant to an outstanding warrant and referenced an intermediate appellate court decision in which that court examined the fruit of the poisonous tree doctrine, and those circumstances in which th e poisone d fruit can still b e admissib le. The State s argume nts were sufficient to preserve the interven ing cause a rgumen t, despite the fa ct that the State failed to inco rporate the magic w ords in its disc ussion bef ore the low er court. In the Circu it Court for C harles Co unty Criminal No. K05-0409 IN THE COURT OF APPEALS OF MARYLAND No. 39 September Term, 2006 ____________________________________ ARTAVIUS DONNELL COX v. STATE OF MARYLAND ____________________________________ Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. ____________________________________ Opinion by Greene, J. ____________________________________ Filed: February 8, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active membe r of this Court; after being recalled pursuant to the Cons titution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. In this case, we must determine whether Artavius Donnell Cox ( Petitioner ) was entitled to have suppressed, as evidence at his trial, a quantity of marijuana that the police found o n the grou nd near h im, after an a rguably illegal stop. The drugs seized in this case were recovered after the police obtained information that there existed an outstanding warrant for Petitioner s arrest. We are asked to review two issues. First, whether a police encounter, in which a uniformed officer approached Petitioner on the street claiming that he loosely fit the description of the perpetrator of a recent string of robberies, asked Petitioner for identification, and ran a check on his identificatio n, constituted an illegal stop in violation of the Fourth Amendment of the United States Constitution. In addition, whether a police officer s subsequent discovery of an outstanding arrest warrant represented an intervening circumstance,1 such that if the stop were illegal, the arrest on the warrant attenuated the taint of the ille gal stop . We need not address the first issue because that question is not dispositive to our analysis of whether Petitioner s motion to suppress should be granted or denied. Assuming arguendo, that the police encounter constituted an illegal stop, we deem it m ore appropriate to determine the ultimate question: whether it was proper for the trial court to grant Petitioner s motion to s uppress the evidence. Although the State did not specifically contend, at the suppression hearing, that Petitioner s arrest constituted an intervening circumstance sufficient to attenuate the taint of the stop, the issue an d the State s contention on appeal that the arrest pursuant to a warrant was lawful is, nonetheless, preserved for appellate review. 1 The phrases intervening circumstance and intervening cause will be used intercha ngeab ly through out this o pinion . We shall hold that the police officer s discovery of an outstanding warrant for Petitioner s arrest and Petition er s arrest purs uant thereto represents an intervening circumstance sufficient to attenuate th e taint of w hat appea rs to be an ille gal stop . Accord ingly, we shall affirm the judgment of the Court of Special A ppeals and hold that the Circuit Co urt erred in granting Petitioner s motion to suppress the evidence. FACTUAL BACKGROUND On April 6, 2005, Sergeant Jeff Bryant was patrolling the Lancaste r neighbo rhood in Waldorf, Maryland, driving a marked police car and wearing a police uniform, because there had been a series of robberies, the last of which had occurred on the previous day. The victim of that robbery had described the perpetrators as two teen-age black males. At approximately 11:05 a.m., Sergeant Bryant noticed Petitioner and a man, later identified as Mr. Martin, walking towards him, on the sidewalk, adjacent to Lancaster Circle. Sergeant Bryant testified that the men appeared to be avoiding him. The men then left the sidewalk and walked onto another street. Sergeant Bryant was not sure whether the men saw him before ch anging the ir route. The Sergean t advised an other offic er that he intended to stop the men. Sergeant Bryant circled in his car, met with a second officer at a specified interception point, and then sto pped Pe titioner and M artin. Two other offic ers appear ed a cou ple minutes later. Sergeant Bryant got out of his vehicle, identified himself, and approached the men. He asked the gentlemen for identification, explained to [them] that [the police] -2- were having a problem with robberies of the citizens of the area and that the[] two gentlemen loosely fit the description of those suspects. Both Petitioner and Martin provided their Virginia identification cards to Sergean t Bryant. While remaining w ith the men, Sergeant Bryant ran that information through the agency radio asking for a local MILES and NCIC check of wanted status . . . . Sergeant Bryant further testified, at the suppression hearing, that while checking Petitioner s identification, Petitioner was not free to leave but Sergeant Bryant did not kno w if he w ould have cha sed P etitio ner if Petition er ha d run awa y. After about two minutes, Sergeant Bryant received a code Sam Roberts, which meant that he should secure his radio (so that the men could not hear it) because at least one of the individuals about whom he had inquired had an outstanding warrant. In response, Sergeant Bryant told both men to sit on the ground with their hands on their heads and awaited confirmation as to which m an had the outstanding warrant. Soon therea fter, Sergeant Bryant received confirmation that it was Petitioner who had an open warrant for failing to appear in court on d rug charg es. The Se rgeant then placed Pe titioner in handcuffs. One of the other officers on the scene, Officer Gotschall, then noticed a plastic baggie of marijuana lying on the ground. Sergeant Bryant testified that the marijuana was not on the ground before he asked Pe titioner and M artin to sit down and place their ha nds on the ir heads. On May 2, 2005, the State charged Petitioner with various drug-related offenses, including possession of marijuana and possession of a controlled dangero us substan ce with -3- intent to distribute. On May 11, 2005, Petitioner filed a motion to suppress the marijuana on the gro unds th at it was unlaw fully obta ined. The Circuit Court for Charles County heard testimony and argument on August 12, 2005. At the hearing, the State argued that Petitioner was arrested pursuant to an outstanding warrant and cited Gibson v . State, 138 Md. App. 399, 771 A.2d 536 (2001), a case in which the intermediate appellate court explained the fruit of the poisonous tree doctrine and also explained the three ways in which to dissipate the taint. The State did not use the words attenu ation, taint or intervening cause in its argument. The Circuit Court granted the motion to suppress on September 8, 2005 because it found that the encounter between Petitioner and Sergeant Bryant constituted a stop, and that the Sergeant did not have an objective manifestation that the person stopped [wa]s or [wa]s about to be engaged in criminal activity . . . . There [wa]s no indication that they were possessing or about to be engaged in marijuana activity or CDS activity. The State appealed to the Court of Special Appeals, arguing that (1) Petitioner was not illegally detained, and that (2) even if he was, the evidence should still not be suppressed because the arrest warrant constituted an intervening circumstance that attenuated the illegality of the detention. Petitioner argued that the State f ailed to prese rve for app ellate review the latter a rgume nt. In an unrepo rted op inion, filed on March 29, 2006, the intermediate appellate court reversed the judgment of the Circuit Court. That court found that the stop of Petitioner was actually a mere accosting b ecause it was both consensual and -4- volunt ary. The intermediate appellate co urt agreed w ith Petitioner, as to the second point, because it perceived th at the State argued only two points at the trial level: that the encounter was consensu al and that P etitioner s iden tity was not suppressible. The court determined that neither point preserved an argument based on the attenuation doctrine. As a resu lt, the Court of Special Appeals determined that the marijuana should not have been suppressed, and, because the police encounter was consensual, the Fourth Amendment was not implicated. Petitioner filed a petition for writ of certiorari 2 in this Court and the State filed a conditional cross-petition.3 We granted both pe titions. Cox v. State, 393 Md. 477, 903 A.2d 416 (2006). DISCUSSION A. The Legality of the Police Encounter 2 Petitioner pre sented the f ollowing issue in his pe tition for writ o f certiorari: Did the Court of Special Appeals err when it held that petitioner was the subject of a[] consensual encounter for purposes of the Fourth Amendment, despite the fact that petitioner was stopped by multiple police officers who asked him for his identification, informed him that he loosely fit the description of a robbery suspect, and proceeded to run a warran t check on him while one of the officers remained by his side? 3 The State presented the following question in its conditional cross-petition: Did the Court of Spe cial Appeals err in holding that the State s attenuation argument was not preserved for appellate review? -5- The Fourth Amendment of the United S tates Cons titution protects individuals against unreason able search es and seizu res. It states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be v iolated, a nd no W arrants s hall issu e, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or thing s to be se ized. U.S. C ONST. amend. IV . Because of this constitutional protection, police officers must have, at a minimum, reasonable, articulable suspicion that a person is involved with, or has committed, criminal activity before they can la wfully se ize that in dividu al. Ferris v. State, 355 Md. 356, 374 -75, 735 A.2d 4 91, 500-01 (1999). Officers may, however, question an individual, absent reasonable, articulable suspicion, if the encounter is consensual and volu ntary. Id. The Fourth Amendment is therefore not implicated simply because a police officer approaches an individual and asks a few questions. Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 238 2, 2386, 115 L. E d. 2d 389, 398 (19 91). Likewise, police of ficers do not v iolat e the Fou rth A men dme nt by m erely approaching an individu al on the stree t or in another public plac e, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requirin g some level of objectiv e justific ation. Stanberry v. State, 343 Md. 720, 742, 684 A.2d 823, 834 (1996) (quoting Florida v. Royer, -6- 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)). Whether a particular enco unte r con stitutes a seizure, o r wh ethe r the enco unte r wa s sim ply a consensu al non-con stitutional even t is whether a reasonab le person w ould have felt fre e to leave. Ferris, 355 M d. at 375 , 735 A .2d at 50 1. Although the inq uiry is a highly factspecific one, courts h ave identifie d certain fac tors as prob ative of whether a reasonab le person would have felt free to leave. Ferris, 355 Md. at 377, 735 A.2d at 502. They include: the time and place of the encounter, the number of officers 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, whethe r the police retained the person s documents, and whether the police exhibited threatening behavior or physical conta ct that wou ld suggest to a reasonab le person that he or she was not free to leave. Id. This Court has used a totality of the circumstances approach when evaluating these factors to make its ultimate determination of whether a reasonab le person w ould have felt free to le ave. See, e.g ., id. Petitioner argues that, based upon the above-mentioned factors, he was the subject of a seizure prior to the time that the officers received the code Sam Roberts alerting them that Petitioner had a warrant outstanding for his arrest. Petitioner argues that the stop was unconstitutional because it was no t supported by reasonable, articulable susp icion. In evaluating the factors for support of the legality of the stop, Petitioner argues that he was -7- stopped by four officers, at least one of whom was in uniform, that the officers asked him for identification, that the record fails to indicate that any of the of ficers ever told him that he was free to leave, that Sergeant Bryant admitted at trial that Petitioner was not free to leave, and that Sergea nt Bryant exp lained to Petitioner that he loosely fit the description of the perpetrator of a recent robbery that the officer was investigating. Petitioner asserts that no reasonable person in Petitioner s position would have felt free to leave. The State argues that, prior to the discovery of the outstanding warrant, the encounter constituted merely an accosting, and not an illegal stop. The State cites several cases for the proposition that an officer may ask an individual for things like identification so long as he does not use physical force or restraint. In evaluating the Ferris factors, the State posits that the encounter occurred at 11:05 in the morning, in a residential area, and that nothing indicates that Petitioner was moved to another area. In addition, the p olice never told Petitioner that he was not free to leave. Sergeant Bryant also told Petitioner about the other robberies and told P etitioner that he only loosely matched a description. Lastly, the officer did not walk a way with Petitioner s identification and never told Petitioner that he was under arrest, never touched P etitioner, never handcuffed him, never drew his gun, and never used the word stop. We need not reach the merits of these argum ents becau se our dec ision in this case is not dependent on the outcome of Petitioner s contention that the stop w as illegal. We reach this result because the discovery of the outstanding warrant and arrest pursuant thereto -8- constituted an intervening circumstance that attenuated th e taint of the a rguably illegal stop. We assume arguendo, as we did in Myers v. State, 395 Md. 261, 909 A.2d 1048 (2006), that Sergeant Bryant, in this case, had neither probable cause nor reasonable articulable suspicion to stop P etitioner . B. The State s Preservation for Appellate Review of the Intervening Cause Issue We now ex amine w hether the S tate preserved for appellate review its intervening circumstance argument. Petitioner contends that because the State failed to argue to the motions court that the arrest constituted an intervening circumstance, the State failed to preserve that argument for appellate rev iew. Petition er explains th at the prosec utor put for th only two arguments to the motions court: that the stop was consensual and that Petitioner s identity is not subject to exclusion, even if the stop was unlawful. To support this latter argumen t, the pro secuto r cited, an d relied u pon, Gibson v . State, 138 Md. App. 399, 771 A.2d 536 (2001), an intermediate appellate court decision in which that court concluded, inter alia, that an individual has no expectation of privacy in his or her identity. Petitioner then explains that, in the intermediate ap pellate court, th e State aban doned the identity argument and replac ed it with the contention that an arrest, pursuant to an outstanding warrant, was an intervening circumstance that dissipated any taint flowing from the officer s illegal stop of Petitioner. Petitioner asserts that the State s intervening circumstance argument differs dramatically from the initial argument advanced at the trial level, such -9- that this Court should hold, as did the Court of Special Appeals, that the intervening circumstance argument was not preserved for appellate review. The State counters arguing that, although the prosecutor never specifically mentioned the words dissipate or attenuate to the motions court, the argument was preserved by mention of the outstanding arrest warrant and reference to Gibson, because that case explains the fruit of the poisonous tree doctrine and the three theories of unpoisoning the fruit; attenuation and dissipation of taint are fruit of the poisonous tree concepts. T he State ass erts that by citing Gibson, the underlying doctrine of unpoisoning the fruit of the alleged illegal stop was before the motions court and, therefore, the Court of Special Appeals erred by holding otherwise. We reject Petitioner s argument and the conclusion of the Court of Special Appeals, as to this point, and hold that the intervening cause or circumstanc e issue is properly before us. It is well settled that an arrest is constitutionally valid where the arresting officer acted in good faith and ob tained a warra nt base d upon probab le cause . Chime l v. California , 395 U.S. 752, 754, 89 S.Ct. 2034, 2035, 23 L.Ed.2d 685, 688-89 (1969) (establishing standards for searches incident to a lawful arrest). The burden of production and persuasion is on the party who w ould re but the p resum ptive va lidity of the warra nt. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 25 56, 256 1, 65 L .Ed.2d 633, 64 1 (198 0) (notin g that P etitioner . . . bears the burden of proving that the search . . . was illegal ); Dunca n and Sm ith v. State, 27 Md. App. 302, 315-16, 340 A.2d 72 2, 731 (19 75) (stating g enerally that the defendant has -10- the burden of going forward with the evidence at a suppression hearing, and [t]he burden of persuasion remains throughout upon the one who at the outset has asserted the affirmative of the issue ) (citations omitted). The issue before us is a question of law, and we review questions of law de novo. State v. Rucker, 374 Md. 199, 207, 821 A.2d 439, 444 (2003) (noting that on appellate review of a suppression motion, we undertake an independent constitutional review of the record and apply the law to the facts and circumstances of the case). In the instant case, the State contended at the suppression hearing that Petitioner was arrested pursuant to a warrant. For certain, the burden was on Petitioner to prove at that hearing that his arrest was unlawful. In that regard, Petitioner argued that the stop was unconstitutional and that the subsequent arrest and seizure of evidence were the fruits of the poisonous tree. In response, th e State did not use the words intervening circumstance or cause. Its basic premise, however, was the same at the suppression hearing and on appeal that Petitioner w as arrested p ursuant to an arrest warrant; the burden was on the defense to show that the arrest warrant was invalid. In addition, the State relied on Gibson, 138 Md. App. 399, 771 A.2d 536, which involved an explanation of the fruit of the poisonous tree doctrine and the applicable process that is employed to dissipate or attenuate the taint of the primar y illegality. We hold that the issue as to the legality of the arrest was plainly preserved, for appellate review, even though the State did not use the magic words, dissipate or -11- attenuate, to explain why the initial encounter [did] not matter because of the intervening event, i.e., the discovery of an outstanding warrant and an arrest pursuant thereto. Thus, we are sa tisfied that the iss ue was p ut forth at the trial level and th e contention that there was an intervening circumstance is properly before us.4 C. Suppression of the Evidenc e - An Ap plication of Myers v. State Because the intervening cause argument is properly before us, we now examine whether the police discovery of the arrest warrant and arrest of Petitioner pursuant to that warrant constituted an intervening cause that dissipates the taint of the arguably illegal stop. Petitioner argues that even if the State s intervening cause argument was preserved, the trial court nonetheless correctly suppr essed the ev idence rec overed af ter Petitioner w as illegally 4 Moreover, even if the issues we re not prese rved, this Co urt has, and th e Court of Special Appeals had, the discretion to review the intervening circumstance argument pursuant to Rule 8-1 31. Mar yland Rule 8-131, entitled Scope of review, states, in pertinent part: (a) Generally. The issues of jurisdiction of the trial court over the subject ma tter and, unles s waived under R ule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decide d by the trial court. Ordinarily, the appellate court will not decide any other issue unless 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 av oid the expen se and de lay of anothe r appeal. See Dorsey v. Tarpley, 381 Md. 109, 112 n.2, 847 A.2d 445, 446 n.2 (2004) (noting that we have the discretion to review argumen ts not raised at th e trial level); see also Roa ry v. State, 385 Md . 217 , 225 -26, 867 A.2d 1095, 1 100 (200 5) (n oting tha t we may exercise our discretio n to con sider an issue tha t was n ot raised in the tria l court). -12- stopped. Petitioner cites Ferguso n v. State, 301 Md. 542, 483 A.2d 1255 (1984), in which this Court examined the attenuatio n doctrine a nd ultimately ad opted the m ulti-factor ana lysis articulated by the Supreme Court in Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L.Ed. 2d 416 (1 975). Petitioner explains that this Court, by adopting the S upreme Co urt s Brown analysis, examines three factors to determine whether evidence obtained after an illegal arrest or stop h as been p urged of the taint of the illegality. The first factor is the temporal proxim ity of the ille gality and the evid ence. See Ferguson, 301 Md. at 549, 483 A.2d at 1258. Petitioner next explains that the second factor to be weighed is the presence of an interv ening e vent. See id. Lastly, Petitioner posits that the third factor is the purpose and flagrancy of the official misconduct. See Ferguson, 301 Md. at 549, 483 A.2d at 1258. Based on these three factors, Petitioner contends that the officer s discovery of the marijuana after Petitioner s illegal detention was not so attenuated such that it would dissipate the taint of th e illegal s top. As to the first factor, Petitioner asserts that the discovery of the marijuana and the illegal stop were contemporaneous and that this Court, in Ferguson, stated that a lapse of twenty minutes weighed in favor of suppression. Ferguson, 301 Md. at 550, 483 A.2d at 1259. Next, Petitioner states that the arrest was not an intervening circumstance based on the Seventh C ircuit s analysis in United States v. Ienco, 182 F.3d 517 (7 th Cir. 1999). 5 By 5 Petitioner explains that in Ienco officers responded to a call concerning a disturbance in a buildin g and s aw Ien co leav ing upo n their ar rival. After questioning Ien co, the officers took his wallet and driver s license and placed him in the backseat of the patrol car while the (contin ued...) -13- analogy to Ienco, Petitioner argues that it is evident that the contraband was left on the ground before, and not after, [Petitioner] was arrested on the valid warrant because Petitioner was seated wh ile illegally detained and stood up to be arrested. Petitioner contends, therefore, that under Ienco, this Court should find that the marijuana should be suppre ssed. Petitioner states further that even if the arrest warrant does constitute an intervening cause, that fact alone does not mandate admission of the tainted evidence. Instead, Petitioner cites cases in other jurisdictions for the proposition that the analysis is actually a balancing test and that no one factor should be given dispositive weight. Petitioner then discusses the third Ferguson factor and argues that an officer s act of arresting an individual without probable cause weighs in favor of suppression. According to Petitioner, because Sergeant Bryant stopped Petitioner without reasonable articulable suspicion, Sergeant Bryant acted purposef ully and flagra ntly. Moreov er, Petitioner state s that Serge ant Bryant stop ped him with the hope that the officer would discover an outstanding warrant or contraband because he never questioned Petitioner about the recent robberies, making his conduct even m ore 5 (...continued) officers continued their investigation. Ienco was subsequently arrested and taken to the police station. Seve ral hours later, th e police sea rched the p atrol car and discovered a key to a minivan, which police later sea rched a nd reco vered in crimina ting evid ence. The United States Court of App eals for the S eventh Circuit determ ined that Ien co was u nlawfully arrested when placed in the backseat o f the patrol ca r while the p olice continu ed their investigation. The court then determined that the legal arrest was not an intervening event that cut off the causal connection between the illegal detention and van search, noting that Ienco could hav e left the key in the minivan during the period of the illegal detention in the car. -14- flagrant. Pe titioner lastly asserts tha t [t]o permit the State to use evidence obtained in this fashion would sim ply encourage officers to b egin stopp ing individu als without reasonable articulable suspicion to do so and with the sole intention of uncovering contraband, knowing that if it was revealed that the individual had an outstanding warrant any evidence recovered w ould not b e subject to th e exclusion ary rule despite their unlawful act of stopping the individual in the first place. Petition er there fore co nclude s that sup pressio n is the p roper re medy. The State contravenes Petitioner s position on the basis that even if the s top were illegal, the existence and discov ery of the warrant dissipates the taint. The State explains that this Court, by adopting the case law of the Supreme Court, has noted three methods by which evidence obtained after initial unlawful conduct can be purge d of any taint. F irst, taint will be purged if the police would have inevitably or ultimately discovered the evidence notwithstanding a const itutiona l violatio n. See Myers, 395 M d. at 285 , 909 A.2d at 1062 (citing Nix v. Williams, 467 U.S. 431, 443 n.4, 104 S. Ct. 2501, 2509 n.4, 81 L. Ed. 2d 377, 387 n.4 (1984)). Second, the taint will be purged upon a showing that the evidence was derived from a n indep enden t source . See Myers, 395 M d. at 284-85 , 909 A.2d at 1062 (citing Segura v. United States, 468 U.S. 796, 813-14, 104 S. Ct. 3380, 3390, 82 L. Ed. 2d 599, 614 (1 984)). T hird, the taint will be purged if the illegal government conduct is so attenuated as to pu rge any ta int resulti ng fro m that c onduc t. See Myers, 395 Md. at 284, 909 A.2d at 1062 (citing Wong Sun, 371 U .S. 471 , 487, 83 S.Ct. 40 7, 417, 9 L.Ed.2 d 441, 455 (1963); Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312 -15- (1939)). In analyzing the Brown factors, the State argues that even though the time lapse between the stop and the discovery of the evidence was relatively brief, this Court should conclude, in accordance with Myers, as well as the United States Court of Appeals for the Seventh Circuit in United Sta tes v. Green, 111 F.3d 515, 52 1 (7 th Cir. 1997), 6 that the question o f timing is no t dispositive on the issue of taint. In addition, the State argues that because this Court, in Myer s, decided that the discovery of an outstanding arrest warrant is an intervening circumstance, the second factor clearly weighs in the State s favor. The State distinguishe s this case from Ienco because there existed no outstanding arrest warrant in Ienco. The State points out that the Ienco court specifically noted that, in Green, it had held that the discovery of an outstanding arrest warrant is an inte rvenin g circum stance, see Ienco, 182 F.3d at 527-28, and that the c ase wa s differ ent from a Fifth C ircuit cas e, United States v. Walker, 535 F.2d 896, 89 8-99 (5 th Cir. 1976), where an initial illegal arrest did not taint evidence found in a search pursuant to a second lawful arrest. The State argues, 6 In United States v. Green, 111 F.3d 515 , 521 (7 th Cir. 1997) , the driver of a vehicle was illeg ally stopped, resulting in his detention by police. The police then performed a background check and discovered an outstand ing warrant for the pa ssenger of the car s arrest. The police arrested the passenger and searched the vehicle, discovering cocaine and a firearm . The police arrested the passenger and offered the evidence at his trial. The court applied the Brown test. The court determined that the first factor, time, was not dispositive on the question of taint. As to the second factor, the court determined that [t]he intervening circumstances of this case, because they are not outweighed by flagrant official misc onduct, dissipate any taint caused by the illega l stop . . . . Lastly, the court determined that because the police searched the car subseq uent to the discovery of the arrest warrant, their conduct was not purposeful or flagrant, as they did not take advantage of the stop to search the car. The court therefore determine d that the purpose of the exclusionary rule, to deter lawless conduct by the police, would not be furthered by excluding the evidence found in the car as a result o f a searc h incide nt to an a rrest. -16- therefore, that because the police ha d probable cause to a rrest Petitioner before they discovered the marijuana, the fact that Petitioner may have discarded the bag while he was seated on the gro und is not relevant. On this point, the State cites Myers, 395 Md. at 292, 909 A.2d at 1066, where this Court held that the question of timing is not dispositive on the issue of taint, especially because there was an outstanding arrest warrant discovered between the initial stop and the subseque nt search incident to the arrest, even though some of the evidence was disco vered sho rtly after the illegal stop. The State points out that Sergeant Bryant stopped Petitioner because he loosely fit the description of recent burglars and that nothing in the record indicates that Sergeant Bryant acted in bad faith when he approached Petitioner and Martin for identification, as Petitioner suggests in his brief. Therefore, the State concludes that this Court must find that the probable cause from the outstanding warra nt dissip ated an y taint from the initial detentio n. We reject Petitioner s contention as to this point and again agree with the State. As we stated supra, even if the police officer s initial encounter with Petitioner was illegal, that fact would n ot be dispo sitive at this stage in our analysis. In Myers v. State, we analyzed the impact of an outs tanding arre st warrant o n an argu ably unlawful stop by police officers and the application of the three factors under Brown for determining whether the causal connection had been sufficiently attenuated to dissipate the taint of the illegal conduct. In Myers, a case factually similar to the case, sub judice, we held that, assuming arguendo, the initial stop by the po lice of M yers s vehicle w as illegal, the of ficer s discovery of the -17- outstanding warrant and arrest of Myers pursuant to that warrant was sufficient to remove the taint of the initial stop such that the subsequent search of Myers and his vehicle were lawful. In addition, we acknowledged that some of the evidence was seized almost immedia tely after the arrest, w hereas some was seized some time later after the officer obtained the additional warrants. We reasoned, however, as the State asserts, in the instant case, that the question of timing is not dispositive on the issue of taint, especially because there was an outstanding arrest warrant discovered between the initial stop and the subsequent search incident to the arrest, even though some of the evidence was discovered shortly after the illegal stop. Further, we explained that the discovery of the warrant for Myers s arrest constituted an intervening circumstance or cause that attenuated the taint of the illegal stop. Ultimately, we looked to the purpose and flagrancy of the officer s conduct and determined that the purpose of the stop was not to effectuate the arrest of Myers on an outstanding warrant or to search his vehicle. Merely because Officer Weikert s stop of Myers was determined to be invalid does not mean that his conduct was flagrant. Myers, 395 Md. at 293, 909 A.2d at 1067. Instead , we concluded that the officer stopped M yers because of what he thought was suspicious activity speeding. Once he discovered an outstanding warrant, the officer gained an independent and intervening reason to arrest and search Myers. Therefore, we held that the lawful arrest and search of Myers attenuated the taint of th e illegal s top and the evid ence w as adm issible. In our application of Brown v. Illinois and Myers to the facts of this case, we focus -18- our attention on the three factors articulated in Brown, supra. The Temporal Proximity Factor First, we examine the temporal proximity between the illegal stop and the evidence obtained. The stop and discovery of the marijuana were nearly contemporaneous in this case, which is likely not enough of a time lapse to attenuate the taint of the presumptively illegal stop, as Petitioner suggests. This factor suggests that the greater the time lapse between the illegality and disco very of evide nce, the greater the chance that the taint has been purged. In the case sub judice, there existed a time lapse of merely two minutes. Neither the Supreme Court, nor this Court, has articulated an exact length of time that would guarantee that the taint had been purged, however, the time lapse between th e illegal stop and discovery of evidence can hardly be less than it was he re. Although, the two m inute time lap se in this case, on the surface weighs in Petitioner s favor, it is not, on its own, dispositive. The temporal proximity factor must depend, therefore, on other factors to which it relates, because a lengthy detention can be used to exploit an illegal arrest at least as easily as a brief detentio n. Ferguson, 301 Md. at 550, 483 A.2d at 1259 (citing Dunaway, 442 U.S. at 220, 99 S.C t. at 2261 , 60 L.E d.2d at 8 41 (Ste vens, J., c oncurr ing)). Because the te mpo ral proximity f actor has been labeled ambiguous and our observation in Myers that the que stion of timin g is not dispositive on the issue of taint, we focus on the o ther tw o facto rs. This proposition has been echoed in other courts, including the Seventh C ircuit in Green, where a period of only five minutes elapsed between the illegal -19- stop and discovery of evid ence. See Green, 111 F.3d at 521 (stating that the time span between the police misconduct and the search is not dispositive on the question of taint ) (citations omitted). We also note our conclusion in Ferguson that the Brown factors must be balanced and that no single factor is dispositive on the issue of attenua tion. See Ferguson, 301 M d. at 553 , 483 A .2d at 12 60. The Intervening Event Factor We therefore turn our attention to the second factor to evaluate the existence of an intervening event. As we stated in Myers, 395 Md. at 287-88, 909 A.2d at 1063-64, [a]n intervening circumstance is an event that breaks the causal connection between the unlawful conduct and the derivative evidence (citing Ferguson, 301 Md. at 551, 483 A.2d at 1259). In this case, the officers discovered the baggie of marijuana on the ground after Sergeant Bryant learned of Petitioner s outstanding arrest warrant, stood Petitioner up from the curb, and arrested him pursu ant to that w arrant. Serge ant Bryant did not ask Pe titioner and M artin to sit on the ground until after he received the code Sam Roberts, alerting him that one of the two men had a warrant outstanding for his arrest. We therefore agree with the State that the police had probable cause to arrest Petitioner before they discovered the marijuana.7 Although Petitioner may have discarded the bag of marijuana while he was seated on the 7 See Myers v. State, 395 Md. 261, 286-90, 909 A.2d 1048, 1063-65 (200 6), for a discussion of other jurisdictions that have similarly determined that the police discovery of an outstanding arrest warra nt constitutes a n intervenin g cause tha t attenuates any taint derived from th e illegal s top. -20- ground, that fact is not dispositive to our analysis or holding in this case.8 While Petitioner again cites Ienco, this time for the proposition that a lawf ul arrest is not an intervening circumstance because the Ienco court determ ined that it w as not an intervening event, we must reject that argu ment a s well. Petitioner s arg ument lac ks merit because Ienco is distinguishable from the case sub judice on a significant point. The o fficers in Ienco did not discover an outstanding warrant, as Sergeant Bryant did in this case; hence, Ienco is inapposite.9 The Flagrancy of the Police Conduct Factor The third and final factor is the purpose and flagrancy of the police misconduct. In this case, Sergeant Bryant testified that he stopped P etitioner beca use he an d Martin lo osely fit a witness s description of the perpetrators of recent robberies. Sergeant Bryant also knew 8 We note that if Petitioner abandoned the marijuana on the ground, then he could not later claim that seizure of that substance was illegal and, the refore, inad missible aga inst him in court. It is well settled th at Fourth A mendm ent protection , howev er, does no t extend to property that is ab andon ed. By abando ning prop erty, the owne r relinquishes the legitimate expectation of privacy tha t triggers Fou rth Amendment protection. Stanberry v. State, 343 Md. 720, 731, 684 A.2d 823 , 828-2 9 (199 6). See also State v. Boone, 284 Md. 1, 6, 393 A.2d 1361, 1364 (1978), (stating that without question, abandoned property does not fall within that c ategory in wh ich one ha s a legitimate e xpectation of privacy to bring it within the protection of the Fo urth Amen dment, but w heth er pr operty is abandoned is generall y a question of fact ba sed upon evidence of a com bination of act and intent ) (citations omitted). 9 Of additional consequence, as the State points o ut, is that the Ienco court specif ically noted that, the interval between the police misconduct and the acquisitio n of evide nce is not itself dispositive and must be considered along with any intervening circumstances, and then cited to Green, where it had held that the discovery of an outstanding arrest warrant constitu tes an in tervenin g circum stance. Ienco, 182 F.3d at 52 7. -21- that the robberies had occurred in that area. There exists nothing in the record to suggest that the Sergeant acted in bad faith. As we stated in Myers, once Sergeant Bryant discovered the outstanding warrant for Petitioner s arrest, he gained an independent and intervening reason to arrest and search [Petitioner]. Furthermore, [m]erely because [the Sergeant s] stop of [Petitioner] was determined to be invalid does not mean that his conduct was flagrant. Id. A balance of the factors therefore demonstrates that the arrest pursuant to the outstandin g warrant sufficiently attenuates any taint caused by the arguably illegal stop. While only two minutes elapsed between the illegal stop and discovery of the marijuana, we have made clear that this factor alone is not dispositive on the attenuation issue. The arrest pursuant to the outstanding warrant constituted an intervening event, and nothing in the record suggests any flagrant misconduct by Sergeant Bryant when he stopped Petitioner and asked for identification. The other two factors there fore outw eigh the tem poral prox imity factor. Furthermore, we agree with the United States Court of Appeals for the S eventh Circuit s analysis in United States v. Green, 111 F.3d 515, 52 2 (1997): Where a lawful arrest pursuant to a warrant constitutes the intervenin g circums tance (as in this case), it is an even more compelling case for the conclusion that the taint of the original illegality is dissipated. Typically, the intervening circumstance which dissipates the taint involves a voluntary act by the defendant, such as the voluntary confessio n or conse nt to search given after an illegal search or seizure. In intervening circumstance cases involving subsequen t action on the defend ant s part, courts exer cise great car e in evaluati ng the later -22- consent or confes sion to ensure it is truly voluntary and not the result of the earlier, and unconstitutional, police action . . . . In such cases, the dispositive question is whether the illegal act bolstered the pressure s for him to give the [statement], or at least vitiated any incentive on his part to av oid self -incrim ination . . . . In these cases, the time betw een t he illegal ity and the cons ent is important because th e closer the tim e period, the more likely the consent was influenced by the illegality, or that the illegality was exploited. Conversely, whe re a lawful arrest due to an outstanding warrant is the intervening circumstance, consent (or any act for that matter) by the defendant is not req uired. Any influence the unlawful stop would have on the defenda nt s condu ct is irrelevant. And in the case of an arrest made pursuant to a warrant there is also no chance that the police have exploited an illegal arrest by creating a situation in which [the] criminal response is predictable, such as creating a situation where th e criminal w ill flee, which in turn will give the police an independ ent basis for an arrest, and thus a search incident to the arrest. Thus, in this case there is less taint than in the cases already recognized by the Supreme Court and this and other circuits as fitting within the intervening circumstances exception. (Citatio ns omi tted.) JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIR M ED, WITH COSTS. -23-
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