Holt v. State

GREENE, J.,

dissenting, in which HARRELL, J., joins.

Respectfully, I dissent. The detectives in this case, McShane and Crystal, only had an “unparticularized suspicion or hunch” when they stopped Petitioner Jamar Holt (“Petitioner” or “Mr. Holt”). See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968). Their “hunch” never reached the level of reasonable suspicion, and it is for this reason that I dissent from the Majority opinion. Accordingly, I would reach the second issue on appeal: whether the intermediate appellate court erred in holding that any new crime committed by a defendant after an illegal stop by the police purges the taint of the illegal police conduct, thus allowing the introduction of such evidence at trial.

First, considering the totality of the circumstances, the detectives did not obtain enough evidence to reach the reasonable suspicion threshold when they stopped Petitioner. “A traffic stop is justified under the Fourth Amendment where the police have a reasonable suspicion supported by articulable facts that criminal activity is afoot.” Lewis v. State, 398 Md. 349, 361, 920 A.2d 1080, 1087 (2007). This Court has concluded “that the reasonable suspicion standard requires the police to possess ‘a particularized and objective basis’ for suspecting legal wrongdoing.” Lewis, 398 Md. at 362, 920 A.2d at 1087 (quoting Myers v. State, 395 Md. 261, 281, 909 A.2d 1048, 1060 (2006)). In contrast, “mere hunches that unlawful activity is *469afoot do not support a traffic stop.” Lewis, 398 Md. at 364, 920 A.2d at 1088; see, e.g., Cartnail v. State, 359 Md. 272, 753 A.2d 519 (2000) (holding that the police officer did not have reasonable suspicion to pull over the Petitioner when he had not committed a traffic violation, and when the only evidence the officer had was a report from unidentified sources claiming they witnessed three black males rob a hotel and flee in a car similar to the car Petitioner was driving).

In the present case, not only was the evidence against Petitioner related solely to his association with Blue, but there was not a sufficient similarity between the June 29 meeting between Blue and Townsend and the July 13 meeting between Blue and Petitioner for officers to reasonably suspect Petitioner was involved in a drug transaction with Blue. Further, during the detectives’ surveillance, no one witnessed an exchange of the tupperware or any other container or substance. There was also no direct evidence that the tupperware retrieved by Blue contained contraband or currency and Blue was not known to transport drugs in tupperware containers. What the Majority’s opinion essentially will stand for is that if a person associates with a “known drug dealer,” there is automatically reasonable suspicion to stop that person if found in the company of the “known drug dealer.” Such an association and conclusion avoids all precepts of Fourth Amendment protection. Here, the trial court determined that “[tjhere was no reasonable suspicion to justify an investigatory stop of Mr. Holt’s vehicle.... [T]he purpose of that stop was [not] for anything more than to find out who the driver of the vehicle was, and see if they couldn’t [sic] search the vehicle to find drugs,” and moreover, the detectives’ “instincts and hunches and the hairs on the back of their necks were raised, but that does not make reasonable suspicion.” This was emphatically the correct conclusion and the findings of fact were not clearly erroneous.

Absent reasonable suspicion to justify the stop of Petitioner, the second issue on appeal becomes relevant; namely, whether any new crime committed by a defendant purges the taint of any illegal actions by the police thereby rendering irrelevant *470the flagrancy of the police misconduct. I would hold that it was error to disregard the attenuation factors set forth in Cox v. State, 421 Md. 630, 28 A.3d 687 (2011), and its progeny when deciding whether a new crime committed after an illegal stop was enough to purge the taint of the illegal police misconduct.

Such evidence obtained following an illegal search or seizure is clearly the “fruit of the poisonous tree.” Under that doctrine, direct or indirect evidence obtained in violation of the Fourth Amendment is excluded from a criminal trial. Myers v. State, 395 Md. 261, 291, 909 A.2d 1048, 1066 (2006). Not all evidence obtained subsequent to police misconduct is subject to the exclusionary rule, however. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 445 (1963). Maryland courts are required to apply the factors outlined in Cox to determine whether evidence obtained is so attenuated as to purge the taint of the illegal conduct. The factors are: “(1) the proximity between the actual illegality and the evidence sought to be suppressed; (2) the presence of intervening factors; and (3) the flagrancy of the governmental misconduct involved in the case.” Cox, 421 Md. at 652-53, 28 A.3d at 700. It would be reversible error to ignore this precedent when evaluating whether a new, distinct crime committed by the suspect is an intervening circumstance sufficient to purge the taint of the police misconduct in violation of the Fourth Amendment. See Brown v. Illinois, 422 U.S. 590, 601-04, 95 S.Ct. 2254, 2260-62, 45 L.Ed.2d 416, 425-27 (1975) (standing for the proposition that in order for the causal chain between an illegal arrest and subsequently obtained evidence to be broken, a consideration of the evidence’s admissibility in light of distinct policies and interests of the Fourth Amendment is mandated).

The Court of Special Appeals’s holding, that “a[ny] new [and distinct] crime, even if causally linked to illegal activity on behalf of law enforcement, is an intervening circumstance that attenuates the taint from that illegal activity,” State v. Holt, 206 Md.App. 539, 565, 51 A.3d 1, 16 (2012), effectively eliminates the application of the above factors and completely *471disregards the exclusionary rule as it pertains to new crimes committed following illegally obtained evidence. In particular, the intermediate appellate court’s holding ignores the “flagrancy of governmental conduct” factor and establishes a new standard. As noted in Cox, “[t]his factor cuts to the heart of the purpose behind the exclusionary rule: to provide[] an incentive for police to engage in lawful conduct.” 421 Md. at 655, 28 A.3d at 701-02 (quotations omitted). To ignore the third attenuation factor, then, would be to ignore the very purpose underlying the exclusionary rule, and would make the protections afforded to defendants by the Fourth Amendment obsolete.

Situations are certain to arise in which an assault on a police officer following an illegal stop is so attenuated to purge the taint of the officer’s misconduct. For example, in a case where a suspect ran approximately two blocks from the officers following an illegal stop, and then pulled a gun and fired at them, it was held that this action was sufficiently attenuated as to avoid exclusion of such evidence under the Fourth Amendment. United States v. Sprinkle, 106 F.3d 613, 616, 620 (4th Cir.1997). In the present case, the suppression court was correct to apply the attenuation factors, in the first instance, to determine whether the Petitioner’s subsequent illegal actions — namely, possessing a handgun and driving his vehicle in the direction of the officers — were sufficiently attenuated so as not to receive Fourth Amendment protection. The Court of Special Appeals, however, incorrectly chose not to apply those factors. The decision of whether a subsequent crime constitutes an intervening circumstance must be determined on a case-by-case basis, and ultimately, this analysis is whether Petitioner’s actions were a new, distinct crime, which was “so attenuated from the evidence as to purge any taint resulting from said conduct,” Miles v. State, 365 Md. 488, 520-21, 781 A.2d 787, 806 (2001). The intermediate appellate court did not partake in this analysis, and therefore, courts should not follow its reasoning in this regard.

Judge HARRELL authorizes me to state that he joins in this dissenting opinion.