Smith v. State

GARRITY, Judge,

dissenting.

I respectfully dissent from the majority opinion. If a suspect, while fleeing from a police officer responding to the report of a discharge of weapons in a high crime area, is seen *681to place an object that the officer believes to be a handgun into his waistband, the police officer ought to be allowed to conduct a thorough protective pat-down search of that particular area on stopping the suspect, even though a mere cursory pat-down failed to reveal the object that had been in fact tucked into a shirt-covered waistband in back of appellant’s pants.

On the foundation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, including Aguilar v. State, 88 Md.App. 276, 594 A.2d 1167 (1991), I would hold the motions judge’s denial of appellant’s motion to suppress the evidence of twenty baggies of rock cocaine, which had fallen out of appellant’s waistband when the shirt covering was “tugged by Officer White,” to be eminently correct. Under the circumstances known to the police officer, the scope of the protective search was, under the ambit of the Fourth Amendment, necessary and reasonable to disclose the handgun thought to have been tucked under the waistband. Not only did Officer White have a reliable basis for believing that the appellant was armed and dangerous, but the officer was engaged in the process of completing a careful and thorough protective pat-down search of the particular waistband area when the object fell to the ground.

The following colloquy between the motions judge and Officer White is most revealing:

THE COURT: And what was the purpose of the technique where you sort of tugged at the shirt or the waistband which caused something to fall out? Is that a specific kind of technique that you learned in the academy or something?
[OFFICER WHITE]: No, Your Honor, when I went up and I went to perform my stop and frisk, the shirt was over the waistband. Basically what I did is as I patted it, I pulled the shirt out just so I could see the waistband to make sure nothing was sticking out even though I patted *682him, like to double check, and as I tucked[1] the shirt back to see the waistband, that’s when the object fell out.

In rendering his opinion, the motions judge stated:

That upon reaching the location that there was a crowd dispersing, and that this particular individual was dispersing away from the officers rather than at an angle as were the others, and that not only was that all being done, but that that individual was tucking something into the back of his waist.
And in the context of that location, that call, and those observations, the officer made the conclusion that that individual had tucked a firearm there, and I cannot say that he did not have a reasonable suspicion that what was tucked was a firearm. Therefore, he was permitted to conduct a limited pat-down.
And that upon completing that very cursory, short search, that the officer did one more thing, which was to tug at the shirt to see if tugging at the shirt would reveal the outline of a gun, and in such tugging out of the waistband, because of the way that they were tucked, fell the contraband, which the officer immediately determined was contraband and justified the arrest. [Emphasis added.]
That here as the escalating pieces of the puzzle were coming into the officer’s mind the officer drew the inference that the individual disappearing into Mountmor Court rather than moving in the other direction was the member of the earlier referred to group that was selling drugs, that now had the gun, even though the earlier caller had talked about an individual with a striped shirt, because of what the officer observed the defendant doing, most importantly the tucking into the back of his waistband, which would be the *683normal place to secrete a weapon, and under those circumstances, the motion to suppress is denied.

In essence, although the motions judge found that the “very cursory, short search” had been completed, he determined that Officer White was justified, under the totality of circumstances as known to the officer, to continue the search and “tug at the shirt to see if tugging at the shirt would reveal the outline of a gun.... ”

When we consider the “scope” of a Terry frisk we are dealing with two limiting factors, its duration and its area. We have ruled that the duration of a Terry frisk is limited to the time it takes to effect the necessary pat-down and no longer. Snow v. State, 84 Md.App. 243, 578 A.2d 816 (1990). The rule defining the area that may be frisked is not so easily stated.

Citing Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1651, 18 L.Ed.2d 782 (1967), the Court, in Terry, stated:

The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.
The distinctions of classical ‘stop and frisk’ theory thus serve to direct attention from the central inquiry under the Fourth Amendment—the reasonableness in all circumstances of the particular governmental invasion of a citizen’s personal security.

392 U.S. at 19, 88 S.Ct. at 1878 (citations omitted, emphasis added).

The Terry Court observed that there is “no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.” Terry, U.S. 392 at 21, 88 S.Ct. at 1879-80 (citing Camara v. Municipal Court, 387 U.S. 523, 534-535, 87 S.Ct. 1727, 1733-34, 18 L.Ed.2d 930 (1967)).

The Supreme Court further counseled:

[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, *684taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief that the action taken was appropriate? [Emphasis added.]
When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.
A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a ‘full’ search, even though it remains a serious intrusion.
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 entitled to draw from the facts in light of his experience.

*685Terry, 392 U.S. at 21-27, 88 S.Ct. at 1879-83 (citations omitted, footnote omitted).

Based upon these principles, the Supreme Court then examined the particular conduct of the police officer “in this case to determine whether his search and seizure of petitioner were reasonable, both at their inception and as conducted.” Id. at 28, 88 S.Ct. at 1883 (emphasis added). The Court then determined that the facts and circumstances detailed by the police officer warranted a belief that the petitioner was armed and presented a threat to the officer’s safety.

In focusing on the scope of the search, the Court stated: the Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing pre conditions upon its initiation____ Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation.

Id. at 28-29, 88 S.Ct. at 1883-84.

The Court went on to explain that it did not intend to carve in stone the particular limitations it sanctioned in Terry to apply to all protective searches. It stated rather,

We need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective seizure and search for weapons. These limitations mil have to be developed in the concrete factual circumstances of individual cases ... The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

Id. at 28-29, 88 S.Ct. at 1883-84 (emphasis added).

The Court then examined the scope of the police officers’ search and determined “the scope of the search in this case presents no serious problem in light of these standards.” Id. at 29, 88 S.Ct. at 1883-84 (emphasis added). Although the Court recognized in that particular case the officer did not *686invade the petitioner’s person beyond the outer surface of his clothes, it is crucially important to note that the Court did not hold that under other facts and circumstances, a further intrusion would not be allowed. The Court concluded:

Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his. reasonable fear for his own or other’s safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id. at 30, 88 S.Ct. at 1884-85 (emphasis added).

Thus, while in Terry the officer only needed to frisk outer clothing to find the weapon, the Supreme Court did not rule under all circumstances that an investigatory protective search must be limited to outer clothing frisks. Indeed, as in the case at bar, it is clear that such a limitation, under the particular facts and circumstances that an officer encounters, unreasonably places him or her in immediate and direct jeopardy.

In Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), a police officer had a reliable tip that an individual (Williams) seated in a nearby vehicle was carrying narcotics and had a gun at his waist. The Court examined the particular circumstances in relation to scope and held that “the policeman’s action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable. The loaded gun seized as a result of this intrusion *687was therefore admissible at Williams’ trial.” Id. at 146, 92 S.Ct. at 1923 (emphasis added).

The Supreme Court clearly explained its previous holding in Terry as being “when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, he may conduct a limited protective search for concealed weapons ... So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.” Id. at 146, 92 S.Ct. at 1923. Again, it is crucially important to realize that the Court, as in Terry, did not limit a protective search to a mere cursory pat-down of outer clothing when the facts and circumstances known to the officer warranted further intrusion.

In the case at bar, Officer White testified he believed the appellant had a gun because there had been a report of a recent discharge of a firearm and that the appellant had acted the way armed persons act when conducting drug security for a drug operation. Also, the officer testified that the appellant’s shirt was positioned in such a way that hid the waistband and therefore he “pulled the shirt out to see the waistband to make sure nothing was sticking out even though I patted him, like to double check....”

These facts, coupled with Officer White actually seeing the appellant place an object, which he reasonably believed to be a handgun, in the back of appellant’s waistband, warranted Officer White to continue to believe that appellant might be armed.

Indeed, these facts operate to distinguish Aguilar. In Aguilar we ruled that once a pat-down reveals that the only object the detainee has secreted under his clothing is an object that could not be a weapon, the officer must end his frisk. We did not consider whether the search was illegal on the ground that it exceeded the scope allowed by law. In the instant case, Officer White knew that there was some object under the *688appellant’s waistband, but by his initial frisk was unable either to see or feel the object because of the manner in which the outer clothing had been arranged. The facts known to him caused Officer White actually to continue to maintain a reliable basis to believe a weapon was present. In essence, under the circumstances of this case, because of appellant’s conduct indicating the secreting of a weapon, which suspicion was not dispelled by an initial 'cursory pat-down, the facts known to him warranted Officer White to continue to believe that the appellant might be armed and to extend his protective search to the waistband area.

At the risk of being redundant, it is most important to realize clearly that the Supreme. Court did not confine a weapons search to mere outer clothing if the circumstances otherwise warranted, as expressly counseled in Terry and Williams. Indeed, there is absolutely nothing in the case law that holds that an officer must frisk a particular area only one time and in only one way. What happened here was that the officer tried first to conduct the frisk by being as unintrusive as possible. He did this by conducting a cursory frisk. When he felt nothing, even though he actually had observed the appellant put an object under his shirt and in the back of his pants, the officer knew that his cursory protective search had not been complete. He then pulled the appellant’s shirt out in order to conduct a more intrusive frisk.

I see absolutely nothing wrong with proceeding this way. In effect, the officer tried to complete his protective search by being as unintrusive as possible. The majority, by ruling as it does, actually penalizes the officer for trying to give added respect to the appellant’s right of privacy.

Since the United States Supreme Court and our Court of Appeals has seen fit to extend the scope of protective frisks to containers a detainee is carrying, Lee v. State, 311 Md. 642, 537 A.2d 235 (1988); to a car a detainee is occupying, Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); and to the house that a detainee is occupying, Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 *689(1990); it seems most logical to me that, in order to secure the safety of a police officer, we should also allow the unimpeded search of a waistband when by a mere cursory frisk of outer clothing, a police officer cannot determine whether the detainee has secreted a weapon in his waistband due to an overlapping shirt. I suggest that a frisk of a detainee’s interior clothing is reasonable under the Fourth Amendment where:

1. The officer first frisks the outer clothing and finds nothing;
2. The officer’s reasonable belief that the detainee is armed and dangerous has not been dispelled; and
3. There is something about the detainee’s clothing that has made it impossible with the exterior frisk alone to determine whether the detainee possesses a weapon.

All three of these conditions were met in this case. I would affirm the circuit court’s ruling that the police officer conducted a reasonable limited intrusive search of the area where he believed a weapon to be hidden.

. Although neither parly corrected the phonetic record, it would appear that the word "tucked” should have been "tugged,” in response to the court’s question.