Byndloss v. State

Dissenting Opinion by BELL, Chief Judge which GREENE, J., joins.

Respectfully, we dissent.

The majority acknowledges, as we believe it must, that the period of time that the driver, Ms. Malone, and petitioner, Orlando Byndloss, as passenger, were detained was an extended period of time. The majority characterizes the central issue in the case as “whether the extended length of time that the driver and passenger were detained while the officer retrieved the information improperly extended the traffic stop beyond what is considered reasonable under the Fourth Amendment of the United States Constitution or Article 26 of the Maryland Declaration of Rights.” 391 Md. 462, 465, 893 A.2d 1119, *4931123 (2006) (footnote omitted). After analyzing the nature of the stop, however, and the officer’s diligence, as the majority does, we are led to a contrary conclusion; namely, that the lack of reasonable suspicion and the officer’s lack of diligence resulted in an unreasonable detainment of the petitioner.

A law enforcement officer’s objective in a routine traffic stop is to enforce the laws of the roadway and, ordinarily, to investigate the manner of driving with the intent to issue a citation or warning. Our Court’s view is crystallized in Ferris v. State, 355 Md. 356, 369, 735 A.2d 491, 497-98 (1999), in which Judge Raker summarized several Supreme Court holdings concerning the Fourth Amendment as it relates to traffic stops:

“[A] traffic stop involving a motorist is a detention which implicates the Fourth Amendment. See United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (analogizing the degree of intrusiveness of the usual traffic stop to the degree of restraint imposed by the typical Terry stop).... [Ojrdinarily such a stop does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Nonetheless, ... it [is] clear that the detention of a person ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’ Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (plurality opinion).”

Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention. See Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26, 75 L.Ed.2d at 238. Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a *494reasonable, articulable suspicion that criminal activity is afoot. See United States v. Sandoval 29 F.3d 537, 540 (10th Cir.1994). Many other courts around the country, in addressing traffic stops under similar circumstances, have held that a continued detention, absent independent justification, constitutes an illegal seizure under the Fourth Amendment. In Ferns, for example, we acknowledged the observations of the Supreme Court of Colorado:

“When, as here, the purpose for which the investigatory stop was instituted has been accomplished and no other reasonable suspicion exists to support further investigation, there is no justification for continued detention and interrogation of citizens. People v. Redinger, 906 P.2d 81, 85-86 (1995) (en banc) (footnote omitted). See United States v. Soto-Cervantes, 138 F.3d 1319, 1322 (10th Cir.1998), cert. denied, 525 U.S. 853,525 U.S. 853, 119 S.Ct. 131, 142 L.Ed.2d 106 (1998); Karnes v. Skrutski, 62 F.3d 485, 491 (3rd Cir.1995); United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir.1994); United States v. Obasa, 15 F.3d 603, 607 (6th Cir.1994); People v. Rodriguez, 945 P.2d 1351, 1360 (Colo. 1997) (en banc); Commonwealth v. Torres, 424 Mass. 153, 674 N.E.2d 638, 642 (1997). See also Berkemer, 468 U.S. at 439, 104 S.Ct. at 3150 (‘[U]nless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released’) (footnotes omitted); Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim.App.1997) (en banc) (‘[Ojnce the reason for the stop has been satisfied, the stop may not be used as a “fishing expedition for unrelated criminal activity.’ ”) (quoting Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 422, 136 L.Ed.2d 347 (1996) (Robinette II) (Ginsburg, J., concurring)).”

Ferris, 355 Md. at 372-73, 735 A.2d at 499-500. Moreover, we acknowledged that:

“Many of these cases employing careful scrutiny if not skepticism over continued detentions in the context of traffic stops are consistent with the admonition of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny that a Terry stop must not only be justified at its *495inception, but its scope throughout must be reasonably related to the circumstances which justify the intrusion. United States v. Babwah, 972 F.2d 30, 33 (2nd Cir.1992).”

Id. at 373, 735 A.2d at 500.

We glean from the case law that a detention or seizure becomes unreasonable if an individual is detained longer than it should reasonably take to check on a driver’s license, registration, or other investigative information. Further, it is important to note, as the Court of Special Appeals illustrated in Carter v. State, 143 Md.App. 670, 692-93, 795 A.2d 790, 803 (2002), that

“[o]nce a reasonable time for the processing of a traffic charge has expired, even a minimal further delay to accommodate the arrival of a drug-sniffing canine is not permitted. Graham v. State, 119 Md.App. 444, 469, 705 A.2d 82 (1998). That foreclosure is for the obvious reason that the dog sniff, however valuable it might be for other investigative purposes, does not in any way serve the purpose of ... justifying [the initial] traffic stop. Once the purpose of the traffic stop has been fully and reasonably served, no further detention is permitted—unless, in the course of the traffic stop, some independent articulable or reasonable suspicion has arisen to create some new and self-sufficient investigative purpose.”

In this context, it is, thus, imperative to keep in focus the sequence of events that transpired in the case sub judice after Sergeant Hughes stopped the vehicle operated by Ms. Malone:

10:59 a.m. Sergeant Hughes approaches the vehicle after the stop. The reason for the stop was that a plastic cover over the license plate obscured the tag. The driver, Ms. Malone, according to the officer, seemed nervous and restless. Ms. Malone volunteered to remove the plastic cover, however, the Sergeant told her that removing the cover on Interstate 95 would be too dangerous.
11:02 After retrieving both Ms. Malone’s driver’s license and registration; and the petitioner’s driver’s license, Sergeant Hughes went back to his vehicle. He told the *496other officer on the scene, “I’m going to talk to them a little more, she is real nervous.” He called and requested a K-9 unit after the initial contact with Ms. Malone and Mr. Byndloss, when he knew the College Park Barracks (“CPB”) computer system was down. More importantly, Sergeant Hughes wrote a warning for the tag violation but did not give it to Ms. Malone.
11:08 Sergeant Hughes then called the CPB. The CPB told him that the system was down and advised him that the Rockville or Forestville Barrack’s systems were up and running.
11:09 Sergeant Hughes called the Waterloo Barracks1 because it was geographically closer to the traffic stop than both the Rockville or Forestville Barracks, but the Waterloo dispatcher could not hear him due to background noise and interference during the transmission.
11:10 Sergeant Hughes called the Waterloo Barracks from his cell phone, and provided Ms. Malone’s and Mr. Byndloss’s information and asked for license and outstanding warrant checks on both individuals. As he waited for a reply from the Waterloo Barracks, he exited his vehicle, approached Ms. Malone’s vehicle and told her to get out of the car and come to the rear of the vehicle. He told her that the system was slow and asked her questions about where she was traveling, how long she was staying at her destination and about her luggage. He noticed that she had been crying, was jumpy and her stories were inconsistent. Because the weather was windy and cold, Ms. Malone told the officer that she was cold. The Sergeant returned to his patrol car, leaving Ms. Malone standing alongside Interstate 95.
11:19-11:20 The CPB called and told the officer that the K-9 unit could not find the location of the traffic stop. *497Again Sergeant Hughes called the Waterloo Barracks and was told to “stand by.” Sergeant Hughes noticed that Ms. Malone was still outside and asked her if she would like to sit in his vehicle.2 He asked her if there was any contraband in her vehicle. She said no, she did not think there was contraband in the vehicle.
11:23 Sergeant Hughes, using his cell phone, called the Waterloo Barracks again and was informed that they were busy and would get back to him.
11:26 The K-9 unit arrived.
11:27 The Waterloo Barracks called and informed the Sergeant that the Mr. Byndloss had an extensive criminal record.
11:30-11:40 The K-9 made a hit on the vehicle for drugs. A search was conducted, in which drugs were found in the trunk, in a suitcase containing men’s clothing.

Having made a valid traffic stop based on the tag violation, the Sergeant, within ten minutes had conducted the necessary investigation, obtained the requisite information, addressed the matter with the driver, and made the determination that a warning ticket should be issued. Sergeant Hughes could not complete a license and registration check because the computers at his barracks were down. It is worth noting that there is no requirement that a trooper must complete a record check when the computer is down. At this point, absent some reasonable articulable suspicion, the stop should have ended.

According to Sergeant Hughes, however, his observation that Ms. Malone appeared “nervous” and “restless” made him “suspicious.” Although he requested and obtained both Ms. Malone’s and Mr. Byndloss’s identification,3 Ms. Malone’s de*498meanor apparently made such an impact on the Sergeant that he not only told the accompanying officer that he was “going to talk to them a little more, she is real nervous,” but his “suspicion” also led him to call the K-9 unit first, before running a check on the driver’s and passenger’s identification.

Previously, we have held that if a person is nervous when pulled over by a police officer, that behavior does not rise to the level of reasonable suspicion:

“[NJervousness ... of the driver pulled over by a Maryland State trooper is not sufficient to form the basis of police suspicion.... There is no earthly way that a police officer can distinguish the nervousness of an ordinary citizen under such circumstances from the nervousness of a criminal who traffics in narcotics. An individual’s physiological reaction to a proposed intrusion into his or her privacy cannot establish probable cause or even grounds to suspect. Permitting citizen’s nervousness to be the basis for a finding of probable cause would confer upon the police a degree of discretion not grounded in police expertise, and, moreover, would be totally insusceptible to judicial review.”

Ferris, 355 Md. at 388, 735 A.2d at 508 (quoting Whitehead v. State, 116 Md.App. 497, 505, 698 A.2d 1115, 1119 (1997)).

Moreover, in Ferris, this Court cautioned against “placing too much reliance upon a suspect’s nervousness when analyzing a determination of reasonable suspicion.” Id. at 389, 735 *499A.2d at 509 (citations omitted). Noting that characterizing an individual as nervous, even unusually so, “is an extremely subjective evaluation,” id. at 389, 735 A.2d at 508 (citing United States v. Fernandez, 18 F.3d 874, 879 (10th Cir.1994)), in which an officer who has had no prior interaction with the person whose behavior is being characterized, “could not reasonably gauge [the person’s] behavior during the traffic stop with his usual demeanor.” Id. (citing United States v. Beck, 140 F.3d 1129, 1139 (8th Cir.1998)).

In evaluating the scope of this traffic stop, we are mindful that a police officer’s actions during a traffic stop must be reasonably related to the purpose of the stop. An officer must have reasonable suspicion to temporarily detain a driver, and the nervousness of the driver, under Fourth Amendment analysis, does not constitute reasonable suspicion. Furthermore, absent valid consent, a reasonable suspicion of other unlawful activity, or a reasonable suspicion that a detainee is armed and dangerous, an officer may not expand an investigative detention beyond the scope of the stop or embark on a “fishing expedition” in hope that something will turn up. In the case sub judice, the officer not only lacked suspicion, but his actions unreasonably expanded the scope of the stop in time and manner.

In Wilkes we referred to the Supreme Court’s decision in Sharpe which stated that the length of time upon which a traffic stop is measured is not a rigid one. See Wilkes v. State, 364 Md. 554, 576-77, 774 A.2d 420, 433 (2001) (citing Sharpe, 470 U.S. at 685, 105 S.Ct. at 1575, 84 L.Ed.2d at 615). Furthermore, there is no bright line test for reasonableness with respect to detentions following a traffic stop. Sharpe, 470 U.S. at 685, 105 S.Ct. at 1575, 84 L.Ed.2d at 615. Nonetheless, in Sharpe, the standard was that

“[a] court making this assessment should take care to consider whether the police are acting in a swiftly developing situation and in such cases the court should not indulge in unrealistic second-guessing. The question is not simply whether some other alternative was available, but whether *500the police acted unreasonably in failing to recognize or to pursue it.”

Sharpe, 470 U.S. at 686-87, 105 S.Ct. at 1575-76, 84 L.Ed.2d at 616 (citations omitted).

This Court pointed out that modern technology allows for quick access to information without unnecessarily prolonging the duration of the stop, to cut down on the level of intrusion. Wilkes, 364 Md. at 579, 774 A.2d at 435 (citing U.S. v. Gonzalez, 763 F.2d 1127, 1130 (10th Cir.1985)).

Further,
“[i]n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”

Sharpe, 470 U.S. at 686, 105 S.Ct. at 1575, 84 L.Ed.2d at 615.

What was not discussed in Wilkes was the police officer’s reasonable use of modern technology in such a manner so as to avoid prolonged roadside detentions. The majority, however, relies primarily upon Wilkes in resolving this case. The facts in Wilkes are inapposite. The K-9 unit in Wilkes arrived on the scene within five minutes after the stop. Here, the K-9 unit arrived approximately thirty minutes after the stop, while it took thirty minutes to verify information concerning the driver’s license, registration, and warrant information. Thirty minutes is too long to verify information using computer technology, especially considering that other reasonable alternatives were available. Sergeant Hughes could have contacted either the Rockville or Forestville Barracks or, in the alternative, issued the warning he had written earlier and allowed the driver and the passenger to leave the scene.

When Sergeant Hughes failed to proceed diligently under the circumstances, the prolonged detention became unreasonable. See Lee v. Cline, 149 Md.App. 38, 56, 814 A.2d 86, 96-97 (2002), rev’d on other grounds, 384 Md. 245, 863 A.2d 297 (2004); Pryor v. State, 122 Md.App. 671, 674-75, 716 A.2d 338, *501340 (1998) (holding “that, unless continued detention can be justified by what occurs during the brief period of time ... [a] motorist who is subjected to a ‘Whren stop’ for a minor traffic violation cannot be detained at the scene of the stop longer than it takes—or reasonably should take—to issue a citation ....”) (second emphasis added) (footnote omitted). See also, Charity v. State, 132 Md.App. 598, 615, 614, 753 A.2d 556, 565; cert. denied, 360 Md. 487, 759 A.2d 231 (2000) (a “legitimate ... traffic stop to justify a coincidental investigation has a finite ‘shelf life,’ even when the traffic stop ... is not formally terminated” and “the legitimating raison d’etre [may] evaporate if its pursuit is unreasonably attenuated or allowed to lapse into a state of suspended animation”).

Moreover, in the present case, the State has failed to satisfy its burden of proving that the scope of the stop and detention was reasonable given the length of the detention. The stop extended beyond the time reasonably necessary for Sergeant Hughes to investigate a traffic offense. The articulated reason for the traffic stop was because of the tag violation. Although the driver offered to remove the cover immediately and apparently could have, the officer refused to permit the removal because, in the Sergeant’s opinion, it was too dangerous a maneuver alongside Interstate 95. Yet, approximately ten minutes later, from 11:10 a.m.-11:20 a.m., Sergeant Hughes directed Ms. Malone to stand outside her car, which was stopped adjacent to Interstate 95.

In addition, Sergeant Hughes never explained why he did not promptly call either Rockville or Forestville Barracks from his cell phone when the College Park Barracks dispatcher informed him that those computer systems were up and running.4 The suppression hearing judge stated that Ser*502geant Hughes did not call the Rockville or Forestville Barracks because of the distance between where the stop occurred and the location of those two barracks. That assertion is not persuasive after one considers that the matter of checking for information contained in a computer has no correlation to the proximity of the officer to a barrack.5 The evidence reasonably supports the conclusion that the delay in obtaining confirmation with regard to the driver’s license, registration, and warrant information was a direct result of Sergeant Hughes’s lack of due diligence. Clearly, delaying the time it took to obtain the license, registration, and warrant information, permitted the arrival and subsequent scan of the vehicle by the K-9 unit, constituting a second stop, unrelated to the tag violation. When Sergeant Hughes became aware that he could not proceed diligently, he should have given Ms. Malone the warning he had written earlier and allowed her to leave.

Unfortunately, in justifying the State’s actions, the majority today expands our holding in Ferris. In doing so, it overlooks the overarching policy explicated in Royer of balancing the individual’s right to privacy and the State’s legitimate interests. Commentators have acknowledged, in some jurisdictions that, “Terry has been whittled away to the point that ... ‘routine’ traffic stops are commonly turned into drug investi*503gations through a variety of techniques, including ‘questioning about drugs, grilling about the minute details of travel plans, seeking consent for a full roadside exploration of the motorist’s car, or parading a drag dog around the vehicle.’ ” O’Boyle v. Wyoming, 117 P.3d 401, 415 (Wyo.2005) (quoting Wayne R. LaFave, 4 Search and Seizure § 9.3(d), 370, (4th ed. 2004) (other citations omitted)). By virtue of the majority’s opinion, this Court further whittles away at Terry and validates stalling as another technique to turn routine traffic stops into drug investigations, notwithstanding the absence of reasonable suspicion.

The majority maintains that the purpose of the stop had not yet been completed, after all, the Trooper had not been able, by no fault of his own, to complete the license and registration checks. That cannot be the test. The convenience of Maryland’s citizens should be taken into account. Under the majority’s rationale, a stop for a traffic infraction no more serious than this one, so long as the computer system remains inaccessible, can be extended, to the affected citizen’s utter and severe inconvenience, for an unlimited period, as long as it is necessary to check that citizen’s license and registration, and the citizen subjected to it would have absolutely no recourse.

It warrants reminding that it is within this Court’s province, and indeed, it is this Court’s obligation, to make an independent, reflective constitutional judgment of the trial court’s factual findings whenever claim of a constitutionally-protected right is involved. Although this Court gives great weight to the findings of the trial judge as to specific, first-level facts (such as the time interrogation began), this Court must make its own independent judgment as to what to make of such facts and must, in making such independent judgment, resolve for itself the ultimate, second-level fact of whether a constitutional violation occurred. See Ferris, 355 Md. at 368, 735 A.2d at 497; see also Walker v. State, 12 Md.App. 684, 695, 280 A.2d 260 (1971), Perkins v. State, 83 Md.App. 341, 346, 574 A.2d 356 (1990).

*504We do not disagree with the majority as to any of the facts on the record. Our conclusions as to what the trooper could have, and indeed, should have, done are entirely based on the lapses of time established and our belief that the lack of certain facts support an opposite conclusion. Accordingly, based upon our independent evaluation of the evidence to support the extended detention, we are satisfied that evidence seized as a result of the unconstitutional detention should have been suppressed.

Judge GREENE joins in this dissenting opinion.

. Maryland State Police Waterloo Barracks is located on Route 1 (Washington Blvd.), in Jessup, Howard County, Maryland. Malone’s vehicle was stopped south of Route 198 on Interstate 95 in Prince George’s County.

. Curiously, from approximately 11:10 a.m.-11:20 a.m., Sergeant Hughes apparently left Ms. Malone standing outside on the shoulder of Interstate 95. He had told her minutes earlier that he did not think it was a good idea for her to remove the plastic cover from her license plate, because it was too dangerous on Interstate 95 due to traffic.

. It is unclear why the petitioner's license was being checked and, unfortunately, the record provided no clarity on the subject, and the issue was not raised by the petitioner. Petitioner’s sole issue was:

*498"During a routine traffic stop, may a State trooper withhold the issuance of a written warning and continue to detain the occupants of a vehicle after the driver and passenger have both provided driver's licenses and registration for the vehicle and the trooper has written a warning for the traffic infraction, but he has not issued it to the driver because the computer system, through which record[s] are checked, is inoperable, preventing the trooper from confirming the validity of the licenses and registration and checking for outstanding warrants?”

Sergeant Hughes testified that he employed, "aggressive, proactive traffic enforcement” techniques when looking for traffic violators. See Byndloss v. State, 162 Md.App. 286, 291, 873 A.2d 1233, 1236 (2005). In light of that testimony, a matter of concern for us, was that the first information provided to the Sergeant, in response to the record check, involved the passenger, Mr. Byndloss's extensive criminal history instead of either his or Ms. Malone's driving history.

. The Sergeant failed to exercise due diligence in contacting the Rock-ville or Forestville Barracks, although several opportunities clearly were presented. He easily could have contacted both or either barracks

(1) after he became aware that both Rockville and Forestville systems were up and running,
*502(2) after he called the Waterloo Barrack the first time and experienced interference and noise, (but instead he chose to call Waterloo on Iris personal cell phone),
(3) after he called Waterloo on Iris cell phone, either
(i) immediately, or,
(ii) after a few minutes; when it should have been apparent to him that an unreasonable amount of time had passed and the traffic stop was no longer a temporary detention, and
(4) after Waterloo advised him to "stand by.”

. We are not swayed by Sergeant Hughes’s explanation that the distance between the traffic stop and the Rockville or Forestville Barracks prevented him from contacting them for fear of interference. When the Sergeant experienced interference with the Waterloo Barracks, he "immediately” switched to using his cell phone to diminish background noise. The Sergeant could have used his cell phone to call either the Rockville or Forestville Barracks.