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«ERNEST JAMES MCDOWELL v. STATE OF MARYLAND WHEN, FOLLOWING A TRAFFIC STOP, AN OFFICER HAS A REASONABLE SUSPICION THAT A CONTAINER LOCATED IN THE ...»

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HEADNOTE: No. 66 ERNEST JAMES MCDOWELL v. STATE OF MARYLAND

WHEN, FOLLOWING A TRAFFIC STOP, AN OFFICER HAS A REASONABLE

SUSPICION THAT A CONTAINER LOCATED IN THE VEHICLE MAY CONTAIN

A WEAPON, THE OFFICER MAY CONDUCT A SEARCH OF THE CONTAINER

PURSUANT TO MICHIGAN v. LONG. THE OFFICER MAY NOT OPEN THE

CONTAINER, HOWEVER, UNLESS (1)THE OFFICER IS ABLE TO ARTICULATE

A REASON WHY A FRISK OF THE OUTSIDE OF THE CONTAINER WOULD NOT

LIKELY REVEAL THE PRESENCE OR ABSENCE OF A WEAPON, OR (2) A FRISK

PROVES INCONCLUSIVE.

IN THE COURT OF APPEALS

OF MARYLAND

No. 66 September Term, 2008

ERNEST JAMES MCDOWELL

v.

STATE OF MARYLAND

Bell, C.J.

Harrell Greene Murphy Eldridge, John C. (Retired, Specially Assigned) Wilner, Alan M. (Retired, Specially Assigned) JJ.

Opinion by Wilner, J.

Eldridge, J., Joins in Judgment Only.

Murphy, J., Dissents.

Filed: February 19, 2009 The issues before us are (1) whether the record adequately demonstrates that State Trooper Jeremiah Gussoni, after making a valid traffic stop of a pickup truck in which petitioner was a passenger, had a reasonable suspicion that a gym bag he observed just behind the passenger seat of the truck might contain a weapon, and (2) if so, whether the trooper was justified in ordering petitioner first to exit the vehicle with the bag and then to open the bag so that Gussoni could view its contents, without articulating any basis for believing that a simple pat-down of the bag would fail to confirm or negate his suspicion.

We shall answer the first question in the affirmative and the second in the negative.

BACKGROUND

Just before midnight on December 20, 2005, Trooper Gussoni stopped a pickup truck traveling southbound on U.S. Route 301 in Queen Anne’s County, after observing it weaving erratically from lane to lane. The truck was being driven by Hugh Hines; it was owned by petitioner, Ernest McDowell, who was in the passenger seat but had no identification. Hines said that he was coming home from New York City and was tired.

Both men appeared to be nervous. McDowell was staring straight ahead and would not look at the officer; according to Gussoni, he “appeared to be out of it.” Gussoni returned to his police car to check the status of Hines’s driver’s license and the vehicle registration and run a warrant check on both men. In the course of doing so, he observed McDowell bending down and twisting his body several times. Concerned that McDowell may be retrieving a weapon, Gussoni called for backup, which he learned would take about 20 minutes to arrive. Deciding not to wait, Gussoni approached the passenger side of the truck, stood just behind the side window, and saw McDowell reaching underneath his seat and then behind theseat into a gym bag. He described the bag as “a standard gym bag, two and a half feet by a foot and a half,” large enough in his opinion to hold a weapon. The bag itself was not placed in evidence, and there was no other description of it. Gussoni knocked on the window and asked McDowell what he was reaching for, to which McDowell replied that he was looking for cigarettes. Gussoni asked whether there were any cigarettes in the bag, and McDowell replied “no.” His suspicion heightened, Gussoni ordered McDowell to get out of the car and bring the bag with him. According to Gussoni, when they got to the rear of the car, he asked for and received permission to search the bag for weapons, but, perhaps because Gussoni made clear that he intended to search the bag whether McDowell consented or not and he immediately directed McDowell to open the bag rather than opening it himself, the court made no finding of consent, and the State does not argue consent in this appeal.

When McDowell opened the bag, Gussoni saw inside it some prescription bottles, clothing, syringes, and a plastic bag containing a white powdery substance. Believing that the bag contained cocaine or heroin, Gussoni took possession of it and, when the backup arrived, he arrested McDowell. A further search of the gym bag conducted at the police station revealed knotted plastic bags containing 55.5 grams of heroin.

McDowell was charged in the Circuit Court for Queen Anne’s County with a variety of drug-related offenses, and he moved to suppress the incriminating evidence.

–  –  –

the search of the gym bag was permissible and therefore denied the motion. On an agreed statement of facts, McDowell was convicted of importing a controlled dangerous substance into the State and was sentenced to 20 years in prison. The Court of Special Appeals affirmed, McDowell v. State, 179 Md. App. 666, 947 A.2d 582 (2008), and we granted certiorari.

–  –  –

The issues, as articulated by McDowell, are based solely on the Fourth Amendment to the U.S. Constitution and derive principally from two Supreme Court cases – Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968) and Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed.2d 1201 (1983). Because encounters between the police and persons whom they suspect may be both armed and engaging in unlawful activity have become so frequent, those cases, like other High Court landmarks dealing with police investigative procedures, have spawned their own jurisprudence. It is important, however, occasionally to go back to the font and take account of the basic governing principles.





In Terry, the Court first recognized a limited right of a police officer to stop (seize) and frisk (search) a person for weapons upon a suspicion less compelling than probable cause. In doing so, the Court began by observing that the Fourth Amendment does not

–  –  –

the determination of what is reasonable or unreasonable involves “balancing the need to search (or seize) against the invasion which the search (or seizure) entails.” Id. at 21, 88 S. Ct. at 1879, 20 L. Ed.2d at 905, quoting from Camara v. Municipal Court, 387 U.S.

523, 536-37, 87 S. Ct. 1727, 1735, 18 L. Ed.2d 930, 940 (1967). See also Florida v.

Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 1805, 114 L. Ed.2d 297, 302 (1991). The precise issues in Terry were whether a search or seizure based on anything less than probable cause could be regarded as reasonable under the Fourth Amendment, and, if so, what alternative standard would suffice.

In focusing on the required balance, the Court looked both to the general substantive nature of the government’s interest in conducting the search and to how that interest must be demonstrated in a particular case. In its broadest aspect, the government’s interest is in effective crime prevention and detection. Beyond that is the officer’s more immediate interest “in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him,” for “it would be unreasonable to require police officers take unnecessary risks in the performance of their duties.” Terry, 392 U.S. at 23, 88 S. Ct. at 1881, 20 L. Ed.2d at 907. Thus, the Court confirmed the need for law enforcement

officers to protect themselves and concluded that:

–  –  –

Id. at 24, 88 S. Ct. at 1881, 20 L. Ed.2d at 908.

Because that right must be balanced against the individual’s right to be free from unreasonable restraint, the Court made clear that the former right is not unlimited, and that the manner in which the seizure and search were conducted is “as vital a part of the inquiry as whether they were warranted at all.” Id. at 28, 88 S. Ct. at 1883, 20 L. Ed.2d at

910. Thus, the seizure or search must be “reasonably related in scope to the justification for [its] initiation.” Id. at 29, 88 S. Ct. at 1884, 20 L. Ed.2d at 910. Because the justification for the search is solely protection of the officer or others and not by any need to prevent the disappearance or destruction of evidence, “it must be confined in scope to an intrusion reasonably designed to discover guns, knives, or other hidden instruments for the assault of the police officer.” Id. In Terry, the officer merely patted down the outer clothing of the suspect and did not place his hands under that clothing until he had felt for and discovered weapons. He thus confined his search to “what was minimally necessary” to learn whether the suspects were armed and “did not conduct a general exploratory search for whatever evidence of criminal activity he might find.” Id. at 30, 88 S. Ct. at 1884, 20 L. Ed.2d at 911.

That all went to describe in general what a police officer may do. In justifying the need for the particular intrusion, “the police officer must be able to point to specific and

–  –  –

reasonably warrant the intrusion” and, in assessing whether the officer has done so, the facts must be judged against an objective standard, i.e., whether “the facts available to the officer at the moment of the seizure or the search [would] ‘warrant a [person] of reasonable caution in the belief’ that the action taken was appropriate.” Id. 21, 88 S. Ct.

at 1880, 20 L. Ed.2d at 906, quoting in part from Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 (1925).

The ultimate holding in Terry was articulated thusly:

–  –  –

Because the search at issue in Terry involved only a pat-down of the suspects’ outer clothing, the Court addressed only that situation, leaving open whether, in the absence of probable cause, a protective search for weapons could extend beyond the person. That issue was resolved in Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed.2d 1201 (1983). To some extent as here, police officers on patrol late at night in a rural area observed a car being driven erratically. When the car swerved off the road into a shallow ditch and came to a halt, they stopped to investigate. The occupant, Long,

–  –  –

When asked for a second time to produce his vehicle registration card, Long turned and walked toward the open door of his car. The officers followed and, upon noticing a large hunting knife on the floorboard, stopped him and subjected him to a Terry-type pat-down, which revealed no weapon.

One of the officers then shined his flashlight into the interior of the vehicle and observed something protruding from under the armrest. He reached in, lifted the armrest, and noticed an open pouch, inside of which he saw a substance that he correctly believed to be marijuana. Long was then arrested. A search conducted incident to the arrest revealed a sizeable stash of marijuana in the trunk. The issue before the Court was whether Terry – a protective search for weapons absent probable cause – extended to the search of the interior of the car, and the Court held that it did.

The Court observed that in Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed.2d 331 (1977) and Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed.2d 612 (1972), it had already extended Terry to investigative detentions involving suspects in vehicles, holding in Mimms that, during a traffic stop, the police could order persons out of the car and, upon a reasonable belief that they are armed and dangerous, frisk them for weapons, and in Adams that, acting on an informant’s tip, they could reach into the passenger compartment and remove a gun from a driver’s waistband, even when the gun was not visible from outside the car. Those cases recognized, and the Court again confirmed, that “roadside encounters between police and suspects are especially

–  –  –

Michigan v. Long, 463 U.S. at 1049, 103 S. Ct. at 3481, 77 L. Ed.2d at 1220.

Michigan v. Long is a Terry case; it represents an extension of Terry to areas and things in the interior of an automobile, but it does not enlarge, or lessen the standards for determining, what is permissible under Terry. The Court cited Terry throughout its

opinion, and its ultimate conclusion was that:

–  –  –

McDowell acknowledges that the traffic stop was lawful and that Trooper Gussoni had the authority under Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882, 137 L. Ed.2d 41 (1997) to order him to exit the truck. He claims, however, that the trooper had no reasonable articulable basis for believing that he might be armed and dangerous. He

–  –  –

the fact that McDowell and Hines appeared nervous and Gussoni’s observation of McDowell bending and twisting in the car, reaching into the bag, claiming that he was looking for cigarettes, and then acknowledging that there were none in the bag.

Nervousness alone, he argues, does not suggest criminal activity. See Ferris v. State, 355 Md. 356, 389, 735 A.2d 491, 509 (1999). The rest of the activity that was of concern to Gussoni, he dismisses as doing “nothing to advance the theory that Mr. McDowell may have been armed or concealing a weapon in the bag.” In determining the existence of reasonable suspicion, a court must consider “the totality of the circumstances – the whole picture.” United States v. Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581, 1585, 104 L. Ed.2d 1 (1989), quoting from United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 694-95, 66 L. Ed.2d 621, 629 (1981); also Stokes v.

State, 362 Md. 407, 416, 765 A.2d 612, 615 (2001), quoting from Graham v. State, 325 Md. 398, 408, 601 A.2d 131, 136 (1992). We do not parse an officer’s overall concern and base a judgment on whether its individual components, standing alone, will suffice.

Ransome v. State, 373 Md. 99, 104, 816 A.2d 901, 904 (2003), citing United States v.



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