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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2079 September Term, 1994

IN RE:

ALBERT S.

Moylan, Bloom, Davis, JJ.

Opinion by Davis, J.

Filed:

September 9, 1995

This is an appeal from a judgment of the District Court for Montgomery County, sitting as a juvenile court, in which appellant Albert S. was found to be delinquent. hearing, offenses: the court concluded resisting that arrest, Following an adjudicatory appellant malicious committed four of

assault,

destruction

property, and possession of alcohol by a minor. three questions for our review: I.

Appellant presents

Did the trial court err in refusing to suppress the fruits of an illegal stop, illegal detention, illegal frisk and illegal arrest? Did the trial court err in finding appellant guilty of assault and resisting arrest?

II.

III. Did the trial court err in finding appellant guilty of malicious destruction of property?

FACTS
Officer Michael Price of the Montgomery County Police

testified to the following facts.

During his off-duty hours,

Officer Price worked part-time in the security offices of Great Hope Homes, community's an enclosed community management of rental hires townhomes. off-duty The police

property

company

officers because the complex is considered "one of the county's open air drug markets" and non-residents tend to congregate on the property. complex. No trespassing signs are posted at the entrance to the When security personnel observe someone who does not

- 2 appear to be a resident, they are required to "[m]ake an inquiry about their whereabouts, you know, where they were headed, check it against the list of people we were provided with . . . and basically provide our presence there." Prior to the events at

issue here, Officer Price had worked at the complex for three months and knew many of the residents. In the early morning hours of November 22, 1993, Officer Price was working security at the complex. Although not in uniform, he

drove a marked police cruiser and carried his badge, his service revolver, and a police radio with open access to police channels. At approximately 12:30 a.m., the officer observed a car that he did not recognize attempting to leave the complex at a lawful rate of speed. S., who The car was driven by Theresa Phillips. was seventeen years old at the Appellant Albert rode in the

time,

passenger's seat. Officer Price stopped the car and asked Phillips for her driver's license. As Phillips looked through her purse, the

officer saw Albert trying to conceal something under the front seat. Officer Price asked Albert what he was doing, and appellant The officer walked to the Officer Price

responded in a "belligerent" manner.

passenger's side of the car and opened the door.

again asked Albert what he was hiding and Albert replied, "none of your fucking business, she's got her license on the other side." Officer Price then ordered Albert out of the car. After Albert

- 3 complied with that request, the officer observed an open can of "Red Bull" malt liquor beer on the floor. Officer Price suspected that Albert was under the age of majority and asked for his identification. When Albert refused, Officer Price

the officer told him to put his hands on the car.

then decided to conduct a pat-down search because Albert "had a coat on, and . . . that's just something that I do. issue for me." It's a safety

The officer felt two bulges in Albert's jacket, and Albert replied, "you know what it

asked Albert what they were. is."

Officer Price then reached into the pockets of Albert's

jacket and removed two additional cans of beer. Officer Price placed Albert under arrest and Albert resisted by locking his hands in an "isometric" position. After the officer

placed a handcuff on one of Albert's wrists, Albert made a "fake motion" as if he was going to hit the officer. Officer Price struck Albert. In response,

While holding onto the handcuffs,

Officer Price "grabbed" the police radio and called for help. Albert pushed up against the officer and the two men became entangled in the microphone cord. When Albert pulled away, the

cord was stretched beyond its limits and the microphone "popped" off the cord. Officer J. Carr responded to the call for backup and helped Officer Price drag Albert to a cage car. the officers but did not make contact. Albert attempted to kick When asked to describe

Albert's demeanor, Officer Carr stated that he "appeared to be

- 4 extremely intoxicated and combative and uncooperative. . . . [H]e was, you know, basically out of control." While being transported

to the police station, Albert repeatedly slammed his head against the door of the cage car. A third officer, Corporal Edward Caldwell, was present when Albert was processed at the police station. Corporal Caldwell

testified that Albert was handcuffed to a table, and that he repeatedly struck both wrists very forcefully against an iron bolt on the table. Albert seemed to be having mood swings, and would All three officers noticed

alternate between laughing and crying.

a strong odor of alcohol, and opined that Albert was intoxicated. A sobriety test was not performed. Angela Talley, a resident of Great Hope Homes, testified on appellant's behalf. When asked about her relationship to Albert,

Ms. Talley stated that she had known Albert since he was eight or nine years old and "you could say he's like my grandson." At the

time of the incident, Albert was living with Ms. Talley in a townhome shared by her four children, her three grandchildren, and her boyfriend. When Ms. Talley arrived at the scene, Albert was in Police were dragging

handcuffs and his feet apparently were tied. him across the street by his arms.

Ms. Talley asked if she could

speak with Albert, but Officer Price denied her request.

- 5 Following an adjudicatory hearing, the judge found that

appellant committed the offenses detailed above.1

After finding

appellant to be delinquent, the judge placed appellant on probation and ordered him to perform four hundred hours of community service. The judge also ordered that appellant refrain from using drugs and alcohol program. and that he participate in a drug/alcohol education

This appeal followed.

LEGAL ANALYSIS I
Appellant first contends that the trial court erred when it refused to suppress illegal the frisk, fruits and of an illegal arrest. stop, illegal the

detention,

illegal

During

adjudicatory hearing, appellant moved to suppress the physical evidence seized by Officer Price, including the open can of beer seized from the car and the two cans seized from appellant's jacket. Appellant also moved to suppress certain testimony by

Officers Price, Carr, and Caldwell, each of whom testified that appellant appeared to be intoxicated. stop was unlawful, and that the We conclude that the initial evidence at issue must be

suppressed as the fruits of that Fourth Amendment violation. Consequently, we need not consider whether Officer Price acted

Appellant had also been charged with battery, but the judge found that appellant did not strike the officers.

1

- 6 unlawfully when he ordered appellant out of the car and conducted a pat-down search. For reasons set forth in part II, infra, we

also conclude that the arrest was unlawful. As a threshold matter, we reject the State's assertion that appellant "had no standing to complain about either the stop of the automobile or the seizure from him." The Supreme Court's fruit-of-

the-poisonous-tree doctrine bars the use of physical, tangible evidence "obtained either during or as a direct result of an unlawful invasion." Ott v. State, 325 Md. 206, 225 (1992), cert.

denied, ___ U.S. ___, 113 S.Ct. 295 (1992) (quoting Wong Sun v. United States, 371 U.S. 471, 485 (1963)). Israel have noted that a passenger in a car does have standing to object to police conduct which intrudes upon his Fourth Amendment protection against unreasonable seizure of his person. If either the stopping of the car or the passenger's removal from it are unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those constitutional violations and to have suppressed any evidence found in the car which is their fruit. 1 WAYNE R. LAFAVE
AND

Professors LaFave and

JERALD H. ISRAEL, 1 CRIMINAL PROCEDURE

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