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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 598 September Term 2006

JULIAN MADISON-SHEPPARD

V.

STATE OF MARYLAND

Davis, Salmon, Wenner, William W. (Ret., Specially Assigned), JJ.

Opinion by Salmon, J.

Filed: November 2, 2007

I. Julian Madison-Sheppard was arrested for cocaine possession in Cecil County on June 25, 2005. He filed a motion to suppress evidence prior to trial. The motion was denied, as was a motion to reconsider the denial. Thereafter, Madison-Sheppard proceeded to trial based on an agreed statement of facts. The court found the defendant guilty of possession of cocaine. In this appeal, Madison-Sheppard makes four arguments in support of his contention that the warrantless search of his person by a police officer was illegal, and therefore the court erred in denying his motion to suppress the evidence seized as a result of the search. We agree with two1 of Madison-Sheppard's arguments and shall reverse his conviction.

II. At the suppression hearing, Cecil County Deputy Sheriff James Roland was the only witness. His testimony is summarized below. On June 25, 2005, Deputy Roland was on patrol in Elkton, Maryland, at approximately 1:15 p.m. when he received a radio alert to "be on the look out for" a suspect with an outstanding warrant for an attempted murder that occurred sometime that week. He was also advised that the suspect was "possibly armed and dangerous" and was believed to be "in the Elkton area." According to the broadcast, the suspect was a black male, approximately six feet tall, 180 pounds, with cornrow-style hair, and the crime, believed to

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Whether the other arguments by appellant have merit need not be decided.

have been committed by the suspect, occurred somewhere in the "Winding Brook" area, which is located in the Elkton mailing area but is outside the Elkton town limits. Not long after hearing the broadcast, Deputy Roland saw appellant standing on a porch of a house2 "[i]n the area of 215 Hollingsworth Manor" in Elkton. Appellant is an African-American male with cornrow hair and, to the deputy's eye, was about the same height and weight as the suspect (appellant turned out to be 5' 10", 170 pounds). Believing that appellant might be the person suspected of attempted murder, Deputy Roland called for police backup. When the second officer arrived, both Deputy Roland and the officer approached appellant; as they did so, appellant sat down on the porch steps. When Deputy Roland asked appellant for identification, appellant said that he did not have any. Appellant then became "very nervous and could not stand."3 The officers, "for safety reasons," handcuffed appellant's arms behind his back. After handcuffing appellant, Deputy Roland conducted a pat-down search for weapons. While patting down appellant's right pant leg, Deputy Roland detected "blunt objects" in his right front pocket. This caused Deputy Roland to "squeeze," "grab," and "grasp" the objects. According to Deputy Roland the objects were "jagged," "hard," and were "sliding back and forth" between his fingers. The material felt like it was made of

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Deputy Roland never said who resided at the home.
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It is unclear from the suppression hearing record whether Deputy Roland asked appellant to stand.
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plastic. Deputy Roland then asked appellant if he had any illegal drugs on him. Appellant gave no response. Deputy Roland concluded that the objects he felt were crack cocaine. He then reached into appellant's right front pocket and removed a Ziploc baggie containing thirteen individual baggies of a white rock-like substance, which, based on Deputy Roland's experience, he believed to be cocaine. Appellant was arrested for possession of a controlled dangerous substance ("C.D.S."). Subsequent testing of the white rock-like substance by the Maryland State Crime Laboratory revealed that it was crack cocaine.

III. At the suppression hearing, defense counsel maintained that the search of her client was illegal for four reasons, viz.: 1. At the time of the search, appellant was under arrest, even though the police did not have probable cause to arrest him, and therefore Deputy Roland's search incident to the arrest was illegal. 2. Even if appellant was not arrested prior to the search and was, as the State contended, subjected only to a "Terry-stop," the stop was illegal because when the police handcuffed appellant they did not have a "reasonable articulable suspicion" that appellant had committed any crime; because the stop was illegal, so was the search that followed it. 3. Even if appellant was subjected to a valid "Terry stop," the police had no right to frisk him for weapons because they had no legitimate ground to believe that he carried a weapon.
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4. Even if the police were conducting a valid Terry pat down for weapons prior to finding the drugs, Deputy Roland exceeded the scope of a valid Terry pat down when he poked and probed appellant's pocket prior to seizing the CDS. The motions judge ruled as follows: The court has to consider the totality of all of the circumstances within the guidelines provided by Terry v. Ohio, 1968 Supreme Court case -- later it's specifically adopted by our Court of Appeals -- [in] the case of Williams v. State in 1973. And, of course, the bottom line holding in Terry and Williams is that if a police officer has reasonable articulable suspicion that an individual accosted is engaged in criminal activity or may have a weapon on him or her, a minimally intrusive search is permitted. Now, the facts presented here, number one, there was a broadcast received by the deputy describing the physical characteristics of a certain individual. An individual with those physical characteristics was observed shortly thereafter by the deputy, according to him, matching the description of the individual. The individual was acting in a suspicious manner, unable to provide identification. Thereafter, the officer handcuffed the individual for his own safety and thereafter conducted a search to see if his suspicions regarding a weapon were, in fact, justified . . . . And during the course of that search the contraband was found. In my reading of the case law, even though a weapon is not found, it's not an unusual practice to empty all the pockets to see exactly what is there. During the course of the search he did find the contraband. The intrusion that occurred here, it can be argued, was self-inflicted by virtue of refusing to provide identification[4] as well as his physical reaction to being confronted, so I feel the According to Deputy Roland's testimony, appellant did not "refuse[] to provide identification" -- he testified that appellant said he did not have any.
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intrusion was justified. It was minimal in nature.[5] The motion to suppress is denied. (Emphasis added.) A motion for reconsideration was filed. The merits of the motion were addressed in open court by the motions judge who said: I differ . . . [with defense counsel's position that the police did not have reasonable articulable suspicion to stop appellant] in that we have a black male in Hollingsworth Manor with a cornrow hairdo, which is rather unique and unusual. The description issued was a black male with corn-row, six foot -- approximately six-foot -- feet tall, 180 pounds. The defendant is five-foot-ten, 170 pounds. So I think he was within a unique group, especially considering the fact that Cecil County only has a four percent black population, to sanction the stop as being constitutional. At least in my opinion, it is a somewhat unique situation. The second prong of the argument, of course, troubled me somewhat more because of the Minnesota v. Dickerson case where after a pat-down, if there is no disclosure or indication of a weapon being present to the sense of touch, you know, manipulation of the object is prohibited to ascertain if it could be something else that was illegal. But what troubles me, that's a very narrow distinction. Here we had an individual who was, well, he was acting suspiciously. He was nervous and couldn't stand still, would not provide identification, was placed in handcuffs and thereafter, the officer patted him down and admittedly manipulated when he felt something in his pocket, but the object that was found in his pocket was a plastic bag containing 13 individual baggies of crack cocaine. And it just seems to be -- which he immediately, through his sense of touch, recognized as being such, I believe, unless I'm recalling wrongly, just seems to me to be incongruous that if during the pat-down search one feels an object of this type or a pipe or a spoon or a hypodermic needle, because none of those things are weapons
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Handcuffing an individual is plainly not a "minimal" intrusion.
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he has to stop his pat-down search. I could be wrong, but it just doesn't seem right to me. And I could very well be wrong, but I'm just going on my gut reaction to this whole situation. I'm going to deny the motion. (Emphasis added.) In this appeal, appellant raises the same contentions regarding the legality of the search of his person as he did below. Because they are dispositive, we shall consider only two of appellant's contentions, i.e., (1) that the search was illegal because the deputy, prior to the time he searched appellant, did not have a "reasonable articulable suspicion" that appellant had committed a crime or was about to commit one and (2) even assuming that appellant was subjected to a valid Terry frisk, the officers exceeded the permissible scope of such a search. Therefore, the seizure of the drugs was illegal.

IV. Standard of Review When reviewing a circuit court's disposition of a motion to suppress evidence, we only consider the evidence contained in the record of the suppression hearing. Longshore v. State, 399 Md. 486, 498 (2007). We must view the evidence and draw all inferences in the light most favorable to the party prevailing on the motion, in this case the State. Id. When conflicts in the evidence exist, great deference is accorded the motions judge's determination, unless the factual determinations are shown to be clearly erroneous. Id. In the case at hand, there were no conflicts in the evidence because only one witness testified, and his testimony was not contradicted.

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We make our "`own independent constitutional appraisal, by reviewing the law and applying it to the peculiar facts of the particular case.'" Id. at 499 (quoting Jones v. State, 343 Md. 448, 457 (1996)).

V. The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655 (1961), guarantees that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." U.S. CONST. amend. IV; see also Longshore, 399 Md. at 500. This constitutional guarantee is subject only to a few limited exceptions when the search or seizure is "conducted outside the judicial process, without prior approval by judge or magistrate." Minnesota v. Dickerson, 508 U.S. 366, 374 (1993) (quoting Katz v. United States, 389 U.S. 347, 357 (1967) (internal quotations omitted)). One of the exceptions to the warrant requirement was announced in Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Court held that a police officer may make a brief investigatory stop of an individual, without an arrest warrant, so long as the officer has a "reasonable, articulable suspicion" that a crime is being committed, has been committed or is about to be committed by the person stopped. Id. at 30. The "reasonable articulable suspicion standard" announced in Terry is less demanding than the probable cause standard used to justify a warrantless arrest; it is, however,

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something more than a police officer's hunch. See Sykes v. State, 166 Md. App. 206, 217 (2005). In determining whether reasonable articulable suspicion exists that would justify a Terry stop in situations such as the one here presented, appellate courts of this state frequently consider the six factors discussed in 4 Wayne R. LaFave, Criminal Procedure

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