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REPORTED

IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2651 September Term, 2007

STATE OF MARYLAND v. JAMES WILLIAM DICK

Davis, Zarnoch, Rodo wsky, L awren ce F., (Ret., Specially Assigned) JJ.

Opinion by Zarnoch, J.

Filed: September 12, 2008

The State appeals the decision of the Circuit Court for Baltimore County granting appellee's Motion to Suppress evidence seized in connection with his arrest on charges of possession of cocaine with inten t to distribute and related charges. The decision below turned on whe ther appellee had been "seized" in violation of the Fourth Amendment to the United States Constitution and whether he was "free to leave" the scene of his initial confrontation with police. However, we believe the issues are best framed as: (1) whether reasonab le suspicion e xisted to initiate an investigative stop of the appellee; (2) whether the police intrusion retained the status of an investigative stop, rather than being transformed into an arrest requiring the showing of probable cause ; and (3) wheth er probable cause existed when appellee w as arrested to justify the seizure of evidence from appellee's person. We answer all three questions in the affirm ative and reverse the interlocutory decision of the circuit court an d remand the case fo r trial. I. On the evening of May 10, 2006, members of the Community Drug and Violence Interdiction Team of the Baltimore County Police were conducting surveillance in a residential area of Wise Avenue and Church Road near a BP gas station. Previously, the police had receiv ed comp laints from patrons of the gas station and nearby residents reporting incidents of drug activity on the premises. Detective Timothy Ward and another member of the team had made arrests at the location. At approxim ately 7:30 p.m., w hen it was still daylight, Detective Ward observed Brian

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Hoffman on a bicycle pe daling arou nd makin g circles in the parking lot of the gas station. The detective watched him for 10 or 15 minutes as Hoffman continued to pedal circles through the lot. Ward later testified that Hoffman "kept looking up Wise Avenue as if he was waiting for som eone to show up." 1 Hoffm an then left the lot and pedaled up Wise Avenue where he made contact with appellee, James William Dick, who was on foot. They engaged in a quick c onversatio n, turned, an d both w ent toward the gas station . While Hoffman waited outside on his bike, Dick entered the gas station's convenience store and then exited the store a few minutes later. 2 At this time, Ward radioed his sergeant that he and Detective Jason Stricklin were going to initiate surveillance on the two men and the of ficers "took up v arious locatio ns to have all angles of the gas station covered." Both men left the parking lot and walked down Church Road and out of the view of these officers. However, two other members of the team, Detectives Christopher Mazan and Ryan Massey, joined in the surveillance and, according to Wa rd's testim ony, "had a good eye on the two subjects." Detective Mazan then radioed that D ick a nd H offman had stop ped on th e side of t he ro adw ay near the curb and "they observed the white male on foot hand something to the white male on the bicycle, and the white ma le on the bicycle h anded so mething to the white m ale on foo t, and the w hite

Unless otherwise n oted, all factual quotations are from testimony by the officers at the suppression hearing. Ward later testified that he did not believe Dick was carrying anything when he left the store. 2
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male on the bicycle quickly took the object and put it in his pocket." The detectives observing the two men w ere not a ble to de termine exactly w hat wa s transf erred, but team members believed that a drug transaction had just occurred. Thus, Detectives Massey and Mazan advised that they would try "to stop and make contact" with Hoffman, who rode off on the bicycle, w hile Detectiv es Ward and Stricklin would a ttempt "to m ake conta ct" with Dick, w ho left on f oot. 3 Ward and Stricklin each drove off in their unmarked cars and caught up with Dick who was walking down an alley behind Church Road. W ard drove his car into the alley until he was in front of Dick, while Stricklin pulled into the mouth of the alley to the rear of the suspect. 4 Ward exited his vehicle, and with the door open, stood between the door and the interior of the car about three feet from Dick. He identified himself as a police of ficer "with verbal comm ands." Ward was also wearing his badge on a chain around his neck. Neither Ward nor Stric klin dre w their weap ons. Ward later testified in response to a question from the court that at that point, he said to Dick that "my team had just witnessed him do a drug transaction ... up the street a little ways." 5 Dick responded that he did not know what the

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Ward later testif ied that " to mak e conta ct" with the susp ect mea nt to "sp eak to h im." Ward testified that the alley was "maybe" 12-14 feet wide.

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Earlier testimony by Ward at the suppression hearing spoke in more general, less accusatory terms, e.g. that Dick was told that "we had just witnessed a drug deal." The detective's later testimony is m ore consiste nt with a statemen t contained in the Statement of Probable Cause that he prepared on the day of the encounter ("The undersigned advised the white male on foot that his team ha d just observ ed him m ake a drug sale to a white male on a bicycle.") 3

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detective was talking about. Then, as Ward "attempted to make contact with him," Dick pushed him in the chest and "took off run ning." 6 The suspect ran out of the alley and for another 20 yards. He attempted to hop a split rail fence that collapsed under his weight and he fell to the ground. When Dick refused Ward's order to put his hands behind his back, the two struggled. Stricklin arrived, and the two officers were able to subdue Dick and place him under arrest. Then, Ward searched him and found in the suspect's pants pocket a clear sandwich bag containing 34 individua lly packaged baggies o f crack co caine and $220 in cash. II. Dick moved to suppress this evidence, arguing that he ha d been un constitutiona lly seized because, under the c ircumstanc es of his initial e ncounter w ith the police, a re asonable person would believe he was not free to leave.7 The State countered that the police had made an investigatory stop of Dick based on reasonable suspicion that criminal activity was afoot and that, in any event, the officers had probable cause to arrest him. At the suppression hearing, only Detectives Ward a nd Stricklin testified. Thus, Dick's version of the encounter was not presented to the court. A major subject of inquiry at the hearing was whether the police cars had "blocked" Dick. The following exchange occurred

Detective Stricklin was 10-15 feet away from Dick, and moved forw ard when Dick began to run. Appellee, who at the time w as represented by priva te counsel, n ot the Pub lic Defender, relied primarily on the decision of the Court of Appeals in State v. L emm on, 318 Md. 3 65 (19 90), disc ussed, infra. at p. 9. 4
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between defense counsel and Detective Ward: Q. A. Q. A. And, and what was the purpose in driving one car to one side and one to the othe r? Just to make c ontact with Mr. Dic k. I mean sp eak with him. I see. It wasn't, I , cause I used the word block. It wasn't to block him in? No sir, there was, there was definitely enough room that Mr. Dick cou ld have passed. It wasn't like we pulled the bumpers up to the fences of the, of the reside nces, - Oka y. - - where no one could pass.

Q. A.

When asked about whether Dick had to push Ward aside to leave the alley, Ward testified that Dick pushed him "just to make roo m between m e and him so he c ould start to run" and that "he made room to put dista nce be tween myself a nd him ." When Stricklin testified, the following exch ange occurred between the officer and defense c ounsel: Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. And so at that point Detective Ward goes to the front of Mr. Dick and you're at the rear? Yes sir. Oka y. You got em blocked in? Yes. Right? Well I, we were in vehicles. So we - Look, I, I un derstand th at. Yes. Well I was at the re ar and D etective W ard was in the front. That was, that was in case he turned and went the other way you would be b locking him in, - Yes - - to grab him . Right? Yes. So once you heard this transmission, the idea was to go and to get M r. Dick. Rig ht? 5

A. Q.

A.

Q. A. Q. A. Q. A. Q.

Yes. Oka y. Now you, I mean you , you all didn't sit there and formulate a plan that you'll do this and I'll do that. But I guess having worked together in the past you sort of could anticipate what to do? Yes. They, we advised ea ch other on the radio that Detective Massey and Mazan would approach the gentleman on th e bik e, an d mys elf and Detective W ard would approach Mr. Dick. All right. You used the word approach. Yes. Is that wh at the wor d you used in the, in yo ur transmissions? I don't, I don't recall exactly what was said. Oka y. Stop maybe. Stop. All right. I have no othe r questions Your H onor.

On January 11, 2008, the court issued a Memorandum Opinion and Order granting Dick's motion to suppress. The opinion, relying on State v. L emm on, sup ra, framed th e issues as whether appellee had been lawfully seized and whether under the circumstances, a reasonable person would have believed he was not free to leave. The court said: In the instant case, the Defendant's freedom of movement was restricted by the positioning of the police vehicles on either side of his person within the confines of a narrow alley. Further, the Defendant was approached by an officer in this situation and asked about a recent n arcotics transac tion. A reasonable person surrounded by police vehicles to his front and rear in a narrow alley and then questioned by an officer about a narcotics transaction would n ot feel free to walk away from that situation. That Defendant did not feel free to leave in these circumstances is further evidenced by the fact that Defendant pushed one of the officers in an attempt to leave the alley. Therefore, Defendant was seize d within the meaning of the Fo urth Am endmen t. Here, the seizure of the Defendant was not reasonable under the 6

totality of the circumstances. The only activity the arresting officers observed was that o f the Def endant m eeting with the individual on the bicycle, walking toward the gas station, entering and exiting the convenience store, and proceeding down a small street. Thereafter, the officers acted pursu ant to a call over police radio informing them that other officers had observed the occurrence of a narcotics transaction involving two individuals whose descriptions matched those of the Defendant and the individual on the bicycle.[8] Finally, the court noted: Under these facts, the officers had the requisite re asonable suspicion to effectuate an investigative stop, but did not have a reasonab le basis for seizing the Defendant to the extent that he did not feel free to leave. The State timely noted an appeal of the circuit court decision, pursuant to Maryland Code (1973, 2006 R epl. Vol.), Courts & Jud icial Proceedings Article,

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