Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2818 September Term, 2004

WILLIAM SYKES v. STATE OF MARYLAND

Hollander, Eyler, Deborah S., Meredith, JJ. Opinion by Eyler, Deborah S., J.

Filed: December 7, 2005

William Sykes, the appellant, was tried by the Circuit Court for Baltimore County, sitting without a jury, on a "not guilty agreed statement of facts," and was convicted of possession of cocaine with intent to distribute. The court imposed a sentence of 25 years without parole, upon a finding of subsequent offender status under Md. Code (2002), section 5-608 of the Criminal Law Article ("CL"). On appeal, the appellant raises one question for review, which we have condensed and rephrased: Did the circuit court err in

denying his motion to suppress the cocaine he was convicted of possessing? For the following reasons, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS
On February 25, 2004, the appellant was charged with

possession of cocaine with intent to distribute, possession of cocaine, attempted bribery of a public employee, and making a false statement to a peace officer.1 The charges stemmed from events

that occurred on the night of January 30, 2004, in the Woodlawn area of Baltimore County. motion to suppress evidence. At the suppression hearing, the State called Officer Donald Anderson, of the Baltimore County Police Department Woodlawn Before trial, the appellant filed a

Subsequently, the State nol prossed all the charges except possession of cocaine with intent to distribute.

1

Precinct Community Action Team, and introduced into evidence an aerial map of Woodlawn and its surroundings. According to Officer Anderson, on the night in question, he had just executed a search warrant on Townbrook Drive in Woodlawn, when he heard a report over the dispatch, at approximately 9:21 p.m., of an armed robbery at 12 Mountbatten Court, also in

Woodlawn.

Officer Anderson was accompanied by Officer Waite and All three officers were in uniform. When the 9:21

Officer Rock.2

p.m. broadcast came in, they were inside Officer Waite's marked patrol car, leaving the search location. Officer Anderson had been assigned to the Woodlawn area for seven years, four of which were spent on foot patrol. He was

acquainted with the area, which consists of many residential apartment complexes. He was familiar with the footpaths in wooded

areas behind the complexes that people used to go from one complex to another. He also knew that the residents in that area are

predominately African-American. In the 9:21 p.m. broadcast, the dispatcher said there were two armed robbers described as black males; teenagers; 5'll"; wearing all black clothing; and running through Mountbatten Court, which is a dead-end apartment complex, and across Essex Road. The dispatcher also said that police had set up a "perimeter" around nearby

2

The first names of Officer Waite and Officer Rock are not in the record.

2

streets:

Essex Road and Windsor Mill Boulevard, Greenbury Court,

Deveraux Court, and Duke of Windsor Court. Subsequent broadcast descriptions by the dispatcher stated that one suspect was wearing a long black coat, and that two black males were seen running on the trail behind the Duke of Windsor apartment complex. Using the aerial map, Officer Anderson testified that there are two trails behind the Duke of Windsor apartment complex, both of which lead to Windsor Mill Boulevard, and a wooded area across that boulevard. He further pointed out a trail that runs through

the wooded area and leads to another apartment complex, at Richglen Court. The distance on foot from Mountbatten Court, where the

robbery occurred, to Richglen Court, through the trail, is about one-quarter mile. The officers decided to drive to Richglen Court, thinking the suspects might have fled by crossing Windsor Mill Boulevard and taking the trail there through the woods. ninth of a mile. before 9:34 p.m. Upon their arrival at Richglen Court, the officers saw two black men, later identified as the appellant and Theodore Dargon, walking out from a dimly lit area behind an apartment building and in between a dumpster area, about 20 feet from the officers. The drive was about one-

They arrived at Richglen Court a few minutes

3

Dargon was wearing blue jeans and a black sweatshirt; the appellant was wearing blue jeans and a green military-style jacket. The officers exited the police car, with their guns drawn, and ordered the men to place their hands on the car. Officer Anderson

obtained an identification card from the appellant, and then immediately performed a patdown.3 He employed what he called the

standard patdown procedure used by the Baltimore County Police Department: "We start at the head, work down the shoulders and

arms, grabbing and crumbling the clothes as we check for weapons." When he moved his hand to the appellant's right outer coat pocket, he "grabbed, crumbled, rolled [his] hand slightly," heard a plastic bag sound and felt two objects that, based upon his knowledge, training, and experience as a narcotics officer, he recognized by feel as "decks" of illegal drugs. plastic bag containing about 20 He testified that a "deck" is a vials of cocaine or heroin.

Officer Anderson retrieved the objects from the appellant's pocket and saw that they were decks of cocaine. under arrest. One of the other officers performed the patdown of Dargon, which did not reveal anything. The appellant is 6', 180 lbs., and Dargon is 5'10", 200 lbs. Officer Anderson considered the appellant to be a dark-complected He placed the appellant

3 Although not revealed in the testimony, other documents in the record indicate that the name on the identification card was that of another individual. That was the basis of the false statement to a peace officer charge brought against the appellant.

4

African-American, and Dargon to be a medium-complected AfricanAmerican. Both men were 26 years old. In Officer Anderson's

opinion, however, Dargon looked younger than his actual age, more like a teenager. The patdowns were completed and the appellant was placed under arrest sometime before 9:34 p.m., when Officer Rock notified the dispatcher that the officers had stopped two men they believed to be suspects in the armed robbery. Officer Rock had to wait a few According to Officer Anderson, minutes to "call out" this

information to the dispatcher, because the airwaves were not clear. At 9:34 p.m., the dispatcher broadcast another description of the armed robbery suspects, stating they were two black males; 16 years old; 5'6"; 150 lbs.; one dark and one medium complected; fleeing on foot toward Essex Road. The dark-complected male was

described as wearing a black jacket and having a light moustache; no description of the medium-complected male's clothing was given. According to Officer Anderson, the appellant and Dargon

appeared "startled" upon seeing the police, and asked why the officers were speaking to them. They did not attempt to flee. The

officers told them they matched the description of two armed robbery suspects. Both men were cooperative. They said they had

been walking from Dargon's apartment, which was nearby. Upon being arrested, the appellant told the officers that Dargon could get some money for them if the officers would release

5

him. The officers allowed Dargon to return to his apartment.

When

Dargon came back, he handed Officer Anderson $200. Dargon then was placed under arrest for attempted bribery of a public employee. Officer Anderson testified that the direction from which the two men were proceeding was consistent with their statement that they had just left Dargon's apartment. He further testified that

a "show-up" was conducted soon after the men were arrested and the robbery victim said they were not the robbers. The appellant testified on his own behalf at the suppression hearing. He said that Officer Anderson pulled his identification He further stated

from his back pants pocket after the patdown.

that, during the patdown, he gave Officer Anderson his name and explained that they had been leaving Dargon's apartment. Finally,

he gave his height and weight, and commented that he is considered a light-complected African-American. In oral argument to the motion court, defense counsel

maintained that the stop and frisk of the appellant was not based upon reasonable suspicion as required by the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1 (1968). Specifically, he argued that the

two men did not match the description of the robbery suspects. Relying upon the last broadcast description, made at 9:34 p.m., he pointed out that the men were ten years older than the suspects; 46 inches taller; 30-50 pounds heavier; were wearing clothing not matching the description; and did not act in a way that would

6

arouse

suspicion.

Additionally,

the

men

were

in

a

heavily

populated area where a majority of the residents are AfricanAmerican. Defense counsel also argued that the patdown exceeded the scope of a permissible Terry frisk because it could not have been immediately apparent to Officer Anderson that the item in the appellant's pocket was contraband. The prosecutor responded that the stop was based upon He

reasonable suspicion and therefore was proper under Terry.

pointed out that Officer Anderson stopped the two men before the last and more detailed broadcast description went out. Based upon

the initial descriptions, the height difference was only 1-2 inches, and both men were wearing dark clothing, which could have been mistaken for black in the dark. The men were detained soon

after the robbery was committed in an area near the crime scene where the two suspects were seen running. people outside in the area. There were no other

The prosecutor argued that those

factors were sufficient to justify a Terry stop and frisk for weapons. Second, the prosecutor responded that when Officer

Anderson felt the "deck," it was immediately clear to him that the item contained cocaine. The court did not rule at the conclusion of the hearing. Later that day, it issued a brief order denying the motion to suppress. On August 23, 2004, following a joint request by the

7

parties, it issued a written memorandum opinion explaining its ruling. The court recounted all of the descriptions of the robbery suspects broadcast to the police officers. there was reasonable suspicion based on It assessed whether the totality of the

circumstances, as known to the officers.

It found that the

officers had reasonable suspicion to stop the appellant and Dargon because: there were two of them; they were African-American men; both were wearing dark clothing; they were detained within 9 to 10 minutes after the initial robbery report; they were found in a dimly lit area at night; and their height was within 1-2 inches of that given in the initial broadcast description. The court further found that the presence of the two men in close proximity to the crime scene, walking near a trail the dispatcher had reported that the two suspects were seen running on, in an amount of time that it would have taken the suspects to traverse the trails, served to bolster the officers' reasonable suspicion. The court noted that the corroborating circumstances "sufficiently narrowed the class of persons who could legitimately be stopped." 362 Md. 407 (2001). Second, the court ruled that the frisk and seizure of cocaine from the appellant's jacket pocket did not violate the Fourth Amendment. Because the two men were suspected of having committed See Stokes v. State,

an armed robbery, there was reasonable suspicion that they were

8

armed, thus justifying a search for the officers' safety. Further, the court found that, during the frisk of the appellant, Officer Anderson felt evidence of contraband that to him was immediately apparent and plainly known to the touch. The court concluded that

all evidence seized during the stop and frisk was admissible under the Fourth Amendment. The appellant was convicted and sentenced as stated above. He then filed a timely notice of appeal. We will include additional facts as necessary to our

discussion.

DISCUSSION
The appellant contends the motion court erred in denying his motion to suppress because: 1) the stop was not based on

reasonable articulable suspicion that he had just committed the armed robbery (or any crime); 2) the police were required to direct questions designed to dispel any suspicion prior to frisking him, but did not do so; and 3) the frisk exceeded the permissible scope of a Terry frisk. We shall address each of these issues

separately. In reviewing a circuit court's ruling on a motion to suppress evidence, we consider only the evidence adduced at the suppression hearing; we do not consider the trial record. Cartnail v. State,

359 Md. 272, 282 (2000)); Nero v. State, 144 Md. App. 333, 341-42

9

(2002) (citing Rowe v. State, 363 Md. 424, 431 (2001)). standard of review is well-settled: "In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing, extend deference to the fact finding of the suppression judge, and accept those findings as to disputed issues of fact unless clearly erroneous. See Jones v. State, 343 Md. 448, 457-58 (1996); Pryor v. State, 122 Md. App. 671, 677 n.4 (1998); Partee v. State, 121 Md. App. 237, 244 (1998). We also consider those facts that are most favorable to the State as the prevailing party on the motion. Jones, [supra,] 343 Md. at 458; Partee, [supra,] 121 Md. App. at 244. We make our own independent constitutional appraisal based on a review of the law as it applies to the facts of the case. Jones, [supra,] 343 Md. at 457."

The

Nero, supra, 144 Md. App. at 342 (quoting Brown v. State, 124 Md. App. 183, 187-88 (1998)).

(i)
The appellant argues that there was not reasonable suspicion to support a Terry stop because he and Dargon were engaged in wholly innocent activity; they "bore little resemblance to the slightly built teenagers who perpetrated the robbery"; they did not flee, but instead walked directly toward the police officers; and they were stopped in a predominantly African-American neighborhood, so the fact that they matched the dispatcher's description of the suspects in that they are black was meaningless. The State responds that there was reasonable suspicion to support a Terry stop because the description of the armed robbery suspects was sufficiently particular with regard to race, gender,

10

size, age, and clothing; the appellant and Dargon were a close enough match to that description; the appellant and Dargon were stopped within 13 minutes of the initial crime report, in the general area within which the crime occurred; there were no other people in that area; and the two men were headed in the same direction as the armed robbery suspects. A brief investigatory stop by a police officer meets the reasonableness requirement of the Fourth Amendment when it is based upon reasonable, articulable suspicion that a crime is being committed, has been committed, or is about to be committed by the individual stopped. Terry, supra, at 30. The reasonable,

articulable suspicion standard is less than probable cause but more than a mere hunch. Whether the standard has been met must be

decided on a case-by-case basis, viewing the "totality of the circumstances." In U.S. v. Arvizu, 534 U.S. 266, 273 (2002). whether there was reasonable, articulable

deciding

suspicion to support a Terry stop, this Court ordinarily takes into account the factors articulated in 4 Wayne R. LaFave, Search & Seizure

Download Sykes v. State.pdf

Maryland Law