Baltimore County Criminal Defense Lawyers/Attorneys deal regularly with issues of illegal search and seizure. Generally speaking the issue in many cases is not so much whether or not the defendant is factually guilty but whether or not the police violated the person’s constitutional rights in the process of investigating an/or arresting him. One of the specific issues that comes up quite often is the issue of when or if the police may conduct a strip search or the functional equivalent of a strip search of a person who is suspected of a crime or under arrest.
I’m sure it will come as no surprise to most people that when a person has been arrested for a serious felony or for any charge that causes them to be processed into the jail, that person will almost without exception be subjected to a strip search. The instances that are less clear cut are those cases in which a person is only charged with misdemeanors or traffic offenses and is released either on their personal recognizance or bailed out without ever going to the detention center, as well as cases in which the police strip search (or conduct the equivalent of a strip search) prior to an arrest taking place. I am currently representing an individual in the latter category. Briefly, here are the facts:
My client was pulled over on Interstate 95 for minor traffic offenses. The police officer claimed that he smelled marijuana and as a result determined that he had probable cause to search the vehicle. At this point he removed my client from the car and told him that he was going to search him for weapons for “officer safety”. He began by simply patting my client down but ended up pulling my clients pants down and reaching inside his underwear to remove approximately 28 grams of heroin which my client had hidden next to his genitals. He was arrested and charged with possession with the intent to distribute heroin and simple possession. Fortunately for my client the police car that was used by the police officer was equipped with a dash board video camera that recorded the entire incident so we are not stuck with the police officers version of the events contained in the Statement of Probable Cause.
I filed a motion to suppress the evidence in the case and intend to argue that, in addition to other violations of my client’s rights, the police officer conducted the equivalent of a strip search on my client when he did not have legal authority to do so. Here is the memorandum of law in support of my motion of suppress evidence that I filed in this case. I changed the names of the participants as well as identifying information to protect my client’s privacy.
MEMORANDUM IN SUPPORT OF
DEFENDANT’S MOTION TO SUPPRESS
The Defendant, Dwayne R., through his counsel, Brian Thompson, and Silverman, Thompson, Slutkin & White, LLC., hereby files this Memorandum in Support of Defendant’s Motion to Suppress, and in support thereof, states:
The Defendant is charged in the above captioned matter with possession with the intent to distribute heroin, possession of heroin and related offenses. The Statement of Probable Cause reveals the following, in pertinent part: On March 26, 2009, Maryland Transportation Authority Officer D was on patrol on 1-95. Officer D observed a White Dodge Caliber bearing NY Registration ABC 123 traveling in lane #1. The vehicle abruptly changed lanes into lane #2 and got directly behind a grey van traveling in that lane. The vehicle was traveling at an approximate distance of less than a car length behind the van. After observing that traffic violation, Officer D stopped the vehicle for following too closely. The driver was identified as the Defendant from his New York drivers license. The vehicle was a rental car rented by someone else. While speaking with the Defendant, Officer D detected the odor of marijuana coming from the vehicle. The Defendant said he was headed to Richmond Virginia. Officer D arrived to assist with the search. The Defendant was removed from the vehicle and Officer D searched his person. While searching the front waistband of the Defendant’s pants, the Defendant started to pull his hands away so he was handcuffed. A zip lock bag was found in the front area of his pants which contained contraband. The Defendant was placed under arrest. The approximate weight of the heroin was 34 grams. Officer D stated that distribution was indicated because of the two source cities from which the Defendant was traveling, the third party rental violation and the amount of heroin.
As the video demonstrates that the traffic stop was pre-textual, any and all evidence seized as a result of the illegal search of the Defendant’s person must be suppressed. Even if this Honorable Court determines that there was a valid traffic stop, the search of the Defendant’s person was violative of the Fourth Amendment. Finally, there is insufficient evidence to support the charge of possession with the intent to distribute narcotics.
A. The traffic stop was pre-textual.
In State v. Williams, 401 Md. 676 (2007), the Court of Appeals discussed pretextual stops. In that case, a Harford County Deputy Sheriff was advised prior to coming on duty to be on the lookout for a certain vehicle. Id. at 679. While on patrol, the deputy noticed the car described in front of him. The deputy followed the car for half a mile on I-95 and when the car exited the highway at Maryland Route 52, the deputy stayed behind it. Prior to exiting the highway, the deputy radioed the dispatcher that he had the suspect in sight. The defendant stopped at the end of the ramp at the red light and after the defendant made his turn on green, he did so. The deputy testified that when they got to the traffic light, he concluded based on his training and experience that he should have been able to see into the car because it was so well lit, but he was unable to do so. The deputy testified that the vehicle appeared to have tint that was after-market. Id. at 680. The deputy stated that the standard practice he applied was that “if the officer in their opinion feels it’s too dark, then you can stop the vehicle.” The vehicle was stopped and a K-9 search recovered contraband. A few days later, the windows were inspected and they were legal. Id. at 681.
The Court of Appeals noted that it is clear that the deputy used what he believed to be a tinting violation as a pretext to stop the car in order to allow a backup K-9 officer to arrive and scan the vehicle. Id. at 686. The Court cited Whren v. United States, 417 U.S. 806 (1996),which held that pretextual stops were not per se prohibited but only if the officer had sufficient cause to believe that the traffic violation upon which the stop is based has occurred.
The Court of Appeals held that the appropriate test for an initial traffic stop is that a stop is only justified under the Fourth Amendment if the officer had a reasonable articulable suspicion that a traffic law has been violated. Id. at 690. Chief Judge Bell and Judge Greene concurred but held that when conducting pretextual stops, an officer must have probable cause. In examining the facts in Williams, the Court of Appeals held that the deputy did not even have reasonable articulable suspicion to stop the vehicle. Id. at 691. The Court noted that “the test urged by the State, and applied by Deputy Wood, would allow police officers to stop any car with any tinted window, simply because it appears darker than an untinted window, and that cannot be the test for Fourth Amendment purposes, for it would effectively strip away Fourth Amendment protection for any person driving or owning a car with tinted windows.” Id. at 692. As the stop of Williams was invalid, any and all evidence seized from the illegal stop was suppressed. Id. at 693.
The same result should be reached in this case. The video in this case demonstrates that Officer Davis was not in a position to observe the distance between the grey van and the Defendant’s vehicle. As the stop was pre-textual, any and all evidence seized as a result of the illegal stop, must be suppressed.
B. The search of the Defendant’s person was illegal.
The State has the burden of proving the reasonableness, and thus the legality, of a
warrantless search. Paulino v. State, 399 Md. 341, 348 (2007). Although Maryland courts have noted the need of law enforcement to protect themselves, that right must be balanced against the individual’s right to be free from unreasonable restraint. The State cannot meet its burden in this case.
As the Supreme Court noted in Terry v. Ohio, 392 U.S. 1 (1968), the manner in which the seizure and search are conducted is “as vital a part of the inquiry as whether they were warranted at all.” Id. at 28. The purpose of a Terry frisk is not to discover evidence of crime, but rather to protect the police officer and bystanders from harm. Id. at 29. Therefore, Terry frisks are limited to a search for weapons that might place the officer or the public in danger. See Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). If during a lawful pat-down an officer feels an object which obviously is not a weapon, further patting of it is not permissible. Id. at 378. (noting that a continued exploration of a suspect’s pocket after having concluded that it contained no weapon was unrelated to “the sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize . . . .”); See generally 4 WAYNE R. LA FAVE, SEARCH AND SEIZURE, § 9.5(b), at 275 (1996).
As Judge Moylan, writing for the Court of Special Appeals in Anderson v. State, 78 Md. App. 471 (1989), explained:
There is under the Fourth Amendment an ever present requirement for the police to minimize even necessary intrusions. The permitted scope of an intrusion is whatever is necessary to serve the purpose of that particular intrusion, but nothing more. Both a stop and its sometimes attendant frisk are prerogatives permitted the police under predicates less substantial than probable cause. The reason the Fourth Amendment permits a policeman to conduct a minimal search (a frisk) of a suspect upon such a lesser predicate is the necessity of protecting from harm the life and limb of the stopping officer. Because almost all weapons — guns, knives, blackjacks, brass knuckles — are hard, palpable objects, their presence may be detected by a close pat-down of the exterior of the clothing surface. Because that is all that is necessary, that is all that is permitted.
Id. at 477.
In Alfred v. State, 61 Md.App. 647 (1985), the Court of Special Appeals noted that the frisk, therefore, requires its own independent justification, not only as to legitimacy but also as to scope. A frisk or pat-down is justifiable only if there is a particularized and individualized suspicion that the suspect may be armed and dangerous. In that case, a police officer conducted a pat-down of a young man wearing a snugly fitting pair of cut-off jeans and felt a small flat object in the suspect’s back pocket. Surmising (correctly) that the object was an item of recently stolen jewelry, the officer extracted it from the suspect’s pocket. The Court held that, since the object he felt was obviously not a weapon, the seizure was unlawful. Id. at 669.
In Weedon v. State, 82 Md.App. 692 (1990), a police officer conducted a pat-down and felt a small (3 inch by 2 inch) thick rectangular box-shaped object. The officer asserted that he did not know that it was not a weapon of some kind. On that basis the motions judge ruled that the seizure of the box was lawful. The Court of Special Appeals disagreed. The Court emphasized that the protective search is justified only by the officer’s reasonable belief that the suspect is armed and dangerous. Applying that reasoning to the facts, the Court stated:
If a police officer, while conducting a pat-down during a stop, feels an object in or under the suspect’s clothing, he may remove (seize) that object only if he has an articulable basis to believe that it is a weapon which would pose a threat to his life or safety during the ensuing investigatory interrogation. It is not enough to justify the seizure that the officer cannot rule out the possibility that the object is some miniaturized, deadly weapon of a type as yet unknown to him. Since the officer had no reason to believe that the small box-shaped object he felt under appellant’s clothing was a weapon that posed a threat to him, he had no lawful justification for its seizure. The court erred in denying appellant’s suppression motion.
Id. at 698-99.
The Court further noted:
We may not let appellant’s established guilt influence an assessment of his constitutional rights. Judge Orth, writing for the Court of Appeals in Riddick v. State, 319 Md. 180 (1990), quoted from Arizona v. Hicks, 480 U.S. 321, 329 (1987), in which Justice Scalia pointed out that there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.
Id. at 700.
In this case, the item that was recovered was a zip lock baggie containing 1.1 ounces of narcotics. This could not have been mistaken as a weapon. The officer had no basis to believe that this object was a weapon which would pose a threat to his life or safety during the ensuing investigatory interrogation.
It is also important to note that the Statement of Probable Cause states that because the Defendant started to pull his hands away from the officer, the Defendant was handcuffed. The video demonstrates that the Defendant flinched because of the intrusive nature of the “pat-down.” The search in this case is more equated with a strip search. This type of intrusive search was discussed in Paulino v. State, 399 Md. 341 (2007). In that case, the defendant argued that the search of his person after his arrest constituted an impermissible strip search. The defendant was wearing his pants below his butt, the police lifted his shorts and cocaine was discovered between his butt cheeks. Id. at 352. The State argued that it was not a strip search because the search was conducted without removing any of the defendant’s clothing. Id. The Court of Appeals noted that the search of the defendant was highly intrusive, stating:
Searches that entail the inspection of the anal and/or genital areas have been accurately described as demeaning, dehumanizing, undignified, humiliating, embarrassing, repulsive, degrading, and extremely intrusive of one’s personal privacy.
Id. at 356. Further, the Court noted that the search was conducted in a parking lot of a carwash which was very public. Id. at 359. Therefore, the Court held that the search was impermissible.
Similarly, the search conducted in this case was essentially a strip search conducted on a very public highway. As the pat-down was clearly not for officer safety, and the manner in which it was conducted was impermissible, the contraband must be suppressed.
C. There is insufficient evidence to support the charge of possession with the intent to distribute.
The amount of heroin that was seized was 34 grams, approximately 1.1 ounces. There is
clearly insufficient evidence that this small amount of narcotics was possessed with the
Defendant with the intent to distribute it, rather than for his personal use. Though there is no
case on point, other cases rejecting the personal use argument are instructive. For example, in
Johnson v. State, 75 Md.App. 621 (1988), the Court of Special Appeals rejected a defendant’s
claim that the evidence was insufficient to prove an intent to distribute because there were 95
capsules of cut cocaine seized. Further in Hippler v. State, 83 Md.App. 325 (1990), the Court of
Special Appeals rejected a personal use argument because there was enough PCP found to make
160 joints. It is evident that this is not the situation in the present case.
For the aforegoing reasons, the Defendant respectfully requests that this Honorable Court
grants his Motion to Suppress.
Brian G. Thompson
The case is set for trial in March. I will update this blog once the case is concluded.