Please ensure Javascript is enabled for purposes of website accessibility

Officer Overstepped Terry Bounds

While a Montgomery County police officer had reasonable suspicion to stop a juvenile and frisk him for weapons, the officer overstepped the bounds of a Terry stop when he ordered the boy to lie on the ground, handcuffed him and searched him for evidence, the Court of Special Appeals held yesterday.The holding reverses the District Court of Maryland, sitting as the Juvenile Court, which denied a motion to suppress cocaine seized from the suspect, identified as David S.“Here, [the officer’s] conduct ran afoul of the frisk proscriptions enumerated in Terry [v. Ohio],” wrote Judge Andrew L. Sonner for the three-judge panel. “The state argues that [the officer] was ‘reasonably certain that the object in David’s waistband was either a gun or illegal substances.’ A Terry frisk, however, cannot be performed to discover evidence.”Douglas L. Colbert, a University of Maryland law professor and a criminal law expert, praised the opinion, calling it “a welcome recognition of the Constitutional limits of what police can do when they stop people on the street.“It’s proper for the police to ask questions, but to conduct a full-blown search requires more than what these officers observed,” Colbert added.

“None of the CSA judges were there when the drug deal went down and they weren’t at the suppression hearing.”-Douglas F. Gansler

Yet the opinion won’t change the way Terry stops are made in Maryland, said Montgomery County State’s Attorney Douglas F. Gansler.“It’s an interpretation of Terry in this particular situation,” said Gansler, whose office prosecuted the case. “So it’s not a revolutionary opinion. None of the CSA judges were there when the drug deal went down, and they weren’t at the suppression hearing.”Gary E. Bair, chief of the criminal appeals division in the attorney general’s office, declined to comment on the opinion. “We’ll look at it and consider in for appeal in a couple of weeks,” Bair said. On the groundOn the evening of March 30, 1999, a Rockville City police officer saw David and Pedro Hall (“a known drug dealer,” according to the opinion) near an abandoned transformer building. “David walked behind the building, while Hall stood lookout,” the opinion noted. “A few minutes later, David emerged, pulled an object from his pocket, and showed it to Hall.”At the suppression hearing, the officer testified that he believed David had stuffed a handgun into his waistband. The officer stopped the two, “placed them on the ground in the prone position, and handcuffed them,” Sonner wrote.The officer then rolled David over and felt “a hard object” in the boy’s waistband. Believing it was a gun, he pulled the object out, “noted that it was wrapped in a black plastic bag, opened the bag and found cocaine.”The Juvenile Court found David to be involved in the crime of possession of cocaine with intent to distribute, adjudicated him delinquent and placed him on probation in the custody of his mother. Yesterday’s opinion reversed.The intermediate appeals court agreed that the circumstances justified a Terry stop and a “reasonable” frisk “to determine whether the person is in fact carrying a weapon,” wrote Sonner, citing a 1993 Supreme Court opinion.“In Terry, the Supreme Court held that, even without probable cause, a police officer can stop and briefly detain a person for investigative purposes if the officer has reasonable suspicion, supported by articulable facts, that criminal activity ‘may be afoot,’” Sonner wrote.While the officer was suspicious of David because he was associating with Hall, “a person’s presence with a recognized drug source, however, is not enough to support a reasonable and articulable suspicion that criminality is afoot,” Sonner wrote.But the officer also testified he suspected Hall and David of attempting to burglarize the abandoned transformer building. “We agree that such articulated circumstances could amount to reasonable suspicion and legitimize a Terry stop of David S.,” Sonner wrote.“Because ‘the purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence,’ … the search must be confined to finding weapons that might place the officer or the public in danger,” Sonner noted, citing a 1921 Supreme Court opinion. “Under the circumstances, [the police officer] would have been justified to subject David to a pat-down,” Sonner continued. “To order him to the ground and place him in handcuffs, however, required probable cause, which the officer failed to demonstrate.”<table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″

WHAT THE COURT HELD

[IMGCAP(1)]Case: In Re: David S., CSA No. 2357, Sept. Term 1999. Reported. Opinion by Sonner, J. Filed Nov. 29, 2000. Issue: Did the trial judge err in denying a juvenile’s motion to suppress cocaine seized following a Terry stop, violating his Fourth Amendment rights≠ Holding: Yes. While the circumstances could amount to reasonable suspicion and legitimize a Terry stop, the reason for such a limited search is not to discover evidence of a crime but to allow the officer to pursue his investigation without fear of violence. In this case, the search and seizure went beyond the protective frisk sanctioned in Terry. Judgment reversed.Counsel: Assistant Public Defender John L. Kopolow for appellant; Assistant Attorney General Mary Ann Ince for appellee. RecordFax: 0-1129-00 (8 pages