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Court of Appeals: Arrest occurs when stun-gun hits its mark

A Baltimore detective lacked legal justification to use a stun gun on a fleeing man he suspected was armed, a divided Court of Appeals has held.

In its 4-3 decision, the state’s highest court said that once the two Taser darts penetrated David Reid’s shoulder, requiring medical attention to remove, the suspect would not reasonably believe he was free to leave the scene.

That elevated the encounter from an investigatory stop to a full arrest, which required the officer to have probable cause to believe Reid was involved in criminal behavior.

Since the officer only had a reasonable suspicion, the high court overturned Reid’s gun possession convictions and ordered a new trial.

Investigatory stops, also referred to as stop-and-frisks, are permitted to protect the officer and the public under the Supreme Court’s 1968 holding in Terry v. Ohio.

But such encounters are intended to be brief and noncustodial, the majority noted.

“No one who is subjected to the ongoing application of force as is caused by having metal projectiles lodge themselves in one’s flesh would feel free to go about his or her business,” Judge Lynne A. Battaglia wrote for the majority.

“Moreover, Reid wasn’t free to go after having been shot by the darts because he had to wait for a medical technician to remove them,” Battaglia added. “Reid unquestionably was subjected to the complete control of the police. … As soon as the darts penetrated Reid’s body, a de facto arrest occurred for which probable cause must have existed.”

Because the arrest was illegal, Reid’s statement to the police and their subsequent discovery of his gun were inadmissible, she added.

“Were we to permit the admission of the gun, what would be the imperative for law enforcement to adhere to Fourth Amendment arrest strictures?” Battaglia wrote.

The Office of the Maryland Attorney General is considering a petition to the U.S. Supreme Court.

“We are carefully reviewing the opinion to determine whether to seek further review,” said Brian S. Kleinbord, who heads the criminal appeals division and argued the case before the Court of Appeals on April 4. The decision was issued on Aug. 24.

Judge Glenn T. Harrell Jr., in dissent, cited cases in which federal courts have found that Terry stops include tackling a fleeing suspect and “siccing” police dogs on them. Those actions can cause greater injury than a stun gun, Harrell added.

Harrell also worried about the threat to officers and the public if the decision makes police hesitate to use a Taser when justified, opting instead “either to use needlessly their martial arts or linebacker skills or stand by as the fleeing suspect eludes into the sunset.”

Kleinbord agreed with Harrell’s view of the law and the perils of police work.

“The police were chasing someone armed with a handgun through the streets of Baltimore,” Kleinbord said.

“This was a reasonable use of a Taser,” he added. “Police should not be required to let an armed suspect flee.”

Maryland Public Defender Paul B. DeWolfe declined to comment, saying he had not had a chance to review the opinion.

Reid’s run-in with the police began with a tip from a confidential informant that a tall, armed black man was selling drugs in a particular location near a black Honda. When uniformed officers arrived there at 12:30 p.m., Reid ran and they gave chase.

Detective Scott Reid, no relation to the suspect, fired two metal darts from his Taser. When the officers caught up to David Reid, they asked him if he was carrying anything illegal and he said a gun, according to the opinion.

Reid attempted, unsuccessfully, to exclude the gun as evidence. He was convicted in April 2011 on an agreed-upon statement of facts of wearing, carrying or transporting a handgun illegally and of being in possession of a handgun after conviction of a disqualifying offense. He was sentenced to three years in prison for each crime.

The Court of Appeals took the case on its own motion.

WHAT THE COURT HELD

Case:

David Reid v. State of Maryland, CA No. 113, Sept. Term 2011. Reported. Opinion by Battaglia, J. Dissent by Harrell, J. Argued April 6, 2012. Filed Aug. 24, 2012.

Issue:

Did the use of a stun gun to effectuate a Terry stop based on reasonable suspicion violate the Fourth Amendment?

Holding:

Yes; the use of a stun gun to effectuate the stop constituted a de facto arrest, which required probable cause to be valid under the Fourth amendment.

Counsel:

Bradford C. Peabody for petitioner; Brian S. Kleinbord for respondent.

RecordFax # 12-0824-20 (51 pages).