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Md. high court will consider whether MTA police violated Fourth Amendment

ANNAPOLIS – Maryland’s top court will consider whether state transit officers violated the constitutional rights of light rail passengers by putting on a show of force in conducting a sweep of the train cars to ensure fares were paid.

The Court of Appeals on Wednesday agreed to hear the state’s appeal of a lower court ruling that the Maryland Transit Administration’s suspicionless investigation amounted to an unconstitutional seizure of the passengers, who reasonably believed they were not free to leave the train in light of the strong police presence.

During the controversial sweep in October 2017, MTA police found a gun on Kennard Carter after he admitted skirting the fare. The intermediate Court of Special Appeals overturned Carter’s subsequent conviction for gun possession after concluding the officers had violated his Fourth Amendment protection against unreasonable seizure.

In its successful request for high court review, the Maryland attorney general’s office stated that a fare inspection is not a “seizure” under the Constitution because “each passenger by boarding the light rail impliedly consents to the limited intrusion of showing proof of fare payment on demand.”

The attorney general’s office added that, even if it is deemed a seizure, the officers’ fare inspection was “reasonable” because they acted in furtherance of their specific, or “special,” need to ensure riders paid the fare — as required by law — and were not conducting a general search for illegal activity.

“That purpose – of enforcing fare payment and deterring fare evasion – is distinct from a generalized interest in law enforcement, and fare inspection is narrowly tailored to it,” Assistant Maryland Attorney General Jer Welter wrote in the state’s review request.

“If announcement of a fare inspection is a seizure, therefore, it fits comfortably within the special needs” exception to the fourth Amendment, Welter added.

In his failed bid that the high court not hear the state’s appeal, Carter stated through counsel that the MTA sweep was an unconstitutional seizure because the officers lacked “individualized suspicion of wrongdoing” by him.

“The intermediate appellate court’s opinion was a straightforward application of settled law, and its review would serve no broader purpose than allowing the petitioner (state) yet another opportunity to plead its case,” Carter’s attorney, Renee M. Hutchins, wrote in papers filed with the Court of Appeals. “The law governing suspicionless seizures – those not justified by any individualized suspicion – such as the one at issue in this case, is well-settled.”

Hutchins is dean of the University of the District of Columbia David A. Clarke School of Law.

The Court of Appeals has not scheduled a date for arguments in the case, State of Maryland v. Kennard Carter, No. 74 September Term 2019.

In finding the sweep unconstitutional, the Court of Special Appeals cited not only the conduct of individual officers but the magnitude of MTA police’s presence at about 8 p.m. on Oct. 2, 2017.

Several officers boarded the train at the Mount Royal station while others remained on the platform, ready to question those who had not paid their fares and check whether they had outstanding arrest warrants, according to the court’s opinion. The passengers were never told they were free to leave as the officers asked to see their train tickets, the Court of Special Appeals said in its reported 3-0 decision last November.

“The Supreme Court has made clear that law enforcement officers do not violate the Fourth Amendment by merely approaching an individual in a public place or asking if he or she is willing to answer questions,” Judge Michael W. Reed wrote for the court. “Fourth Amendment guarantees are implicated, however, when an officer, by physical force or show of authority, restrains a person’s liberty so that a reasonable person would not feel free to terminate the encounter or decline the officer’s request.”

Carter told MTA corporal Latoya Russell of his failure to pay — an offense punishable by a $50 fine — and was instructed to wait on a bench on the platform, where officers collected his name, birth date and Social Security number. While officers discovered he had a possible arrest warrant, Carter rose from the bench but was stopped by MTA police, who then saw he was armed and subdued him, according to the court’s opinion.

A Baltimore City Circuit Court judge rejected Carter’s motion to keep the gun from being introduced at trial.

A jury later found Carter guilty of possession of a gun after having been convicted; wearing, carrying or transporting a gun on his person; and resisting arrest. He was sentenced to 10 years in prison, with all but five years suspended, and three years’ supervised probation.

The Court of Special Appeals, in overturning the conviction, said Carter was unconstitutionally seized by the officers on the train without the necessary suspicion of unlawful activity on his part.

“Although (Carter) was not restrained physically by the MTA officers when they entered the light rail train, corporal Russell’s show of authority, as well as the presence of multiple officers outside the train car, implied to a reasonable person that individuals were not free to leave prior to providing proof of a fare ticket,” Reed wrote.

“In conducting the fare inspection, corporal Russell moved about the car in a way that prevented anyone from exiting without first encountering her, effectively trapping all patrons inside the train car,” Reed added. “No officers ever stated that individuals were free to leave, and although that factor does not, in and of itself, determine if a seizure occurred, it is a factor that we consider within the totality of the circumstances.”

The court added that the Fourth Amendment violation could have been avoided had a conductor been sent to collect tickets and contact the police when a passenger could not provide one, thus giving the officers reasonable suspicion that a particular passenger had broken the law.

Judges Andrea M. Leahy and Dan Friedman joined the opinion by Reed in Kennard Carter v. State of Maryland, No. 478, September Term 2018.

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