Supreme Court of Maryland: Search and seizure

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Search and seizure; Terry stop

BOTTOM LINE: As a result of the United States Supreme Court’s decision in New York State Rifle and Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 10 (2022), reasonable suspicion to believe that a person is carrying a gun, by itself, no longer justifies a Terry stop.

CASE: Hicks v. State, No. 634, Sept. Term, 2024 (filed June 4, 2026) (in banc) (Justices Wells, GRAEFF, Arthur, Reed, Zic, Ripken, Tang, Albright, Kehoe) (Justices BERGER, Friedman, Shaw concurring) (Justice NAZARIAN concurring) (Justice LEAHY concurring) (Justice FRIEDMAN concurring).

FACTS: Steven Hicks was indicted in the circuit court with multiple drug and firearm offenses. He filed a motion to suppress the two handguns and cocaine discovered during a warrantless search of his person and bag. He argued, among other things, that the officers did not have either probable cause or reasonable suspicion to stop or frisk him because he had a permit to carry the weapons at issue.

After the court denied the motion, appellant then entered a conditional guilty plea to possession of a firearm with a nexus to a drug trafficking crime. This appeal followed. A majority of this court subsequently voted to hear the case in banc.

LAW: There are two types of seizures that implicate the Fourth Amendment: (1) an arrest, which must be supported by probable cause; and (2) an investigatory stop, or a Terry stop, named after the Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968), which must be supported by reasonable suspicion.

 Detective Ramsey stopped appellant when he saw a gun “printing” on appellant’s shirt. A police stop based on reasonable suspicion that a person is in possession of a gun has consistently been upheld by the Maryland appellate courts as a proper Terry stop. Indeed, prior to New York State Rifle and Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 10 (2022), other courts held that, when it was presumptively unlawful under state law to carry a firearm, with exceptions including when an individual had a permit, a police officer with reasonable suspicion to believe that a person had a gun could conduct a Terry stop to determine the legality of the gun possession.

Appellant contends, however, that this analysis changed after Bruen, where the United States Supreme Court held that gun possession is not only lawful, but it is a protected constitutional right. Appellant argues that, post-Bruen, gun possession “can no longer, on its own as in this case, constitute reasonable suspicion that a crime is afoot.”

Indeed, reported opinions that have addressed the issue presented here post-Bruen have concluded, as appellant argues, that possession of a gun, without more, does not provide reasonable suspicion authorizing a stop. Although a few courts have stated in reported opinions after Bruen that the police have the authority to stop a person to investigate whether the individual with a handgun has a lawful permit, those statements have been made either in dicta, without analysis or without citation to Bruen.

This court has carefully reviewed the cases in other jurisdictions, the holding in Bruen that the Constitution “presumptively protects” gun possession and prior decisions by this court. Based on this review, it holds that, post-Bruen, reasonable suspicion to believe that a person is carrying a gun, by itself, no longer justifies a Terry stop.

In this case, the police did not testify that they believed that appellant was possessing the gun illegally, and no argument was made to the suppression court to that effect. The case was presented below as a stop justified solely on the possession of a gun, and it was presented in the briefs on appeal the same way. That is the basis for this court’s conclusion that the stop was unconstitutional. As an alternate holding, the court holds that, even if the stop was reasonable, the police exceeded the scope of a limited pat-down. The circuit court thus erred in denying appellant’s motion to suppress the CDS and the second handgun discovered during the frisk.

Judgment of the Circuit Court for Baltimore City reversed.

CONCUR: Whatever justified the stop, the search that followed exceeded the limits the Fourth Amendment imposes. That conclusion was available at the outset, without any of the analysis the majority undertakes. We would have stopped there.

CONCUR: I join the opinion of the Court in full. I write separately to address the concerns Judge Friedman and I share about the impact of today’s ruling on the authority of police to engage, detain, frisk and search people under the Fourth Amendment to the Constitution of the United States.

CONCUR: We all agree that the frisk of Hicks exceeded constitutional limits and that the motion to suppress should have been granted. I write separately to highlight that Maryland Code, Criminal Law Article §§ 4-203 and 4-206 prescribes the best way to navigate police interactions with Marylanders who carry guns.

 CONCUR: I recognize the tension between an expansive reading of Bruen and the continued application of Terry in circumstances like these. That tension is real, and I do not minimize it. But it is not ours to resolve. If the Supreme Court concludes that Bruen‘s implications require a recalibration of Terry doctrine in the context of licensed handgun carrying, it is free to say so. Until it does, I would apply the law as it stands.