Graham v. State, 146 Md.App. 327 (2002)
807 A.2d 75
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Graham v. State, 146 Md.App. 327 (2002)
807 A.2d 75

KeyCite Yellow Flag - Negative Treatment

  Distinguished by Byndloss v. State, Md.App., May 5, 2005

146 Md.App. 327

Court of Special Appeals of Maryland.

Robert GRAHAM

v.

STATE of Maryland.

No. 1246, Sept. Term, 2001. | Sept. 6, 2002.

Defendant was convicted in the Circuit Court, Baltimore City, of possession of cocaine with intent to distribute, and he appealed. The Court of Special Appeals, Moylan, J., held that: (1) initial encounter between police officer and defendant was mere accosting; (2) pat-down search of defendant by police officer escalated encounter to Fourth Amendment seizure of defendant’s person; (3) defendant’s voluntary consent to pat-down search did not render Fourth Amendment inapplicable thereto; (4) officer lacked reasonable articulable suspicion to frisk defendant; (5) frisk was not legitimate incident of so-called “field interview” conducted by officer; (6) warrantless seizure of defendant’s person was not validated by defendant’s purported consent to frisk; (7) state failed to carry its burden of demonstrating defendant’s free and voluntary consent to frisk; (8) defendant’s agreement to have his keys tried in door of his car was not voluntary under totality of circumstances; and (9) defendant’s disclaimer of any interest in car did not deprive him of standing to object to search thereof.

Reversed.

West Headnotes (41)

[1] / Criminal Law
Reception of evidence
Reviewing a trial judge’s decision either to grant or to deny a pretrial motion to suppress evidence, the reviewing court is required to accept, as presumptively true, that version of the evidence at the suppression hearing, and all inferences that can reasonably be squeezed therefrom, most favorable to the prevailing party.
2 Cases that cite this headnote
[2] / Criminal Law
Evidence wrongfully obtained
In reviewing defendant’s appeal from trial court’s denial of his pretrial motion to suppress evidence, the Court of Special Appeals would treat testimony of sole defense witness as utterly non-existent and accept that version of testimony of state’s sole witness most supportive of state’s position, discounting any minor discrepancies between that witness’ testimony on direct and cross-examination and assuming that witness’ full credibility.
1 Cases that cite this headnote
[3] / Criminal Law
Presumptions and burden of proof
Defendant seeking suppression of fruits of warrantless automobile search had initial burden to challenge evidence and to go forward in offering support for that challenge. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[4] / Searches and Seizures
Presumptions and Burden of Proof
State had burden of justifying warrantless search of automobile which resulted in seizure of contraband, and was required to establish all links in chain of justification with respect thereto. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[5] / Searches and Seizures
Presumptions and Burden of Proof
Shifting allocation of burdens of persuasion and proof with respect to a challenge to the legality of a search reflects the strong preference for search warrants over warrantless searches. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[6] / Searches and Seizures
Search under warrant
When a search is conducted with a warrant, there is a heavy burden on the defendant to rebut the presumption of the search’s validity; if the evidence is equivocal, the defendant, having failed to carry that burden, loses. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[7] / Searches and Seizures
Presumptions and Burden of Proof
When a search is warrantless, the state assumes the burden of overcoming the presumption of invalidity by demonstrating, by however many steps are necessary, that the warrantless search satisfied one of the firmly established exceptions to the warrant requirement; in such a posture, it is the state that loses any “tie” resulting from equivocal evidence. U.S.C.A. Const.Amend. 4.
1 Cases that cite this headnote
[8] / Criminal Law
Review De Novo
Ultimate questions of voluntariness of defendant’s ostensible consent to search of automobile and actual scope of such consent were second-level, conclusory, constitutional facts with respect to which reviewing court was required to make its own de novo determination.
1 Cases that cite this headnote
[9] / Searches and Seizures
Voluntary nature in general
Critical factor bearing on the voluntariness of a consent to search is the legal status of the party from whom consent is requested as of the moment the consent was requested and ostensibly given. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[10] / Searches and Seizures
Consent, and validity thereof
If the person consenting to a warrantless search either was not subject to any Fourth Amendment detention of his person or was subject to lawful detention, the state is required to demonstrate that consent was in fact voluntarily given, based upon all the circumstances. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[11] / Searches and Seizures
Custody, restraint, or detention issues
If the person consenting to a warrantless search was being subjected to unlawful restraint, the ostensible consent is the tainted fruit of that Fourth Amendment violation and therefore invalid. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[12] / Arrest
Particular cases
Initial encounter between police officer and individual leaning on automobile was mere accosting, and did not amount to seizure of individual’s person; after spotting individual leaning on automobile, officer pulled his vehicle to a stop, got out, and asked individual his name, individual gave it, and officer and individual engaged in brief conversation. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[13] / Arrest
Duration of detention and extent or conduct of investigation or frisk
No proper Terry-frisk ever does go into coats or pockets, but Terry-frisks nonetheless come most definitely under the careful scrutiny of the Fourth Amendment. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[14] / Arrest
Justification for pat-down search
Terry-frisk is not, like a mere accosting, something beyond the pale of Fourth Amendment notice; labeling it, moreover, a “pat-down” instead of a “frisk” does not shield it from Fourth Amendment review, as the two words refer to precisely the same conduct. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[15] / Criminal Law
Necessity of warning to obtain valid consent
Voluntary consent to pat-down search, given by individual accosted by police officer, was relevant to suppression analysis only to extent that it brought search within firmly rooted exception to warrant requirement, thereby satisfying requirements of Fourth Amendment. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[16] / Searches and Seizures
Particular concrete applications
Voluntary consent to pat-down search could not serve as exempting circumstance rendering Fourth Amendment inapplicable, where pat-down search transformed encounter from mere accosting to Fourth Amendment seizure of the person. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[17] / Arrest
Justification for pat-down search
Police officer lacked reasonable articulable suspicion to frisk individual accosted by him; state conceded lack of justification for either Terry-stop or Terry-frisk and made no argument with respect thereto at suppression hearing, facts did not add up to reasonable suspicion that individual was armed, officer articulated no suspicion that individual might be armed or concern for his own safety, and no antecedent Terry-stop occurred. U.S.C.A. Const.Amend. 4.
2 Cases that cite this headnote
[18] / Arrest
Reasonableness; reason or founded suspicion, etc
Arrest
Justification for pat-down search
Respective interests served by stops and by frisks are distinct, for purposes of Fourth Amendment analysis: stop is crime-related, requiring reasonable suspicion that a crime has occurred, is then occurring, or is about to occur; frisk, by contrast, is concerned only with officer safety, requiring reasonable suspicion that the person stopped is armed and dangerous. U.S.C.A. Const.Amend. 4.
1 Cases that cite this headnote
[19] / Arrest
Reasonableness; reason or founded suspicion, etc
Arrest
Justification for pat-down search
One of the key requirements of reasonable suspicion, for either a stop or a frisk, is not only that it be present but that it be actually articulated. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[20] / Arrest
Justification for pat-down search
For a good frisk, it is not enough that in the abstract facts have been developed that might, objectively, permit some officer somewhere to conclude that the suspect or stopee was armed and dangerous; it is required that the frisking officer actually articulate the factors that lead to his reasonable suspicion that a frisk was necessary for his own protection. U.S.C.A. Const.Amend. 4.
1 Cases that cite this headnote
[21] / Arrest
Justification for pat-down search
When a police officer’s duty requires that he stop and interrogate potentially dangerous individuals suspected of engaging in crime, he must be permitted, when there is reasonable suspicion of danger, to act for his own self-protection; a Terry-frisk, therefore, may, frequently but not always, follow a Terry-stop. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[22] / Arrest
Reasonableness; reason or founded suspicion, etc
Arrest
Justification for pat-down search
Reasonable Terry-stop is a condition precedent to a reasonable Terry-frisk. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[23] / Arrest
Justification for pat-down search
Pat frisk was not legitimate incident of so-called “field interview” conducted by police officer. U.S.C.A. Const.Amend. 4.
1 Cases that cite this headnote
[24] / Arrest
Particular cases
Officer’s conduct of pat frisk escalated encounter which had begun as an accosting, and had never escalated to Terry stop, to level of seizure of the person, implicating Fourth Amendment protections. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[25] / Arrest
Casual, routine, or random encounters
“Field interview,” for purposes of Fourth Amendment analysis, is simply one instance, out of innumerable instances, of a mere accosting. U.S.C.A. Const.Amend. 4.
2 Cases that cite this headnote
[26] / Searches and Seizures
Words or conduct expressing consent; acquiescence
Warrantless seizure of drug defendant’s person, for purpose of conducting pat-down frisk, was not validated by defendant’s purported consent to frisk, where defendant did not reply to officer’s request for permission to conduct pat-down search; request alone arguably amounted to show of authority implicating Fourth Amendment protections, and defendant’s failure to respond or to resist was more indicative of submission to authority than of voluntary consent. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[27] / Searches and Seizures
Validity of consent
State failed to carry its burden of demonstrating that defendant freely and voluntarily consented to warrantless pat-down frisk of his person for weapons, where only evidence at suppression hearing relevant to issue of consent was arresting officer’s testimony that he had asked defendant for permission to conduct pat-down search and that defendant had not replied or resisted. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[28] / Criminal Law
Extent of Exclusion; “Fruit of the Poisonous Tree”
“Fruit of the poisonous tree” doctrine concerns the exclusion of secondary or derivative evidence. U.S.C.A. Const.Amend. 4.
1 Cases that cite this headnote
[29] / Criminal Law
Attenuation or dissipation purging taint
Exemption from exclusion under the “fruit of the poisonous tree” doctrine exists for derivative evidence when the cause-and-effect relationship between the primary taint and the ultimate evidence is thinly attenuated. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[30] / Searches and Seizures
Knowledge of rights; warnings and advice
Searches and Seizures
Custody, restraint, or detention issues
Taint invalidating defendant’s consent to search of his automobile arising out of antecedent seizure and search of defendant’s person in violation of Fourth Amendment was not attenuated, where illegal seizure and search of defendant’s person preceded request for permission to search automobile by only one or two minutes, officer would not have known that defendant’s pocket contained car keys if he had not improperly subjected defendant to pat frisk and would not have asked defendant for permission to try keys if he had not known defendant possessed keys, consent was requested rather than volunteered, defendant was not told that he could refuse consent, and no events intervened. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[31] / Criminal Law
Validity of consent in light of prior misconduct
Adverse impact on a consent to search of an antecedent Fourth Amendment violation is double-barreled, in that it may ipso facto dictate exclusion under the “fruit of the poisonous tree” doctrine, and may independently figure in as a negative factor in assessing the voluntariness of the consent; the two phenomena overlap massively, but they are not literally the same. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[32] / Searches and Seizures
Custody, restraint, or detention issues
Assuming that defendant’s agreement to have his keys tried in door of car against which he had been leaning was tantamount to agreement to subsequent search of car for evidence, such agreement was rendered involuntary, as fruit of the poisonous tree, by antecedent illegal seizure and search of defendant’s person. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[33] / Searches and Seizures
Custody, restraint, or detention issues
Totality of circumstances at time officer sought defendant’s consent to try defendant’s keys in door of defendant’s car, and of defendant’s consent, presumed from his silence, to subsequent search of car’s interior, established that defendant was, at that time, being unconstitutionally detained and that consent was therefore involuntary; three or four uniformed officers were present during search, first officer ordered or asked defendant to be seated on curb during search, lesser suspect was definitively detained, defendant was never told he was free to leave, officer retained defendant’s keys, and officer had previously conducted pat-down search of defendant. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[34] / Searches and Seizures
Particular concrete applications