Trott v. State , 473 Md. 245 ( 2021 )

Benjamin Caleb Trott v. State of Maryland, Misc. No. 9, September Term, 2020, Opinion
by Booth, J.
CRIMINAL PROCEDURE – FOURTH AMENDMENT – SEARCH AND SEIZURE
– ANONYMOUS 911 CALL REPORTING DRUNK DRIVING – REASONABLE
SUSPICION – The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. For an investigatory stop to be constitutional under
the Fourth Amendment, the police officer must have reasonable suspicion that the person
stopped is engaging in criminal activity. The Court of Appeals held that the investigatory
stop in this case satisfied the Fourth Amendment. Considering the totality of the
circumstances, the officers had reasonable suspicion to suspect that the defendant was
engaged in drunk driving. The anonymous 911 call had sufficient indicia of reliability—
the tipster alleging the drunk driving provided the make, model, and license plate of the
vehicle, as well as its location. The police arrived within minutes of receiving the call and
observed the vehicle parked at a liquor store around 11:30 p.m. with the engine running.
The stop was reasonable given the nature of the criminal activity—drunk driving, with its
attendant imminent danger to the public, as well as the minimal and non-intrusive nature
of the stop.
Circuit Court for Anne Arundel County
Case No.: C-02-CR-19-001378
Argued: February 1, 2021
IN THE COURT OF APPEALS
OF MARYLAND
Misc. No. 9
September Term, 2020
BENJAMIN CALEB TROTT
v.
STATE OF MARYLAND
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
Opinion by Booth, J.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-04-23 11:46-04:00 Filed: April 23, 2021
Suzanne C. Johnson, Clerk
It is not uncommon that the Fourth Amendment puts into tension two fundamental
pillars of good government: the right of the people to be free from unreasonable
government intrusion and the government’s interest in protecting the people from
dangerous criminal activity. For decades, Maryland has recognized a compelling public
interest in controlling and preventing drunk driving.1 Although significant efforts to
combat drunk driving have reduced fatalities in recent years, 167 people in Maryland died
in alcohol-impaired driving incidents in 2019, accounting for about one-third of the total
traffic deaths in the State.2
In this case, we are asked to navigate the tension between law enforcement’s ability
to investigate an anonymous 911 tip that reported drunk driving and the parameters of the
Fourth Amendment. In response to an anonymous 911 call placed close to 11:30 p.m. on
a Friday night that provided the specific location and license plate of a vehicle driven by a
possibly intoxicated driver, within minutes of the call, the responding police officer located
the vehicle in a parking lot of a liquor store, and knocked on the window of the running car
to investigate. The driver, Benjamin Caleb Trott, rolled down his window, smelled of
alcohol, and admitted to having had multiple drinks. Mr. Trott also stated that his driver’s
1
See Little v. State, 300 Md. 485, 504 (1984) (“The magnitude of the problem
created by intoxicated motorists cannot be exaggerated.”).
2
Nat’l Highway Traffic Safety Admin., U.S. Dep’t of Transp., Traffic Safety Facts
Research Note: Overview of Motor Vehicle Crashes in 2019, at 13 (2020),
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813060
[https://perma.cc/AL5K-HKTG].
license was suspended and revoked. After Mr. Trott was unable to successfully complete
a field sobriety test, the police arrested him.
Following the denial of his motion to suppress, Mr. Trott entered a plea of not guilty
on an agreed statement of facts to one count of driving while impaired. The Circuit Court
for Anne Arundel County found Mr. Trott guilty and sentenced him to a three-year term of
incarceration, with three years suspended, and a three-year term of supervised probation.
Mr. Trott noted a timely appeal. After the parties submitted briefs, the Court of
Special Appeals filed a certification pursuant to Maryland Rule 8-304, requesting that this
Court determine whether the circuit court erred in denying Mr. Trott’s motion to suppress.3
We granted certiorari to consider the parameters of the Fourth Amendment in the context
of a 911 call reporting drunk driving. For the reasons explained below, we hold that, under
the totality of the facts presented in this case, the police had reasonable suspicion to conduct
a brief investigatory detention of Mr. Trott, and this stop did not violate the Fourth
Amendment. We affirm the circuit court’s denial of the motion to suppress.
3
The question presented in the Court of Special Appeals certification was:
Did the circuit court err in finding that a police officer had reasonable
suspicion to engage in an encounter with appellant based upon the police
dispatcher’s information conveyed to him over his police radio, following a
911 call, stating “intoxicated driver at 5823 Deale Churchton Road,” and
indicating further facts limited to the color of the vehicle, Maryland tag
number, Maryland registration number, and that the vehicle was in a parking
lot?
In our order granting certification, pursuant to Maryland Rule 8-304(c)(2), we
modified the question of law to state: “Did the circuit court err in denying Appellant’s
motion to suppress?”
2
I.
Factual and Procedural Background
After entering a plea of not guilty, Mr. Trott filed a motion to suppress, arguing that
Corporal Michael Cooper lacked a reasonable, articulable suspicion to justify the stop
because it was based solely on a dispatcher’s account of an anonymous tip, and that the
totality of the circumstances as alleged did not support the investigative stop. Corporal
Cooper of the Anne Arundel Police Department was the sole witness at the suppression
hearing. The relevant facts elicited at the hearing are not in dispute.
A. The Suppression Hearing
At the suppression hearing, Corporal Cooper testified to the following facts.
Around 11:30 p.m. on the night of Friday, December 4, 2015, Corporal Cooper received a
report from a dispatcher of an intoxicated driver at a specific location in Anne Arundel
County. The tip provided the color of the vehicle and the license plate number. Corporal
Cooper arrived at the address within two to eight minutes. When he arrived at the location,
accompanied by another officer, he observed a silver Honda CR-V parked in front of
Captain Kidd’s liquor store, with the same Maryland license plate number that was
provided to him by the dispatcher. Mr. Trott was in the driver’s seat and his girlfriend was
seated in the front passenger seat. The car was parked, the keys were in the ignition, and
the engine was running. Corporal Cooper pulled into the parking lot and parked his cruiser
approximately ten to fifteen feet behind the vehicle, at which time he activated his
emergency lights, but not his siren. Both officers approached the car, one to the passenger’s
side and one to the driver’s side.
3
Corporal Cooper knocked on the driver’s side window and asked Mr. Trott to roll
down his window. Mr. Trott did not immediately do so because he appeared to be
unfamiliar with the window controls. After Corporal Cooper asked Mr. Trott for his license
and registration, Mr. Trott admitted that his license was suspended, and his driver’s license
was revoked. During the conversation, Corporal Cooper could smell a “strong odor” of
alcohol on Mr. Trott’s breath. Mr. Trott acknowledged that he had consumed two beers
and a shot, explaining that he was more sober than his girlfriend, who was also in the car.
Corporal Cooper asked Mr. Trott to step out of the vehicle. After an unsuccessful field
sobriety test, Mr. Trott was arrested.
Following Corporal Cooper’s testimony and arguments of counsel, the circuit court
orally delivered its ruling denying Mr. Trott’s motion to suppress, stating “[w]ell, viewing
what you gentlemen have submitted in writing and your arguments along with the
testimony of Officer Cooper, I find that the circumstances were sufficient to support the
stop conducted by Officer Cooper and therefore the [m]otion is denied.”
B. Additional Proceedings
After the circuit court denied Mr. Trott’s motion to suppress, he entered a plea of
not guilty on an agreed statement of facts to one count of driving while impaired. The
circuit court convicted Mr. Trott of driving while impaired by alcohol, and sentenced him
to a three-year term of incarceration, with three years suspended, and three years of
supervised probation.
Mr. Trott timely appealed the circuit court’s decision to the Court of Special
Appeals. The sole issue presented to the intermediate appellate court was whether the
4
circuit court erred in denying Mr. Trott’s motion to suppress. After considering the issue
on brief, the Court of Special Appeals filed a certification pursuant to Maryland Rule 8-
304. In its certification, the intermediate appellate court observed that this case presents
“an important question of public policy” balancing the interests of individual privacy
protected by the Fourth Amendment and against the inherent danger to the public arising
from driving while intoxicated, in the context of an anonymous 911 call reporting such
alleged behavior. We granted the certification, pursuant to Maryland Rule 8-304(c)(3),
and issued a writ of certiorari that included the entire action.
II.
Standard of Review
Our review of a circuit court’s denial of a motion to suppress evidence under the
Fourth Amendment is limited to the information contained in the record of the suppression
hearing. Pacheco v. State, 465 Md. 311, 319 (2019). We review the facts found by the
circuit court in the light most favorable to the prevailing party, in this case, the State. Id.We accept the circuit court’s findings of fact “unless they are clearly erroneous, but we
review de novo the court’s application of the law to its findings of fact.” Id. (citation and
internal quotations omitted). When a party raises a constitutional challenge to a search or
seizure, we undertake an “independent constitutional evaluation by reviewing the relevant
law and applying it to the unique facts and circumstances of the case.” Grant v. State, 449
Md. 1, 14–15 (2016) (quoting State v. Wallace, 372 Md. 137, 144 (2002)).
5
III.
Discussion
The Fourth Amendment to the United States Constitution4 protects “against
unreasonable searches and seizures[.]” U.S. Const. amend. IV “The exclusion of evidence
obtained in violation of these provisions is an essential part of the Fourth Amendment
protections.” Swift v. State, 393 Md. 139, 149 (2006); see also Mapp v. Ohio, 367 U.S.
643, 655–56 (1961). In determining whether a search or seizure is lawful, “[t]he touchstone
of our analysis under the Fourth Amendment is always the ‘reasonableness in all the
circumstances of the particular governmental invasion of a citizen’s personal security.’”
Pennsylvania v. Mimms, 434 U.S. 106, 108–09 (1977) (quoting Terry v. Ohio, 392 U.S. 1,
19 (1968)). Recognizing that the constitutional gauge for purposes of Fourth Amendment
analysis is “reasonableness,” we have explained that “‘[w]hat is reasonable depends upon
all of the circumstances surrounding the search or seizure and the nature of the search or
seizure itself.’” Lewis v. State, 470 Md. 1, 18 (2020) (quoting United States v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985)). “Whether a particular warrantless action on the
part of the police is reasonable under the Fourth Amendment depends on a balance between
4
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV.
6
the public interest and the individual’s right to personal security free from arbitrary
interference by law officers.” Pacheco, 465 Md. at 321 (internal quotations omitted).
In analyzing the reasonableness of warrantless encounters between the police and
members of the public, we have generally compartmentalized these interactions into three
categories based upon the level of intrusiveness of the police-citizen contact: an arrest; an
investigatory stop; and a consensual encounter. See Swift, 393 Md. at 149–51. An arrest—
the first and most intrusive category—“requires probable cause to believe that a person has
committed or is committing a crime.” Id. (citations omitted). This case involves the
application of the intermediate tier, known as the Terry stop,5 or investigatory stop, which
is less intrusive than a more formal custodial arrest, and correspondingly, requires a less
demanding level of suspicion than probable cause.6 See United States v. Sokolow, 490 U.S.
1, 7 (1989). To satisfy the Fourth Amendment, a Terry stop “must be supported by
reasonable suspicion that a person has committed or is about to commit a crime and permits
an officer to stop and briefly detain an individual.” Swift, 393 Md. at 150 (citing Berkemer
5
The intermediate level of police-citizen encounter commonly referred to as “Terry
stop,” derives its name from the seminal “stop and frisk” case of Terry v. Ohio, 392 U.S. 1(1968).
6
“The least intrusive police-citizen contact, a consensual encounter, involves no
restraint of liberty and elicits an individual’s voluntary cooperation with non-coercive
police contact.” Swift v. State, 393 Md. 139, 151 (2006). In its supplemental brief filed
with this Court, the State concedes that, under the circumstances presented in this case—
where the officers parked the cruiser ten to fifteen feet behind Mr. Trott’s parked car and
activated the emergency lights—Mr. Trott was seized when Corporal Cooper approached
his car and asked him to roll down his window. Given the State’s concession that Mr. Trott
was “seized” within the meaning of the Fourth Amendment, the encounter was not
consensual and is governed by the reasonable suspicion standard applicable to a Terry stop.
7
v. McCarty, 468 U.S. 420, 439 (1984)); Ferris v. State, 355 Md. 356, 374 n.5 (1999).
Generally, an officer has reasonable suspicion to conduct a stop when there is “‘a
particularized and objective basis for suspecting the particular person stopped of criminal
activity.’” Navarette v. California, 572 U.S. 393, 396 (2014) (quoting United States v.
Cortez, 449 U.S. 411, 417–18 (1981)); see also Sizer v. State, 456 Md. 350, 364 (2017)
(explaining that “[r]easonable suspicion exists somewhere between unparticularized
suspicions and probable cause”).
“There is no standardized litmus test that governs the ‘reasonable suspicion’
standard,” and we have recognized that “any effort to compose one would undoubtedly be
futile.” Cartnail v. State, 359 Md. 272, 286 (2000) (citing Ornelas v. United States, 517
U.S. 690, 695 (1996) (explaining that it would be impossible to articulate, with precision,
what “reasonable suspicion” means)). The futility in attempting to create such a standard
arises from the “myriad factual situations that arise.” Cortez, 449 U.S. at 417. Like
probable cause, the standard for “reasonable suspicion” is intentionally fluid because it “is
not readily, or even usefully, reduced to a neat set of legal rules.” Sokolow, 490 U.S. at 7(citation and internal quotations omitted). Distilled to its essence, we consider the “totality
of the circumstances—the whole picture—” to determine whether “the detaining
officers . . . have a particularized and objective basis for suspecting the particular person
stopped of criminal activity.” Cortez, 449 U.S. at 417–18. The reasonable suspicion
standard “is a common sense, nontechnical conception that considers factual and practical
aspects of daily life and how reasonable and prudent people act.” Cartnail, 359 Md. at 286
(citing Ornelas, 517 U.S. at 695–96). In Sizer, we explained that “[t]he reasonable
8
suspicion standard does not allow a law enforcement official to simply assert that innocent
conduct was suspicious to him or her. Rather, the officer must explain how the observed
conduct, when viewed in the context of all of the other circumstances known to the officer,
was indicative of criminal activity.” 456 Md. at 365 (internal citations and quotations
omitted) (cleaned up). Although reasonable suspicion “requires some minimal level of
objective justification for making the stop that amounts to something more than an
‘inchoate and unparticularized suspicion or hunch, it does not require proof of wrongdoing
by a preponderance of the evidence.” Sokolow, 490 U.S. at 7 (cleaned up). Accordingly,
we have stated that a stop may be upheld based on “a series of acts which could appear
naturally innocent if viewed separately” but that “collectively warrant further
investigation[.]” Cartnail, 359 Md. at 290 (citation omitted); see also United States v.
Arvizu, 534 U.S. 266, 277 (2002) (“A determination that reasonable suspicion exists . . .
need not rule out the possibility of innocent conduct.”).
On the undisputed facts presented at the suppression hearing, we must determine
whether Corporal Cooper had reasonable suspicion necessary to effect a stop of Mr. Trott
outside Captain Kidd’s liquor store after receiving the information relayed by the 911
caller, under the totality of the circumstances known to the officer at the time of the stop.
Mr. Trott argues that the officers did not have a legal basis to stop and detain him
and that the anonymous call cannot support a finding of reasonable suspicion under the
facts of this case. He contends that the 911 caller simply referred to an “intoxicated driver,”
without: any reference as to timing; describing any driving behavior; or providing any basis
of personal knowledge. What is missing from the call, he claims, is sufficient indicia of
9
reliability and the caller’s basis of knowledge, given that reasonable suspicion requires that
a tip be reliable in its assertion of ongoing criminal activity, and not simply its tendency to
identify a specific person. Mr. Trott asserts that under the Supreme Court’s jurisprudence
and in particular, Navarette, 572 U.S. 393, the mere reference to an “intoxicated driver” is
a “conclusory allegation,” which is insufficient to satisfy the reasonable suspicion standard
applicable to a lawful investigatory stop for Fourth Amendment purposes. Mr. Trott
contends that the Supreme Court’s rationale in Florida v. J.L., 529 U.S. 266, 271 (2000)
controls, because “[a]ll the police had to go on in this case was a bare report of an unknown,
unaccountable informant who neither explained how he knew about the [intoxicated driver]
nor supplied any basis for belief he had inside information about the [driver].”
The State argues that Corporal Cooper had reasonable suspicion to stop Mr. Trott
because the tip, as relayed by the dispatcher, included specific information to identify the
vehicle, as well as the vehicle’s precise location, along with the allegation that the driver
was intoxicated. According to the State, the Supreme Court’s reasoning in Navarette—
combined with the minimally intrusive nature of the stop of Mr. Trott and the significant
imminent danger to the public created by the alleged criminal activity—lead to the
conclusion that the stop satisfied the reasonableness requirements of the Fourth
Amendment.
Despite the opposing outcomes advanced by Mr. Trott and the State, they agree on
one point—that our analysis requires an examination of the Supreme Court’s jurisprudence
concerning anonymous calls alleging criminal behavior that form the basis for an
investigatory stop.
10
A. Supreme Court Jurisprudence—Anonymous Tips Providing Reasonable
Suspicion for Investigatory Stop
We start with the premise that reasonable suspicion need not be founded on
information observed first-hand by law enforcement and may be “based on information
from anonymous tips.” Navarette, 572 U.S. at 397. Indeed, the Supreme Court has “firmly
rejected the argument ‘that reasonable cause for an investigative stop can only be based on
[an] officer’s personal observation, rather than on information supplied by another
person.’” Id. (quoting Adams v. Williams, 407 U.S. 143, 147 (1972)) (cleaned up). In
determining whether an anonymous tip is sufficient to provide the requisite reasonable
suspicion necessary for an investigatory stop, we consider both the “quantity and
quality[,]” or degree of reliability of information disclosed in an anonymous tip, “giving
the anonymous tip the weight it deserved in light of its indicia of reliability as established
through independent police work.” Alabama v. White, 496 U.S. 325, 330 (1990). “[I]f a
tip has a relatively low degree of reliability, more information will be required to establish
the requisite quantum of suspicion than would be required if the tip were more reliable.”
Id.In White, the Supreme Court considered whether an anonymous tip, corroborated
by independent police work, was sufficient to provide reasonable suspicion to make an
investigatory stop. 496 U.S. at 326–27. The tipster told the police that a woman would be
leaving an apartment at a particular time, driving to a particular motel in a brown Plymouth
station wagon with a broken taillight, and would be transporting cocaine. Id. at 327. Based
upon the information provided by the tipster, the police officers stopped the station wagon
11
as it neared the motel and found cocaine in the vehicle. Id. at 331. The Court held that the
officers’ corroboration of certain details made the anonymous tip sufficiently reliable to
create reasonable suspicion of criminal activity and that the investigative stop therefore did
not violate the Fourth Amendment. Id.Although the Court observed that the anonymous tip provided “virtually nothing
from which one might conclude that the caller is either honest or his information is
reliable[]” and gave “no indication of the basis for the caller’s prediction regarding . . .
criminal activities[,]” the Court ultimately found the tip sufficiently reliable for purposes
of establishing reasonable suspicion because “the anonymous tip had been sufficiently
corroborated to furnish reasonable suspicion that respondent was engaged in criminal
activity[.]” Id. at 329, 331 (citation omitted) (cleaned up). According to the Court, police
were able to verify the suspect’s sex, the vehicle described in the tip, the time of the
suspect’s departure from the building, and her apparent destination. Id. at 331. The Court
found the tipster’s ability to predict “future behavior” of particular import, observing that
“[b]ecause only a small number of people are generally privy to an individual’s itinerary,
it is reasonable for police to believe that a person with access to such information is likely
to also have access to reliable information about that individual’s illegal activities.” Id. at
332.
In Florida v. J.L., by contrast, the Supreme Court determined that no reasonable
suspicion arose from an anonymous call to a police department that a young black male
standing at a particular bus stop and wearing a plaid shirt was carrying a gun. 529 U.S. at
268. At some point, two officers arrived at the scene, observed three black males “just
12
hanging out[,]” one of whom, J.L., was wearing a plaid shirt. Id. One of the officers
approached J.L., frisked him, and recovered a gun from his pocket. Id. The question
presented to the Court was whether “an anonymous tip that a person is carrying a gun is,
without more, sufficient to justify a police officer’s stop and frisk of that person.” Id. The
Supreme Court held that the search was invalid under the Fourth Amendment. Id.The Supreme Court began its discussion by observing that the police officers’
suspicion that J.L. was carrying a gun arose “solely from a call made from an unknown
location by an unknown caller[]” and not from any observations of their own. Id. at 270.
Citing Alabama v. White as an example, the J.L. Court acknowledged that there are
situations “in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia
of reliability to provide reasonable suspicion to make the investigatory stop.’” Id. (quoting
White, 496 U.S. at 327). The Court contrasted the facts in White from the facts before it,
noting that the anonymous call concerning J.L. “provided no predictive information and
therefore left the police without means to test the informant’s knowledge or credibility.”
Id. at 271. By failing to provide both predictive information or an explanation concerning
“how [the tipster] knew about the gun[,]” there could be no “basis for believing [the tipster]
had inside information about J.L.” Id. And although the Court observed the tip accurately
described the “subject’s readily observable location and appearance” such details are only
reliable in a “limited sense[]” because they do “not show that the tipster has knowledge of
concealed criminal activity.” Id. at 272. According to the Court, “[t]he reasonable
suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in
its tendency to identify a determinate person.” Id. (citation omitted).
13
In rendering its decision, the Supreme Court rejected a per se exception for
anonymous tips regarding firearms, recognizing the danger that guns may pose, but
concluding that such an exception would encompass too many situations, such as any
allegation of drug dealing. Id. at 272–73. At the same time, the Court declined to shut the
door altogether on whether there are “circumstances under which the danger alleged in an
anonymous tip might be so great as to justify a search even without a showing of
reliability.” Id. at 273. By way of example, the Court noted “a report of a person carrying
a bomb” may not need the same “indicia of reliability” demanded “for a report of a person
carrying a firearm” before law enforcement can conduct a Terry stop and frisk. Id. at 273–
74.
In Navarette v. California, the Supreme Court considered whether an officer had
reasonable suspicion to make an investigatory stop in the context of an anonymous 911
call reporting a suspected drunk driver. 572 U.S. 393. Applying a “totality of the
circumstances” approach, the Supreme Court held that the tip from the anonymous 911
caller was sufficiently reliable to support a Terry stop. Id. at 404. In that case, the police
department received an anonymous 911 call claiming that a particular truck had run the
caller off the road. Id. at 395. The caller provided the license plate number, make, and
model of the truck, and identified the road and the direction the truck was traveling. Id.The officers responded and saw the alleged truck on the road and followed it for about five
minutes without noticing any dangerous or erratic driving behavior. Id. Nonetheless, the
officers stopped the truck. Id. During the stop, they smelled marijuana, so they conducted
a search that resulted in the discovery of 30 pounds of marijuana. Id. The Supreme Court
14
found the stop to be supported by reasonable suspicion, even though the officers had not
been able to corroborate any illegal activity (such as dangerous driving) during their five-
minute observation of the truck. Id. at 404.
After discussing both the White and J.L. cases, the Supreme Court determined that,
even assuming the 911 call was anonymous, “the call bore adequate indicia of reliability
for the officer to credit the caller’s account” and “[t]he officer was therefore justified in
proceeding from the premise that the truck had, in fact, caused the caller’s car to be
dangerously diverted from the highway.” Id. at 398–99. In concluding that the call was
reliable, the Court focused on three factors. First, the Court commented on the fact that
the caller had eyewitness knowledge of the alleged criminal behavior. Id. at 399.
Specifically, the Court pointed out that the caller claimed to have been run off the road,
“which necessarily implie[d] that the informant knows the other car was driven
dangerously.” Id. at 399. Second, the Court pointed out the contemporaneous nature of
the call, observing that the “timeline of events suggests that the caller reported the incident
soon after she was run off the road.” Id. The Court stated that this “sort of
contemporaneous report has long been treated as especially reliable.” Id. The final factor
weighing in favor of the tip’s veracity was “the caller’s use of the 911 emergency system.”
Id. at 400. The Court observed that the 911 emergency system not only relays a caller’s
cell phone number and approximate geographical location to 911 dispatchers, thereby
providing “some safeguards against . . . false reports[,]” but may also record 911 calls,
which provides victims of false reports “an opportunity to identify the false tipster’s voice
and subject him to prosecution” under applicable state laws. Id. at 400–01.
15
After determining that the anonymous tip was sufficiently reliable, the Supreme
Court proceeded to the second part of the analysis under Terry—whether, at the time of the
stop, the officer had a reasonable belief that the criminal activity was ongoing—explaining
that “[e]ven a reliable tip will justify an investigative stop only if it creates reasonable
suspicion that ‘criminal activity may be afoot.’” Id. at 401 (quoting Terry, 392 U.S. at 30).
The Court explained that it must “therefore determine whether the 911 caller’s report of
being run off the roadway created reasonable suspicion of an ongoing crime such as drunk
driving as opposed to an isolated episode of past recklessness.” Id.Focusing on the nature of the specific type of criminal activity, the Supreme Court
concluded that the nature of the driver’s conduct—running another car off the highway—
bore “too great a resemblance to paradigmatic manifestations of drunk driving to be
dismissed as an isolated example of recklessness.” Id. at 403. The Court stated that “[w]e
cannot say that the officer acted unreasonably under these circumstances in stopping a
driver whose alleged conduct was a significant indicator of drunk driving.” Id. The Court
reasoned that because the specific allegation of dangerous driving created “reasonable
suspicion of drunk driving[,]” law enforcement was not required to “personally observe
suspicious driving[]” prior to executing a stop, as “[o]nce reasonable suspicion of drunk
driving arises, ‘the reasonableness of the officer’s decision to stop a suspect does not turn
on the availability of less intrusive investigatory techniques.’” Id. at 403–04 (citing
Sokolow, 490 U.S. at 11) (cleaned up). The Court observed that this is particularly true in
the context of drunk driving, where “allowing a drunk driver a second chance for dangerous
conduct could have disastrous consequences.” Id. at 404.
16
B. Anonymous 911 Call and the Investigatory Stop of Mr. Trott
We must determine whether, under the totality of the circumstances, the stop here
comported with the reasonable suspicion requirement of the Fourth Amendment. Our
analysis requires that we consider whether the anonymous tip provided sufficient indicia
of reliability, and whether the police officers had a particularized and objective basis for
suspecting ongoing criminal activity at the time of the stop. Mr. Trott argues that the
anonymous tip does not meet the reliability threshold described in Navarette because there
is: (1) no basis for either imputing “eyewitness knowledge” to the tipster or concluding the
anonymous tip was reported at the time the tipster witnessed unlawful activity; (2) no
concrete allegation of criminal activity set forth in the tip; (3) no predictive information set
forth in the tip; and (4) no evidence that the system through which the tip was reported
decreased the likelihood of false tips. Even if this Court were to find the tip reliable, Mr.
Trott argues there is no basis for finding reasonable suspicion, as the allegation of
intoxicated driving was conclusory, and Corporal Cooper failed to observe anything
indicative of criminal activity. According to Mr. Trott, his presence outside a liquor store
at the time of the stop “does not add in any way to the totality of circumstances[.]”
Unsurprisingly, the State contends Corporal Cooper had the reasonable suspicion
necessary to effect a stop of Mr. Trott. According to the State, a tip reporting drunk driving
is different than tips reporting other crimes because drunk driving presents an “imminent
threat to public safety.” The State asserts that, while anonymous tipsters may generally
need to provide more particularized descriptions of unlawful activity, a specific allegation
of drunk driving without a detailed description of the reason an anonymous tipster believes
17
the driver is intoxicated should be sufficient to justify a seizure given the “exigent
circumstances” presented by drunk driving. In light of the foregoing, the State contends
Corporal Cooper had reasonable suspicion to stop Mr. Trott outside the liquor store because
the tipster provided a specific allegation of intoxicated driving that was sufficiently
descriptive to ensure police would only stop the subject of the tip, and Corporal Cooper
was able to timely identify the reported vehicle outside a liquor store. The lawfulness of
the seizure, the State asserts, finds further support in precedent establishing the diminished
expectation of privacy that a motorist enjoys in his or her vehicle, as well as the minimal
intrusion associated with stopping an already parked vehicle.7
We conclude that the anonymous tip in this case provided sufficient indicia of
reliability and that, under the totality of the circumstances, the police officers had a
particularized and objective basis for suspecting ongoing criminal activity.
We start our Fourth Amendment analysis with an examination of whether the 911
call bore sufficient indicia of reliability to form the basis for the stop. To be sure, unlike
the caller in Navarette, the caller here did not allege that he or she was run off the road.
Admittedly, this is a close case and on its own, such a “bare bones,” conclusory allegation
would not suffice to support a stop. However, as noted above, our determination of whether
an officer has the reasonable suspicion necessary to justify an investigatory stop is a highly
7
The State has argued that, even if we were to find that Corporal Cooper’s stop
lacked reasonable suspicion, the stop was justified under the community caretaking
exception. Given our holding that, under the totality of the circumstances presented in this
case, the officers had reasonable suspicion to effectuate the stop under the Fourth
Amendment, we shall not address the community caretaking exception.
18
fact-intensive inquiry, and we consider the totality of the circumstances known to the
officer at the time of the stop. Our consideration of all of the factors described below lead
us to conclude that the officer had reasonable suspicion.
First, we note that, although conclusory, an allegation that a person is intoxicated is
“the kind of shorthand statement of fact that lay witnesses have always been permitted to
testify to in court.” State v. Crawford, 67 P.3d 115, 119 (Kan. 2003) (citation and internal
quotations omitted); see also State v. Amelio, 962 A.2d 498, 502 (N.J. 2008) (explaining
that “the signs of drunkenness are matters of common knowledge and experience”). But
the tip did not simply allege drunk driving. The tip was contemporaneous to the reported
behavior and provided detailed and specific information. The 911 dispatcher provided the
officer with the color of the vehicle, the Maryland license plate number and the registration
number. There is no question that the dispatch described the motor vehicle with sufficient
particularity such that Corporal Cooper could be certain that the vehicle he stopped was
the same one identified by the caller. We note that other courts have found detailed
descriptions of vehicles, including full license plate numbers and locations, to be helpful
corroborating details. See, e.g., Commonwealth v. Depiero, 25 N.E.3d 896, 900 (Mass.
App. Ct. 2015). Additionally, Corporal Cooper arrived at the location provided by the
dispatcher within two to eight minutes after receiving the call. The fact that the car was
located exactly where it was reported to be within minutes of the call lends credence to the
notion that the caller reported an ongoing crime as it happened. This “sort of
contemporaneous report has long been treated as especially reliable” as “‘substantial
contemporaneity of event and statement negate the likelihood of deliberate or conscious
19
misrepresentation.’” Navarette, 572 U.S. at 399–400 (quoting Fed. R. Evid. 803(1)
advisory committee notes); see also Md. Rule 5-803(b)(1) (providing that “[a] statement
describing or explaining an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter[]” is “not excluded by the hearsay rule[]”);
Booth v. State, 306 Md. 313, 324 (1986) (observing that “the ‘present sense impression’
exception to the hearsay rule rests upon a firm foundation of trustworthiness[]”).
The caller’s use of the 911 emergency system to report intoxicated driving also bears
favorably on the tip’s veracity. As the Supreme Court observed in Navarette, “911 calls
can be recorded” and the Federal Communications Commission (“FCC”) not only requires
cellular carriers to relay caller phone numbers to 911 dispatchers but also requires carriers
“to identify [a] caller’s geographic location with increasing specificity.” Id. at 400–01
(citations omitted). These features that are designed to better identify 911 callers, coupled
with the State criminalizing knowingly false reports of criminal activity, see Maryland
Code, Criminal Law § 9-503,8 would make “a reasonable officer . . . conclude that a false
tipster would think twice before using” 911 to report a phony tip. Id. at 401.
8
Maryland Code, Criminal Law § 9-503 provides:
(a) A person may not make, or cause to be made, a statement or report
that the person knows to be false as a whole or in material part to an
official or unit of the State or of a county, municipal corporation, or other
political subdivision of the State that a crime has been committed or that
a condition imminently dangerous to public safety or health exists, with
the intent that the official or unit investigate, consider, or take action in
connection with that statement or report.
20
Having determined that the anonymous call was reliable, we also conclude that “the
observed conduct, when viewed in the context of all the other circumstances known to the
officer, was indicative of criminal activity.” Sizer, 456 Md. at 365 (citations omitted).
Within minutes of receiving the dispatcher’s call relaying an anonymous tip alleging that
an intoxicated driver was operating a particular vehicle at a specific location, law
enforcement located the exact vehicle at the precise location identified in the tip. When
law enforcement made contact with the vehicle, it was nearly 11:30 p.m., the vehicle was
parked outside a liquor store, the keys were in the ignition, and the car was running. The
911 call, taken with the officer’s observation of the running vehicle parked at a liquor store
at 11:30 at night, creates a reasonably objective belief that the driver of the vehicle may be
consuming alcohol. In other words, the nature of the business and the lateness of the hour
were certainly among the totality of the circumstances available to Corporal Cooper when
he undertook his investigation. While it is true that these details, when viewed in isolation,
may suggest innocent activity, “[a] determination that reasonable suspicion exists . . . need
not rule out the possibility of innocent conduct.” Arvizu, 534 U.S. at 277. Here, the
anonymous tip, coupled with the circumstances surrounding the stop, was sufficient to
“warrant further investigation[.]” Cartnail, 359 Md. at 290 (citation omitted). Considering
the totality of all of the circumstances available to Corporal Cooper, his act of approaching
the stopped and idling vehicle and knocking on the window to investigate, was reasonable.
In reaching our conclusion that the investigatory stop in this case was reasonable,
other factors inform our decision. Specifically, in determining the validity of the stop, it is
not unreasonable to consider both the level of the intrusiveness occasioned by the stop, as
21
well as the risk of harm resulting from a failure to detain the driver.9 In considering the
level of intrusiveness, the nature of the seizure involved a stopped vehicle and a minimal
intrusion. The automobile was parked and running, and the encounter was brief—it only
lasted long enough for Corporal Cooper to knock on the window and ask Mr. Trott a few
questions. As the Supreme Court has recognized, “the brevity of the invasion of the
individual’s Fourth Amendment interests is an important factor in determining whether the
seizure is so minimally intrusive as to be justifiable on reasonable suspicion.” United
States v. Sharpe, 470 U.S. 675, 685 (1985) (citation omitted). If Corporal Cooper had not
9
Prior to the Supreme Court’s decision in Navarette, Chief Justice Roberts noted in
his dissent to the denial of certiorari in Virginia v. Harris, 558 U.S. 978 (2009), that the
“majority of courts examining the question [had] upheld investigative stops of allegedly
drunk or erratic drivers, even when the police did not personally witness any traffic
violations before conducting the stops.” See Harris, 558 U.S. 978, n.2 (citing United States
v. Wheat, 278 F.3d 722 (8th Cir. 2001); People v. Wells, 136 P.3d 810 (Cal. 2006); State
v. Prendergast, 83 P.3d 714 (Haw. 2004); State v. Walshire, 634 N.W.2d 625 (Iowa 2001);
State v. Crawford, 67 P.3d 115 (Kan. 2003); Bloomingdale v. State, 842 A.2d 1212 (Del.
2004); State v. Golotta, 837 A.2d 359 (N.J. 2003); State v. Scholl, 684 N.W.2d 85 (S.D.
2004); State v. Boyea, 765 A.2d 862 (Vt. 2000); State v. Rutzinksi, 623 N.W.2d 516 (Wis.
2001)). This view was not shared by all jurisdictions. See Wheat, 278 F.3d at 729–30
(reviewing cases upholding stops, then noting that some courts “have reached a different
conclusion[]”). When considering an anonymous tip alleging drunk driving, as part of its
reasonable suspicion analysis, other jurisdictions that upheld the stops considered not just
the reliability of the call, but also the potential risk to public safety and the minimal
intrusion necessitated by the investigatory stop. See, e.g., Boyea, 765 A.2d at 868(explaining that “[i]n determining the validity of a stop, it is not unreasonable to consider
both the risk of harm resulting from a failure to detain the driver, and the level of
intrusiveness occasioned by a detention[]”); Golotta, 837 A.2d at 368 (observing that from
a constitutional standpoint, the lesser privacy interest in an automobile and the nature of
the intrusion are relevant in assessing the reasonableness of the police conduct). Although
these cases were decided prior to Navarette, we do not read Navarette as eliminating a
court’s ability to consider the nature of the crime (and attendant imminent danger to the
public), as well as the level of intrusion (such as knocking on the window of a stopped but
running vehicle parked in a liquor store parking lot), when undertaking a reasonable
suspicion analysis.
22
smelled alcohol on Mr. Trott, the stop would have ended, and Mr. Trott would have been
free to go on his way. Not only was the stop brief, it was minimally intrusive. In contrast
to the search and seizure of one’s person in J.L., the intrusion in this case involved an
officer approaching a stopped motor vehicle and knocking on a window. The Supreme
Court has long recognized that people have a diminished expectation of privacy in their
vehicles. See United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976) (noting that
“one’s expectation of privacy in an automobile and of freedom in its operation are
significantly different from the traditional expectation of privacy and freedom in one’s
residence[]”). This is because a vehicle “has little capacity for escaping public scrutiny. It
travels public thoroughfares where both its occupants and its contents are in plain view.”
United States v. Knotts, 460 U.S. 276, 281 (1983) (citations omitted); see also People v.
Wells, 136 P.3d 810, 816 (Cal. 2006) (upholding the stop of an alleged drunk driver, in
part, after concluding that “the level of intrusion of personal privacy and inconvenience
involved in a brief vehicle stop is considerably less than the ‘embarrassing police search’
on a public street condemned by J.L.” and further observing that “in light of the pervasive
regulation of vehicles capable of traveling on the public highways, individuals generally
have a reduced expectation of privacy while driving a vehicle on public thoroughfares”)
(internal citations omitted); State v. Crawford, 275 Kan. 492, 497 (Kan. 2003) (upholding
an investigatory stop based upon a reckless driving complaint, in part, on the observation
that “brief investigatory stops of motor vehicles based upon reasonable suspicion are
substantially less intrusive than other forms of seizures under the Fourth Amendment and
are perceived as relatively minimal intrusions upon the Fourth Amendment freedoms[]”).
23
Indeed, in Lewis, we recently distinguished between the “heightened expectation of privacy
enjoyed in one’s person[]” versus the “diminished expectation of privacy one enjoys in his
or her vehicle.” 470 Md. at 26.
Additionally, in determining that the investigatory stop was reasonable under the
circumstances, we also consider the gravity of the risk of public harm. Unlike crimes
involving possessory offenses, such as carrying an illegal gun or possessing drugs, the
crime of drunk driving poses a significant and potentially imminent public danger. As
Chief Justice Roberts observed, “[t]he imminence of the danger posed by drunk drivers
exceeds that at issue in other types of cases.” Virginia v. Harris, 558 U.S. 978 (2009)
(dissenting from denial of certiorari). While the police can observe the subject of other
types of tips “and step in before actual harm occurs[,]” a “wait-and-see approach” with
drunk driving “may prove fatal.” Id. Indeed, unlike other criminal activity, drunk driving
“is always dangerous, as it is occurring.” Id. It is not passive activity—it is a dangerous
criminal activity that, when undertaken, often has an immediate deadly impact on innocent
citizens who unknowingly step into its path. Balancing the public’s interest in safety
against the minimal intrusion occasioned by the brief investigatory stop here, and
considering the totality of the facts presented to Officer Cooper in this case, we conclude
that the scales of justice tilt in favor of the stop.
IV.
Conclusion
We hold that the investigatory stop in this case satisfied the Fourth Amendment.
Considering the totality of the circumstances, the officers had reasonable suspicion to
24
suspect that Mr. Trott was engaged in drunk driving. The anonymous 911 call had
sufficient indicia of reliability—the tipster alleging the drunk driving provided the make,
model, and license plate of the vehicle, as well as its location. The police arrived within
minutes of receiving the call and observed the running vehicle parked at a liquor store
around 11:30 p.m. on a Friday night. We determine that the stop was reasonable given the
nature of the criminal activity—drunk driving, with its attendant imminent danger to the
public—as well as the minimal and non-intrusive nature of the stop. Under the totality of
the circumstances, the officer’s stop was reasonable.
CERTIFIED QUESTION ANSWERED.
JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
25