Carter v. State ( 2019 )

Kennard Carter v. State of Maryland, No. 478, September Term 2018.
ARREST > NECESSITY FOR CAUSE FOR ARREST
For the purposes of ascertaining whether Fourth Amendment guarantees against
unreasonable searches and seizures are implicated in an encounter between an individual
and a police officer, the encounter is classified as investigatory detention when, in view of
all the circumstances surrounding the incident, by means of physical force or show of
authority, a reasonable person would have believed that he was not free to leave or is
compelled to respond to questions. U.S. Const. amend. IV.
ARREST > WHAT CONSTITUTES A SEIZURE OR DETENTION
Factors that might indicate that a seizure has occurred, thus implicating Fourth Amendment
guarantees against unreasonable searches and seizures, include: threatening presence of
several officers, the display of a weapon by an officer, some physical touching of the
person, the use of language or tone of voice indicating that compliance with the officer's
request might be compelled, approaching the individual in a nonpublic place, and blocking
the individual's path. U.S. Const. amend. IV.
ARREST > WHAT CONSTITUTES A SEIZURE OR DETENTION
Crucial test in determining whether a person was seized within the meaning of the Fourth
Amendment is whether, taking into account all of the circumstances surrounding the
encounter between the individual and the police, the police conduct would have
communicated to a reasonable person that he was not at liberty to ignore the police presence
and go about his business. U.S. Const. amend. IV.
CRIMINAL LAW > ATTENUATION OR DISSIPATION PURGING TAINT
Evidence is admissible under the “attenuation doctrine” when the connection between
unconstitutional police conduct and the evidence is remote or has been interrupted by some
intervening circumstance, so that the interest protected by the constitutional guarantee that
has been violated would not be served by suppression of the evidence obtained.
CRIMINAL LAW > ATTENUATION OR DISSIPATION PURGING TAINT
Three factors guide the court's analysis into whether the attenuation doctrine applies to
allow admission of evidence obtained following unconstitutional conduct: (1) the court
looks to the temporal proximity between the unconstitutional conduct and the discovery of
evidence to determine how closely the discovery of evidence followed the unconstitutional
search; (2) the court considers the presence of intervening circumstances; and (3)
particularly significant, the court examines the purpose and flagrancy of the official
misconduct. U.S. Const. amend. IV.
Circuit Court for Baltimore City
Case No. 117303014
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 478
September Term, 2018
_____________________________________
KENNARD CARTER
v.
STATE OF MARYLAND
_____________________________________
Leahy,
Reed,
Friedman,
JJ.
_____________________________________
Opinion by Reed, J.
_____________________________________
Filed: November 14, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-11-19 10:33-05:00
Suzanne C. Johnson, Clerk
Kennard Carter (“Appellant”) was charged with (1) possession of a firearm after
having been convicted of a crime of violence; (2) possession of a firearm after having been
convicted of a disqualifying crime; (3) wearing, carrying, and transporting a handgun on
his person; (4) possession of a controlled dangerous substance (cocaine); and (5) resisting
arrest.1 Prior to trial, defense counsel stipulated that Appellant had a prior conviction that
disqualified him from possessing a weapon.
At trial, Appellant’s counsel filed a Motion to Suppress physical evidence seized by
Maryland Transit Administration (“MTA”) officers subsequent to Appellant being
removed from a Light Rail Train. The Motion claimed that Appellant’s Fourth Amendment
right to be free from unreasonable searches and seizures had been violated. Following the
suppression hearing, the Court denied Appellant’s Motion to Suppress.
On March 26, 2018, a jury in the Circuit Court for Baltimore City convicted
Appellant of Counts 1, 3, and 5.2 Appellant was then sentenced to ten (10) years’
imprisonment as to Count 1, suspending all but a mandatory minimum of five years without
the possibility of parole, and to concurrent three-year (3) terms on Counts 3 and 5, with
three (3) years’ supervised probation. This appeal followed.
In bringing his appeal, Appellant presents one question for appellate review:
I. Did the trial court err in denying Appellant’s Motion to Suppress?
1
Appellant was also charged with failure to pay for the Light Rail Train but the
charge was dropped by the State once Appellant prayed a jury trial.
2
The trial court granted judgments of acquittal as to Counts 2 and 4.
For the following reasons, we hold that Appellant was illegally seized. Furthermore,
we hold that Appellant’s Motion to Suppress should have been granted, as the Strieff factors
weigh against attenuation in this case. As such, we reverse the convictions of Appellant.
FACTUAL & PROCEDURAL BACKGROUND
On October 2, 2017, at approximately 8:00 p.m., six Maryland Transportation
Authority (“MTA”) officers3 gathered on the Mount Royal station platform and waited for
the train to arrive in order to conduct a fare inspection. Fare inspections, also referred to as
“fare sweeps,” are used by MTA officers to check whether passengers have committed the
crime of not paying their fare. Anyone who travels on a Light Rail Train without paying
their fare is subject to a fifty-dollar ($50) citation pursuant to Maryland Code,
Transportation Article § 7-705.
Fare inspections are typically conducted by teams of MTA officers, where the
officers broadcast an announcement through the train that a fare inspection is being
conducted while the train is stopped and instruct all passengers to show their passes when
approached. There was no evidence establishing whether any signs warning passengers
that they would be subject to being checked for payment for a possible violation of the
Transportation Article were posted at the station or on the train. At that time, some officers
walked through the train seeking proof of payment from each passenger; the remaining
3
Officer Tobin testified that the MTA is sanctioned by the State of Maryland, and
MTA officers are empowered with the same arrest powers as those granted to the Maryland
State Police. Md. Code, Trans. § 4-208(a)(2) (“a Maryland Transportation Authority police
officer has all the powers granted to a peace officer and a police officer of this State”); see
also Okwa v. Harper, 360 Md. 161 (2000).
2
officers remained on the platform outside the train. During the suppression hearing in this
matter, Corporal Latoya Russell (hereinafter “Corporal Russell”) testified that passengers
are not allowed to leave the train while the inspections are conducted. Any passenger who
refuses, or is unable, to produce their fare ticket is ordered off the train and directed to the
officers on the platform to receive a citation. Corporal Russell also testified that officers
typically collect identifying information and run warrant checks through MTA dispatch on
every passenger who receives a citation for traveling without a fare ticket. Furthermore,
when later asked, Corporal Russell answered in the affirmative that fare inspections are
“an apparatus to be able to check people for warrants.”
As a Light Rail Train arrived at the Mount Royal station on October 2, 2017, an
officer boarded each of the four train cars. Each officer broadcasted an announcement that
they were about to conduct a fare inspection and instructed passengers that officers were
checking tickets. The officers then proceeded to ask every passenger onboard for their
ticket.
Appellant was travelling in one of the train cars boarded by MTA officers on
October 2, 2017. After Corporal Russell boarded Appellant’s car, Appellant approached
Corporal Russell and informed her that he did not have a ticket. Corporal Russell then
instructed Appellant to get off of the train and directed him to Officer Zachary Tobin, who
was waiting on the platform. Officer Tobin then escorted Appellant to a bench on the
platform, where he remained until the Light Rail Train departed from Mount Royal station.
Once the train left the Mount Royal station, Officer Tobin collected Appellant’s
name, date of birth, and social security number. Officer Tobin then provided that
3
information to MTA dispatch, who informed Officer Tobin that Appellant had a possible
positive arrest warrant. At that time, Appellant attempted to get up from the bench where
he had been sitting and leave the platform, prompting three officers to tackle Appellant.
During the ensuing melee, Officer Tobin yelled that Appellant had a gun. In response,
Corporal Russell utilized her taser to subdue Appellant until Officer Tobin was able to fully
handcuff Appellant.
After Appellant was handcuffed, Officer William Camphor searched Appellant and
found ten bags of white powder. Officers also located a gun and bullets in the track area,
which were introduced into evidence at Appellant’s trial. The officers then transported
Appellant to Central Booking, where it was confirmed that a warrant existed for
Appellant’s arrest. Appellant was subsequently charged with (1) possession of a firearm
after having been convicted of a crime of violence; (2) possession of a firearm after having
been convicted of a disqualifying crime; (3) wearing, carrying, and transporting a handgun
on his person; (4) possession of a controlled dangerous substance (cocaine); and (5)
resisting arrest.
At Appellant’s trial, Appellant’s counsel filed a Motion to Suppress the physical
evidence found on Appellant and in the track area on the ground arguing that Appellant’s
Fourth Amendment right to be free from unreasonable searches and seizures had been
violated. Denying the motion, the court ruled that Corporal Russell had “engaged in a mere
accosting by announcing the fare inspection, and therefore [her] inquiry did not require
Fourth Amendment justification.” The trial court further reasoned that “after the fare
inspection was announced, [Appellant] voluntarily approached Corporal Russell” to
4
confess he did not have a fare ticket, thus providing MTA officers probable cause to detain
him and conduct the warrant check which ultimately led to his arrest. The court also stated
that even had Corporal Russell’s actions been an unlawful investigatory stop, “the
discovery of a valid, pre-existing warrant attenuated the connection between the unlawful
stop and the evidence seized from [Appellant] incident to arrest.”
On March 26, 2018, a jury convicted Appellant of possession of a firearm with a
disqualifying conviction; wearing, carrying, and transporting of a handgun on his person;
and resisting arrest. That day, Appellant was sentenced to ten years’ imprisonment with all
but five years suspended for the possession of a firearm conviction, without the possibility
of parole, and two concurrent three-year sentences for the second and third convictions.
Appellant was also sentenced to three years of supervised probation once released.
STANDARD OF REVIEW
In reviewing a trial court’s decision to grant or deny a motion to suppress, this Court
limits its review to the record of the motions hearing. Trusty v. State, 308 Md. 658, 669–
72 (1987). The evidence is viewed in the light most favorable to the prevailing party, and
the trial court’s fact findings are accepted unless clearly erroneous. Williamson v.
State, 413 Md. 521, 531 (2010). “The ultimate determination of whether there was a
constitutional violation, however, is an independent determination that is made by the
appellate court alone, applying the law to the facts found in each particular case.” Belote v.
State, 411 Md. 104, 120 (2009) (citations omitted); see also Carter v. State, 367 Md. 447,
457 (2002).
DISCUSSION
5
A. Parties’ Contentions
Appellant contends that he was unconstitutionally seized by MTA officers on
October 12, 2017. Appellant further contends that his encounter with Corporal Russell was
a nonconsensual encounter based on Corporal Russell’s show of authority upon entering
the train car. As there was no probable cause to believe that he or anyone else aboard the
train had committed any crime prior to that point, Appellant asserts that Corporal Russell
violated his Fourth Amendment rights. Furthermore, Appellant emphasizes that the MTA
officers were acting with a primarily law enforcement purpose when boarding the Light
Rail Train.
Appellant objects to the trial court’s conclusion that Corporal Russell had merely
accosted him prior to Appellant voluntarily confessing his failure to purchase a fare ticket.
Appellant asserts that the illegal seizure began the moment Corporal Russell entered the
train car, and case law establishes that consent to search is invalid if such consent is
preceded by an illegal seizure. Appellant further rejects the trial court’s reliance on the
typical nature of fare inspections; Appellant argues that the absence of particularized
suspicion on the part of MTA officers makes their conduct more objectionable than the
trial court believed.
Finally, Appellant asserts that the discovery of a valid arrest warrant against
Appellant does not attenuate the taint created by the alleged illegal seizure. Citing Brown
v. Illinois, 422 U.S. 590 (1975), Appellant claims that his alleged seizure was too
temporally proximate to the discovery of the warrant, there was no intervening
circumstance between those two events, and the alleged misconduct committed by
6
Corporal Russell was too flagrant to allow for the attenuation doctrine to apply. In relying
on Utah v. Strieff, 136 S. Ct. 2056 (2016), Appellant concludes that the MTA’s
“suspicionless fishing expeditions” are strictly prohibited by the Fourth Amendment. As
such, Appellant believes that the trial court erred in denying his Motion to Suppress.
The State argues that Appellant and Corporal Russell’s interaction constitutes a
voluntary encounter and not a seizure. The State emphasizes the lack of evidence
supporting Appellant’s accusation that the MTA officers showed authority or that
Appellant could not leave freely at any point prior to his arrest. The State also contends
that fare inspections are voluntary under the principle of implied consent. Specifically, the
State asserts that “societal norms” exist and that reasonable individuals using the Light Rail
Train understand that they are expected to pay for a fare ticket and be ready to provide
proof upon request. The State turns to the video evidence presented at trial and the signage
around Mount Royal station indicating the requirement that patrons buy fare tickets prior
to traveling on the Light Rail Train.
Even if Corporal Russell’s actions constituted a seizure, the State asserts that such
a seizure was reasonable. The State compares the MTA’s action with a sobriety checkpoint
to show that warrantless seizures have been deemed constitutional in the past. It also rejects
Appellant’s reliance on City of Indianapolis v. Edmond, 531 U.S. 32 (2000), by
emphasizing that while Edmond rejected seizures whose purpose is to reveal if a motorist
committed any crime, the MTA’s fare inspections were tailored solely towards finding
those who violated Md. Code, Trans. § 7-705. As such, the State contends that the facts in
this matter are highly distinguishable from those in Edmond.
7
Finally, the State disputes Appellant’s contention that the discovery of his arrest
warrant did not attenuate the taint had Appellant been illegally seized. Rejecting
Appellant’s interpretation of Strieff, the State believes that an intervening circumstance
existed, the discovery of Appellant’s positive arrest warrant, prior to finding the evidence
Appellant seeks to suppress. Because officers are required by law to arrest individuals who
have active warrants, the arrest of Appellant was a compelling “intervening circumstance”
under Strieff. Furthermore, the state contends that the MTA officers’ conduct was not
“flagrant,” but instead a “negligibly burdensome precaution for officer safety.” The State
also emphasizes that fare inspections are not implemented for the sole purpose of engaging
in warrant checks. As such, even had Appellant been illegally seized, the State contends
that discovery of his arrest warrant attenuated any taint of the illegal seizure.
We agree with Appellant that he was illegally seized by Corporal Russell prior to
Appellant voluntarily admitting he did not possess a fare ticket. Furthermore, after a review
of the facts and testimony presented at the motion hearing, we find that the attenuation
doctrine is inapplicable here. As such, Appellant’s Motion to Suppress should have been
granted.
B. Analysis
i. Unlawful Seizure
The Fourth Amendment to the United States Constitution guarantees that “[t]he
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . .” The exclusion of evidence
obtained in violation of these provisions is essential to the Fourth Amendment. See Mapp
8
v. Ohio, 367 U.S. 643, 655–56 (1961); State v. Lee, 374 Md. 275, 297–98 (2003).
It is well established that the Fourth Amendment guarantees are not implicated in
every interaction between the police and an individual. See Scott v. State, 366 Md. 121,
131 (2001). In Maryland, like in many states, courts analyze the applicability of the Fourth
Amendment in three tiers of interaction between a citizen and the police. See, e.g., Ferris
v. State, 355 Md. 356, 374 n. 5 (1999).
The most intrusive encounter, an arrest, requires probable cause to believe that a
person has committed or is committing a crime. See Florida v. Royer, 460 U.S. 491, 499
(1983); Dunaway v. New York, 442 U.S. 200, 207 (1979).
The second category, commonly known as a Terry stop, is less intrusive than a
formal custodial arrest and must be supported by reasonable suspicion that a person has
committed or is about to commit a crime, which permits an officer to stop and briefly detain
an individual. See Berkemer v. McCarty, 468 U.S. 420, 439 (1984); Ferris, 355 Md. at
384. A police officer may engage in an investigatory detention without violating the Fourth
Amendment as long as the officer has a reasonable, articulable suspicion of criminal
activity. See Royer, 460 U.S. at 498. A Terry stop is limited in duration and purpose and
can only last as long as it takes a police officer to confirm or to dispel his
suspicions. See Ferris, 355 Md. at 372–73, 735 A.2d at 499–500; See also Terry v. Ohio,
392 U.S. 1 (1968). A person is seized under this category when, in view of all the
circumstances surrounding the incident, by means of physical force or show of authority a
reasonable person would have believed that he was not free to leave or is compelled to
respond to questions. Factors that might indicate a seizure include a threatening presence
9
of several officers, the display of a weapon by an officer, some physical touching of the
person, the use of language or tone of voice indicating that compliance with the officer’s
request might be compelled, approaching the citizen in a nonpublic place, and blocking the
citizen’s path. See Michigan v. Chesternut, 486 U.S. 567, 575 (1988); United States v.
Mendenhall, 446 U.S. 544, 554 (1980); cf. Royer, 460 U.S. at 502–03.
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. See United States v. Mendenhall, 446 U.S. 544, 553 (1980); United States
v. Werking, 915 F.2d 1404, 2408 (10th Cir. 1990). A consensual encounter does not require
any suspicion by the police, and because an individual is free to leave at any time during
the encounter, the Fourth Amendment is not implicated. As such, an individual is not
considered to have been “seized” within the meaning of the Fourth Amendment. See Ferris,
355 Md. at 373–74 n. 4.
Encounters are consensual in situations where the police approach a person in a
public space, request information voluntarily, and the person is free to walk away without
being required to answer. See, e.g., Mendenhall, 445 U.S. at 543–44. The Fourth
Amendment guarantees are not implicated in such encounters unless the police use either
physical force or a show of authority to restrain the person’s liberty so that a reasonable
person would not feel free to decline the officer’s requests or walk away from the
encounter. Id. at 554; see also Terry v. Ohio, 392 U.S. 1 (1968). In Ferris, the Maryland
Court of Appeals described a consensual encounter
as simply the voluntary cooperation of a private citizen in response to non-
10
coercive questioning by a law enforcement officer. Because an individual is
free to leave at any time during such an encounter, he is not “seized” within
the meaning of the Fourth Amendment.
355 Md. at 373 n. 4 (citations omitted).
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. See Florida v. Royer, 460 U.S. 491, 497, 506 (1983).
As such, consensual encounters are those where the police simply approach a person in a
public place, engage in conversation, request information, and the person is free to walk
away without answering. The Supreme Court has also made clear that the request by a law
enforcement officer to examine a person’s identification or search his or her belongings
does not, in and of itself, make an encounter non-consensual. See INS v. Delgado, 466 U.S.
210, 216 (1984); Florida v. Bostick, 501 U.S. 429, 435 (1991). 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. See Mendenhall, 446 U.S. at 553–
54. Under the Mendenhall standard, seizure based on a show of authority does not occur
unless the subject yields to the authority. California v. Hodari, 499 U.S. 621, 626–27
(1991). In determining whether the person has been seized,
the crucial test is whether, taking into account all of the circumstances
surrounding the encounter, the police conduct would “have communicated to
a reasonable person that he was not at liberty to ignore the police presence
and go about his business.”
Bostick, 501 U.S. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).
11
In Swift v. State, 393 Md. 139 (2006), Swift was walking down a public street in a
high-crime area when a police officer stopped his marked patrol car, exited the vehicle,
and asked Swift for permission to speak with him. During the stop, the officer did not
activate his emergency equipment or siren and did not draw his weapon, but he did shine
his headlights in the direction of Swift. Upon receiving Swift’s identification information,
the police determined that there was an outstanding warrant out for Swift. The officer then
asked Swift if he had any weapons or drugs on him and asked for permission to search
Swift. Without orally responding, Swift put both hands on the hood of the officer’s patrol
car, which the officer viewed as consent. When the officer went to search Swift, Swift
pushed off from the hood and fled. After a foot pursuit and upon his ultimate capture, a bag
of crack cocaine was found on Swift’s person.
Prior to trial, Swift filed a motion to suppress the bag of crack cocaine, arguing that
he was illegally seized by the officer prior to the search. Specifically, Swift contended that,
based on the totality of the circumstances, a reasonable person in Swift’s situation would
not have felt free to leave. The circuit court ultimately denied Swift’s motion, and Swift
appealed. After this Court affirmed the circuit court’s ruling, review was granted by the
Court of Appeals.
In making its ruling, the Court of Appeals noted factors that are probative in
determining whether a reasonable person would feel free to leave, including
the time and place of the encounter, the number of officers present and
whether they were uniformed, whether the police removed the person to a
different location or isolated him or her from others, whether the person was
informed that he or she was free to leave, whether the police indicated that
the person was suspected of a crime, whether the police retained the person’s
12
documents, and whether the police exhibited threatening behavior or
physical contact that would suggest to a reasonable person that he or she was
not free to leave.
393 Md. at 153 (citing Ferris, 355 Md. at 377) (emphasis added). If a reasonable person
would feel free to leave under the circumstances, however, then there has not been a seizure
within the meaning of the Fourth Amendment.
Whether a reasonable person would have felt free to leave police presence is a highly
fact-specific inquiry. As the Court of Appeals stated in Swift, “[t]he test is necessarily
imprecise, because it is designed to assess the coercive effect of police conduct, taken as a
whole, rather than to focus on particular details of that conduct in isolation.” 393 Md. at
156 (quoting Chesternut, 486 U.S. at 573). The Court further emphasized that “what
constitutes a restraint on liberty prompting a person to conclude that he is not free to ‘leave’
will vary, not only with the particular police conduct at issue, but also with the setting in
which the conduct occurs.” Id. Applying these principles, we now consider whether
Appellant was seized within the meaning of the Fourth Amendment.
To determine whether Appellant’s encounter with MTA officers on the Light Rail
Train was a consensual encounter or a seizure, we ask, considering all of the circumstances
surrounding the encounter, would the conduct of the officers “have communicated to a
reasonable person that he [or she] was not at liberty to ignore the police presence and go
about his business.” Chesternut, 486 U.S. at 569. After a review of all the facts and
circumstances of the case sub judice, we agree with Appellant.
Although Appellant 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
13
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. 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.
No officer 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. See United States v. Drayton, 536 U.S. 194, 206–07
(2002); Mendenhall, 446 U.S. at 558–59; Ferris, 355 Md. at 379–80. In addition, as was
probative in Swift, the implied requirement that Appellant wait for the results of the warrant
check adds weight to the other circumstances suggesting that Appellant was not free to
leave.
The fact that Appellant later voluntarily confessed that he did not possess a fare
ticket does not weigh in our analysis. While Appellant’s actions were voluntary, the display
of authority occurred prior to Corporal Russell’s encounter with Appellant and continued
when the officers began their query regarding outstanding warrants for Appellant.
Appellant’s submission to the officers’ show of authority is evidenced by his cooperation
in the entire process, including him approaching Corporal Russell and waiting while the
officers searched for any arrest warrants out against him.
Based upon the evidence presented at the hearing, we conclude that Appellant was
seized within the meaning of the Fourth Amendment.4 If a fare inspector had approached
4
Because we hold that Appellant was individually seized, we do not reach the
question of whether this was a “checkpoint.” See Johnson v. State, No. 1386, Sept. Term
14
Appellant while the train was in motion and asked him to produce proof of payment, and
Appellant could not, the fare inspector could have issued him a citation without implicating
the Fourth Amendment. Thereafter, she could have held him and looked for outstanding
warrants. In this hypothetical scenario, it is the nature of train travel itself and not the MTA
officer that restrained Appellant’s freedom of movement. Once the train arrived at the
station, however, and the train ceased travel, it was solely the MTA officers who prevented
Appellant from leaving. Because a reasonable person would have believed that he was not
2017 (Aug. — , 2019) (evaluating whether a traffic initiative constituted a “checkpoint”
for the purposes of the Fourth Amendment). In Johnson, Johnson was stopped by the
Baltimore Police Department during a traffic initiative in which an officer spotted Johnson
driving without wearing a seat belt. As a result of that stop, the police discovered an open
warrant for Johnson’s arrest, as well as a handgun under the driver’s seat of the vehicle.
Johnson appealed his later convictions, asking this court to review whether the traffic
initiative was an illegal checkpoint. Affirming the trial court, we held that it was not.
In making our ruling, we noted that traffic checkpoint programs that have been
found lawful under the Fourth Amendment are “designed primarily to serve purposes
closely related to the problems of policing the border or the necessity of ensuring roadway
safety. Johnson, slip op. at 9-10 (quoting Indianapolis v. Edmond, 531 U.S. 32, 41 (2000)).
However, “when the primary purpose of a checkpoint program ‘is to uncover evidence of
ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.’” Id. at
10. Furthermore, Johnson noted numerous checkpoint cases noting how constitutional
checkpoints typically provide notice of the checkpoint as well as the ability for motorists
to avoid such checkpoints by U-turning.
In this case, however, there is no assertion by the State that the fare inspection was
being conducted to police the border or ensure roadway safety. In fact, officers testified
that fare inspections are used as a vehicle to conduct outstanding warrant searches. As the
primary purpose was to “uncover evidence of ordinary criminal wrongdoing,” we find that
the program contravenes the Fourth Amendment. Additionally, unlike the checkpoint cases
cited in Johnson, notice of the inspection was not given until officers boarded the train car.
Every passenger was required to provide proof of fare at a moment’s notice. As such, this
case is clearly distinguishable from checkpoint cases like that of Johnson, and our analysis
never reaches the weighing of the public convenience against the law enforcement
necessity that is the hallmark of checkpoint jurisprudence. See, e.g., Edmond, 531 U.S. at
47 (holding that in checkpoint cases, constitutionality “depends on a balancing of the
competing interests at stake and the effectiveness of the program”).
15
free to leave under such circumstances, we hold that Appellant was seized within the
meaning of the Fourth Amendment.
While there have been a few limited circumstances where suspicionless searches
have been upheld, such as “special needs, beyond the normal need for law enforcement,”
such circumstances do not exist here. See City of Indianapolis v. Edmond, 531 U.S. 32, 37
(2000). Furthermore, a warrantless seizure may not violate the Fourth Amendment if the
seizure falls within one of only a few well-defined exceptions to the warrant requirement.
Warrantless seizures are acceptable based on the following three exceptions: (1) Terry
stops, or investigatory detentions of persons based on reasonable suspicion that a person
has committed or is about to commit a crime, Ferris, 355 Md. at 284; (2) arrests that occur
in public or are based on probable cause to believe that a person has committed or is about
to commit a crime, Royer, 460 U.S. at 498; and (3) special needs seizures that are motivated
by a primary purpose other than basic law enforcement. Riley v. California, 134 S. Ct. 2473
(2014). In this case, however, there is no indication that MTA officers had any belief that
anyone on board the Light Rail, in particular the Appellant, had or was about to commit a
crime when the officers began the fare inspection. Additionally, the State has not raised
any argument that the fare inspection was being conducted for anything more than a basic
law enforcement purpose. As such, the warrantless seizure of Appellant does not fall within
any of the three exceptions to the warrant requirement.
We note that the individual components of this encounter, considered in isolation,
may not be indicative of a seizure. The Fourth Amendment does not prevent an officer
from approaching an individual and asking if they have a Light Rail Train fare ticket. An
16
officer may ask a person for identification. And simply conducting a warrants check does
not create a seizure. But we must heed the clear direction of the Supreme Court, “that any
assessment as to whether police conduct amounts to a seizure implicating the Fourth
Amendment must take into account all of the circumstances surrounding the incident in
each individual case.” Chesternut, 486 U.S. at 572 (citations and internal quotations
omitted). Under the circumstances presented here, we conclude that Appellant was seized
the moment the MTA officers entered the Light Rail Train. As such, the voluntary
admission by Appellant afterward is seen by this Court as Appellant clearly yielding to the
officers’ show of authority.
Implied Consent
The State argues in its brief that fare inspections are voluntary under the principle
of implied consent. The State cites Florida v. Jardines, 569 U.S. 1 (2013) and Farkas v.
Williams, 823 F.3d 1212 (9th Cir. 2016) to support its argument that each passenger
provides implied consent “to the limited intrusion of showing proof of fare payment on
demand” when traveling on the Light Rail Train. However, both Jardines and Farkas are
distinguishable from the case at bar.
The State argues that Jardines holds that there is an “implicit license” for visitors,
including police officers, to “approach [a] home by the front path, knock promptly, wait
briefly to be received, and then leave.” Jardines, 569 U.S. at 8. As such, the State contends
that officers also have an implicit license to approach Light Rail patrons to see if they have
a ticket. However, Jardines also holds that while the police are allowed to voluntarily
approach and converse with individuals, including at their front door, they are barred from
17
illegally searching or seizing someone without probable cause. In this case, Corporal
Russell did not board the Light Rail Train as just another patron; had she done so, any
conversation she later had with Appellant would be deemed a consensual encounter.
Instead, she was actively seeking out individuals who failed to purchase a fare ticket. To
cut the State’s argument even further, Corporal Russell showed her authority, as was
discussed supra. As such, Jardines provides no relief for Corporal Russell’s actions.
In Farkas, the Ninth Circuit ruled that individuals impliedly consent to being
searched upon entering a military base. However, the Court there placed emphasis on the
very specific security aspects of the military base. Farkas, 823 F.3d at 1216 (“[T]he typical
trappings of a military base . . . ‘combine to puncture any reasonable expectations of
privacy for a citizen’ who voluntarily enters.”) (citing Morgan v. United States, 323 F.3d
776 (2003)). As the Court reasoned in Farkas, individuals entering a “restricted-access”
base, past gate-guarded entry points, signs stating that all visitors are subject to search, and
military personnel patrols impliedly consent to being searched. Id. By contrast, Light Rail
Trains do not have such barbed-wire fencing or armed guards at their entrance, nor do their
security reflect national defense concerns. As such, it cannot be assumed that individuals
entering the trains have consented to searches like those individuals who enter military
bases. For these reasons, Farkas is inapplicable.
We refuse to stretch the doctrine of implied consent to apply in cases such as this,
where there is an otherwise unlawful, suspicionless seizure. Under the Transportation
Article of the Maryland Code, specifically § 7-705, it is illegal to “[f]ail to pay the
applicable fare charged by the [MTA] in the required manner” when traveling on an MTA
18
transit vehicle to obtain transit service. As the State expresses in its brief, reasonable
patrons of the Light Rail understand that they may be required to show proof of payment
upon request by MTA officials. However, reasonable patrons might not understand that by
simply traveling on the Light Rail, they may be subject to suspicionless seizures resulting
in warrant checks.
The guarantees of the Fourth Amendment must still be respected in regard to the
enforcement of § 7-705. Specifically, MTA officers must have reasonable suspicion or
probable cause that an individual has or is going to commit a crime before seizing them,
absent the encounter being consensual. Here, had an MTA transit worker asked Appellant
for proof of fare payment and Appellant failed to provide such proof, the MTA transit
worker would have been within their rights to contact MTA officers and tell them of
Appellant’s wrongdoing. At that point, MTA officers would have had the necessary
reasonable suspicion to Terry stop Appellant and seek proof of payment. However, in this
case the MTA officers lacked reasonable suspicion that anyone on the Light Rail Train had
broken any law, much less § 7-705. As such, MTA officers unlawfully seized Appellant
when they conducted their fare inspection.
ii. The Attenuation Doctrine
In reviewing the second issue at bar in this case, we must first look to Utah v. Strieff,
136 S. Ct. 2056 (2016). In that case, a narcotics officer, Officer Fackrell, conducted
surveillance on a home based on an anonymous tip about drug activity. Id. at 2057. The
number of individuals who made brief visits to the home made Officer Fackrell suspicious
that the occupants were dealing drugs. Id. After observing Edward Strieff leaving the home,
19
Officer Fackrell detained Strieff, identified himself and asked Strieff what he was doing at
the home. Id. After requesting Strieff’s identification and relaying that information to
dispatch, Officer Fackrell learned that there was an outstanding arrest warrant out for
Strieff for a traffic violation. Id. Officer Fackrell arrested Strieff, searched him, and found
methamphetamine and drug paraphernalia. Id. Strieff later moved to suppress the evidence,
arguing Officer Fackrell’s actions constituted an unlawful investigatory stop. The United
States Supreme Court ultimately affirmed the trial court’s decision to deny Strieff’s motion.
Id.In Strieff, the United States Supreme Court applied the attenuation doctrine when it
evaluated whether a pre-existing arrest warrant sufficiently attenuated “the causal link
between the government’s unlawful act and the discovery of evidence[.]” 136 S. Ct. at
2061. Specifically, the Court looked at three factors:
First, we look to the “temporal proximity” between the unconstitutional
conduct and the discovery of evidence to determine how closely the
discovery of evidence followed the unconstitutional search. Second, we
consider “the presence of intervening circumstances.” Third, and
“particularly” significant, we examine “the purpose and flagrancy of the
official misconduct.”
Strieff, 136 S. Ct. at 2062 (citing to Brown v. Illinois, 422 U.S. 590, 603–04 (1975) (internal
citations omitted)). The Supreme Court reasoned that an outstanding arrest warrant was “a
critical intervening circumstance that is wholly independent of the illegal stop” and
therefore the illegal stop was “sufficiently attenuated by the pre-existing arrest warrant.”
136 S. Ct. at 2063 (internal citation omitted) (internal quotation marks omitted); see
also Myers v. State, 395 Md. 261, 290 (2006); Cox v. State, 397 Md. 200, 209–10 (2007).
20
As the Court stated, “[a] warrant is a judicial mandate to an officer to conduct a search or
make an arrest, and the officer has a sworn duty to carry out its provisions.” United States
v. Leon, 468 U.S. 897, 920, n. 21 (1984) (internal quotation marks omitted).
In its brief here, the State presses the argument that the attenuation doctrine would
apply if the seizure of Appellant was found by this Court to be unlawful. Appellant
contends that while the outstanding arrest warrant is an intervening circumstance pursuant
to Strieff, the temporal proximity between Appellant’s illegal seizure and the discovery of
the arrest warrant, as well as the alleged “flagrant misconduct” committed by Corporal
Russell, prevent application of the attenuation doctrine in this case.
The application of the attenuation doctrine is a fact-specific analysis that focuses on
when and the manner in which the evidence seized was obtained in relation to the unlawful
conduct. Where there is an outstanding arrest warrant, the attenuation doctrine may apply
when the discovery of the warrant breaks the causal chain from any possible taint to the
evidence collected. See generally Strieff, 136 S. Ct. at 2062.
a. Temporal Proximity
Appellant first places focus on the closeness of the timing of the discovery of his
gun in relation to his unlawful seizure by MTA officers. He argues that because the two
events happened in close proximity to each other, the warrant could not attenuate the taint
of the alleged unlawful stop.
We have previously held that “the question of timing is not dispositive on the issue
of taint, especially because there was an outstanding arrest warrant between the initial stop
and the subsequent search incident to arrest, even though some of the evidence was
21
discovered shortly after the illegal stop.” Myers, 395 Md. at 292 (emphasis added). Here,
the “temporal proximity” between Appellant’s alleged unlawful seizure and the discovery
of the gun favors suppression of the evidence; however, this factor is outweighed if there
exists an intervening circumstance and an absence of flagrant police misconduct. See
e.g. Cox v. State, 397 Md. 200, 218 (2007) (holding that a two minute time lapse weighed
in the defendant’s favor but recognizing that, “[t]he temporal proximity factor must depend
... on other factors to which it relates, because a ‘lengthy detention can be used to exploit
an illegal arrest at least as easily as a brief detention.’” (quoting Ferguson v. State, 301 Md.
542, 550 (1984)).
b. Flagrant Police Misconduct
Appellant argues that the testimony provided by Corporal Russell and Officer Tobin
is evidence of the officers’ “flagrant misconduct” in utilizing fare inspections to search for
possible outstanding warrants for patrons who have otherwise given no indication that they
have committed a crime.
In regard to the “purpose and flagrancy of the official misconduct,” the Strieff court
found this factor “especially significant.” 136 S. Ct. at 2063. There, the Court looked at
whether the unlawful stop was part of any systematic or recurrent police misconduct, or
whether the stop was an isolated instance of negligence. Id. The Court noted that “errors in
judgment hardly rise to a purposeful or flagrant violation . . . of Fourth Amendment rights,”
and the Court should value an officer’s otherwise lawful conduct after engaging in an
unlawful stop. Id. Specifically, the Court stated:
22
Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell
made two good-faith mistakes. First, he had not observed what
time Strieff entered the suspected drug house, so he did not know how
long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to
conclude that Strieff was a short-term visitor who may have been
consummating a drug transaction. Second, because he lacked confirmation
that Strieff was a short-term visitor, Officer Fackrell should have
asked Strieff whether he would speak with him, instead of demanding
that Strieff do so. Officer Fackrell’s stated purpose was to “find out what was
going on [in] the house.” . . . Nothing prevented him from
approaching Strieff simply to ask. See Florida v. Bostick, 501 U.S. 429, 434
(1991) (“[A] seizure does not occur simply because a police officer
approaches an individual and asks a few questions”). But these errors in
judgment hardly rise to a purposeful or flagrant violation of Strieff's Fourth
Amendment rights.
Id.This factor reflects the underlying rationale of the exclusionary rule “by favoring
exclusion only when the police misconduct is most in need of deterrence—that is, when it
is purposeful or flagrant.” Id. As such, when officers blatantly disregard an individual’s
rights, exclusion might be necessary to deter that kind of misconduct, regardless of
subsequent events that interrupted the chain of causation. See Holt v. State, 435 Md. at
471 (Greene, J., dissenting) (reasoning that “[t]o ignore the third attenuation factor” by
finding attenuation solely based on the commission of a new crime “would be to ignore the
very purpose underlying the exclusionary rule”).
In Strieff, Justice Clarence Thomas noted that there was no indication that Officer
Fackrell’s “unlawful stop was part of any systematic or recurrent police misconduct.” 136
S. Ct. at 2063. Instead, Justice Thomas stated that all of the evidence suggested that the
stop was an “isolated instance of negligence that occurred in connection with a bona fide
23
investigation of a suspected drug house.” Id. As such, Justice Thomas ultimately concluded
that Officer Fackrell’s conduct was at-most negligence, not purposeful or flagrant.
Here, however, evidence suggests that the conduct of the MTA officers was not
merely negligent. Appellant argues that fare inspections are tools utilized by MTA officers
to engage in unlawful “fishing expeditions,” specifically citing to Corporal Russell’s
statement that “the purpose of the fare inspection is to see if someone has committed a
crime by riding the train without paying” and Corporal Russell’s affirmation to being asked
if fare inspections are “an apparatus to be able to check people for warrants.” We agree.
However, the trial court failed to consider whether the misconduct committed by
Corporal Russell in illegally seizing Appellant constituted “flagrant misconduct” instead
of a good-faith effort to comply with the law. Instead, the trial court simply concluded:
Even assuming, arguendo, Corporal Russell engaged in an unlawful
investigatory stop on the light rail car, the discovery of a valid, pre-existing
arrest warrant attenuated the connection between the unlawful stop and the
evidence seized from the Defendant incident to arrest.
Because Appellant was illegally seized by Corporal Russell, the fruits of his
subsequent search must be suppressed absent the application of the attenuation doctrine.5
5
In a recent law journal article, the student author noted that administrative
problems unrelated to crime have led to backlogs of unserved warrants and as a result,
certain jurisdictions have a high ratio of warrants to population. Allison Bruff, Ripe for
Rejection: A Methodology for States’ Departure from Utah v. Strieff and its Poisonous
Fruit, 86 Miss. L.J. 833 (2017). The author surmises that in such jurisdictions (as opposed
to jurisdictions with lower ratios), law enforcement will be more willing to engage in
unconstitutional searches and seizures because of the relatively safe bet that they will
subsequently find an outstanding warrant to attenuate the taint of the prior unconstitutional
behavior. If true, this is of great concern as it undermines the entire “fruit of the poisonous
tree” doctrine, whose purpose is to reduce the incentives toward unconstitutional law
enforcement behavior.
24
As we previously stated, the taint of the illegal seizure will only be attenuated if the sum
of the three Strieff factors weighs against suppression. In this case, the intervening
circumstance of discovering Appellant’s outstanding arrest warrant weighs against
suppression. However, the temporal proximity of the MTA officers’ search of Appellant
weighs in favor of suppression. Likewise, the flagrant use of fare inspections by MTA
officers to conduct warrant searches leads this Court to conclude that the attenuation
doctrine is not applicable, and the fruits of the MTA officers’ search should have been
suppressed. As Officer Russell affirmed, fare inspections are utilized by MTA officers as
“an apparatus to be able to check people for warrants.” Simply put, MTA officers cannot
systematically use fare inspections as a means of determining if Light Rail passengers have
outstanding warrants. To allow such misconduct would be a grave injustice and greatly
hinder the protections afforded by the Fourth Amendment.
Accordingly, we hold that the Circuit Court for Baltimore City should have granted
Appellant’s Motion to Suppress, pursuant to the facts in this case, where there was no
evidence establishing that warning signs were posted on the day of the appellant’s arrest
and Corporal Russell’s testimony that the fare inspections are used to check for warrants.
In keeping with Edmonds, due to the officers utilizing the MTA fare inspections to check
for criminal wrongdoing, under these facts, the behavior was flagrant, contravening the
Fourth Amendment. Because the evidence in question was a vital component of the State’s
case against Appellant and was necessary to subsequently convict Appellant, we reverse
Appellant’s convictions.
25
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY REVERSED;
COSTS TO BE DIVIDED EVENLY
BETWEEN THE PARTIES.
26
The correction notice for this opinion can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/0478s18cn.pdf