Farrow v. State

514 A.2d 35, 68 Md. App. 519, 1986 Md. App. LEXIS 390

• Court: Court of Special Appeals of Maryland
• Decided: September 5, 1986
• Docket: 1380, September Term, 1985
• Status: Published

Opinions

WEANT, Judge.

Parker Farrow, appellant, was convicted by a Montgomery County jury of robbery with a deadly weapon and of use of a handgun in the commission of a felony. On appeal, Farrow contends that the trial court erred in denying defense motions to suppress statements and tangible evidence. This is not precisely the case. Farrow’s motions were heard and denied by a motions judge in a pre-trial suppression hearing; review of that ruling is properly before us under Md. Rule 4-252(g)(2), and we, like the motions judge, shall assume Farrow’s standing to object to the search of the automobile and shall affirm the denial of his suppression motions.

Facts

On 6 September 1984, Salter’s Jewelry Store, located in Silver Spring, Maryland, was robbed at gunpoint by two black men in their twenties, between 5'5" and 6' tall. Taken in the robbery was, among other things, a distinctive gold-plated Indian Head penny ring.

Because police believed that Salter’s, attended as it was by only the elderly Mrs. Salter, would be marked “easy pickings” for future robberies, a plain clothes surveillance unit was set up to watch the neighborhood on 19 September 1984, that unit observed two black males, Farrow and a companion, acting in a suspicious manner. They walked by Salter’s, hesitated, and looked in; then one subject stood on a corner looking both ways while the other peered into the windows of Fredland Jewelers, located near Salter’s. The two men then conversed and walked across the street to I and R Jewelers and look in its windows. After espying both directions and conversing, the men walked to a parking lot where they got into a car and drove away.

Officers following the car reported that the first three numbers of the rear license plate were covered with paper and masking tape. Shortly after driving into Washington, D.C., the subjects stopped the car and removed the license plate covering. The officers did not detain the car at that time because they “did not have enough people to safely stop the vehicle.”

The following day, officers once again set up surveillance at a point where they could observe both Salter’s and Fredland Jewelers. The same car, with Farrow driving, approached the neighborhood. This time Farrow had a different companion. The subjects looked toward Fred-land’s as they drove past and then parked the car several blocks away. Farrow walked past Salter’s and Fredland’s and then returned to the auto and drove away. The car, with Farrow as driver, passed another jewelry store and slowed to allow the men to look in. They then parked and walked up and down in front of Chevy Chase Savings and Loan. When the men returned to their car, the officers, one aided by binoculars, saw a “bulge” underneath Farrow’s shirt.

As the subjects’ car headed back toward the District of Columbia, the officers decided that they had enough suspicion and sufficient forces (five officers) to stop the vehicle. Police cars surrounded the vehicle at an intersection; officers approached with drawn guns, opened the door, and pulled Farrow out. As soon as the door was open, officers saw a broken half of a pool cue with black tape on one end lying next to the driver’s seat. In the meantime, officers placed Farrow face down on the pavement and handcuffed him. A search of the passenger compartment yielded a .32 caliber handgun. Farrow was placed under arrest.

While Farrow was being processed at the police station, officers noticed that he was wearing a gold ring which matched the description of the Indian Head ring stolen in the Salter robbery. Mrs. Salter identified the ring and Farrow was charged with having committed that robbery.

Farrow now complains that it was error to deny suppression of the gun (as well as certain statements and the ring as “fruit”) because (a) police were without the necessary suspicion to stop him, and (b) the means by which he was detained were unreasonable. We disagree.

Investigative Detention and Protective Search

“The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.” U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985) (emphasis in original). From the reasonableness clause of the fourth amendment has emerged a balancing principle: The scope of the fourth amendment intrusion must be proportional to the quantum of justification for that intrusion. Viewing the cases as on a continuum, when the intrusion is slight, the justification need not be great. See, e.g., See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (administrative searches conducted on the basis of no particularized suspicion). Further along the continuum is the investigatory “stop” and protective “frisk” authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under that ruling, a brief but forceful detention (the “stop”) is allowed based on an articulable suspicion that criminality is afoot, and a limited search (the “frisk”) is likewise permitted based on the same degree of suspicion that the subject is armed and presently dangerous. The continuum proceeds, of course, to a full blown custodial arrest based on probable cause. Thus recognizing that “[sjtreet encounters between citizens and police officers are incredibly rich in diversity,” id. at 13, 88 S.Ct. at 1875, the Court has provided officers with “an escalating set of flexible responses graduated in relation to the amount of information they possess.” Id. at 10, 88 S.Ct. at 1874.

In our view the police had articulable suspicion justifying a Terry stop of Farrow. Farrow’s behavior in walking past several jewelry stores many times was enough to arouse police suspicion that he and his respective companions were “casing” the establishments for a robbery. Indeed, Officer McFadden, of Terry v. Ohio fame, acted on remarkably similar grounds. But officers here, unlike McFadden, were able to observe the suspicious behavior for a much longer period and on two different days. In addition, suspicions in the instant case were heightened by the suspects’ masking of the license plate.

Likewise, it is clear that the police were justified in conducting the “frisk.” They had observed a telltale bulge under Farrow’s clothing that they feared might be a gun, see, Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); the investigation which led the police to the car was of an armed robbery; and, when the officers opened the car door they observed half a pool cue lying on the seat, which club-like instrument the officers could have reasonably suspected, taking into consideration the totality of the circumstances, was more likely being carried as a weapon than as sports equipment. See Terry, 392 U.S. at 27, 88 S.Ct. at 1883 (in deciding whether he is in danger, officer is entitled to draw reasonable inferences from the facts in light of his experience). In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), in fact, a protective search (“frisk”) of the suspect’s car was triggered by the officers’ observation of a weapon in plain view within the suspect’s vehicle.

Stop or Arrest?

Appellant continues to argue that even if the stop was justified, the means used to detain Farrow were unreasonable, thereby converting the stop into an arrest which, in the absence of probable cause, was illegal.

While admitting the difficulty created by some of its cases in distinguishing an investigative stop from a de facto arrest, the Supreme Court has stated that “[m]uch as a ‘bright line’ rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern overrigid criteria,” Sharpe, 105 S.Ct. at 1575, and that “[a] court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second guessing.” Id. at 1576. Ergo, in evaluating these confrontations, “it is absolutely essential that courts reach determinations based not upon some abstract or illusory notion of what police-citizen encounters ought to be like in an ideal world but upon an objective evaluation of the realities of the encounter as it occurred.” People v. Finlayson, 76 A.D.2d 670, 431 N.Y.S.2d 839, 847-48 (1980) (emphasis in original), cert. denied, 450 U.S. 931, 101 S.Ct. 1391, 67 L.Ed.2d 364 (1981). As Judge Cardozo warned, “we are not to close our eyes as judges to what we must perceive as men.” People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 63, 129 N.E. 202, 208 (1920), cert. denied, 256 U.S. 702, 41 S.Ct. 624, 65 L.Ed. 1179 (1921).

When justified by the circumstances, courts have approved flexible police responses to the problem of a Terry stop. See, e.g., U.S. v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (police approached suspect’s car with drawn guns); U.S. v. Taylor, 716 F.2d 701 (9th Cir.1983) (that officers approached car with drawn guns, ordered uncooperative suspect to lie in a ditch, and handcuffed him did not transform the stop into an arrest); Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (officers justified in forcibly detaining suspect in order to “exercise unquestioned command of the situation”); People v. Chestnut, 51 N.Y.2d 14, 431 N.Y.S.2d 485, 409 N.E.2d 958, cert. denied, 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479 (1980) (although suspect ordered to lie on the ground, court refused to accept the proposition that the fourth amendment’s protections turn on whether the detainee is positioned against a wall and frisked or is ordered to lie on the ground). In addition, although the Supreme Court, in approving a 20-minute Terry stop in U.S. v. Sharpe, focused on the length of the stop, the Court recited without comment the fact that police, in accomplishing the stop, approached the auto with drawn guns and ordered one suspect “spread eagled” against the vehicle.

The Maryland Court of Appeals, when confronted with the contention that “the use of physical force to effectuate an investigatory stop is impermissible under the fourth amendment,” stated:

We believe this contention neither states the prevailing constitutional law nor recognizes the practical reality and requirements of this type of police investigation. To embrace a rule such as that advocated by the petitioner would unnecessarily undermine the vitality of police investigation in the field, recognized and approved as a necessary ingredient of police practice in Terry.

Watkins v. State, 288 Md. 597, 609, 420 A.2d 270, 276 (1980). The Court concluded that “when the Supreme Court used the term ‘forcible stop’ it meant what it said.” Id. at 610, 420 A.2d at 277 (citations omitted).

The point is that a “stop” is, in fourth amendment terms, a seizure of the subject—a forceful detention in complete restraint of his freedom to walk away. Terry, 392 U.S. at 16, 88 S.Ct. at 1877. (Likewise, a “frisk” is a cognizable fourth amendment search.) The distinction between a Terry “stop” and an arrest, then, is not in the method of detention, but rather has to do with the length of the detention, the investigative activities during the detention, and whether the suspect is removed to a detention or interrogation area. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). As a leading commentator has said,

Without necessarily suggesting that an otherwise valid Terry-type stop should never be undone by an extraordinary show of force, ... [t]o conclude that the officers’ conduct must be viewed as an arrest from the outset because the defendant’s restriction of liberty of movement was then complete and that no significant new restraint followed when the arrest was formally made, is to create a test which would cast doubt upon most stops. The typical stopping for investigation cannot be viewed as anything but a complete restriction on liberty of movement for a time, and if investigation uncovers added facts bringing about an arrest, the early stages of the arrest will not involve any new restraint of significance____ A stopping for investigation is not a lesser intrusion, as compared to arrest, because the restriction on movement is incomplete, but rather because it is brief when compared with arrest, which (as emphasized in Terry [392 U.S. at 26, 88 S.Ct. at 1882]) “is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows.”

W. R. LeFave, Search and Seizure § 9.2 at 29-30 (1978) (footnote omitted).

Returning to the case at bar, and mindful of the fact that because of the “inordinate risk confronting an officer as he approaches a person seated in an automobile,” Pennsylvania v. Mimms, 434 U.S. at 110, 98 S.Ct. at 333, “roadside encounters between police and suspects are especially hazardous,” Michigan v. Long, 463 U.S. at 1049, 103 S.Ct. at 3481, we hold that, in this situation, where police were facing men that were strongly suspected of being armed robbers, the officers were justified in taking complete control of the situation for that period of time necessary to accomplish the “frisk.” The need for further investigation was pre-empted when an illegal handgun turned up within the lawful perimeters of the “frisk.”

Search Incident to a Lawful Arrest

In the alternative, we agree with the motions judge that, at the moment they caught sight of the half pool cue, police had probable cause to arrest Farrow under Md. Code Ann. art. 27, § 36, for carrying or wearing a concealed weapon on or about his person.

“[I]f a dangerous weapon is concealed in an automobile in such proximity to the owner as to make it available to him for his immediate use it is concealed ‘upon or about his person’ in violation of [§ 36].” Shipley v. State, 243 Md. 262, 268, 220 A.2d 585, 588 (1966). In our opinion, the pool cue was so concealed.

The question remains, however, whether the cue can be considered a “dangerous weapon” within the meaning of § 36. This Court has stated:

Whether an object that is not a weapon per se is used, carried or possessed as a weapon on a particular occasion depends upon the surrounding circumstances. If the object, although normally a tool, is closely akin to a weapon, as a knife or an axe, far less proof should be required to persuade one of its character as a weapon on a given occasion than if the object bears little or no resemblance to traditional weapons, as the fingernail file, pen, telephone cord, or piece of string____

Dunn v. State, 65 Md.App. 637, 642, 501 A.2d 881, 883-84 (1985).

In our view, half a pool cue, broken off and altered with black tape wrapped around one end, could more reasonably be viewed, under the circumstances, as a club with a handle than as a pool cue. We therefore hold, in the alternative, that the gun could be viewed as having been legally seized in a search incident to an arrest under art. 27, § 36. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

JUDGMENTS AFFIRMED.

COSTS TO BE PAID BY APPELLANT.