State v. Williams

581 A.2d 864, 84 Md. App. 738, 1990 Md. App. LEXIS 179

• Court: Court of Special Appeals of Maryland
• Decided: September 25, 1990
• Docket: No. 497
• Status: Published

Opinions

ORDER

PER CURIAM.

For reasons to be hereafter stated in an opinion to be filed, a majority of the panel concurring, the suppression order appealed from is hereby reversed and the case remanded for trial. Costs to be paid by appellee. Mandate to issue forthwith.

Argued before GARRITY, BLOOM and ROBERT M. BELL, JJ.

GARRITY, Judge.

The appellee, Claude Fitzgerald Williams, who was charged with possession of cocaine, possession with intent to distribute cocaine, and conspiracy to distribute cocaine, moved to suppress evidence. The motion was granted by the Circuit Court for Montgomery County, and the State noted an appeal pursuant to Courts and Judicial Proceedings Article § 12-302(c)(3). By order dated September 25, 1990, we reversed the decision of the circuit court and, because of the time constraint of that statute, we directed that our mandate issue forthwith, with our opinion to follow.¹

FACTS

Sergeant Charles W. Jagoe, an experienced narcotics investigator for the Takoma Park City Police, testified that he received a tip from a registered confidential informant who advised that “there would be a drug delivery in front of 7611 Maple Avenue in Takoma Park and that the people who were to receive the narcotics were one Shirley Gerald, a Jose, and some other people____” The informant stated that the delivery vehicle would be tan or gold and that there might be a second vehicle which would be a late-model blue car. The informant related that the delivery people would all be black males and identified one of them as “Calvin.” Based on this information, Jagoe immediately drove to the Maple Avenue address in an unmarked police car. Upon arrival, Jagoe observed Shirley Gerald and Jose seated on a wall directly in front of the address. Additional individuals, whom Jagoe recognized as “narcotics abusers from other investigations,” were seated nearby.

While Jagoe was observing the situation from a parking lot across the street, a citizen, whom he did not know, approached him. Jagoe testified that this individual, who appeared distraught, advised him that someone to whom the citizen was related would be involved in a drug transaction that would include a cocaine delivery in front of 7611 Maple Avenue.² In addition, Jagoe testified: “That this subject told me that it was related to one of the subjects involved in this transaction and that it was fed up and didn’t want to see this person destroy its life.” This person also stated that the suspects would be driving a tan or gold-colored vehicle which would be arriving in thirty minutes, and that Shirley Gerald would be a participant in the transaction.

At 2:55 a.m., while Officer Jagoe remained on surveillance, a person, who identified him/herself as the same person who had approached Jagoe earlier in the parking lot, telephoned the Takoma Park police station and related that the location of the delivery had changed to the intersection of Grant Avenue and Carroll Avenue in Takoma Park. After receiving this information from the dispatcher, Jagoe drove to that location and arrived there at 3:00 a.m. He described the area as “extremely well lit” by “large helium vapor lights that really light up the area well.”

From his vantage point near the Grant and Carroll intersection, Jagoe observed a woman, whom he did not know, standing in the center of a park area.³ At approximately 3:09 a.m., Jagoe watched a tannish gold 1988 Toyota Cressida pull into the parking lot of a Texaco station which was located across the street from the park.⁴ The appellee jumped out of the car from the driver’s seat and dashed across Grant Avenue to the area where the woman was standing while his two passengers waited in the car. After speaking with the woman, Williams ran back across the street toward his car. Based on the information he had received from the two informants, as well as his own observations, Jagoe believed that Williams was in the process of making a drug delivery, although he had not observed an actual exchange to have taken place. At this point, Officer Jagoe called for a backup and Officer Bryan Davis responded to the scene driving a marked police cruiser. Jagoe then left his surveillance area, which was across the street from the park, turned on his headlights, and drove towards Williams. According to Jagoe the following events precipitated the arrest:

Mr. Williams did not see me; I was in a yellow Chrysler four-door New Yorker. I came up on his side. As I did so, Mr. Williams observed the police car come around the side of the building towards the parking lot of the gas station. This police officer [Davis] had turned his emergency lights on on the top. His [Williams’] observing the police officer, threw bags of suspected crack cocaine in the direction of my unmarked police car.⁵ I had already stopped my vehicle. I jumped out. The officer jumped out of his police car. Mr. Williams was ordered to the ground, as well as the subjects in the vehicle were ordered out of the vehicle onto the ground.⁶

Williams’ motion to suppress the tangible evidence was granted on the grounds that the police did not have articulable suspicion to justify stopping Williams. The State contends that the quality and quantity of information provided by the informants furnished the police with reasonable articulable suspicion to justify the stop.

Investigatory Stop

Although the lower court appears to have determined that the stop took place when the marked police car was approaching the service station parking lot, our cases recognize that mere pursuit does not constitute a stop. In Timms v. State, 83 Md.App. 12, 16-19, 573 A.2d 397 (1990), we re-examined the test for determining when a person has been “seized” within the meaning of the Fourth Amendment: “The police can be said to have seized an individual ‘only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Id. at 17, 573 A.2d 397 (quoting Michigan v. Chestemut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988)). See also Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 1381-82, 103 L.Ed.2d 628 (1989). In giving shape to this standard in Timms, we recognized that “[t]he test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct taken as a whole, rather than focus on particular details of that conduct in isolation.” Id. 83 Md.App. at 17, 573 A.2d 397 (quoting Chestemut, supra, 486 U.S. at 572, 108 S.Ct. at 1978). In Timms, we identified the facts that tend to demonstrate coercive police conduct as actions manifesting “aggressive” police conduct. Id. 83 Md.App. at 20, 573 A.2d 397.

In Timms, by way of comparison, we revisited Chester-nut. In that case, while on a routine patrol, the police saw a car stop. Its occupant alighted and approached Chester-nut, who was standing on a corner. When Chestemut saw the police car, he turned and ran away. The police followed him around a corner to investigate the situation, and quickly caught up with him. Driving alongside him for a short distance, the officers observed Chestemut discard some packets from his pocket. When one of the officers, who had experience as a paramedic, retrieved the packets, he “surmised” that their contents contained cocaine. In holding that even though one of the officers characterized the episode as a “chase,” Chestemut had not been seized prior to discarding the packets, the Supreme Court observed:

The police conduct involved here would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon respondent’s freedom of movement. The record does not reflect that the police activated a siren or flashers; or that they commanded respondent to halt or displayed weapons; or that they operated the car in an aggressive manner to block respondent’s course or otherwise control the direction or speed of his movement— While the very presence of a police car driving parallel to a mnning pedestrian could be somewhat intimidating, this hind of police presence does not, standing alone, constitute a seizure.

486 U.S. at 575, 108 S.Ct. at 1980 (emphasis added). Bearing in mind that the Court did not determine “the circumstances in which police pursuit could amount to a seizure under the Fourth Amendment,” 486 U.S. at 575-76 n. 9, 108 S.Ct. at 1980-81 n. 9, we now turn to the case sub judice.

The evidence shows that while Jagoe was driving his unmarked car alongside Williams, Williams apparently did not recognize Jagoe as a police officer. At the time Williams observed the marked police cruiser coming toward the service station parking lot, neither Jagoe nor Davis had ordered Williams to stop. Indeed, at that point, there had been no communication whatsoever between Williams and the police officers. Prior to the moment that Williams threw the bags of suspected cocaine toward Jagoe, the only action that could be reasonably characterized as “aggressive” police conduct was that of Officer Davis proceeding towards the service station in the police vehicle with the emergency lights on. Moreover, the evidence is unclear as to whether this act even rose to the level of “pursuit.” Compare State v. Lemmon, 318 Md. 365, 568 A.2d 48 (1990) (two police officers pursued Lemmon on foot as he ran away, while a third police officer, following in his police car, tried to block his escape).

Nevertheless, at the suppression hearing, the State conceded that the appellee had been stopped or seized before he threw away the contraband, and the decision of the circuit court was based on that concession.⁷ In view of the concession and the court’s reliance thereon, we are constrained to treat the cocaine as having been seized rather than abandoned. Therefore, we must determine whether the police stop of the appellee was based upon grounds sufficient to pass constitutional muster. An investigatory stop may be made upon “specific articulable facts” which would lead a reasonable police officer at the inception of the stop to conclude that a brief detention of the individual would be appropriate. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (1968). The Supreme Court has delineated the general contours of the quality and quantity of evidence required to show reasonable articulable suspicion by way of contrast to that required to show probable cause:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

Alabama v. White, — U.S.-, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990) (emphasis added).⁸

We now turn to the issue of whether the registered informant’s tip, together with the information furnished by the citizen who approached Officer Jagoe and then telephoned the police station, justified a Terry stop or were so “completely lacking in indicia of reliability [that they] would either warrant no police response or require further investigation before a forceable stop of a suspect would be authorized.” Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972).

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court was confronted with an anonymous tip in the probable cause context. Although the Court emphasized the relevance of the informant’s veracity, reliability, and basis for knowledge, the Court held that the challenged police conduct must be viewed in light of the “totality of circumstances.” Id. at 230-31, 103 S.Ct. at 2328-29. More recently, in Alabama v. White, 110 S.Ct. 2412, 2414-17, the issue of whether an anonymous tip was sufficiently reliable to furnish the police with reasonable suspicion was squarely before the Court. In White, an anonymous person telephoned the police and related that White would be leaving an apartment at a certain time in a particular vehicle and that she would have cocaine in her possession. The officers verified the description of the vehicle and observed White, empty-handed, leaving an apartment. After they stopped the vehicle en route to the destination that the caller had predicted, the officers conducted a consensual search and discovered marijuana in an attache case. Upon arresting White they found cocaine in her purse. In reversing the judgment of the lower court, the Court concluded that “the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion____” White, supra, 110 S.Ct. at 2416. In holding that under the totality of circumstances an anonymous tip may be sufficient indicia of reliability to justify an investigatory stop, the Court reasoned that the information provided by the tipster was reliable because the “significant aspects of the caller’s predictions were verified.” White, supra, 110 S.Ct. at 2417.⁹ The Court stated, “if 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 it were more reliable.” Id. at 2416. In stressing the importance of the predictive value of the caller’s tip the Court observed that: “Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for the police to believe that a person with access to such information is likely also to have access to reliable information about that individual’s illegal activities.” Id. at 2417.

The facts of this case demonstrate that the police had articulable suspicion to stop Williams. It is important to bear in mind that the first tip Jagoe received was from a reliable confidential informant, not an anonymous tipster. Officer Jagoe testified:

I received information from a confidential informant who had been utilized by our department on numerous occasions and given the confidential information number of 88001. This informant has been extremely reliable and has resulted in the execution of at least five search and seizure warrants and the arrest of numerous subjects.¹⁰

The informant advised Jagoe that there would be a cocaine transaction in the near future in front of 7611 Maple Avenue, specified the names of certain people who would be involved—Shirley Gerald, Jose, and Calvin—as well as the color of the delivery vehicle. When Jagoe arrived at the Maple Avenue address, he immediately observed Shirley Gerald, Jose, and others known to him as drug users. The registered informant’s tip was corroborated when Jagoe was approached by the anonymous person who confirmed many of the details provided in the confidential informant’s tip: that a drug transaction would occur in front of 7611 Maple, that the delivery people would be driving a tan/goldish vehicle, and that Shirley Gerald would be involved in the transaction. At this point, the information provided by the two tipsters was mutually confirming after Jagoe had personally observed substantiating details. Additionally, even though the identity of the citizen informant was unknown, his/her apparent motive for furnishing the police with information was out of concern for a relative. Thus, when the anonymous informant advised the police that the location of the drug transaction had moved from the Maple Avenue address to the Carroll and Grant Avenue intersection, we believe that the information could be relied upon as credible. Moreover, the specificity of the information in terms of the location of the transaction, the delivery vehicle and the time that the transaction would occur served to demonstrate the informant’s personal knowledge of the forthcoming illegal activity. See e.g. Jackson v. State, 81 Md.App. 687, 693, 569 A.2d 712 (1990).

In confirmation, Jagoe observed (1) an unknown woman who appeared to be anticipating a rendezvous in the park at 3:00 a.m.; (2) Williams’ arrival at the intersection in the vehicle described by both the confidential informant and the unknown informant; and (3) Williams’ arrival only 14 minutes after Jagoe had received advice that the scene would be changed to that location.

Although Jagoe did not observe any illegal activity at that time, he did not have to in order to entertain a reasonable suspicion that criminal activity was afoot. The fact that no drug delivery took place did not negate the reliability of the information received by the police. From Jagoe’s standpoint, the participants had apparently chosen, at the last moment, to abort the delivery. It was not unreasonable for him to suspect that contraband was at the scene ready to be delivered. A police officer need only verify “significant aspects” of an informant’s prediction in order for the prediction to carry sufficient indicia of reliability to justify an investigatory stop. White, supra, 110 S.Ct. at 2417. The reliability of the informants in the instant case is bolstered by the same factors that buttressed the anonymous informant’s information in the White case: “When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least enough to justify the stop.” Id.; Gates, supra, 462 U.S. at 244 n. 13, 103 S.Ct. at 2335 n. 13. See also Potts v. State, 300 Md. 567, 574-75, 479 A.2d 1335 (1984). The specificity of the information provided in the tips distinguishes the instant case from State v. Lemmon, 318 Md. 365, 379, 568 A.2d 48 (1990), where the anonymous tip merely alleged “something was occurring” and contained no allegations as to how, or by whom, it was to have occurred. Moreover, because the informants stated that a drug transaction would occur, the instant case is unlike the situation in Jones v. State, 319 Md. 279, 572 A.2d 169 (1990), where the police officer observed only innocent acts and had no knowledge of future, on-going, or past illegal activity occurring in the area. Furthermore, the fact that the citizen who approached Officer Jagoe gave him substantially the same information that he had received from the registered informant lends credence to both sources of information.

For the reasons stated above, we reversed the order of the circuit court sustaining the appellee’s motion to suppress the evidence.

1 . Failure to render a decision within 120 days after the record on appeal is filed in the appellate court would result in the decision of the lower court becoming final. The record was filed in this court on May 29, 1990.

2 . Officer Jagoe testified that to his knowledge the citizen informant was not involved in the drug milieu.

3 . This woman was not Shirley Gerald.

4 . Officer Jagoe testified that there had been an on-going investigation over the past few months which involved information that "Calvin,” who also had been mentioned by the confidential informant as being involved in the transaction, had been using a Toyota to deliver drugs to 7611 Maple Avenue. At some point, that same Toyota Cressida had temporary tags which were registered to a "Miss Pope.” After Williams was arrested, the police discovered that the vehicle he was driving at the time of his arrest was the same Toyota that was registered to "Miss Pope.”

5 . In cross-examination, Officer Jagoe further testified that when the appellee threw the drugs to the ground, Officer Davis’ police cruiser had not entered the parking lot of the service station. Jagoe further stated'that when the appellee threw the zip lock bags towards him, he was 10-15 feet away and was able to recognize immediately that each bag contained a rock of cocaine. The appellee, in its brief, states that the appellee was driving his automobile out of the parking lot when the marked police car arrived. Officer Jagoe’s testimony, however, tends to indicate that the appellee had not gotten back in his car when the marked police car approached and the appellee threw away the cocaine.

6 . Upon search of the vehicle, the police recovered one rock of crack cocaine next to the passenger side door and a small amount of marijuana underneath the seat.

7 . Although the State conceded that a seizure had taken place prior to abandonment of the cocaine by Williams, such concession does not appear to have been warranted by the record presented to us.

8 . The level of suspicion necessary to show reasonable suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. U.S. v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); see also Quince v. State, 319 Md. 430, 433-34, 572 A.2d 1086 (1990) (collecting cases).

9 . In so holding, the Court noted that there were details mentioned by the tipster which had not been verified. Id. at 2416.

10 . While the information provided by the confidential informant in the instant case is somewhat similar to the information provided by the tipster in Green v. State, 77 Md.App. 477, 551 A.2d 127, cert. denied, 315 Md. 692, 556 A.2d 674 (1989), the facts in Green were measured against a probable cause standard. Furthermore, in Green, there was absolutely no evidence presented as to the basis of the “registered informant’s” reliability. Id. at 478 n. 2, 551 A.2d 127. In his analysis of the case, the hearing judge in the case at bar appears to have erroneously characterized the informant in Green as a reliable confidential informant.