State v. Zadeh

226 A.3d 463, 468 Md. 124

• Court: Court of Appeals of Maryland
• Decided: April 3, 2020
• Docket: 25/19
• Status: Published

Opinion

State of Maryland v. Hussain Ali Zadeh, No. 25, September 2019 Term. Opinion by Hotten, J.

CRIMINAL LAW—JOINDER OR SEVERANCE OF CO-DEFENDANTS— LIMITING INSTRUCTIONS AND OTHER REMEDIES

The Court of Appeals held that the cumulative effect of the introduction of non- mutually admissible evidence unfairly prejudiced Respondent. The trial court abused its discretion in denying the motion for severance, because the limiting instructions were insufficient to cure the prejudice that resulted from the introduction and admission of the non-mutually admissible evidence. Under Hines, severance is appropriate where (1) non- mutually admissible evidence will be introduced; (2) the admission of the evidence causes unfair prejudice; and (3) such prejudice cannot be cured by other relief, such as limiting introductions or redactions. Petitioner relied on testimony from witnesses regarding statements the co-defendant, Ms. Pannell-Brown allegedly made, evidence of financial issues she was experiencing with her deceased husband, and other non-mutually admissible evidence. Over the course of the trial, at least nine limiting instructions were given regarding this evidence. The number of limiting instructions effectively rendered the instructions meaningless, because a reasonable juror would not have been able to decipher which evidence was admissible against which defendant. Once the trial court determined that there was far more non-mutually admissible evidence than originally thought, severance was no longer an available remedy. In that case, a mistrial was the next available remedy and the motion for a mistrial should have been granted. Accordingly, Respondent was prejudiced by the joinder of his trial with his co-defendant and the trial court abused its discretion in denying the respective motions for severance and a mistrial.

CONSTITUTIONAL LAW—FOURTH AMENDMENT—SEARCHES AND SEIZURES—SUPPRESSION OF EVIDENCE—WARRANT EXCEPTIONS— PLAIN-FEEL DOCTRINE

The Court of Appeals held that the seizure of a cell phone from Respondent was unlawful because (1) the vehicle warrant and the probable cause sufficient for the search of that vehicle did not authorize the seizure of the cell phone from his person, (2) the officer exceeded the parameters of the plain-feel doctrine, and (3) none of the other delineated exceptions to the warrant requirement applied. Accordingly, the cell phone and any evidence obtained from it should have been suppressed, as the seizure of the phone without a warrant or applicable exception to the warrant requirement violated the Fourth Amendment to the United States Constitution and Article 26 of the Maryland Declaration of Rights. Circuit Court for Montgomery County Case No. 127706C Argued: November 5, 2019 IN THE COURT OF APPEALS

OF MARYLAND

No. 25

September Term, 2019

__________________________________

STATE OF MARYLAND v. HUSSAIN ALI ZADEH __________________________________

McDonald, Watts, Hotten, Getty, Booth, Battaglia, Lynne A., (Senior Judge, Specially Assigned), Greene, Clayton, Jr. (Senior Judge, Specially Assigned),

JJ. __________________________________

Opinion by Hotten, J. Watts, J., joins in judgment only. McDonald and Getty, JJ., dissent in part. __________________________________

Filed: April 3, 2020

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2020-09-09 10:52-04:00

Suzanne C. Johnson, Clerk Respondent, Hussain Ali Zadeh, was tried in the Circuit Court for Montgomery

County along with co-defendant, Larlane Pannell-Brown (“Ms. Pannell-Brown”), for the

murder of Ms. Pannell-Brown’s husband, Cecil Brown (“Mr. Brown”). Following a three-

week jury trial, both defendants were convicted of second-degree murder and sentenced to

30 years in prison. The defendants noted timely appeals to the Court of Special Appeals,

which consolidated their cases for argument. On appeal, Mr. Zadeh argued that his trial

should have been severed from that of Ms. Pannell-Brown, since a substantial amount of

the evidence against Ms. Pannell-Brown was not admissible against, or even relevant to

him, thereby posing a significant risk of prejudice. Mr. Zadeh also contended that the trial

court should have suppressed a black T-Mobile cell phone that was seized from his pocket,

in violation of the Fourth Amendment of the United States Constitution1 and Article 262 of

the Maryland Declaration of Rights.3

1 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. 2 Article 26 of the Maryland Declaration of Rights provides:

That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted. 3 The Court of Special Appeals also considered whether the trial court should have (continued . . .) The Court of Special Appeals, in an unreported opinion, reversed Mr. Zadeh’s

conviction and remanded the case to the Circuit Court for Montgomery County, holding

that (1) the trials should have been severed because the joint trial unfairly prejudiced Mr.

Zadeh and the resulting prejudice could not be cured; and (2) the cell phone should have

been suppressed because the officer conducted a warrantless seizure of the cell phone from

his person and none of the recognized warrant exceptions applied. The State appealed the

decision of the Court of Special Appeals, and this Court granted certiorari to consider the

following questions:

1. When a jointly tried defendant claims that there were too many limiting instructions for a jury to effectively follow, should the reviewing court first consider whether the limiting instructions were justified by non-mutually admissible evidence?[4]

(…continued)

admitted third-party prior bad acts evidence about the victim’s son, Cecil Pannell- Brown, and whether the trial court unfairly limited Mr. Zadeh’s attorney’s closing argument. This Court denied Mr. Zadeh’s conditional cross-petition to review those issues; thus, they are not before us in the present appeal. 4 The State presented its question in its brief as follows:

Did the trial court properly exercise its discretion in denying motions for severance and a mistrial where [Mr.] Zadeh and his co-defendant participated in the same crime, nearly all of the evidence at the joint trial was mutually admissible, and the court’s limiting instructions were more than sufficient to alleviate any potential prejudice?

We answer the question for which we granted certiorari.

2 2. When a warrant authorizes the seizure of certain evidence from a car, and an officer, during a lawful frisk of the driver, feels evidence that falls within the warrant, does the plain-feel doctrine permit seizure of that evidence?

For reasons discussed infra, we find that non-mutually admissible evidence was

introduced and admitted at trial, and the limiting instructions were insufficient to cure the

prejudice. Regarding the seizure of the cell phone, we conclude that seizure of the phone

from Mr. Zadeh’s person exceeded the parameters of the Fourth Amendment and Article

26 of the Maryland Declaration of Rights. In the absence of a valid search and seizure

warrant for the search of his person or an applicable exception to the warrant requirement,

the seizure of the cell phone was unlawful. Accordingly, we shall affirm the judgment of

the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

On August 4, 2014, at approximately 12:30 p.m., officers from the Takoma Park

Police Department responded to a 911 disturbance call at the home of Cecil Brown and

Larlane Pannell-Brown at 805 Colby Avenue in Takoma Park, Montgomery County,

Maryland. Police were called to the residence after Ms. Pannell-Brown appeared at her

neighbor’s back door, screaming and yelling. Ms. Pannell-Brown informed the officers

that she had found her husband unconscious in their backyard, bleeding from the back of

the head. The police entered the backyard, where they discovered seventy-three-year-old

Cecil Brown lying face-down on the ground, deceased. The autopsy report from the

medical examiner revealed that he died from injuries consistent with blunt force trauma.

3 The lead investigator, Detective Richard Poole, subsequently interviewed Ms.

Pannell-Brown regarding the events leading up to her husband’s murder. Ms. Pannell-

Brown advised Detective Poole that she spoke with Mr. Brown on the phone earlier that

morning while he was at work. Ms. Pannell-Brown claimed that she called Mr. Brown on

his co-worker’s cell phone number to ask if he could inspect her truck because it had been

making a strange noise. After the alleged phone call, she left her truck in the driveway for

her husband to work on when he came home. When her husband returned after 10 a.m.,

she left the family home to make a bank deposit. Upon her return, she discovered the

victim lying dead in the fenced enclosure behind their house. Detective Poole requested

that Ms. Pannell-Brown allow him to examine her cell phone to confirm that she placed

the call to her husband. Ms. Pannell-Brown agreed. However, Detective Poole was unable

to locate the phone number or contact in her call log. Ms. Pannell-Brown informed

Detective Poole that she had recently purchased a new phone and that she may have made

the call from the new phone. While looking through her call logs, Detective Poole

discovered that one of her cell phones reflected a phone call around 6:41 a.m. to an “Ali.”

Ms. Pannell-Brown told the detective that “Ali” was a friend that she engaged to detail her

truck when needed, and she called him that morning to determine whether he had time to

service her vehicle. She also advised the detective that “Ali” had a wife and baby in

Jamaica, and she was helping them immigrate to the United States.

4 The same day, one of the victim’s sons, Cecil Pannell-Brown (“Beanie”),5 informed

Detective Poole that Ms. Pannell-Brown had been engaged in a year-long affair with a man

named “Ali,” and advised the officer that “Ali” drove a silver Jaguar station wagon and

was employed at a nearby car rental facility. Detective Poole again questioned Ms.

Pannell-Brown about her relationship with “Ali” and she maintained that the two were

merely friends.

Upon receiving this information, Detective Poole obtained Ms. Pannell-Brown’s

consent to take both of her cell phones with him and requested that she come to the police

station later that day for an interview. She agreed. Thereafter, as part of a “preliminary

investigation,” Detective Poole and another detective went to the Enterprise Rent-a-Car on

New Hampshire Avenue to question “Ali” about the nature of his relationship with Ms.

Pannell-Brown. His manager informed the detectives that the “Ali” they were looking for

was Hussain Ali Zadeh (“Mr. Zadeh”). Mr. Zadeh asked Detective Poole whether he was

there to talk about “the lady’s husband that died.” Detective Poole confirmed the purpose

of his visit and asked Mr. Zadeh how he became acquainted with Ms. Pannell-Brown. Mr.

Zadeh revealed that Ms. Pannell-Brown was a mutual friend that he met through a co-

worker, and that she was assisting him with immigration issues. During the interview,

Detective Poole also inquired whether Mr. Zadeh owned a vehicle, presumably based on

information he received from Beanie about the Jaguar station wagon. Mr. Zadeh advised

5 Cecil Pannell-Brown is referred to in the record below as “Beanie.” We refer to him as Beanie throughout this opinion for consistency and clarity.

5 Detective Poole that he did not. Mr. Zadeh also informed Detective Poole that he had taken

the subway to work, arrived at Enterprise between 12 and 12:30 p.m. for his shift, and that

he had not spoken to anyone before he left for work that afternoon. Detective Poole

observed Mr. Zadeh’s hand in his pocket and “assumed that he had a phone in there.”

Detective Poole subsequently asked Mr. Zadeh for his cell number and for permission to

see his cell phone, but Mr. Zadeh repeatedly refused, claiming that the phone in his pocket

was not his and his cell phone was at home.

Detective Poole and his team then began investigating Ms. Pannell-Brown and Mr.

Zadeh as suspects for the murder of Mr. Brown. On August 5, 2014, the Takoma Park

detectives observed a 2007 silver Jaguar station wagon in a parking lot near the Enterprise

car rental facility. It was determined that the vehicle was registered to Ms. Pannell-Brown,

although it was frequently driven by Mr. Zadeh. Detective Gregory Wolff6 subsequently

applied for and was granted a search warrant for the Jaguar.7 The search warrant indicated

that the officers were permitted to search the vehicle for evidence of the crime of murder,

including “any object which may have been used to cause the victim’s injuries[,]” and

“photos, notes, documents, electronic equipment which stores data[.]” That evening

6 The hearing transcript refers to Detective Wolff as “Glen B. Wolf.” The warrant application and oath for the T-Mobile cell phone reflects that his name is Detective Gregory Wolff. 7 As far as we can ascertain, the search warrant application for the Jaguar was not included in the record. Without the application, we are unable to determine the specific information and facts known to the affiant that provided the basis for the search warrant. Unfortunately, in the absence of the warrant application, we can only rely on the officers’ testimony at the suppression hearing.

6 around 9:00 p.m., Detective Poole and the Special Assignment Team (“SAT”)8 that was

surveilling the Jaguar stopped the vehicle, which was operated by Mr. Zadeh, to execute

the search and seizure warrant. Detective Poole requested that Mr. Zadeh, the operator of

the vehicle, exit the Jaguar and proceeded to pat him down for “officer safety.” During the

frisk, Detective Poole felt a cell phone in Mr. Zadeh’s pants pocket and seized it. A

subsequent search of the station wagon the following morning9 uncovered eleven other

pieces of evidence, including a “swab of suspected blood.” The search warrant inventory

report and return listed a twelfth item—“a T-Mobile cell phone belonging to Hussain Ali

Zadeh”—as seized from the “pocket of ‘Ali[.]’”

The officers did not secure a separate search and seizure warrant for the cell phone

they seized on August 5 until August 7, 2014. In the warrant application for that cell

phone—specific to its contents—no mention was made of or reference to the frisk of Mr.

Zadeh or how the officer came to seize his cell phone.10 Rather, the application for the

8 The SAT is a team of plain clothes officers that assists the investigative section of the Takoma Police Department. The SAT officers were tasked with surveilling the vehicle and the area surrounding the Enterprise car rental. The SAT observed Mr. Zadeh getting into the Jaguar and followed him to a residence in Silver Spring. They informed Detective Poole that Mr. Zadeh had gotten back into the vehicle and was traveling to another location. At that time, Detective Poole initiated the stop of the vehicle. 9 Detectives Poole and Holmes did not conduct the search of the Jaguar upon stopping the vehicle. It was transported to the Takoma Park Police Department’s property impound, and the following morning, officers executed the warrant and searched the vehicle. 10 Detective Wolff stated that the cell phone was “recovered” from Mr. Zadeh and he was seeking a warrant to search the contents of the cell phone.

7 search warrant cited the aforementioned facts and “numerous inconsistent statements made

by Larlane Brown and Hussain Ali Zadeh” as reasons why there may be evidence of the

murder connected to his cell phone. A later search and seizure warrant application for the

cell phone records associated with the cell phone number corresponding to the seized cell

phone was obtained on August 18, 2014.11 However, the detectives did not obtain a warrant

to search Mr. Zadeh—or any cell phones belonging to him—until September 12, 2014.

On August 15, 2014, the police executed a search warrant on the Browns’ Takoma

Park residence. While searching the premises, police discovered life insurance documents

belonging to Ms. Pannell-Brown, that designated Mr. Zadeh as the sole beneficiary of her

retirement account and a life insurance policy in her name. Officers also uncovered two

pages of undated handwritten-notes referring to homemade poisons, a taser flashlight, and

a box for a “tactical stun flashlight.” One of the hand-written notes referenced the

following poisons: “Carbon Monoxide,” “Botulin,” “Belladonna,” “Hemlock,” and

“Aconite.” The other note included a recipe for the production of cyanide. The police also

recovered a computer in Ms. Pannell-Brown’s bedroom which revealed internet searches

for information, such as “what energy drinks are very harmful” and “how harmful are

energy drinks for people over 70 years of age?” An earlier search of her cell phones had

also revealed web searches for “what causes sudden cardiac arrest” and “what drink

cause[s] heart failure?”

11 There was an issue as to whether the warrant for the records corresponding to the seized phone was executed within 15 days. The warrant and facsimile from T-Mobile were ultimately admitted into evidence after Detective Wolff testified to receiving the records via email. 8 On September 18, 2014, Detective Poole arrived at the Enterprise Rent-a-Car

business with a warrant for DNA evidence and for any cell phones belonging to Mr. Zadeh.

In executing the warrant, the officers seized two other cell phones from Mr. Zadeh, separate

from the T-Mobile cell phone seized on August 5. Several months later, in May 2015,

Detective Poole discovered that Mr. Zadeh and Ms. Pannell-Brown were renting an

apartment together in Takoma Park. Detectives Poole subsequently obtained a warrant to

search the apartment. During the execution of the search warrant, the detectives found

prescription medications prescribed to Ms. Pannell-Brown and Mr. Zadeh, and evidence

that the apartment was presently occupied by a man and a woman. On May 28, 2015, Ms.

Pannell-Brown and Mr. Zadeh were arrested at the Thurgood Marshall Baltimore

Washington International Airport (“BWI”) and charged with first-degree murder and

conspiracy to commit murder. Additional facts are discussed below as relevant to the

issues before this Court.

B. Procedural Background

At trial, the State proceeded on the theory that Mr. Zadeh and Ms. Pannell-Brown

had conspired to kill Mr. Brown to maintain their romantic relationship. Prior to the trial,

defense counsel filed a Motion to Sever the joint trial and a Motion to Suppress the T-

Mobile cell phone and any information acquired from it.

1. Pre-Trial Motions Hearings

Mr. Zadeh filed a pretrial Motion to Sever his trial from that of Ms. Pannell-Brown,

arguing that the State’s evidence against Ms. Pannell-Brown was not admissible against

him, and the non-mutually admissible evidence would unfairly prejudice him. During a

9 hearing on the motion, Mr. Zadeh argued that there were three categories of evidence that

were not admissible against him: (1) testimonial hearsay evidence, (2) non-testimonial

hearsay evidence; and (3) other material that was irrelevant and highly prejudicial to Mr.

Zadeh. In response, the State argued that “the evidence [was] mutually admissible as to

both co-defendants,” and if the defendants were to be tried separately, “the exact same

evidence [was] going to be used twice.”

The trial court found the evidence mutually admissible against each defendant,

stating that “there[] [is] really no reason to sever the trials because as long as there[] [is]

no Bruton [v. United States][12] problem, then clearly it’s in everyone’s interest, other than

maybe the defendants ... to have one trial.” In denying the motion, the court held that

joinder was appropriate and presented little risk of prejudice. The court further found that

any prejudice that may result from the joinder could be resolved with limiting instructions.

Defense counsel filed a motion to reconsider the decision denying the motion to sever, in

light of the decision by this Court in State v. Hines. 450 Md. 352, 148 A.3d 1247 (2016).

The trial judge again denied the motion.

At the suppression hearing in April 2016, the trial court denied the motion to

suppress the seizure of Mr. Zadeh’s cell phone in light of the search warrant obtained by

12 In Bruton, the Supreme Court held that, when the confession of a non-testifying co-defendant is introduced at a joint trial, the introduction of the confession violates the confrontation clause of the Sixth Amendment, even when a limiting instruction is given. “[W]here the powerfully incriminating extrajudicial statements of a co[-]defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial[,]” the effect of the instructions is limited. 391 U.S. 123, 135–36, 88 S. Ct. 1620, 1628 (1968). 10 the detectives for the Jaguar that indicated the “search shall be for evidence for the crime

of murder, including trace evidence, any torn cloth, any object that may have been used to

cause the victim’s death[]” and “[a]ny photos, notes, documents, electronic equipment[,]

which stores data.” According to the trial court, “electronic equipment which stores data[]”

encompassed the seizure of the cell phone, regardless of the fact that the cell phone was

not found in the vehicle.

THE COURT: And looking at the search warrant for the Jaguar, it was to search the vehicle, the 2007 Jaguar station wagon bearing so and so tags, VIN [] so and so. The search shall be for evidence for the crime of murder, including trace evidence, any torn cloth, any object that may have been used to cause the victim’s death. And then (d) is: And photos, notes, documents, electronic equipment which stores data. All right. Well, that one would certainly include a cell phone.

The trial court denied the motion to suppress, finding that the officer had a valid search

warrant and, in the alternative, that the plain-feel doctrine applied to the search of Mr.

Zadeh’s pocket.

2. The Jury Trial

At trial, the State introduced a series of text messages and various testimony from

individuals connected with Ms. Pannell-Brown to prove that Mr. Zadeh and Ms. Pannell-

Brown killed Mr. Brown for financial benefit and the continuance of their affair. While

investigating the murder, police obtained piecemeal phone records from a Verizon cell

phone. From those records, it was determined that Mr. Zadeh and Ms. Pannell-Brown were

texting each other on the morning of the murder. The following exchange from those text

messages was introduced at trial:

[MS. PANNELL-BROWN]: When I text you, come out side

11 [MR. ZADEH]: OK from what door??

[MS. PANNELL-BROWN]: The bed room your friend name is bryan

[MR. ZADEH]: OK got u LOL

[MS. PANNELL-BROWN]: Come now

Over eight days, the State introduced testimony from more than thirty witnesses,

including Mr. Brown’s adopted son, Bernard Brown (“Bernard”),13 two of Ms. Pannell-

Brown’s neighbors, a real estate attorney who entered into a contract with Ms. Pannell-

Brown to sell her Takoma Park home, the custodian of records from the Browns’ mortgage

company, Beanie, and his wife, Tahira Pannell.

On the first day of trial, Bernard Brown testified regarding a conversation he had

with Ms. Pannell-Brown when she returned from the police station on August 4. Bernard

testified that Ms. Pannell-Brown told him that, when she found Mr. Brown in the backyard,

she ran over to him and grabbed him, but he noticed that she did not have any blood on

her. Defense counsel objected to the testimony as hearsay and following a bench

conference on the issue of the limiting instructions, the trial judge instructed the jury not

to consider statements made by Ms. Pannell-Brown against Mr. Zadeh and vice versa.

One of the neighbors, Miranda Morris, testified that Ms. Pannell-Brown “suggested

that she was seeing someone, a boyfriend[.]” Ms. Morris also alluded to tension in the

Brown household at that time because the couple seemed to be experiencing financial

difficulties:

13 We refer to Bernard Brown by his first name to distinguish references to him from those to his father. 12 [THE STATE]: Did there come a time when you noticed any unusual changes in [Ms. Pannell-Brown’s] behavior?

[MS. MORRIS]: I would say, I want to say a year, year and half before Cecil was killed.

[THE STATE]: And can you describe those changes? What[,] if any[,] were there?

[MS. MORRIS]: She started kind of confiding in me, I guess, that Cecil was out of work, that they didn’t have any money to pay bills. She was really frustrated with him, like kind of implying that he wasn’t trying. She asked for some loans, small ones at first, and then larger ones down the line.

[THE STATE]: And when you say complaining he wasn’t trying, trying to do what?

[MS. MORRIS]: She described him as sitting around the house all day, as opposed to, you know, going out and seeking employment. He was a contractor, right? So, going out and looking for work on current jobs. She said he just sat all day.

***

[THE STATE]: And you mentioned loans. I want to direct your attention to January of 2014. Do you remember loaning Ms. Pannell-Brown money in that month?

[MS. MORRIS]: Yes.

[THE STATE]: What did she say to you?

[MS. MORRIS]: That the, that Cecil’s truck would get repossessed if she didn’t pay, if she didn’t make the payment on it, and that he wouldn’t, really wouldn’t be able to work.

Defense counsel argued that the hearsay testimony of Ms. Morris was highly prejudicial to

Mr. Zadeh, prompting the court to give a limiting instruction that the evidence was only

relevant to Ms. Pannell-Brown. On the same day, the State introduced testimony from

13 Tahira Pannell—Beanie’s wife—alluding to the fact that Ms. Pannell-Brown was having

an affair and had been hiding money from her husband. Mr. Zadeh challenged the

admissibility of the statements Ms. Pannell-Brown allegedly made to her daughter-in-law

regarding her finances, as well as statements encouraging her to “get a friend on the side”

too.

One of the most controversial pieces of evidence came in the form of testimony

from Beanie, which the State introduced along with the aforementioned text messages

regarding a “bedroom door.” While on the stand, the prosecution asked Beanie about a

“bedroom door” at the Colby Avenue address. On direct, Beanie testified that his mother

referred to the door leading to the backyard as his “father’s bedroom door.” Defense

counsel argued that the text messages between Mr. Zadeh and Ms. Pannell-Brown

concerning an elusive bedroom door in conjunction with hearsay testimony from Beanie

as to what his mother called that door was highly prejudicial. The trial court ultimately

struck the statements regarding what Ms. Pannell-Brown supposedly called “any particular

door.”

The custodian of records from the Browns’ mortgage company also testified that

Ms. Pannell-Brown made statements to his colleague during a phone call, in which she

inquired about a potential insurance policy on the house or the mortgage. This testimony

was determined by the court to be double-hearsay that could not be used against Mr. Zadeh,

and a limiting instruction followed.

The real estate attorney testified that, on September 21, 2014, Ms. Pannell-Brown

entered into a contract to sell the home she shared with her husband and was set to receive

14 $85,000 from the sale. The trial court again provided a limiting instruction regarding the

testimony of the real estate attorney because the evidence was “just being offered as

evidence against Defendant Pannell-Brown” and “should only be consider[ed] vis-à-vis

her.” To cure any potential prejudice to Mr. Zadeh, the trial judge gave at least nine

different limiting instructions14 during the course of the trial, before deciding that he would

not give an explicit instruction every time the State introduced a statement by Ms. Pannell-

Brown that was only admissible against her.15 Before the close of evidence, defense

counsel moved for a mistrial, arguing improper joinder because so much of the evidence

presented and the testimony heard from State witnesses was admissible against Ms.

Pannell-Brown, but not Mr. Zadeh, and severance was no longer available as a remedy to

cure the resulting prejudice. Defense counsel argued, outside the presence of the jury, that

the defendants were tried together for “the State’s convenience” and there was no other

way to fix the resulting prejudice to Mr. Zadeh than to grant a mistrial. The trial court

subsequently denied the motion for the mistrial. Defense again moved for a mistrial citing

14 The trial judge gave a tenth instruction to “disregard” portions of the testimony regarding what Ms. Pannell-Brown called any particular door and that testimony was not supposed to be considered against either defendant. 15 At a certain point, the trial judge determined that the jury “understood” that statements made by Ms. Pannell-Brown were not admissible against Mr. Zadeh and refused to give the same limiting instruction every time a statement by Ms. Pannell-Brown was introduced. (“All right. Well, okay, but we know this. I’m not going to, I’m not going to give them an instruction every time, you know, there’s some piece of evidence. They know that anything that she’s saying at this point with regard to him is relevant to her…[a]nd not to Mr. Zadeh.”). 15 the “copious evidence introduced at [the] trial” that would not be admissible in a separate

jury trial against Mr. Zadeh alone. The court again denied the motion.

C. Opinion of the Court of Special Appeals

In noting his appeal before the Court of Special Appeals, Mr. Zadeh asserted that

(1) the trial court abused its discretion in denying his motions for severance and a mistrial,

(2) the court erred in denying his motion to suppress, (3) the trial court incorrectly excluded

third party prior bad acts evidence, and (4) the prosecutor made improper remarks during

closing arguments that severely prejudiced him and the trial court abused its discretion in

refusing to strike the comments and limiting his counsel’s closing argument. The Court of

Special Appeals agreed with Mr. Zadeh regarding the issues of severance and the motion

to suppress. Pannell-Brown v. State, 2019 WL 962812, *1. In reviewing the motion to

sever, the Court determined that the joint trial unfairly prejudiced Mr. Zadeh under Hines.

Id. at *15 (citing Hines, 450 Md. at 366). According to the Court, the introduction and

admission of non-mutually admissible evidence prejudiced Mr. Zadeh because the trial

court gave too many limiting instructions and the sheer number of limiting instructions

over the course of the trial made the instructions ineffective for the purpose of curing the

prejudice. Id. at *20–21.

The Court further found that the trial court abused its discretion in denying the

motion for a mistrial because no other form of relief would have cured the prejudice to Mr.

Zadeh, once the trial court realized how much of the evidence was inadmissible against

him. Id. Next, the Court of Special Appeals concluded that the cell phone found on Mr.

Zadeh should have been suppressed, because the warrant for the search of the Jaguar did

16 not extend to the search of Mr. Zadeh himself, and that the plain-feel doctrine did not

provide justification for the warrantless search and seizure of his cell phone. Id. at *22–

23. According to the Court, the officers lacked probable cause to believe that the cell phone

confiscated from Mr. Zadeh’s person, and not from inside the vehicle for which the officers

had a warrant, was a weapon or that there was evidence on the cell phone that would link

Mr. Zadeh to the crime charged. Id. at *23. “There [was] no indication in the record that

Detective Poole knew anything more particularized about the cell phone; the phone itself

raised no officer safety concerns, and was obviously a phone, not a weapon.” Id. at *23-

25. Accordingly, the Court of Special Appeals reversed the conviction and remanded the

case to the circuit court with instructions to suppress the seizure of the T-Mobile cell phone.

STANDARD OF REVIEW

Maryland Rule 4-253(c) grants the trial court discretion in deciding whether to grant

or deny a motion to sever. A denial of severance is an abuse of discretion where (1) non-

mutually admissible evidence will be introduced; (2) the admission of the evidence causes

unfair prejudice; and (3) such prejudice cannot be cured by other relief. Hines, 450 Md. at

369–70, 148 A.3d at 1263. Even though “severance determinations are within the sound

discretion of the trial court,” that discretion is not to be abused, or “exercised arbitrarily[.]”

Id. at 380, 148 A.3d at 1263; Day v. State, 196 Md. 384, 388, 76 A.2d 729, 730 (1950).

Instead, discretion regarding whether to grant a motion for severance should be exercised

“so as to prevent injustice.” Day, 196 Md. at 394, 76 A.2d at 733 (internal citations

omitted).

17 We also review the denial of a motion for a mistrial under an abuse of discretion

standard. Although the trial court determines when to grant a mistrial, it is “an extreme

sanction” that should only be granted “when no other remedy will suffice to cure the

prejudice.” Burks v. State, 96 Md. App. 173, 187, 624 A.2d 1257, 1265 (1993); see Hunt

v. State, 321 Md. 387, 422 (1990), cert. denied, 502 U.S. 835 (1991) (“The declaration of

a mistrial is an extraordinary act which should only be granted if necessary to serve the

ends of justice.”).

In reviewing the denial of a motion to suppress evidence, we accord great deference

to the factual findings rendered by the trial judge. Whiting v. State, 389 Md. 334, 345, 885

A.2d 785, 791 (2005). On the other hand, in deciding whether a police encounter was

unlawful, and suppression was warranted, we review legal conclusions de novo—without

deference to the trial court. Id., 885 A.2d at 791. We engage in “‘our own independent

constitutional appraisal’ of whether the Fourth Amendment has been violated by applying

the law to the facts of the matter [before us].” McCracken v. State, 429 Md. 507, 515, 56

A.3d 242, 246 (2012) (citations omitted). In our review, we are limited to the record of the

suppression hearing, not the trial, in determining whether the seized evidence should have

been suppressed. Grant v. State, 449 Md. 1, 14, 141 A.3d 138, 145 (2016) (citing State v.

Wallace, 372 Md. 137, 144, 821 A.2d 291, 295 (2002)).

DISCUSSION

A. The trial court abused its discretion in denying the Motion for Severance and the Motion for a Mistrial.

1. The Standard for a Motion to Sever a Joint Trial

18 The State contends that the evidence introduced against Ms. Pannell-Brown at trial

was mutually admissible against her co-defendant, Mr. Zadeh, and the Court of Special

Appeals did not apply the Hines test appropriately because it did not analyze each piece of

evidence to determine whether it was non-mutually admissible before making the final

determination that Mr. Zadeh would have been prejudiced based on the exhausting number

of limiting instructions. The State further argues that the testimony regarding the alleged

bedroom door was not actually admitted against either defendant, and the Hines analysis

concerns non-mutually admissible evidence that is admitted. Mr. Zadeh argues that the

State’s case-in-chief included 31 witnesses and over 300 exhibits, and none of the evidence

presented directly implicated him. In particular, Mr. Zadeh took issue with the presentation

of notes and internet searches regarding death by cyanide and other poisons, and a series

of indiscernible text messages from around the time of the murder, especially the message

to Mr. Zadeh referencing a mysterious “bedroom” door. Mr. Zadeh also objected to the

introduction of purported hearsay evidence covering seven different State witnesses. Mr.

Zadeh argues that the limiting instructions did not insulate Mr. Zadeh from the prejudice

that would and did result from the admission of the non-mutually admissible evidence. We

agree because (1) non-mutually admissible evidence was introduced; (2) the admission of

that evidence prejudiced Mr. Zadeh; and (3) the limiting instructions were insufficient to

cure the prejudice.

Maryland Rule 4-253 contemplates the joinder of defendants and offenses.

Regarding the joinder of defendants, a trial court may “order a joint trial for two or more

defendants charged in separate charging documents[,] if they are alleged to have

19 participated in the same act or transaction or in the same series of acts or transactions

constituting an offense or offenses[,]” and “most of the evidence admissible at trial is

mutually admissible[.]” Hines, 450 Md. at 355, 148 A.3d at 1248. Subsection (c) of Rule

4-253 provides, in pertinent part: “[i]f it appears that any party will be prejudiced by the

joinder for trial of counts, charging documents, or defendants, the court may, on its own

initiative or on motion of any party, order separate trials[.]” (emphasis added). Stated

differently, “where joinder will result in prejudice to one or more defendants, a trial judge

has discretion under Maryland Rule 4-253 to grant a severance or order other relief as

justice requires.” Hines, 450 Md. at 355, 148 A.3d at 1248. In the context of both co-

defendant and offense joinder, the crux of the severance inquiry is whether the joinder is

unduly prejudicial. Hines, 450 Md. at 378, 148 A.3d at 1262. “What differs between the

two situations is the application of the test—how a trial court determines the existence of

prejudice.” Id. (emphasis in original). A defendant must demonstrate that “non-mutually

admissible evidence will be introduced and that the admission of such evidence will result

in unfair prejudice.” Id. at 376, 148 A.3d at 1260 (emphasis in original) (internal citations

Under State v. Hines, the test for determining whether a motion for severance of

defendants should be granted is whether (1) non-mutually admissible evidence will be

introduced; (2) the admission of that evidence will unfairly prejudice the defendant

requesting severance; and (3) any unfair prejudice that results from admitting the non-

mutually admissible evidence can be cured either by severance of the defendants or some

other relief such as limiting instructions or redactions. Id. at 369–70, 148 A.3d at 1257. In

20 such cases, where a limiting instruction or other relief is inadequate to cure the prejudice,

the denial of severance is an abuse of discretion. Id. at 370, 148 Md. at 1257. In Hines, a

co-defendant, Tevin Hines, was unfairly prejudiced by the admission of non-mutually

admissible evidence. Pre-trial, the attorneys for Mr. Hines argued that the recorded

statements of his co-defendant, Dorrien Allen, implicating a man named “Mike,” that

police officers believed was actually Mr. Hines, were inadmissible against him at trial. Id.

at 357–58, 148 A.3d at 1250. Included in the recording was commentary by the police

about what they purportedly knew to be true and accusing Mr. Allen of lying about the

identity of the other person pictured in the surveillance video with him. Hines, 450 Md. at

383, 148 A.3d at 1265. At the pre-trial motions hearing, defense counsel argued that “the

only inference that [could] be drawn at that point [was] that it[][was] Mr. Hines [in the

video] and that Mr. Allen [was] lying about it[.]” Id. at 358, 148 A.3d at 1250. This Court

determined that the evidence was unfairly prejudicial because the judge could and should

have granted relief, namely the motion for severance, or in the alternative, redacted the

statement so that it did not lead the jurors to believe that Mr. Allen was lying about “Mike”

and that the other suspect in the video had to have been his co-defendant, Mr. Hines. Id.

at 358, 148 A.3d at 1250. This Court found that “Hines was significantly prejudiced by

the actual admission of evidence that, although admissible against Allen, was inadmissible

against Hines.” Id. We held that, “even as redacted to omit any express reference to ‘Tevin

Hines, Allen’s statements implicated Hines in a damaging way, which resulted in prejudice

to Hines. Id. at 384, 148 A.3d at 1265. In the Hines case, this Court was clear that, while

the trial judge has discretion in determining whether to order severance, there is a

21 considerable interest in protecting defendants against unfair prejudice and that interest

should guide the determination of whether severance is appropriate. Id. at 369, 148 A.3d

at 1256 (citing Frazier v. State, 318 Md. 597, 607, 569 A.2d at 689 (1990)).

Here, the Court of Special Appeals was correct in determining that the evidence

implicated the Hines test and severance was appropriate because Mr. Zadeh was similarly

prejudiced by non-mutually admissible evidence. The heart of the analysis in ascertaining

whether severance is warranted is whether undue prejudice will result from the introduction

and admission of the non-mutually admissible evidence. Mr. Zadeh was unduly prejudiced

by the non-mutually admissible evidence. The limiting instructions could not cure the

prejudice, because a reasonable jury could not have sifted through each piece of non-

mutually admissible evidence and the subsequent limiting instructions to determine which

evidence was admissible against which defendant. The State argues that Hines requires

the court to review each piece of evidence to determine first whether it is non-mutually

admissible, but Hines does not set forth any such requirement. The State reads Hines too

narrowly. The premise of limiting instructions in this context is to prevent unfair prejudice,

and when there are too many limiting instructions they simply cannot serve that purpose.

Id. at 383, 148 A.3d at 1265 (discussing Erman v. State, 49 Md. App. 605, 434 A.2d 1030

(1981) (“[P]rejudice occurred when non-mutually admissible evidence was introduced in

a degree so great as to render the several limiting instructions repetitive, mundane, and

meaningless, so as to fall upon deaf ears.”)).

In the case at bar, the State mentioned the “bedroom” door issue during closing

argument. Although the jury was advised that the testimony from Beanie regarding the

22 bedroom door was inadmissible, the introduction of his statements in conjunction with the

obscure text messages referencing a supposed “bedroom” door and the mention of the door

at various points throughout the trial posed a substantial risk of prejudice to Mr. Zadeh

because it would be nearly impossible for any reasonable juror to disregard these

statements when considering the evidence against Mr. Zadeh. See Hines, 450 Md. at 384,

148 A.3d at 1265 (“In the present case, it would have been practically impossible for the

jurors to dismiss from their minds the statements of [Mr.] Allen when evaluating the

evidence against [Mr.] Hines.”). The prejudice resulting from this statement, even though

the jury was instructed to strike it entirely, could have been cured with a limiting instruction

or a redaction (or in this case being stricken from the record), but throughout the trial, there

were several other statements by Ms. Pannell-Brown and evidence admissible against her

alone. Taken together, the evidence had the “cumulative effect” of prejudicing Mr. Zadeh.

Erman, 49 Md. App. at 616, 434 A.2d at 1038.

After all the limiting instructions and categorizing of statements by Ms. Pannell-

Brown that the trial judge determined were only admissible against Ms. Pannell-Brown,

even the most attentive and intelligent juror would have had a difficult time determining

what evidence was admissible against which defendant. So much so that the prosecution

acknowledged it would be an “insurmountable task” for the attorneys to classify which

evidence was admissible against Mr. Zadeh and which evidence was only admissible

against Ms. Pannell-Brown. The prosecutor who tried the case feared she “might miss

something” if the attorneys were required to “go back through and [] review the whole

trial” to solidify which evidence was admissible against whom. The trial judge remarked

23 that a proposed jury instruction listing what evidence was admissible against which

defendant would serve to “create[] confusion if [they] c[ould]n’t agree on what it is that

[the jury] need[ed] to consider separately.” This fact is telling. It would be unreasonable

to expect a jury to keep up with all of the limiting instructions, when the attorneys and the

court could not do so. As such, the extent of the non-mutually admissible evidence and its

impact on Mr. Zadeh could not be cured and the motion for severance should have been

granted.

We also note that the trial court erred in denying the motion for a mistrial because,

once the trial judge determined that there was significantly more non-mutually admissible

evidence than he originally thought, the only available and appropriate remedy was a

mistrial. While the discretion to grant a mistrial should be exercised with great care, the

situation in this case warranted such a remedy. In analyzing whether severance or, in some

cases, a mistrial is appropriate, fairness to the defendant is what guides us. The interest in

efficiency and “judicial economy” should not outweigh the interest in ensuring that a

defendant is afforded a fair trial. Erman, 49 Md. App. at 616, 434 A.2d at 1038.

Accordingly, the Court of Special Appeals did not err in holding that the trial judge abused

his discretion in denying the motions for severance and a mistrial.

B. The trial court erred in denying the motion to suppress the cell phone seized from Mr. Zadeh’s pants pocket.

The State contends that the police lawfully seized the cell phone from Mr. Zadeh’s

pants pocket under the plain-feel doctrine because “[Detective Poole] had probable cause

to believe that [Mr.] Zadeh’s cell phone contained evidence relevant to the murder

24 investigation.” Mr. Zadeh argues that the Court of Special Appeals correctly held that the

trial court erred in denying the motion to suppress because (1) the warrant did not extend

to the cell phone, (2) the plain-feel doctrine did not apply to the seized cell phone, and (3)

none of the other delineated warrant exceptions were applicable.16

1. The Parameters of the Search Warrant

Although the search warrant for the Jaguar could be properly executed to search and

seize the vehicle and anything inside of the vehicle, which fit the warrant description, the

cell phone on Mr. Zadeh’s person was not implicated in the warrant. It is a fundamental

tenet of criminal procedure that “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; see also Md. Const.,

Declaration of Rights, Art. 26 (“[A]ll general warrants to search suspected places, or to

apprehend suspected persons, without naming or describing the place, or the person in

special, are illegal, and ought not to be granted.”) (emphasis added). The purpose of the

requirement that a valid search warrant describe the place, people, or things to be searched

and seized with sufficient particularity is to protect citizens from constitutionally prohibited

general warrants, which effectively permit unlimited searches of private residences and

16 The facts do not implicate any of the following warrant exceptions: (1) search incident to a lawful arrest (Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009)); (2) hot pursuit (Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642 (1967)); (3) the plain view doctrine (Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990)); (4) the automobile exception (Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925)); (5) stop and frisk (Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)); (6) consent (Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973)); and (7) exigency (Kentucky v. King, 563 U.S. 452, 131 S. Ct. 1849 (2011)). See Grant v. State, 449 Md. 1, 16, 141 A.3d 138 n.3 (2016). 25 places of business. “The particularity requirement ‘ensures that the search will be carefully

tailored to its justifications and will not take on the character of the wide-ranging

exploratory searches the Framers intended to prohibit.’” Peters v. State, 224 Md. App.

306, 342–43, 120 A.3d 839, 861 (2015) (quoting Maryland v. Garrison, 480 U.S. 79, 84,

107 S. Ct. 1013 (1987)). “A particular warrant also ‘assures the individual whose property

is searched or seized of the lawful authority of the executing officer, his need to search,

and the limits of his power to search.’” Groh v. Ramirez, 540 U.S. 551, 561, 124 S. Ct.

1284, 1292 (2004) (emphasis added) (citing United States v. Chadwick, 433 U.S. 1, 9, 97

S. Ct. 2476 (1977)).

In the case at bar, the search warrant specified a particular “conveyance” to be

searched: a 2007 Jaguar station wagon, that was silver in color. The warrant also included

the vehicle identification number (“VIN”) and the corresponding license plate number.

The subject of the warrant was clear—the search could not exceed the parameters of the

specifically outlined “places to be searched.” The vehicle search warrant allowed for the

search of “evidence of the crime of [m]urder” including but not limited to:

A: Trace evidence to include but not limited to blood, hairs, and fibers on clothing, shoes, or items/material located therein.

B: Any torn cloth dark in color

C: Any object which may have been used to cause the victim’s injuries/death . . . the cause of death was determined to be blunt force trauma.

D: Any photos, notes, documents, or electronic equipment which stores data

F: Anything that is illegal to possess.

26 Probable cause to search and seize electronic equipment in one location cannot be

transferred to a person. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342 (1979)

(explaining that “[w]here the standard is probable cause, a search or seizure of a person

must be supported by probable cause particularized with respect to that person.”). Holding

that the warrant could extend beyond the search of the vehicle contravenes the purpose and

premise behind the particularity requirement. “We are not convinced that a person, by

mere presence in a suspected car, loses immunities from search of his person to which he

would otherwise be entitled.” United States v. Di Re, 332 U.S. 581, 586–87, 68 S. Ct. 222,

225 (1948). The law recognizes “the unique, significantly heightened protection afforded

against searches of one’s person.” Wyoming v. Houghton, 526 U.S. 295, 303, 119 S. Ct.

1297, 1302 (1999). Therefore, the facts and circumstances that justified probable cause to

grant a warrant for the conveyance could not be transferred to a person simply due to his

or her presence in the conveyance at the time that the warrant was executed. Mr. Zadeh

was not a person to be searched under the warrant for the vehicle, and the cell phone in his

pocket was not an item that could be searched or seized. If the officers had probable cause

to believe that Mr. Zadeh had committed a crime or that his cell phone was evidence of

crime, the correct avenue would be to obtain a search or arrest warrant for Mr. Zadeh. See

Kentucky v. King, 563 U.S. 452, 459, 131 S. Ct. 1849, 1856 (2011) (“Although the text of

the Fourth Amendment does not specify when a search warrant must be obtained, this Court

has inferred that a warrant must generally be secured.”); Terry v. Ohio, 392 U.S. 1, 20, 88

S. Ct. 1868 (1968) ([T]he police must, whenever practicable, obtain advance judicial

approval of searches and seizures through the warrant procedure[.]”). Given that the

27 warrant obtained was limited to the Jaguar, the Court will not contradict the law through

speculation and transfers of probable cause. Although the warrant incorporates the

application by reference, the application was not included in the record and the Court’s

analysis is limited to the warrant itself. The dissent attempts to piecemeal support for the

search of Mr. Zadeh’s person by using the vehicle search warrant language, when it is clear

that the warrant and the probable cause sufficient to obtain that warrant does not apply to

Mr. Zadeh. As such, the officers were not entitled to conduct a warrantless seizure of Mr.

Zadeh’s cell phone.

2. The Officer’s Conduct Amounted to Warrantless Search and Seizure

At the suppression hearing, Detective Poole indicated that he asked Mr. Zadeh to

exit the vehicle because the officers were “seizing the vehicle and the contents.” He further

stated that he “patted [Mr. Zadeh] down for officer safety and removed a cell phone from

his pocket.” Detective Poole later testified that he initiated the pat-down because Mr.

Zadeh “was [] being investigated for murder” and that he “wanted to [e]nsure the safety of

the officers and [himself].” Therefore, we begin our analysis from the point of view that

the pat-down was conducted for officer safety.17

The State contends that the officer was permitted to seize the cell phone during the

protective frisk under the plain-feel doctrine. The State plainly argues that the search

warrant for the silver Jaguar “supplied the probable cause to believe that the cell phone

17 We begin our analysis here because the supposed basis for the frisk that led to the seizure of the cell phone was a pat-down for officer safety. The discussion that follows is relevant to whether the officer could lawfully seize the cell phone.

28 contained evidence of a crime,” and therefore, the officer could seize anything falling into

that category of evidence that he felt in conducting the protective frisk.18 We disagree.

In Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S. Ct. 330 (1977) the Supreme

Court recognized that an officer may order persons out of an automobile and frisk those

persons for weapons. Protective pat-down frisks are proper when the officer “has reason

to believe that he is dealing with an armed and dangerous individual, regardless of whether

he has probable cause to arrest the individual for a crime.” Longshore v. State, 399 Md.

486, 508–09, 924 A.2d 1129, 1141 (2007) (quoting Terry, 392 U.S. at 27, 88 S. Ct. at

1883). However, the scope of the pat-down is limited by the Fourth Amendment’s

prohibition on unreasonable searches and seizures.19 It is well-established that warrantless

searches and seizures are “presumptively unreasonable” as violative of the Fourth

Amendment, absent an applicable warrant exception. Grant, 449 Md. at 16–17, 141 A.3d

at 146–47 (citing Katz v. United States, 389 U.S. 347, 356–57, 88 S. Ct. at 514–16

(1967)).20 The plain-feel doctrine allows an officer, during the course of a lawful frisk, to

18 The dissent disagrees with our characterization of the State’s position. However, the quoted language was taken directly from the State’s briefs. 19 This Court has held that, “[t]he officer may not exceed the limited scope of a pat- down for weapons to search for contraband. ‘General exploratory searches are not permitted [pursuant to Terry], and police officers must distinguish between the need to protect themselves and the desire to uncover incriminating evidence.’” Bailey v. State, 412 Md. 349, 369, 987 A.2d 72, 84 (2010) (internal citations omitted). 20 In addition to a protective frisk for officer safety, another exception to the Fourth Amendment’s per se unreasonable search and seizure is the Terry stop. In Terry v. Ohio, the Supreme Court held that “a police officer with reasonable suspicion, supported by articulable facts, that criminal activity ‘may be afoot,’” may briefly stop and detain a person (continued . . .) 29 seize weapons and nonthreatening contraband, if the incriminating character is

“immediately apparent.” See Minnesota v. Dickerson, 508 U.S. 366, 374, 113 S. Ct. 2130,

2136–37 (1993). The seizure is only justified when, through a lawful pat-down of outer

clothing, the “contour or mass make[] [the object’s] identity immediately apparent” so

there is no invasion of the person’s privacy. Id. at 375–76. Further patting of an object

that is obviously not a weapon is impermissible. See In re David S., 367 Md. 523, 544,

789 A.2d 607, 619 (2002) (stating that “[i]f during a lawful pat-down an officer feels an

object which obviously is not a weapon, further patting of it is not permissible[]”); see also,

Dickerson, 508 U.S. at 373, 113 S. Ct. at 2136 (noting that an officer’s continued

exploration of a suspect’s pocket after having determined that it did not contain a weapon

was not permissible in the context of a pat-down). The incriminating nature of the item is

immediately discernable or apparent when the officer, upon feeling or seeing it, has

probable cause to believe that the item in question is evidence of a crime or contraband.

(. . . continued)

for investigative purposes. Longshore, 399 Md. at 506, 924 A.2d at 1129 (quoting Terry, 392 U.S. at 30, 88 S. Ct. at 1884). “‘When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others’, the officer may conduct a pat-down [frisk] to determine whether the person is in fact carrying a weapon.” Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (quoting Terry, 392 U.S. at 30, 88 S. Ct. at 1881) (internal quotations omitted). However, the scope of the frisk is limited. The purpose of a Terry frisk “is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence[.]” Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923 (1972). Although Detective Poole did not conduct a Terry stop and frisk, Terry and its progeny provide guidance as to the limits of a protective pat-down that results from either reasonable suspicion that criminal activity is afoot or for officer safety during a traffic stop. Therefore, the Court looks to Terry for guidance as to the limits of the officer’s conduct. 30 See Arizona v. Hicks, 480 U.S. 321, 326, 107 S. Ct. 1149, 1153 (1987) (holding that

probable cause is required to invoke the “plain view” doctrine, from which the “plain feel”

doctrine is derived). Therefore, officers are permitted to conduct a protective frisk and

seize weapons and items that, upon feeling the outer limits of the clothing, reveal

contraband or other incriminating evidence without the need for further investigation or

manipulation to “discern its identity.” McCracken v. State, 429 Md. 507, 513, 56 A.3d

242, 245 (2012).

To determine whether the incriminating nature of the cell phone was immediately

apparent to the officer at the time of the frisk, we turn to the testimony of Detective Poole.

At the suppression hearing, Detective Poole testified that the SAT had been surveilling the

vehicle and notified him when Mr. Zadeh entered the vehicle and began driving. The SAT

stopped Mr. Zadeh, and shortly thereafter, Detective Poole “approproached the vehicle and

asked [Mr. Zadeh] to step out of the vehicle.” The following colloquoy occurred:

[THE STATE]: And then what did you do?

[DETECTIVE POOLE]: I patted him down for officer safety and removed a cell phone from his pocket.

[THE STATE]: Now why did you pat him down?

[DETECTIVE POOLE]: He was, is being investigated for a murder and I wanted to [e]nsure the safety of the officers and myself.

[THE STATE]: And when you patted him down, what did you feel?

[DETECTIVE POOLE]: A cell phone in his pocket.

[THE STATE]: What did you do then?

[DETECTIVE POOLE]: I took the phone out of his pocket.

31 Moreover, at the time the SAT executed the search warrant on the Jaguar and Detective

Poole frisked Mr. Zadeh, he knew:

[Ms.] Pannell-Brown and [Mr.] Zadeh were having an affair about which they had both lied; that they spoke on the phone regularly, including at 6:41 a.m. on the morning of the murder; that they had given contradictory accounts about what was discussed in the conversation; and that [Mr.] Zadeh had repeatedly refused to show the detective his cell phone to confirm his account of what he had done on the morning of the murder.

Pannell-Brown, 2019 WL 962812, at *23 (footnote omitted). Based on the information

known to the officers at the time the search warrant for the vehicle was executed, the search

of Mr. Zadeh and subsequent seizure of the cell phone in this case amounted to a

warrantless search and seizure because (1) the search exceeded the limits of a protective

frisk and (2) under the plain-feel doctrine, it was not immediately apparent that the cell

phone was incriminating or evidence of crime.

In McCracken v. State, this Court found that an officer who was able to determine

the nature of incriminating evidence during a pat-down or frisk could seize the evidence

from the individual’s person under the plain-feel doctrine. McCracken, 429 Md. at 510,

56 A.3d at 243. A cursory search of the outer limits of clothing that reveals incriminating

evidence, weapons, or other contraband without a warrant is not a Fourth Amendment

violation. Id. at 510–11, 56 A.3d at 244. (“[I]f the officer, while conducting a proper Terry

frisk, comes upon an item that by mere touch is immediately apparent to the officer to be

contraband or of ‘incriminating character,’ then the officer is authorized to seize the item

immediately.”). In McCracken, Reginald McCracken was convicted of transporting a

handgun in a motor vehicle. Id. at 511, 56 A.3d at 244. Officers were dispatched in

32 response to a report of an armed individual in the area. Id. Upon arrival, an officer

observed a woman and a man in an apparent argument. Id. at 511–12, 56 A.3d at 244. The

woman told the officers that she had caught a hack21 driven by Mr. McCracken, and while

she was traveling in his vehicle, Mr. McCracken threatened to shoot her. Id. at 512, 56

A.3d at 244. Upon learning this information, the officer approached Mr. McCracken, who

asserted that he and the woman were arguing about a cell phone. Id. at 512, 56 A.3d at

245. He denied the allegation that he had been hacking, or illegally operating a taxicab.

Instead, Mr. McCracken told two conflicting stories: (1) that he arrived on foot and (2) that

his wife had dropped him off at his present location. Id. The officer conducted a

subsequent warrantless frisk of his person. Id. In frisking Mr. McCracken, the officer felt

an electronic car remote hooked to a set of keys in his pants pocket. Id. Believing that the

remote would lead them to the vehicle Mr. McCracken had been using to hack, the officer

removed the remote and keys from Mr. McCracken’s pocket. Id. at 512–13, 56 A.3d at

245. The officer pressed the alarm button, which led him to a nearby car. Id. The officer

peered through the car window with his flashlight, saw a handgun in the open glove

compartment, and seized it as evidence. Id. This Court held that the seizure was authorized

under the plain-feel doctrine because the officer “had amassed sufficient evidence that

those items, although in and of themselves innocuous, were immediately apparent to be

21 “‘Hacking’ is a colloquial term used to describe the provision of taxi services without a license.” McCracken, 429 Md. at 511, 56 A.3d at 244 n. 1.

33 evidence of [Mr. McCracken]’s involvement in hacking a short time earlier.” Id. at 519,

56 A.3d at 249.22

This case is distinguishable from McCracken because there was nothing

incriminating about the cell phone that the officer would have been able to discern from

merely patting down Mr. Zadeh’s outer clothing. There, the officer had sufficient evidence

that the keys and remote in the suspect’s pants pocket were relevant to an earlier committed

crime—hacking. In this case, there was insufficient evidence against Mr. Zadeh to form

such a basis. At the time that he frisked Mr. Zadeh, Detective Poole believed that Mr.

Zadeh and Ms. Pannell-Brown were having an affair, they lied about the nature of their

relationship, they both appeared nervous when asked about the other, and they spoke on

the phone on the morning of murder. Despite the dissent’s characterization of the facts

known to the officer at the time of the search, there is nothing inherently or even remotely

criminal about a cell phone, based on the very limited information known to the officer at

22 This Court’s decision in Bailey v. State is consistent with this Court’s holding in McCracken. In Bailey, an officer felt a glass vial while patting down the defendant. 412 Md. at 369-70, 987 A.2d at 84. In his experience, the officer knew that PCP is generally contained in a glass vial. However, “the incriminating nature of the object in the defendant’s pocket was not immediately apparent upon his initial touch of the object in the pat-down. Rather, [the officer] testified that he field-tested the liquid contained in the vial after removing it from the [defendant’s] pocket[.]” Id. at 370, 987 A.2d at 84. After this testing, the officer determined that the liquid was PCP. Id. In other words, the officer needed information beyond that which was found in the protective frisk to determine the criminality of the object in the defendant’s pocket. We held that “[t]he removal of the vial from the [defendant’s] pocket and [subsequent] field test of the liquid contained in the vial constituted a general exploratory search” that exceeded the permissible scope of the officer’s protective frisk. Id. Our holdings in Bailey and McCracken reinforce the premise that an officer must know of the criminality of an object before the officer may go beyond the limits of a protective frisk.

34 the time of the frisk. McCracken makes clear that seemingly innocuous items may be

incriminating, if the officer has “amassed sufficient evidence” such that it is immediately

apparent to the officer that the item is evidence of involvement in a crime. McCracken,

429 Md. at 519, 56 A.3d at 249.

In addition, the dissent categorizes traffic stops as “especially fraught with danger

to police officers.” However, it should be noted that the predicate for the stop was the

execution of the search warrant for the vehicle. The officers did not observe a traffic

violation or have any basis to believe criminal activity was afoot. See Terry, 392 U.S. at

31, 88 S. Ct. at 1885 (stating that an officer may conduct a limited cursory search “where

a police officer observes unusual conduct which leads him reasonably to conclude in light

of his experience that criminal activity may be afoot…”). Assuming the officer conducted

a valid frisk because he reasonably believed Mr. Zadeh was armed and dangerous, he

exceeded the parameters of that authority by removing and seizing what was clearly a cell

phone, not a weapon, from his person. The officer did not testify that he believed the cell

phone concealed anything that could have posed a physical threat to officer safety. 23 In

addition, all of the evidence cited in the search warrant was for a vehicle Ms. Pannell-

Brown purchased and owned and its contents—not Mr. Zadeh. Because there was nothing

implicating Mr. Zadeh and the officers did not have sufficient information linking him or

23 “Digital data stored on a cell phone cannot itself be used as a weapon to harm an . . . officer[.]” Riley v. California, 573 U.S. 373, 387, 134 S. Ct. 2473, 2485 (2014).

35 his cell phone to Mr. Brown’s murder (or any other crime for that matter), there was no

probable cause to search Mr. Zadeh beyond a protective frisk.24

Furthermore, Detective Poole testified that he immediately knew the object was a

cell phone. He was not able to discern any incriminating nature of the cell phone just by

feeling for the phone. Detective Poole’s search and the seizure went beyond what was

necessary to neutralize any threat to officer safety and the basis for the seizure was the so-

called incriminating nature of the phone itself. When Detective Poole frisked Mr. Zadeh,

he knew that Mr. Zadeh had spoken to Ms. Pannell-Brown by phone the morning of the

murder. A phone call four hours before a murder between two people who are known to

speak on the phone regularly does not rise to the level of a particular fact linking the phone

to the murder. It was obvious by feeling on the outside of his pants that it was a cell phone

in his pocket, and the cell phone alone was not incriminating absent more information

known to the officer about Mr. Zadeh’s involvement in a crime. At the point Detective

Poole determined that the item was a cell phone and not a weapon, the search should have

24 The dissent represents that the warrant somehow provides support for the seizure of the cell phone, without linking the probable cause sufficient for the search of the vehicle and items found inside the vehicle, to the search of Mr. Zadeh’s person. The dissent also argues that Moats v. State, 455 Md. 682, 168 A.3d 952 (2017), establishes that an officer may seize a cell phone of an individual whom the officer believes to have committed a crime. In Moats, “the cell phone was seized pursuant to the search incident to arrest doctrine refined in Riley permitting the police to seize a cell phone pursuant to an arrest that is based on probable cause that the arrestee has committed a crime.” Id. at 697, 168 A.3d at 960–61. The issue in Moats was whether the police could retain the arrestee’s cell phone until a search warrant was obtained; not the initial seizure of the phone. Id. In this case, Detective Poole did not arrest Mr. Zadeh during the encounter; and thus, the conduct was not a search incident to an arrest. Therefore, we find Moats inapposite.

36 ended. Instead, Detective Poole removed the phone and seized it. Accordingly, we find

that Detective Poole was not permitted to seize the phone.25

The dissent assumes that the cell phone Detective Poole seized was “of

incriminating character.” There are no facts that indicate the incriminating nature of the

cell phone, and reaching such a conclusion, merely by feel, lacks support in logic as well

as fact. The State and the dissent take the position that “the police could not have obtained

authorization to seize [electronic equipment which stores data] without a showing of

probable cause,” but the probable cause sufficient for the warrant to search that vehicle and

its contents, is separate and distinct from that which would support the search of Mr.

Zadeh’s person.

The State relies on the application supporting the search warrant for the cell phone

contents to argue that the officers had probable cause to search Mr. Zadeh and seize his

25 In Dashiell v. State, 374 Md. 85, 821 A.2d 372 (2003), this Court addressed the “narrow issue” of “whether the Fourth Amendment prohibits an officer from conducting a limited protective frisk for weapons on persons, located within a residence being searched pursuant to a valid search warrant[.]” Id. at 95, 821 A.2d at 377 (footnote omitted). There, the officers had reliable information that weapons were likely to be in the house. Id. However, the facts of Dashiell are not analogous to the facts in this case. In Dashiell, the officer conducted a protective frisk within the bounds of Terry by checking for weapons without conducting a search. Id. at 95, 821 A.3d at 377–78 n. 3. The officer conducting the frisk testified that “he had ‘located a plastic bag of suspected crack cocaine in [petitioner’s] front pants pocket’ and that ‘[t]hey didn’t remove it [from petitioner’s pocket].’” Id. Only after the petitioner admitted that she had drugs on her person and the officer had grounds to arrest the petitioner was she searched. Id. In the case at bar, the question before the Court recognizes that the seizure occurred “during a lawful frisk of the driver[.]” The issue for determination is whether the seizure was unlawful. Given that the petitioner in Dashiell did not object to the seizure and the Court did not analyze this issue, Dashiell is not instructive here.

37 cell phone. However, the subsequent pursuit of this search warrant did not cure the

previous Fourth Amendment violation. In its reply brief, the State argues that the issue in

this case is the seizure of the phone from Mr. Zadeh’s person and not the search of the

phone’s contents because “it is undisputed that the police obtained a warrant before

performing further analysis” of the contents of the phone. Although that may be true, when

and how the cell phone was seized matters for the purposes of the Fourth Amendment. If

the seizure of the cell phone was unlawful, information revealed through subsequent

searches of the phone, which the police had no right to possess, must be suppressed. A

post hoc search warrant for the contents of the cell phone does not remedy a previous

unlawful seizure of the same phone. Not only was the warrant obtained after the Fourth

Amendment violation had occurred, part of the basis for the warrant specific to the cell

phone’s contents, giving the officers probable cause to seize and search the cell phone, was

information that the officers obtained after the cell phone had already been seized.26

We decline to conclude that Detective Poole had the requisite authority to seize the

cell phone. In failing to obtain a warrant before the search of and seizure from Mr. Zadeh,

and in the absence of an applicable warrant exception, Detective Poole violated the Fourth

Amendment. If the officers had probable cause to believe Mr. Zadeh committed a crime

or that his cell phone was evidence of the crime of murder, they would have obtained an

26 Detective Wolff included information that was obtained in attempting to execute the warrant for the Jaguar station wagon on August 5, including a conversation with Mr. Zadeh’s ex-wife, and evidence that was discovered in searching the vehicle on August 6.

38 appropriate search warrant for Mr. Zadeh and any cell phones belonging to him at the time

they obtained the warrant for the vehicle.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Court of Special Appeals

and hold that (1) severance was appropriate given the extent of the unfair prejudice to Mr.

Zadeh; (2) a mistrial should have been declared once the degree of non-mutually admissible

evidence was revealed and the limiting instructions were ineffective; and (3) the cell phone

seized from Mr. Zadeh’s person should have been suppressed because it was the fruit of an

unlawful search and seizure in violation of the Fourth Amendment and Article 26 of the

Maryland Declaration of Rights.

JUDGMENT OF THE COURT OF SPECIAL APPEALS IS AFFIRMED. COSTS TO BE PAID BY PETITIONER. Judge Watts joins in judgment only.

39 Circuit Court for Montgomery County Case No. 127706C Argued: November 5, 2019 IN THE COURT OF APPEALS

September Term, 2019 ______________________________________

STATE OF MARYLAND

v.

HUSSAIN ALI ZADEH ______________________________________

McDonald, Watts, Hotten, Getty, Booth, Battaglia, Lynne A. (Senior Judge, Specially Assigned), Greene, Clayton, Jr. (Senior Judge, Specially Assigned),

JJ. ______________________________________

Opinion by Getty, J., dissenting in part, which McDonald, J. joins.

______________________________________

Filed: April 3, 2020 As the saying goes, “facts are stubborn things.”1 This aphorism rings particularly

true when we must evaluate the reasonableness of a law enforcement officer’s actions. Our

determination can only be made based on the totality of the facts known to the investigating

officer. Viewing the totality of the circumstances, I would reach two different conclusions

than the Majority. First, during the course of a murder investigation in which Mr. Zadeh

was a prime suspect, Detective Poole lawfully frisked Mr. Zadeh. Second, Detective Poole

possessed the requisite probable cause belief about the incriminating character of Mr.

Zadeh’s cell phone under the plain feel doctrine. Therefore, while I agree with the Majority

that the circuit court abused its discretion in denying the Motion for Severance and Motion

for Mistrial, I respectfully dissent from the Majority’s conclusion that the circuit court

should have suppressed Mr. Zadeh’s cell phone and thus I would reverse the judgment of

the Court of Special Appeals on that issue.

I would first note that Mr. Zadeh never contested the validity of Detective Poole’s

frisk. This issue is neither preserved for appellate review nor was it briefed by the parties.

See Maryland Rule 8-131(a); Abeokuto v. State, 391 Md. 289, 327 (2006) (explaining that

appellate review of an unpreserved claim is only appropriate when the issue can be

described as “compelling, extraordinary, exceptional, or fundamental”). The Majority

1 Founding Father and Second President of the United States, John Adams, recited these words during his successful defense of William Wemms, a British soldier charged in the Boston Massacre (also referred to in historical literature as Cpl. Weems) John Adams, Argument for the Defense: 3–4 December 1770, Founders Online, National Archives, https://founders.archives.gov/documents/Adams/05-03-02-0001-0004-0016, archived at https://perma.cc/FDM2-SPL9. raises this issue sua sponte, even though the question posed to and granted by this Court in

the State’s petition for writ of certiorari contemplates whether the plain feel doctrine

permits the seizure of evidence encompassed in a duly authorized search warrant but found

“during a lawful frisk.”2 See Majority Slip Op. at 2. I begin by explaining why the frisk

is, indeed, lawful.

This Court’s standard of review of a circuit court’s decision on a motion to suppress

evidence bears repeating. Our analysis is “confined to the record developed at the

suppression hearing.” McCracken v. State, 429 Md. 507, 515 (2012) (quoting Longshore

v. State, 399 Md. 486, 498 (2007)). We view the evidence developed at the suppression

hearing, and reasonable inferences drawn therefrom, in the light most favorable to the

prevailing party, which in this case benefits the State. Crosby v. State, 408 Md. 490, 504

(2009) (citing State v. Williams, 401 Md. 676, 678 (2007)). This review accords great

deference to the circuit court’s findings of fact, which we accept unless clearly erroneous.

Id. at 504–05 (quoting Nathan v. State, 370 Md. 648, 659 (2002)). Nevertheless, we

conduct an “‘independent constitutional appraisal’ of whether the Fourth Amendment has

been violated by applying the law to the facts of the matter” before us. McCracken, 429

Md. at 515 (quoting Bailey v. State, 412 Md. 349, 362 (2010)).

2 The Court of Special Appeals’ opinion below declined to address the validity of the frisk because it concluded the resulting seizure was unlawful. Pannell-Brown v. State, Nos. 1065 & 1329, Sept. Term, 2017, 2019 WL 962812, at *22 (Md. Ct. Spec. App. Feb. 26, 2019). Instead, the court “[a]ssum[ed], without deciding, that the frisk was reasonable.” Id. at *23.

2 A. Information known to law enforcement before the frisk.

The Majority recognizes, and we agree, that the validity of an officer’s frisk rises

and falls on the level of knowledge known to the officer when the frisk occurred. However,

the Majority’s analysis misses the mark—it fixates on the warrant issued to search a silver

Jaguar (registered to Ms. Pannell-Brown, yet known to law enforcement as primarily

driven by Mr. Zadeh) and ignores the abundance of information collected by law

enforcement during the murder investigation.3 Remaining faithful to the appropriate

standard of review, we examine the information known to law enforcement when Detective

Poole conducted the frisk, as established at the suppression hearing.

Detective Poole interviewed Ms. Pannell-Brown on August 4—the day of the

murder. Ms. Pannell-Brown acknowledged the fact that she called the cell phone of Mr.

Zadeh and spoke with him at 6:41 a.m. that same morning, after Mr. Brown had left for

work. At first, Ms. Pannell-Brown described Mr. Zadeh as “a guy that works at Enterprise

[Rent-A-Car] that details her truck,” and explained that she spoke to him that morning “to

ask him to detail her car.” As the interview progressed, Ms. Pannell-Brown revealed that

the relationship between her and Mr. Zadeh was more involved than she had previously

disclosed. In fact, she “had been talking to [Mr. Zadeh] a lot” because she was attempting

to help with the immigration of other Zadeh family members to the United States.

3 The Majority goes so far as to declare that “the facts and circumstances that justified probable cause to grant a warrant for [the silver Jaguar] could not be transferred to a person simply due to his or her presence in the conveyance at the time the warrant was executed.” Majority Slip Op. at 27. This is not my contention, nor, from what I can tell, is it the State’s argument.

3 At the crime scene, Detective Poole also spoke to Cecil Pannell-Brown.4 Cecil

informed Detective Poole that Ms. Pannell-Brown and Mr. Zadeh were engaged in a year-

long affair, which, contrary to Ms. Pannell-Brown’s story, was sexual in nature. Cecil told

Detective Poole that he had confronted Ms. Pannell-Brown and Mr. Zadeh about the affair.

Cecil further explained that he disrupted a meeting in the Enterprise parking lot between

Mr. Zadeh and Ms. Pannell-Brown on July 31, 2014. Upon Cecil’s arrival on that day, Mr.

Zadeh got into a silver Jaguar station wagon and left.

Detective Poole also interviewed Mr. Zadeh on the day of the murder. Tellingly,

when Detective Poole first introduced himself, Mr. Zadeh immediately responded, “this is

about the lady’s husband that died.” Mr. Zadeh conceded that he arrived at Enterprise, his

place of employment, “around 12:00 [p.m.], 12:30 [p.m.], noon.” This Enterprise facility

is located at 6875 New Hampshire Avenue and is less than one mile from the scene of the

murder, 805 Colby Avenue. It is unknown for how long Mr. Brown was lying in his back

yard before first responders arrived and pronounced him dead at the scene at 12:36 p.m.

When asked if he had spoken to Ms. Pannell-Brown on August 4, Mr. Zadeh became

nervous. Mr. Zadeh initially said that he had not spoken to anyone by phone that morning.

Mr. Zadeh later corrected himself, and “remembered that [Ms. Pannell-Brown] had called

him that morning, or that day.” According to Mr. Zadeh, Ms. Pannell-Brown told him on

the phone, “Ali, my husband is dead.” In contrast to Mr. Zadeh’s timeline, the only call

from Ms. Pannell-Brown to Mr. Zadeh’s phone occurred at 6:41 a.m.—hours before the

4 Cecil Pannell-Brown is the son of Ms. Pannell-Brown and the deceased Mr. Brown. For clarity, I shall refer to Mr. Pannell-Brown by his first name.

4 midday murder. Detective Poole requested to see Mr. Zadeh’s phone to confirm his story.

Mr. Zadeh stated that he did not have his phone with him; yet, based on his hand placement

in his pocket, Detective Poole believed Mr. Zadeh’s phone was in his pocket.

The inconsistencies in Mr. Zadeh’s story did not end there. At first, Mr. Zadeh told

Detective Poole that he rode the subway and took a bus on the morning of August 4 to get

to work at Enterprise. Later, when Mr. Zadeh backtracked and recalled the 6:41 a.m. phone

call, he indicated to Detective Poole that he told Ms. Pannell-Brown, “I can’t talk. I’m

driving.” Additionally, Mr. Zadeh denied that Ms. Pannell-Brown “ever mentioned

anything to him that morning about detailing her car.” Like Ms. Pannell-Brown, Mr.

Zadeh’s account of the relationship also changed throughout the course of the interview,

from “only know[ing Ms. Pannell-Brown] from the parking lot of the Enterprise” to her

“helping him with his family.”

Through the course of their respective interviews, Mr. Zadeh and Ms. Pannell-

Brown presented Detective Poole with conflicting and changing stories. Viewed in the

light most favorable to the State, these facts fairly establish, at least, that (1) Ms. Pannell-

Brown and Mr. Zadeh were having an affair about which they both had lied; (2) both spoke

on the phone regularly, including at 6:41 a.m. on the morning of the murder; (3) both gave

conflicting accounts about what was discussed in the early morning conversation; (4) both

became nervous when questioned about the other; and (5) Mr. Zadeh repeatedly refused to

show law enforcement his cell phone to confirm his account of what he had done on the

morning of the murder. Mindful of all this information known to Detective Poole before

he frisked Mr. Zadeh, I would reach a different result from the Majority.

5 B. Detective Poole lawfully frisked Mr. Zadeh.

The Majority concludes that Detective Poole’s “conduct amounted to [a]

warrantless search and seizure.” See Majority Slip Op. at 28. However, Detective Poole

conducted a Terry frisk upon removing Mr. Zadeh from the vehicle. Precision of language

is crucial in Fourth Amendment analysis. As we have said before, “[a] frisk is different

from a search of the person.” Norman v. State, 452 Md. 373, 388 (2017). In the Fourth

Amendment context, the Majority’s holding would forbid a police officer in the future from

frisking an individual suspected of committing a murder when he exits a vehicle subject to

a search and seizure warrant, even if the suspect potentially concealed the very object used

in a blunt force trauma murder. As a threshold matter, I disagree, and conclude that

Detective Poole acted reasonably in frisking Mr. Zadeh.

In Terry v. Ohio, the Supreme Court of the United States determined that a police

officer’s investigatory stop (temporary detention) and subsequent frisk (pat-down) did not

violate the Fourth Amendment’s prohibition against unreasonable searches and seizures.

392 U.S. 1 (1968). Reasonableness is the touchstone of the Fourth Amendment. See Ohio

v. Robinette, 519 U.S. 33, 39 (1996). Terry reasoned that “it would be unreasonable to

require that police officers take unnecessary risks in the performance of their duties.” 392

U.S. at 23. These risks to officer safety exist regardless of whether a stop occurs on the

street, in a public gathering space, or, like in this case, after exiting a vehicle. In order to

satisfy the strictures of Terry, the initial stop must be lawful—i.e., supported by the

officer’s reasonable suspicion that criminal activity is afoot—and, to frisk, the officer must

reasonably suspect that the detained individual is armed and dangerous. Arizona v.

6 Johnson, 555 U.S. 323, 326–27 (2009). When these elements are satisfied, an officer is

permitted to conduct “a carefully limited search of the outer clothing of [the detained

individual] in an attempt to discover weapons.” Terry, 392 U.S. at 30.

The Supreme Court has long recognized that the roadside detention of vehicles and

their occupants are “especially fraught with danger to police officers.” Michigan v. Long,

463 U.S. 1032, 1047 (1983); see also Maryland v. Wilson, 519 U.S. 408, 414 (1997)

(“Regrettably, traffic stops may be dangerous encounters.”). Once an officer lawfully

detains a vehicle, the officer “may order the driver to get out of the vehicle without

violating the Fourth Amendment.” Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977).

Even though “the predicate for the stop was the execution of the search warrant,” the danger

to officer safety persists. Majority Slip Op. at 35. Indeed, stopping the vehicle to execute

the search warrant may well have heightened the risk because search warrants are intended

to uncover evidence of more serious crime. See Wilson, 519 U.S. at 414 (extending Mimms

to permit the roadside removal of a passenger because “the possibility of a violent

encounter stems not from the ordinary reaction of a motorist stopped for a speeding

violation, but from the fact that evidence of a more serious crime might be uncovered

during the stop.” (emphasis added)). After removing occupants from the vehicle, an officer

may then frisk those individuals if there is reasonable suspicion to believe they may be

armed and dangerous. Johnson, 555 U.S. at 331.

When reviewing the reasonable suspicion determinations of a police officer, an

appellate court “must look at the ‘totality of the circumstances’ of each case to see whether

the detaining officer has a ‘particularized and objective basis’ for suspecting legal

7 wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing United States v.

Cortez, 499 U.S. 411, 417–18 (1981)); Bost v. State, 406 Md. 341, 356 (2008) (“The test

is ‘the totality of the circumstances,’ viewed through the eyes of a reasonable, prudent,

police officer.”). This enables officers in the field “to draw on their own experience and

specialized training to make inferences from and deductions about the cumulative

information available to them that ‘might well elude an untrained person.’” Id. (citing

Cortez, 499 U.S. at 418). It follows, then, that an officer’s “subjective or articulated

reasons” do not validate or invalidate a stop or frisk because “[t]he test is objective.”

Sellman v. State, 449 Md. 526, 542 (2016).

“[R]easonable suspicion is a common sense, nontechnical conception that considers

factual and practical aspects of daily life and how reasonable and prudent people act.” Id.

at 543 (quoting Crosby, 408 Md. at 507). The concept is “somewhat abstract,” Arvizu, 534

U.S. at 274, because it “does not deal with hard certainties, but with probabilities.” Holt v.

State, 435 Md. 443, 467 (2013) (quoting United States v. Sokolow, 490 U.S. 1, 8 (1989)).

While reasonable suspicion requires “something more than an inchoate and

unparticularized suspicion or hunch,” Sellman, 449 Md. at 543 (quoting Crosby, 408 Md.

at 507), “the likelihood of criminal activity need not rise to the level required for probable

cause, and it falls considerably short of satisfying a preponderance of the evidence

standard.” Arvizu, 534 U.S. at 274 (citing Sokolow, 490 U.S. at 7).

Detective Wolff authored a search and seizure warrant application on the evening

of August 8, 2014. The Circuit Court for Montgomery County authorized the warrant,

finding “there exists probable cause” to seize and search “a 2007 Jaguar station wagon[,

8 VIN] bearing Maryland registration [License Plate], the vehicle is silver in color.” Further,

the warrant provided that police “may serve this warrant at any time of the day or night.”

There is no dispute that the Takoma Park Police Department Special Assignment Team

(“SAT”) lawfully stopped Mr. Zadeh to seize the vehicle he was driving—the same 2007

silver Jaguar indicated in the duly authorized search and seizure warrant. Therefore, the

initial stop was lawful.

Shortly thereafter, Detective Poole arrived on scene and removed Mr. Zadeh from

the vehicle. Turning to the reasonableness inquiry, I would conclude that Detective Poole

conducted a lawful frisk because: (1) he possessed the requisite reasonable suspicion that

Mr. Zadeh may be armed and dangerous; and (2) Mr. Zadeh was located in a vehicle that

law enforcement had sufficient evidence to believe contained weapons involved in a

murder.

As discussed above, supra 3–6, Detective Poole had particularized information

about Mr. Zadeh that made him a prime suspect in the murder of Mr. Brown.

Notwithstanding that information, the mere fact that law enforcement suspected Mr. Zadeh

committed a murder gave Detective Poole reason to believe that Mr. Zadeh might be armed

and dangerous. While the mere “odor of marijuana emanating from a vehicle, without

more” does not provide officers with a reasonable belief that its occupants are armed and

dangerous, Norman, 452 Md. at 379, “some crimes [e.g., murder] by their very nature are

so suggestive of the presence and use of weapons that a frisk is always reasonable when

officers have a reasonable suspicion that an individual might be involved in such a crime.”

United States v. Barnett, 505 F.3d 637, 640 (7th Cir. 2007); 4 Wayne R. LaFave, Search &

9 Seizure § 9.6(a) 853–54 (5th ed. 2019) (noting that “[l]ower courts have been inclined to

view the right to frisk as being ‘automatic’ whenever the suspect has been stopped upon

the suspicion that he has committed” a dangerous crime, including homicide); Wayne R.

LaFave, ‘Street Encounters’ and the Constitution: Terry, Sibron, Peters, and Beyond, 67

Mich. L. Rev. 39, 88 (1968) (“[A] protective search may always be made when the stopping

is to investigate what appears to be a crime of violence. For other crimes . . . it would

apparently take noticeable bulges in the suspect’s clothing, movements by the suspect

towards his pockets, or similar observations to give rise to a substantial possibility that the

suspect was armed.”) (internal quotation marks and footnote omitted). Illustrative of this

point, in Adkins v. Commonwealth, the Kentucky Supreme Court held in the Terry context

that “[w]hen an officer believes that he is confronting a murder suspect, he has presumptive

reason to believe that he is dealing with an armed and dangerous person.” 96 S.W.3d 779,

787–88 (Ky. 2003). See also United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007)

(citing additional examples). In my view, the fact that Detective Poole suspected Mr.

Zadeh’s involvement in Mr. Brown’s murder, supported by the specific facts known to him

on August 8, made the frisk objectively reasonable.

Next, even assuming Detective Poole did not possess specific information about Mr.

Zadeh himself, or discounting the fact that Mr. Zadeh was a murder suspect, Mr. Zadeh

was situated in a vehicle subject to a search warrant “for evidence of the crime of Murder.”

The warrant specifically permitted officers to seize “any object which may have been used

to cause the victim’s injuries/death”—i.e., weapons—“the cause of death [being] blunt

10 force trauma.”5 Objects that cause death by blunt force trauma necessarily pose a threat to

police officers executing a search and seizure warrant on an automobile.

On this point, I find Dashiell v. State instructive. 374 Md. 85 (2003). In Dashiell,

this Court held that a police officer has reasonable suspicion to frisk an individual, although

not named in the warrant, who was “located within a premises subject to a search warrant

when reliable articulable facts indicating that weapons might be located therein . . . are

specifically enumerated by the affiant in the search warrant application, and that warrant is

issued without the imposition of any limitations as to the officers’ authority to frisk for

weapons.” Id. at 94. This case falls squarely within the requirements of Dashiell: (1)

Detective Poole possessed a search and seizure warrant for the Jaguar that anticipated the

existence of weapons used in Mr. Brown’s murder; (2) Mr. Zadeh was located within the

premises to be searched; and (3) the authorized warrant imposed no limitations to the

officers’ ability to frisk for weapons.6 Indeed, Detective Poole testified during the

suppression hearing, that he “patted [Mr. Zadeh] down for officer safety,” and that because

Mr. Zadeh was “being investigated for a murder[, Detective Poole] wanted to [e]nsure the

5 The Majority asserts that reference to the language of the warrant here is an “attempt[] to piecemeal support for the search of Mr. Zadeh’s person.” Majority Slip Op. at 28. To the contrary, the individual and particularized facts vis-à-vis Mr. Zadeh, supra 3–6, provided Detective Poole with the requisite probable cause. 6 We note, as did the Majority, that Detective Wolff’s application for the search and seizure warrant of the vehicle is not in the record. Nonetheless, we still find Dashiell instructive because of the plain language in the duly authorized vehicle warrant and a second warrant application (to search Mr. Zadeh’s cell phone). The second warrant application is included in the record and details information known to law enforcement before the frisk.

11 safety” of the other officers and himself.7 Accordingly, based on the totality of the

circumstances, Detective Poole possessed sufficient information about Mr. Zadeh

personally and about the possibility of weapons in the vehicle to fear for his and the other

officers’ safety. Therefore, Detective Poole’s frisk was lawful.

I would additionally note, to prime the discussion of the plain feel doctrine that

follows, that Detective Poole did not “exceed the parameters” of a Terry frisk. Majority

Slip Op. at 26. The Majority contends that “by removing and seizing what was clearly a

cell phone, not a weapon,” from Mr. Zadeh, Detective Poole exceeded the scope of a lawful

Terry frisk. Majority Slip Op. at 35. However, the notion that an officer’s frisk may be

valid or invalid depending on whether an officer removes a weapon or “non-weapon” from

the individual’s person is not borne out in Terry or its progeny. Instead, the validity of a

Terry frisk turns on whether an officer “goes beyond what is necessary to determine if the

suspect is armed” by “squeezing, sliding, and otherwise manipulating the contents” of the

suspect’s clothing. Minnesota v. Dickerson, 508 U.S. 366, 373, 378 (1993). The Majority

cannot, and does not, assert that Detective Poole’s frisk went beyond what was necessary

to determine if Mr. Zadeh was armed. The record is devoid of any facts necessary to

support an argument that Detective Poole exceeded the scope of a Terry frisk. Put another

7 Although the Court of Special Appeals appeared to imply that the validity of the Terry frisk was undermined by the fact that “Detective [Poole] also testified that he patted people down as a matter of course when he ordered them out of the car,” Pannell-Brown, 2019 WL 962812, at *46 n.9, the Supreme Court has made clear that the reasonableness inquiry does not depend on the subjective motivations or actions of a particular officer but rather that “the circumstances, viewed objectively, justify that action.” Whren v. United States, 517 U.S. 806, 813 (1996) (emphasis added); supra at 3.

12 way, Detective Poole did not perceive the item in Mr. Zadeh’s pocket to be innocuous and

continue to manipulate it or pat it down before realizing it was a cell phone. Because no

facts indicate that Detective Poole’s frisk went “beyond what is necessary,” the frisk was

still within the bounds of Terry and the plain feel doctrine is applicable.

C. The plain feel doctrine permitted the seizure of Mr. Zadeh’s cell phone.

Under the plain feel doctrine, if an officer, “while conducting a proper Terry frisk,

comes upon an item that by mere touch is immediately apparent to the officer to be

contraband or of ‘incriminating character,’ then the officer is authorized to seize that item

immediately.” McCracken, 429 Md. at 510–11 (quoting Dickerson, 508 U.S. at 375). The

theoretical underpinning to the plain feel doctrine—a corollary of the plain view doctrine—

is that “there has been no invasion of the suspect’s privacy beyond that already authorized

by the officer’s search for weapons.” Dickerson, 508 U.S. at 375. The Supreme Court has

made clear that the character of an item is “immediately apparent” if the officer, “upon

seeing or feeling the item, [has] probable cause to believe that the item is contraband or

evidence of a crime.” McCracken, 429 Md. at 513–14 (citing Arizona v. Hicks, 480 U.S.

321, 326 (1987)).

Probable cause is a “fluid concept—turning on the assessment of probabilities in

particular factual contexts—not readily, or even usefully, reduced to a neat set of legal

rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). Moreover, probable cause is “incapable

of precise definition or quantification into percentages because it deals with probabilities

and depends on the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366, 371

13 (2003). “In short, probable cause ‘is not a high bar.’” State v. Johnson, 458 Md. 519, 535

(2018) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)).

The facts recounted above, supra 3–6, that were known to law enforcement and

sworn out to acquire the search warrant for the Jaguar sufficed to convince a neutral

magistrate that probable cause existed to seize electronic equipment which stores data as

specified in the warrant. The Majority summarizes the State’s position as follows: “the

search warrant for the silver Jaguar ‘supplied the probable cause to believe that the cell

phone contained evidence of a crime,’ and therefore, the officer could seize anything falling

into that category of evidence that he felt in conducting the protective frisk.” Majority Slip

Op. at 28–29. However, the State’s argument is clearer and more straightforward than the

Majority concedes.8 The State contends that Detective Poole had probable cause to seize

Mr. Zadeh’s phone based on the facts of the ongoing murder investigation. The existence

of the search warrant—encompassing cell phones found in a car driven by Mr. Zadeh—

simply confirmed that Detective Poole’s had probable cause to seize the phone; otherwise,

8 The Majority’s quoted language is excerpted from the State’s reply brief. Placed back in context, the State argued as follows:

[Mr.] Zadeh reads the State’s opening brief as arguing that the search warrant for the car authorized the seizure of the phone from [Mr.] Zadeh’s person. This is not the State’s argument. Rather, the significance of the search warrant was that it supplied the probable cause to believe that the cell phone was evidence of a crime. Thus, when Detective Poole felt the cell phone in [Mr.] Zadeh’s pocket during a lawful frisk, its incriminating character was immediately apparent, and he was authorized to seize it under the plain-feel doctrine.

(Citation and footnote omitted, emphasis added).

14 the warrant would not enable an officer to do so. See United States v. Aguirre, 839 F.2d

854, 859 (1st Cir. 1988) (upholding a plain view warrantless seizure of the defendant’s car

keys because “the material contained in the original warrant went a long way toward

furnishing the necessary factual predicate”). When Detective Poole realized that he was

touching a cell phone, the incriminating character (for which law enforcement had already

demonstrated probable cause to seize) became immediately apparent. Therefore, he

properly seized it.

The Majority cursorily determines that “because there was nothing [in the search

warrant] implicating Mr. Zadeh [in the murder] and [law enforcement] did not have

sufficient evidence linking him or his cell phone to Mr. Brown’s murder (or any other crime

for that matter), there was no probable cause to search Mr. Zadeh beyond a protective

frisk.” Majority Slip Op. at 35–36. This rationale is fundamentally identical to a position

rejected by this Court in Moats v. State, 455 Md. 682 (2017). There, Moats argued that

“the warrant affidavit was devoid of specific facts linking the crimes and the cell phone,”

yet we indicated that “such direct evidence has never been required by the Fourth

Amendment.” Id. at 700. Moreover, the Majority ignores the information known to

Detective Poole at the time of the search and seizure which, in my view, provides the

fundamental basis for probable cause.

In Moats, a police officer seized a cell phone from an individual believed to have

participated in a sexual assault that occurred several weeks earlier. Id. at 686–87. This

Court considered whether “an individual’s suspected involvement in a crime and a police

officer’s belief that a cell phone could be used in that crime, without more, constitute[d]

15 probable cause to seize and search that individual’s cell phone.” Id. at 693. We answered

in the affirmative, concluding that probable cause existed based on the on-going

investigation and the presumption that it is “not unusual that persons committing a [crime],

document the crime on their cell phone” and that the cell phone “contained evidence of

some or all of [the] suspected criminal behavior.” Id. at 704. Nowhere in Moats did this

Court consider that the cell phone found on the suspect’s person a number of weeks after

the alleged crime was not the same cell phone that the suspect possessed on the day the

crime was committed.

Applying Moats to this case, Detective Poole suspected that Mr. Zadeh was

involved in the murder of Mr. Brown. To be sure, at the suppression hearing, when asked

why he patted Mr. Zadeh down, Detective Poole replied that Mr. Zadeh was “being

investigated for a murder.” Detective Poole also believed that Mr. Zadeh used his cell

phone to speak to a murder victim’s wife, leading up to the murder. This is borne out by:

(1) the 6:41 a.m. phone call; (2) the conflicting accounts given by Ms. Pannell-Brown and

Mr. Zadeh; and (3) the suspects’ nervousness and agitation when being questioned. Later,

when Detective Poole frisked Mr. Zadeh, he immediately recognized a cell phone, which

he reasonably believed was the same phone used by Mr. Zadeh on the day of the murder.

Therefore, Detective Poole had probable cause to seize the phone in the traditional sense

(supported by the individual facts known to him) and bolstered by Moats.

In sum, all of the elements required for a plain feel seizure were present when

Detective Poole seized Mr. Zadeh’s cell phone: Detective Poole articulated facts

establishing probable cause to seize cell phones linked to Mr. Zadeh; Detective Poole

16 conducted a lawful Terry frisk of Mr. Zadeh; in the course of that frisk, it became

immediately apparent to Detective Poole that he touched a cell phone likely bearing

evidence of a crime.

Finally, the Majority’s conclusion that officers “would have obtained an appropriate

search warrant for Mr. Zadeh and any cell phones belonging to him” defeats the entire

premise behind the plain feel doctrine, that “[r]equiring the officer to obtain a

warrant . . . ‘would often be impracticable and would do little to promote the objectives of

the Fourth Amendment’” when the prerequisites for a plain feel seizure are present.

Majority Slip Op. at 38–39; McCracken, 429 Md. at 516.

Based on the facts and information known to Detective Poole at the time of the frisk,

as established at the suppression hearing, this case fits squarely into this Court’s recent

Fourth Amendment jurisprudence in McCracken, Norman and Moats. However, the

Majority departs from the rationale in those cases. For these reasons, I respectfully dissent

and would reverse the judgment of the Court of Special Appeals relating to the cell phone

evidence and hold that the circuit court properly denied the motion to suppress.

Judge McDonald has authorized me to state that he joins in this opinion.

17 The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/25a19cn.pdf