DONZEL SELLMAN v. STATE OF MARYLAND
Court of Appeals, Greene, August 24, 2016,
Frisk – Nervousness, presence in a high crime area, conflicting stories, and questionable identity provided did not amount to reasonable suspicion that the suspect was armed and dangerous. Frisk was illegal.

(Dissent – Watts, joined by Battaglia – would find RAS for frisk based on totality of circumstances, would credit arresting officer as did fact finder)

Frisk – A policy that authorizes officers to frisk all occupants of a car prior to searching the vehicle is illegal if it doesn’t first require a finding of reasonable suspicion that each occupant is armed and dangerous.

Case Summary: This case can be summarized with the Court’s statement that the officer involved “identified several factors [related to reasonable suspicion], but he failed to explain why they made him suspicious.”
An Officer and Trainee were patrolling a high-crime Glenn Burnie apartment complex with a recent rash of vehicle break-ins. They observed a suspicious individual enter a vehicle and conducted a car stop based on an equipment violation. After a brief investigation during which they noted the nervousness of the suspect, they asked for and received consent to search the vehicle.
The officer testified that it was “standard operating procedure” prior to searching a vehicle to take the occupants out of the car and “make sure that they’re not carrying weapons.”
The officer ordered the suspect out of the vehicle and frisked him, finding a handgun in his waistband. Search incident to arrest the officer recovered money and CDS (PCP, cocaine, heroin, oxycodone).
Note: A valid investigative stop does NOT automatically allow an officer to frisk the suspect. As the Court noted, “While there undoubtedly is some risk to the police in every confrontation, Terry has never been thought to authorize a protective frisk on the occasion of every authorized stop.”
Note: A frisk may only be conducted when there is reasonable suspicion that a suspect is armed and dangerous. We refer to this as “reasonable, articulable suspicion” because the suspicion must be “articulated” or “explained.”
Note: In determining whether reasonable suspicion existed, the Court noted that “due deference” should be given “to the training and experience of the law enforcement officer who engaged the stop at issue.” “To be sure, [a] factor that, by itself, may be entirely neutral and innocent, can, when viewed in combination with other circumstances, raise a legitimate suspicion in the mind of an experienced officer.”
Note: The critical part of reasonable, articulable suspicion is that “the officer must explain how the observed conduct, when viewed in the context of all of the other circumstances known to the officer, was indicative of criminal activity.”
Note: The Court listed a number of factors that have been held to constitute reasonable suspicion that an individual is armed and dangerous (it’s a long list, but worth the review): the suspect’s admission he is armed; a characteristic bulge in the suspect’s clothing; an otherwise inexplicable sudden movement toward a pocket or other place where a weapon could be concealed; movement under a jacket or shirt “consistent with the adjustment of a concealed firearm”; an otherwise inexplicable failure to remove a hand from a pocket; awkward movements manifesting an apparent effort to conceal something under his jacket; backing away by the suspect under circumstances suggesting he was moving back to give himself time and space to draw a weapon; awareness that the suspect had previously been engaged in serious criminal conduct (but not more ambiguous “record” information); awareness that the suspect had previously been armed; awareness of recent erratic and aggressive conduct by the suspect; discovery of a weapon in the suspect’s possession; discovery that the suspect is wearing a bullet proof vest as to which he makes evasive denials; and awareness of circumstances which might prompt the suspect to take defense action because of a misunderstanding of the officer’s authority or purpose.
Note: The Court noted that “unexceptional nervousness” is “too ordinary to suggest criminal activity.”
Practice Note: With vague factors such as nervousness, it is helpful to put that nervousness in context. Rather than just saying “the suspect appeared nervous,” explain what they are doing, how common that behavior is among innocent people, and any concerns you might have regarding what that level of nervousness might mean. Was this level of nervousness analogous to an innocent citizen worried about getting points on their license? Or did it suggest something more?
Practice Note: To be clear, this should not make your SoPC read like a harlequin novel. The Court noted with approval another case where the officer “observed that the passenger was unusually nervous while looking through his pockets for his license and was attempting to conceal something in a pocket that was large enough to hold a handgun.” The officer “explained that he had conducted a large number of traffic stops, and that the level of nervousness exhibited by [the suspect] was unusual for a mere passenger.” Clear without over-dramatization.
Note from the Case: The Court dropped a footnote citing the DoJ “Investigation of the Baltimore City Police Department” as support for its statement that “[t]his pernicious institutionalized procedure is unlawful and is counter to Terry and its progeny.” While the Court’s primary statement is accurate (a policy that requires frisking of occupants w/o suspicion would be illegal), there was no evidence presented that this was an actual policy of the Anne Arundel County Police Department.