BRANDON AMES v. STATE OF MARYLAND
Court of Special Appeals, Moylan, Feb. 3, 2017,
Frisk- To conduct a frisk, an officer must first have reasonable suspicion to conduct a stop and then have reasonable suspicion that the individual is armed and dangerous

This is, for several reasons, a bad Moylan opinion. I wasn’t sure those existed, but here we are. Oh unhappy day!
I suspect a mix of poor articulation on the part of the AG, even worse articulation on the part of the prosecutor, and an unworthy law clerk (I’d prefer to blame an imaginary clerk than think poorly of CM).
0) Police “are increasingly less than vigilant in observing the limitations [of Terry].” Yeah? Is there ANY reason to think that this is actually true? Because the officer in Terry grabbed a guy and started frisking him without the legal principle even existing yet. The instantiation of the principle in Moylan’s thinking… reset police behavior to a baseline? Police in the 60s were actually LESS likely to violate constitutional rights than police today? Does any of this make sense?
1) Why would it be unreasonable for an officer to believe that there was a second call?
2) Why would an officer require a legal basis before being allowed to pose a question?
3) What sort of logic is it that suggests the presence of a gun in a pocket is not suspicious? Guns should not, when legal, be kept in pockets
4) How is it unreasonable to believe that someone is armed and dangerous when an officer receives a positive response to the question “Is there anything in [your pocket] that can hurt me?”
5) “a mere squeeze of the coin purse could have confirmed that there was no weapon inside it.” Perhaps, or it could have confirmed the presence of the needles that the suspect just said were in there. Squeezing a needle is a poor choice.
6) what kind of coin purse can fit a spoon in it?
I’m sure I have more issues with this opinion, but none leap to mind at the moment.

Facts:
In 2015, Delmar police received an anonymous phone call that a black man “wearing dark grey sweatpants and a Chicago Bulls hat” was standing in front of “the 700 building of Chestnut Manor” with a gun in the waistband on his pants. An officer drove by but didn’t see anyone matching the description.
Twenty minutes later, the officer was dispatched a second call for the same thing. The Court didn’t factor in the second call because it wasn’t clear to them whether there had been a second call by the tipster or dispatch just handed out the call again.
When the officer responded back, he saw Ames, a black man wearing gray sweatpants and a Chicago Bulls hat. The appellant was “leaning up against the building” by the entrance of the 700 block of Chestnut Manor. Ames’ “hands were visible and empty. He did not throw anything, nor did he attempt to flee as the officer approached.”
The officer walked up to Ames and noted that Ames “seemed very nervous.” At the suppression hearing he testified: “I asked [the appellant] if he had anything on him that I needed to worry about. He said no and started shaking.”
The appellant denied having a weapon, but the officer noted that he “kept touching his left front pocket,” which the officer interpreted as an “involuntary response” to contraband in his pockets. According to the officer, the appellant made no threatening gestures.
The officer then conducted a frisk of Ames, noting a soft, but large, bulge in Ames’ front pocket. The officer stopped his frisk and asked Ames what the object was. The officer did not testify that he thought the soft bulge might contain a weapon.
The officer asked Ames what it was and Ames “didn’t answer… at first and just started shaking.” The officer asked Ames if there was “anything in here that can hurt me?” Ames said “Yes, I do have needles.”
The officer reached into Ames’ pocket and removed a coin purse. Inside the coin purse, the officer found CDS, a spoon, and two needles.
Held:
The anonymous telephone tip and “the essentially insignificant police observation that followed it” were not enough to justify a Terry stop.
Anonymous Tips:
Anonymous Tips- An accurate description of a subject’s readily observable location and appearance does not show that the tipster has knowledge of criminal activity.
Anonymous Tips – Investigative Stops- Without more, an anonymous tip stating only that an individual is armed with a gun is NOT enough to stop and frisk a suspect.
Anonymous Tips – Investigative Stops- However, if an anonymous tip shows that it IS reliable, either by explaining how the tipster knows the information or by predicting future behavior, it can provide reasonable suspicion for a stop.
Stop vs. Frisk
Terry Stop- The Terry stop and the Terry frisk serve different purposes.
The stop is crime-related, its purpose being to prevent or to detect crime.
Terry Frisk- The frisk, on the other hand, is not intended to be an investigative tool at all. “Its express purpose and animating concern is the safeguarding of the life and limb of the stopping officer.”
Reasonable Suspicion- the Terry stop and the Terry frisk each require separate justification
Frisk
Reasonable Suspicion- A frisk requires “that the frisking officer articulate his specific reasons for believing that the suspect was armed and dangerous.” It is not enough that another officer might have been able to conclude that the suspect was armed; “the frisking officer himself expressly articulate the specific reasons he had for believing that the frisk was necessary.”
Reasonable Suspicion- Reasonable suspicion that someone is armed is not enough, by itself, to frisk someone. There must be a legal stop first.
From the Court: “It is only when duty requires an officer to go in harm’s way that the additional protection [of a frisk] becomes necessary. Short of that point, the officer is adequately protected simply by staying out of harm’s way.”
From the Court: “For example, if a policeman sees a suspicious bulge which possibly could be a gun in the pocket of a pedestrian who is not engaged in any suspicious conduct, the officer may not approach him and conduct a frisk. And this is so even though the bulge would support a frisk had there been a prior lawful stop.”
Practice Note- The Court here is saying that if you can’t articulate WHY a suspicious bulge that could be a gun in a pocket is ALSO evidence of criminal activity, then you cannot just stop a person and frisk them. However, consider HOW guns are generally transported. Are legally transported guns generally kept unholstered in a pocket? How is the individual carrying themselves? How do they react to the presence of a police officer?
Scope/Minimization- A frisk must be kept to the minimum amount of searching possible that will still reveal whether or not weapons are present. This generally means limiting the frisk to the outer garments without manipulating anything. Anything more requires articulation of the reason.
Scope- “Because almost all weapons—guns, knives, blackjacks, brass knuckles—are hard, palpable objects, their presence may be detected by a close pat-down of the exterior of the clothing surface. Because that is all that is necessary, that is all that is permitted.”
From the case:
“As [the officer] performed his open-handed pat-down of [Ames’] outer garments, he felt nothing in the waistband but he did detect a soft “large bulge” in the appellant’s left front pants pocket. We know of no theory by which a soft bulge could reasonably be interpreted to be a gun, a knife, a blackjack, or brass knuckles. There was thus no indication that a weapon was present and [the officer] should simply have proceeded with the pat-down until he was satisfied that the appellant had no weapons.”
Practice Note- A frisk is conducted because you have reasonable suspicion that an individual is armed. If you stop your frisk to investigate something else, you are showing that you don’t actually suspect the person is armed.