TAMERE THORNTON v. STATE OF MARYLAND
Court of Special Appeals of Maryland, Arthur, July 25, 2018,
Fourth Amendment – Attenuation – Suspect that flees from an illegal frisk during a traffic stop has attenuated the illegality by committing a new crime
Facts:
In 2016, a BPD operations squad was patrolling when it observed Tamere Thornton sitting in the driver’s seat of a Cadillac parked facing the wrong way on Midwood Ave.
Officers conducted a u-turn and activated their emergency lights, “stopping” the parked vehicle. Two officers approached the vehicle while a third waited in the car.
Both approaching officers testified that Thornton was exhibiting characteristics of an armed person. However, after noting this, the officers first asked for consent to search the vehicle, which Thornton declined. They then “bluffed” that they were going to call K-9, but Thornton gave no reaction. One of the officers then directed the other to pull Thornton out of the vehicle and frisk him.
When Thornton was removed from the vehicle (and before the frisk began), he began running. Thornton was stopped nearby and a handgun was located underneath of his body.
At trial, the court noted a marked difference between the testimony of the officers on-scene. One officer’s testimony was described by the trial judge as “unconvincing” in that it described Thornton’s actions as “he just kept like doing a check, like just trying to, I don’t know, like push it down or just (indicating), I don’t know, you know, just to make sure it’s secured. I’m not sure what he was trying to do but, I mean…”
The other officer gave what the trial court described as “must greater detail” as to “the specific motions” that suggested Thornton was armed.
Officer Zimmerman testified that, as he walked to the driver’s side of the sedan, he “observed Mr. Thornton raise his right shoulder and kind of bring his elbows together,” which Officer Zimmerman characterized as “consistent with attempting to conceal something in the front area of [a person’s] body.” Officer Zimmerman performed a demonstration of this movement as he described it a second time: “right shoulder up which kind of brings your hand up a little bit higher and then . . . elbows together, kind of pushing down.”
Officer Zimmerman testified that “it was very apparent that [Thornton] was uncomfortable with whatever was in his lap,” because he continued “making adjustments” around “where his belt buckle would be on his pants.” Officer Zimmerman said that Thornton appeared to be “manipulating something” and “would sit back down and attempt to adjust something in his waistband” whenever he “would lean over to the right.”
In total, Officer Zimmerman estimated that Thornton made four or five “distinct movements” or “adjustments” near his waistband during the 30 or 40 seconds before they told him to step out the sedan. In Officer Zimmerman’s opinion, those movements were not “solely nervous movements” and that he therefore believed that Thornton was “concealing some sort of weapon… in his waistband.”
However, the defense attorney attacked the officers’ claim, arguing that “if they saw enough to really think that Thornton had a gun, they wouldn’t have been wasting their time even talking to him about permission to search the car, much less go for the K-9 unit.”
The trial court did not decide whether the frisk was legal or not. Instead, it held that Thornton running attenuated any illegality that might have existed. Therefore, the gun was coming into evidence regardless of whether or not the frisk was illegal.
Thornton pled and was found guilty of possession of a regulated firearm.
Thornton then appealed, arguing that the frisk was illegal and that the handgun should therefore have been suppressed.
Held: The Court held that the stop was legal and that Thornton committed at least one crime in running from a traffic stop. The Court did not decide whether the frisk was legal because Thornton’s flight attenuated any illegality in the frisk. The gun was properly allowed into evidence. Conviction affirmed.
The Stop
Car Stop – Like any stop, a traffic stop must be based on (at least) reasonable, articulable suspicion (RAS)
Car Stop – RAS is required “whether the officer stops a car that is in motion or whether the officer detains the occupant of a car that is already parked.”
From the Case: The initial stop was justified based on the fact that Thornton was “seated in the driver’s seat of an illegally parked car.”
Car Stop – Occupants – During any legal stop of a vehicle, officers are allowed to order all occupants out of the car.
From the Case: “Because the officers had lawfully detained him, they were entitled as a matter of course to order Thornton to exit the car.”
The Search
Car Stop – Frisk – The right to order occupants out of a car does NOT automatically give officers the right to frisk them
Frisk – A frisk is not a search for evidence; it is a limited search for weapons.
Frisk – The point of a frisk is to “allow the officer to pursue his investigation without fear of violence,” and so it may be performed regardless of whether the weapon in question is legal/permitted or completely illegal.
Frisk – A frisk may be carried out if:
1) The suspect is legally stopped by the police (either an investigative/“Terry” stop or a traffic stop)
2) And the officer reasonably suspects that the person is armed and therefore dangerous
Frisk – RAS- “The officer has reason to believe that an individual is armed and dangerous if a reasonably prudent person, under the circumstances, would have felt that he was in danger, based on reasonable inferences from particularized facts in light of the officer’s experience.”
Example from the Case: A man walking down the street with “a bulge” in his pocket will not justify a frisk unless the officer can articulate what it was about the bulge that led her to believe that it was a handgun.
Example from the Case: Similarly, a person “adjusting his waistband” will not justify a frisk unless the officer can articulate what it was about the adjustment that led her to believe that it was a handgun. Where the officer’s testimony lacks sufficient “details about the specific movement” and lacks sufficient articulation of why the officer considered the “movements to be indicative of a concealed weapon,” a frisk is not justified.
Practice Note: Because a frisk is about safety, your actions on-scene and testimony in-court should reflect a concern for safety. Keep in mind that rushing isn’t necessarily tactical and that de-escalation might still be a viable option where the suspect is armed. If you are delaying the frisk to gain tactical advantage or in an attempt to de-escalate the situation, that can be explained in your report to avoid the accusation that you didn’t actually have a concern about weapons.
Search – Exclusionary Rule – Attenuation – Evidence recovered after an illegal search or seizure might still be used in evidence if something “attenuated” (mitigated) the illegal action. To decide whether evidence should be allowed at trial, the Court will consider the following factors:
– The time elapsed between the illegal action and the recovery of evidence
– Intervening circumstances
– The purpose and flagrancy of the police misconduct
From the Case: “This case involves Thornton’s flight from an allegedly unlawful frisk that occurred during what was an admittedly lawful stop. In these specific circumstances, where Thornton appeared to commit the new and separate offense of fleeing and eluding an officer after a lawful stop, we hold that his conduct represented an intervening circumstance.”
From the Case: “A sequence of four main events revealed Thornton’s criminal possession of a handgun. First, the officers conducted a lawful traffic stop. Second, the officers initiated a pat-down, which was arguably unlawful but not flagrantly unlawful. Third, Thornton appeared to commit a new crime by running away from the officers (and possibly assaulting one of them). Finally, the officers seized Thornton and found the handgun in the process. We conclude, as the circuit court did, that the evidence of the discovery of the handgun is too attenuated from the pat-down to require the exclusion of the evidence.”
Resisting Arrest
Resisting Unlawful Arrest – There is a common-law right in Maryland for citizens to use limited force to resist an illegal arrest
Resisting Unlawful Terry-Stop – This right is limited to arrests. There is NO right to resist an illegal investigative (“Terry”) stop or an illegal frisk
From the Case: “If a person is the subject of an unlawful frisk, the remedy, ordinarily, is not to take the law into his or her own hands and to flee, but to bring a civil rights action if the frisk yields no contraband or to make a motion to suppress if it does. Close questions as to whether an officer possesses articulable suspicion must be resolved in the courtroom and not fought out on the streets.”