Cotton v. State

872A.2d87 Terry COTTON Steven Maryland. STATE 29, Sept. Term, 2004. No. Appeals Maryland.

Court of 11,2005. April Brensike, Eve L. Asst. Public Forster, Defender (Nancy S. Defender, Public Braudes, Michael R. Defender, Asst. Public brief), on for petitioner. (J. Curran, Russell, Joseph Atty. Asst. Gen.

Devy Patterson brief), Jr., Gen., for respondent. Atty. WILNER, C.J., RAKER, BELL, before

Argued GREENE, HARRELL, JJ. CATHELL, BATTAGLIA and WILNER, J. Cotton, facts, Steven petitioner, statement agreed

On an County for Caroline in the Circuit Court was convicted offender, which, he repeat marijuana, for as a possession That judgment years prison. sentenced to two marijuana by Special Appeals. affirmed the Court of from him taken formed the basis his conviction was Cotton, after Henning James when County Caroline Detective that he had warnings, Henning admitted to receiving Miranda that, only complaint Cotton’s drug possession. his Henning, Detective he was the time this encounter with and that both his admission and under an arrest unlawful arrest, search, fruit of that unlawful were ensuing as the argument find no merit in that inadmissible in evidence. We of the judgment and affirm the shall therefore Special Appeals.

BACKGROUND County four-year investigation by An Caroline extensive Jones, his Don Antonio grand- Sheriff’s Office established that Bolden, father, mother, his Bol- Edgar Calvin and Calvileen den, drug market from and around operating open-air were Avenue, Federalsburg. home in Brooklyn at 329 (1) drugs investigation significant quantities revealed (2) Jones, drugs brought into the house were well, only but it as from being sold not in house around regard the front and we as porch within what would (3) in the traffick- many of the observed curtilage, individuals Bolden, drug- and had extensive ing, including Jones Calvin records, and of them a record violent crime some had (i) crimes, (4) Jones, and in associated with individ- particular, assaults, attempted uals in backgrounds who had extensive murders, (ii) violations, handgun and had an elabo- established rate counter-surveillance vicinity network around the house, (iii) and threatened “a member of the department ‘shot’ if going get back off police do not patrols in the Brooklyn, Federalsburg area.” more,

Based on this and a deal great all forth carefully set in a 68-page application, verified District Court found judge probable cause believe that of the controlled violations dangerous occurring substance “in laws were and upon” Brooklyn just the outbuildings Avenue—not residence but and motor on the property Upon vehicles that finding, well. court issued a warrant that authorized the to enter and search, without for a or need knock announcement of police presence, the and any residence and motor outbuildings “on vehicles located said property.” The warrant empowered Jones, persons search the clothing Calvi- Bolden, leen and “any persons Calvin other found or upon premises may said who participating violations evidence, may and who be concealing para- [those statutes] phernalia, Dangerous Substances,” and Controlled to seize all evidence “found said upon premises,” and to arrest “all persons in or ... upon premises found said partici- who are in violations of pating [those statutes].” Although three only persons were named in the warrant— Jones and the two Boldens—the affidavit established that several other people history with a of criminal violent involved, conduct were warrant clearly anticipated some may of them be on or about the property when Hence, warrant was executed. the authorization to enter the house knocking announcing police without or presence and arrest in to “all or persons” upon premises found may who be of participating violations laws.1 drug Although recently statutory authority we have held that there is no for advance, judge, a to authorize the to enter residence without knocking State, announcing presence, or see Davis 383 Md. (2004) Carroll, A.2d 1112 and State v. 383 Md. 859 A.2d 1138 validity challenged the warrant issued in this case was not market, drug an dealing open-air they Given that were when the might present number be people unknown executed, people might that some those and warrant was flee, police understandably to resist or likely violent twenty-five partici- officers twenty arrived force. Some arrived, they found at least four pated.2 When Cotton, in yard the front near including Jones and people, activity described drug area in which much porch —an place. for had taken Jones in the the warrant application fled, officers and ulti- pursue two immediately requiring handcuffed and people him. The other were mately capture they There no evidence were guard. detained under a bucket or Cotton allowed to sit on gunpoint. held Henning log. explained: Detective open on in an air procedure being

“That based is standard warrant, type this no knock we drug doing market and detained, ground is on the our everyone placed had — safety position they’re detained where while secured, securing a residence place the rest of the is minutes, minutes, three it probably doesn’t take two just ten fifteen to make sure that would take about minutes attics, rooms, spaces, everything all the is secured crawl else.” anything before does anyone just it was not a matter of The detective added that securing the house itself: are up perimeter securing set

“Basically we house, setting making sure no one up perimeter, we’re effect, anything on to that so yes, doubles back around us it long I minutes. However say fifteen] after [ten would house, Cotton, and, as he was neither a resident nor found inside challenge aspect likely it that he could “no-knock” of it. larger operation. part maintained three resi- 2. This was Jones processed drugs, home in which he the house in dences —a mobile drugs, question Brooklyn from which and a Avenue he sold nearby apartment actually lived. in which the believed he Three simultaneously, separate were warrants for those locations executed operation. in the officers involved entire about 50 took to get house totally secured is I when start making my rounds to people.” that,

The explained detective secured, once the house was minutes, which took about ten to fifteen he began interview the people previously who had been detained. He began with Aldredge, Steven who was on or near porch with Cotton and Jones when the police arrived. Henning had he said what was a “brief conversation” Aldredge. Henning As was him, talking to a police dog alerted to car. Aldredge’s Hen- ning requested and permission obtained to search both Al- car, dredge and, and the found, when no contraband was Aldredge promptly released. Henning then turned imme- diately Cotton. He testified: Defendant, “I approached the on, I told him what going a search and seizure warrant was being executed. I imme- diately advised him of his rights, Miranda I him asked if he him, had anything said, he ‘All got weed, I’ve is a bag that’s I got.’ all At that point I said okay, that’s fine. I got information, all the pertinent he was subsequently searched further, behind the residence to determine if any- he had thing just else and he remained in the scene until we were able to a get transport unit there.” Henning said that he asked the question, after giving Miranda warnings, determine whether had any Cotton weapons or needles that might jeopardize Henning’s safety, and that he patted Cotton down Cotton’s admission that after he was in possession of marijuana. Henning regarded pat-down as a Terry v. Ohio frisk. The marijuana that was found on Cotton is what led to his conviction for possession of the substance.

Cotton looks on this procedure as transgressing his Consti- tutional rights. He urges so far as the concerned, he bystander was mere happened who to be on the scene they when came to execute the warrant for home, Bolden-Jones probable had no cause to believe that he had any committed crime or had any contra- band in possession, his and that they therefore had no lawful avers, detention, he constituted him. The authority detain arrest, and search interrogation an unlawful result, de were, equally unlawful. it followed facto that detained arrest, the fact he was says, he arose from he hand- minutes, time during which twenty upwards warnings. the Miranda cuffed, given and kept guard, under

DISCUSSION all prohibit does not The Fourth Amendment seizures, that are unreasonable. only but those searches and 1568, 675, 682, 105 S.Ct. Sharpe, v. 470 U.S. United States Buie, (1985); 494 U.S. Maryland v. 1573, L.Ed.2d 613 (1990). 276, 284 325, 331, 1093, 1096, L.Ed.2d S.Ct. is of reasonableness starting point analysis The for a proper Summers, 101 S.Ct. 452 U.S. Michigan (1981). L.Ed.2d a warrant search

As the about execute police were narcotics, they coming down observed Summers house for searched the they him while steps. front detained and, and learn- finding narcotics in basement house after house, arrested they owned ing that Summers him, in pocket. Clearly his coat finding searched heroin arrest, cause to make the but probable had point inus -just question like the before question before the Court— it an of the initial detention: was legality this case—was the investigative it an probable cause was required arrest cause? justified probable on less than seizure that could be Ohio, cases, in particular Terry Examining earlier (1968) its extensive U.S. 88 S.Ct. 20 L.Ed.2d 889 admittedly confirmed that “some seizures progeny, such limited covered the Fourth Amendment constitute detained and are security intrusions on the those personal law interests that justified by such substantial enforcement cause, probable than so they may long be made on less criminal activi- suspecting have an articulable basis for may for limited ty” exception and that “the intrusions is confined justified by special law enforcement interests to the momentary, accompanied on-the-street detention aby Williams, in weapons Terry frisk for involved Adams [v. (1972)].” 32 L.Ed.2d 612 particular Of in Summers the fact that importance police had obtained a warrant to search the house. The Court that, although admittedly observed the detention of Summers a significant liberty, justification constituted restraint on his for that detention also to consider the enforcement law and, interest, regard, it and emphasized point made lost on Cotton seemingly both Dissent this case: “Most obvious is the legitimate law enforcement interest preventing flight in event that incriminating evidence is obvious, Less but found. sometimes of greater importance, is the interest in minimizing the risk of harm to the officers. Although no special danger suggested by record, evidence this the of a execution to search warrant for narcotics is the kind of may give transaction that rise to sudden violence or frantic efforts conceal or destroy evidence. The risk harm to both the occupants routinely minimized exercise if officers unquestioned command situation.” Summers, 702-03, v. Michigan supra, 452 101 U.S. S.Ct. at 2594, added). 69 L.Ed.2d at 349-50. (Emphasis

Although there people number of in the found home detained police, Summers case involved only himself, Summers resident. In analyzing who the issue ultimately before it and holding that limited detention of permissible, Summers was the Court sometimes used the word “resident” “occupant” and sometimes the word to de detained, may scribe who properly engen and that has dered considerable anyone debate over whether other than actual resident of the home may be detained in the absence of independent probable cause or suspicion. articulable Most recently, Supreme Court has characterized Summers as ” Mena, dealing ‘occupants.’ with See Mushler v. 544 U.S. -, (2005). 1465, 125 S.Ct. 161 L.Ed.2d 299

257 State, 527, (1999), 727 A.2d 938 we v. 353 Md. Stanford flatly those developed: that three lines of cases had noted be de- may residents of home holding only actual those that view proceeds; adopting while the search tained if the the detention non-residents allowing but generally reasonably articulable facts that associate point “can activity being or the criminal the visitor with residence warrant”; “broadly in the search those investigated visiting residence to be to include those ‘occupants’ define 535-38, out pointed at 942-44. We Id. 727 A.2d searched.” to resolve the category in that third tend cases the nature by “comparing of visitors validity the detention enforcement inter- any intrusion valid law 727 A.2d at 943-44. detention.” Id. ests of Mr. concluded that detention Stanford was Because we we not need to any approaches, of those did unlawful under appropriate. of them the most decide which it least Federal appel three Stanford, appears Since Supreme adopted ap one late courts and State have the first closer to the second or than proaches broader Services, v. Data Photogrammetric third. See United States Inc., (4th denied, Cir.2001), 229 cert. 535 U.S. 259 F.3d 152 on other abrogated 122 L.Ed.2d 208 S.Ct. 124 Washington, v. U.S. S.Ct. grounds by Crawford (detention (2004) of employees 158 L.Ed.2d 177 while to warrant un pursuant permissible business office searched (9th Summers); Knapp, v. F.3d Cir. der Ganwich Cavazos, (5th 2003) (same); F.3d 706 United States Cir.2002), denied, cert. (2002); Vorburger,

L.Ed.2d 189 State Wis.2d (2002). N.W.2d Court,

Subject to further instruction from we Supreme or approaches, synthesis think that the second two some them, more with recent and jurisprudence are consistent solution, practical in that they a more reasoned and represent the issuance surrounding focus on the actual circumstances Although of the itself and execution warrant. Summers dealt resident, of the detention rested on only validity with a Terry If, precepts derived from progeny. and its to minimize the risk of harm to both are police occupants, police and “routinely unquestioned authorized to exercise command situation,” residents, persons, just other than are who premises found in or about the likely are to be temporarily well, detained least they until the can find out police who are and in they any illegal whether are involved of the at the taking activities home. place Mary That authority implicitly least confirmed in Buie, land v. where, supra, executing an arrest for warrant Buie, home, his immediately through entered fanned out just the home not for looking anyone might Buie but else who there, and continued that after been sweep Buie had even located and Reversing contrary arrested. decision this Court, the Supreme Court concluded that the officers had interest “in steps to assure themselves that taking the house been, which a suspect being, just has is not arrested other persons harboring dangerous who are could who Buie, an attack.” Maryland supra, unexpectedly launch 494 U.S. at 110 S.Ct. at 285. L.Ed.2d at added). (Emphasis The arresting Court continued that “the permitted officers are such circumstances to take reason after, able their steps safety ensure while making arrest” and that interest is sufficient to outweigh “[t]hat Id. may 334, 110 intrusion such procedures entail.” 1098, 108 L.Ed.2d at Buie, from Summers follows, that,

It in executing here, warrant premises such as that issued for a to be known an open-air market drug where the are likely to encoun entitled, ter people who well be may dangerous, they are for safety own and that of persons, other to take command and, except situation are persons clearly who any unconnected with criminal activity clearly who pres ent no potential danger, until, essentially immobilize everyone acting expedition, they with reasonable know what are they It confronting. really cannot be otherwise. do may know who be at scene when arrive. The people searched, are not to be there, property in or on the they find customer, processor, supplier, wearing identifying labels— unrea- decidedly It be bystander. would innocent bodyguard, friendly greeting give to police simply expect sonable to house without search the and to proceed folks there may are or what people to who those thought as another has warned Indeed, specifically Supreme do. police second-guessing” of “unrealistic kind against very assessing in insist be done and the Dissent that Cotton officers Sharpe, supra, United States detentions. See investigative at 616. L.Ed.2d 105 S.Ct. may long that detention then becomes how question Sharpe, in involved supplied which last. That answer driver, more and the detention its a vehicle and stop of -, Mena, 544 U.S. supra, in recently Muehler at-, Sharpe, police at-. 161 L.Ed.2d driving Savage, Sharpe suspicion some reasonable marijuana. tandem, transporting different vehicles pursued officer another first while Sharpe stopped detained until Savage was eventually Savage. stopped whereupon fifteen minutes arrived —about first officer later — marijuana in it. The issue found his was searched truck initial validity of the detention before the Court was not concluded: length. but rather its The Court long too duration a detention is assessing “In whether it appropri- we consider justified investigative stop, as an pursued diligently ate examine whether likely dispel to confirm or investigation that was means necessary during time it was which suspicions quickly, making assess- A court this detain the defendant.... are the police care to consider whether ment should take situation, in such cases developing in a acting swiftly second-guessing in unrealistic indulge court should hoc evaluation of judge engaged post .... A creative some alternative imagine can almost always conduct have been police might of the by objectives means which fact protection But accomplished. ‘[t]he abstract, been accomplished in the have public might, not, itself, “less means intrusive” does render the search The question unreasonable’.... is not some simply whether available, other alternative was but the whether acted in unreasonably failing recognize pursue to it.” Id. 105 S.Ct. at 84 L.Ed.2d at 615-16. (Citations added). omitted and emphasis Muehler, warrant, police, the to pursuant raided a in house which least one member gang of violent was Mena, thought house, Ms. occupant live. the was asleep found in her bed. She in placed was handcuffs at and, along with three gunpoint persons other found trailers house, the behind taken to garage converted and detained guard under for two-to-three hours. When the search was she completed, house was released. She then sued two § the officers complaining, among under U.S.C. other that her detention things, in handcuffs violated her Fourth rights. Reversing contrary Amendment decision the Circuit, Appeals U.S. Court of for the Ninth Supreme the Summers, Court, that, on relying largely though held the even detention of Mena more Ms. instrusive than that of Mr. Summers, officers’ use force in the form “[t]he of handcuffs to effectuate Mena’s detention in garage, as the well detention of the three occupants, other was reasonable be- the governmental cause interests outweigh intru- marginal Id. , at-, sion.” at-. L.Ed.2d The Court held further that fact detention lasted not, itself, unreasonable, two-to-three hours was if it did not longer last than the search of the required.3 house places weight Cotton some Dissent even more—on one —the Baker v. (3rd Township, Monroe aspect 50 F.3d 1186 Cir.1995), decision, a split taking without of every- account said and did. Baker the Third court thing Circuit Muehler, actually § instructive. Like it awas 1983 action did, fact, beyond 3. Mena also asserted the detention extend necessary complete time the search. Because the Ninth Circuit issue, Supreme court had omitted address that Court remanded proceedings on the case further that claim. family the Baker rough treatment of from the stemming son, Mrs. Baker’s Clementh. of the home a search during Baker, Mrs. with two evening, along on a At about 8:30 June son, teenage approaching and a teenage daughters of her from just as police Clementh to have dinner with the home drug “no knock” raid. to execute a three arrived jurisdictions house, them but others past ran into of the officers Some ground. them to the at them and ordered pointed guns only one complaint named in their the Bakers Initially, him, officer, municipality employed Armstrong, but, Armstrong not been found that after court summary judg- and entered any wrongful conduct involved them, complaint to amend sought ment against officers, actually other committed add names of the who conduct, the trial court denied which allegedly wrongful appeal issue on grounds. principal limitations Armstrong.4 summary in favor judgment of the propriety arrive, officers to did order the Armstrong, one of the first rushed into the The as he house. “get Bakers to down” no that court found Fourth Amendment violation appellate a “no Armstrong, executing It that who was order. observed warrant, not or they they knock” did know who were whether but, entering leaving they or the house because were were he porch suspected they the therefore that had near search, the house he had a to he some to warrant relationship necessary ground protect it to them on the to get considered pres- that the stray Armstrong them from added gunshots. raid standing ence citizens in the middle could themselves, defending they from could prevent police fire in the middle of a crowd. return is dangerousness quite that chaos “[t]he The court noted raid, likely to occupants are pronounced drug where armed, armed, certainly are and the be where the of the Bakers was a minor at the it that least one When surfaced filed, complaint appellate case court remanded the to time the granted her com- determine whether she should be leave amend plaint. the suspected operation nature of drug great would involve and, coming drug deal of and going by citing customers” both Ohio, Michigan Terry Summers and concluded “the need to ascertain the identity, protect Bakers’ the need them stray gunfire, from and the need to clear area of for approach able to operate efficiently all made it reasonable to the Bakers get ground down on a few crucial minutes.” Id. at 1191-92. outside,

While the Bakers were and held at handcuffed officers, by at least gunpoint purse two Mrs. Baker’s to the emptied snatched street. After about ten minutes, Armstrong be brought ordered Bakers inside, detained, where were still handcuffed and at for another gunpoint, fifteen minutes. States v. Citing United supra, no Sharpe, court found Constitutional violation of that simply because extended detention: “We cannot say that a detention of fifteen minutes time to identify and release a fairly large group during people drug raid unreason- Baker, supra, able.” at 1192. F.3d that, problem lay The the fact during this entire 25- minute aware that period, Armstrong was the Bakers had been handcuffed and gunpoint held at and that Mrs. Baker’s been purse emptied. seized and concluded court and, indeed, the use of “adding up guns handcuffs detention, length very shows substantial invasion of personal security,” Bakers’ used those any methods “without to feel reason threatened the Bak- ers, or fear that the Bakers would and that escape,” “the appearances visit, family paying those of a a social son, may while it have been a to a wayward visit there is simply evidence of that anything no should have caused the officers to use the force they alleged kind of to have [were] Armstrong behavior, used.” Id. 1193. If that acquiesced he would have violated the Bakers’ Fourth Amendment rights.

Apart from whether limited remand in Baker would be Muehler, under warranted the distinctions Baker and between Cotton, this case are obvious. adult next standing found had transactions drug numerous porch Jones at the where for an innocent observed, been mistaken been could not have Jones, who for dinner to be served. waiting member family and had persons, fled to associate with violent was known indeed, for was, reason Cotton, knowing there be chased. Not was hand- Cotton Although feel threatened. police to him, he was speak could Henning until Detective cuffed searched, Mrs. not as was and he gunpoint not held was marijuana. Baker, possessing he admitted until after the Baker court to conclude short, led conduct § did in the 1983 action summary judgment inappropriate was concluded Baker court Indeed, actually occur here. not unlaw- here that did occur the kind of conduct detention, minute duration not the fifteen ful —not the initial of it. Maddox, United States 388 F.3d

A case point (10th Cir.2004). deputy marshals and a sheriff Two Federal on Rachel an arrest warrant went to mobile home serve trafficking. for When Page, fugitive wanted narcotics Buhrle, arrived, of the owner of they found the adult son with the home, him to wait driveway. They in the directed inside to arrest the marshals went carport sheriff while three inside, carrying a truck Page. the marshals were While Maddox, The sheriff noticed including appeared. people, unsure what he was reach under the seat but was Maddox wait in the The the three exit the truck and sheriff had doing. in circles in the began walking Maddox carport. Although Eventually, three attempt he to escape. made no carport, carport, although held in the more arrived and were people backup assistance. Before the sheriff then called house arrived, Page from the marshals escorted backup until female but local to wait required by protocol her escorting arrived before from area. officer sheriff, backup Mad- arrival summoned Upon aby deputy asked separated dox from others. When he replied he any weapons guns, whether had Maddox and a scale. gun, concealed some methamphetamine, those items and arrested Mad- deputy possession took place dox. This took about half hour after Maddox first Maddox, here, arrived and was detained. like Cotton moved suppress to incriminating the evidence on the that ground his detention and questioning were unlawful. Buie, Maryland

Relying largely the Tenth Circuit of Appeals Court found no Fourth violation. Amendment Although Buie itself only protective sweep of the involved house, the Maddox court the reasoning concluded that articu- by lated the Supreme applied as well to protective detentions the immediately outside home: the ability “Because dangerous to search for provides individuals little protection accompanied for officers it is ability tempo- unless to rarily seize any dangerous individuals that are during located search, we conclude that detaining potentially dangerous persons for the duration of the arrest qualifies as a ‘reasonable ” Maddox, to step ensure the supra, safety.’ [ ] [officers’] from Buie. quoting F.3d part The court Buie sweep permitted noted scene,” which, case, “arrest in the Maddox included the immediately adjacent Cotton, area to home. Like Mad- Illinois, dox, Ybarra v. invoking 444 U.S. S.Ct. L.Ed.2d 238 that he mere urged bystander was a that the sheriff simply way. should have sent him on his The Ybarra, rejected argument. court police, of executing course warrant arrest bartender of a tavern, proceeded tavern, all of search patrons impermissible which Court held was “a person’s —that mere propinquity independently suspected others crimi- more, not, without activity nal give probable does rise cause Ybarra, supra, search that person.” U.S. at added). 62 L.Ed.2d at 245. (Emphasis circumstances in the case before it led the Maddox court to conclude that there was more there —that Buie the more relevant case—and it concluded the sheriff a reason- suspicion able articulable that Maddox posed potential dan- to the ger officers and that suspicion supported temporary protective detention. See United v. Vite-Espino- also States v. Guadar- za, United States (6th Cir.2003); 342 F.3d rama, (E.D.Wis.2001). 1202, 1217 F.Supp.2d society become more recognized has has

This Court violent, officers against attacks enforcement have that law greater that need prevalent, there is become more and that of safety to ensure to take measures protective in earlier have been community might unacceptable Terry times, to accommodate expanded has been In re David 523, 534, Md. 789 A.2d 367 those concerns. (2002), from 607, passage 613 this quoted approval we with Tilmon, (7th Cir.1994): v. 1221, United States 19 F.3d 1224-25 expansion a multifaceted “The decade has witnessed last Terry, including greater trend officers latitude granting dangerous potentially in to neutralize force order using For better or during investigatory an detention. suspects the use of worse, permitting trend led to the has cruisers, handcuffs, for the placing suspects measures force more weapons and other drawing of than investigatory associated arrest with traditionally detention.” David and in Lee v. S. of “hard takedowns” in approval

Our State, permissible Terry 642, 235 311 Md. 537 A.2d arrests, acceptance of rather than as confirms our detentions State, v. 85, See also Dashiell Md. 821 374 that observation. (2003). A.2d 372 recitation Henning’s reliance on Detective

Cotton’s Miranda him as evidence warnings questioning before occurred also little already support arrest finds require or in case logic prophylactic either in law. Miranda important warnings designed safeguard ment of is v. See Dickerson United Fifth Amendment protections. States, (2000). 428, 120 147 L.Ed.2d 405 530 considered Although giving warnings may of those occurred, of all that it along part with more factors as relevant determining no whether a special significance should have for Fourth Amend- detention constitutes an arrest temporary 266

ment purposes may because it well be even required when clearly there no is arrest.

Miranda warnings given need to be there whenever is a custodial and a interrogation, interrogation custodial can Terry pure arise from a never crosses into an arrest. stop Smith, See States v. (7th Cir.1993), United cert. 3 F.3d 1088 denied, (1994); 510 U.S. 114 S.Ct. 126 L.Ed.2d 696 Perdue, v. (10th United States United Cir.1993); 8 F.3d 1455 Clemons, States v. United (D.D.C.2002); F.Supp.2d States v. Calloway, (D.D.C.2003). F.Supp.2d Under that, standing courts made clear that a have cautious or Miranda gratuitous recitation of warnings irrelevant arrest, whether there has been an or even a custodial interro State, gation. Cummings 341 A.2d Md.App. State, (1975); Sydnor Md.App. (1978); A.2d Alicea, Com. v. (1978); 376 Mass. 381 N.E.2d 149-50 People Wipfler, v. 262, 68 Ill.2d Ill.Dec. N.E.2d 870 Dozier, (1977); People Ill.App.3d 24 Ill.Dec. (1979); United States v. Diaz- N.E.2d and cf. Lizaraza, (11th Cir.1993).5 Indeed, 981 F.2d if the proceed person a and interrogate temporarily seized Miranda detained and do Terry pursuant not give warn- particularly agents good instructive. Federal made a Diaz-Lizaraza Terry stop responded, and asked Diaz he for identification. When one agents recognized previous- as that his voice of someone who had ly "George," agent himself as identified and whom the knew had been intimately drug in the investigating. involved transaction were At truck, point, agents gave warnings, Diaz Miranda searched his beeper "George’s” beeper, discovered a that had same number as formally and then The Terry stop arrested him. court found that the voice-recognized "George,” became once an arrest Diaz was as because point agents releasing had intention no him. In address- ing warnings point, the relevance of the Miranda on that the court "Mirandizing Terry stop noted that a detainee does not convert into arrest, an in this case but it is evidence that the nature of the detention grown agents more serious and that the did not intend to release Diaz-Lizaraza, custody." supra, 981 F.2d at 1222. Diaz front added). Here, course, (Emphasis warnings given the Miranda Cotton, that, Henning questioned Detective and the evidence was before point, voluntary at that but for carrying Cotton’s admission that he was contraband, released, Aldredge. he would have been as was interrogation by any incriminating evidence revealed ings, as circumstances, be held inadmissible depending on the may, thereby doom interrogation of a custodial product The law on that evidence. ensuing of an arrest based validity question- when warnings encourage give those should regarding warnings them suspect, discourage ing a a bad arrest. good stop into converting Terry as he was on the facts that reliance summary, Cotton’s warnings Miranda handcuffed, given under placed guard, upon either his arrested that he was de establishing facto of it finds twenty minutes or after fifteen to initial detention this cur- Court’s either Federal support no substantial both place of that view would Acceptance jurisprudence. rent risk. at considerable bystanders innocent police officers and AF- APPEALS OF OF COURT SPECIAL JUDGMENT FIRMED, WITH COSTS. JJ., C.J., BATTAGLIA, GREENE,

BELL, dissent. BELL, BATTAGLIA, C.J. J. which Dissenting Opinion by GREENE, J., join. search of a the detention and I dissent. This case involves the execu- during of dwelling nonresident who was outside is, despite its Majority tion of “no-knock” warrant. overly broad inter- protestations contrary, to the adopting Summers, 101 S.Ct. pretation Michigan any- a person present 69 L.Ed.2d 340 so that is executed a search warrant property where outside where probable cause independent in the absence of may detained I would suspicion. articulable or individualized reasonable find, however, any not enumerate could that because suspicion to creating articulable facts individualized reasonable detention, subject to an unlawful de was support Cotton arrest, totality presented under the of the circumstances facto in this case. 21, 2002, p.m., 4:00 February at approximately

On “Drug Task Force County Drug Caroline Task [hereinafter Force”], Police State Tacti- conjunction Maryland Unit”],

cal Unit “Tactical executed “no-knock” [hereinafter warrant Brooklyn Maryland. Federalsburg, Avenue The issuance of the based warrant was surveillance upon Henning Force, Detective of the Drug James Caroline Task who concluded that the residence was used as an being open air drug market and that three individuals resided there: Don Jones, Bolden, Antonio Denise Edgar Calvileen and Calvin Bolden, all of whom were named in the affidavit. Drug

When the Task Force Tactical Unit arrived Avenue, Brooklyn four observed two of whom people, Cotton, were Jones and standing together outside the home within two or three of the front porch. twenty feet When the to twenty-five police home, officers approached the fled Jones foot, others, Cotton, including while remained. handcuffs, detained everyone present, placed them and entered the guns residence with drawn. Henning

Detective did not until interview Cotton the prop- secured, erty was at least ten twenty minutes after Hen- ning’s time, During arrival. Cotton guarded by at least one officer while seated on a or log a bucket. Detective rights pursuant Miranda Henning advised Cotton his Arizona, 384 U.S. 86 16 L.Ed.2d 694 weapons asked he had any objects whether or other “would hurt Henning] anything [Detective that he else supposed wasn’t to have.” Cotton stated that he carrying marijuana. bag Detective Henning frisked Cotton for none; however, weapons and found he did recover a bag marijuana time, from At pocket. Cotton’s Cotton was formally arrested.

I. Amendment, The Fourth applicable through to the States Amendment, the Fourteenth provides “the right houses, people to be secure in their persons, papers, effects, against unreasonable searches and seizures shall not Const, be violated----” U.S. amend. IV. The Fourth Amend- not, however, ment is a guarantee against all searches and

269 v. United States seizures, that are unreasonable. only those 1568, 1573, 675, 84 L.Ed.2d 682, 105 S.Ct. 470 U.S. Sharpe, a (1985). any person, seizure of whether 605, “Generally, 613 cause.” detention, by probable supported must be arrest or (1999), 532, 938, 527, 941 State, Md. 727 A.2d v. 353 Stanford 2593, 700, 101 69 Summers, at L.Ed.2d 452 U.S. at S.Ct. citing 200, 208, York, 442 99 S.Ct. 348; v. New U.S. Dunaway at (1979). The 2254, 824, Supreme 832-33 2248, 60 L.Ed.2d proba Court, however, exceptions has created “certain 532, 353 A.2d at Md. at 727 requirement.” Stanford, ble cause Ohio, Terry frisk” v. and under “stop These include 1868, 1884-85, 889, 911 1, 20 L.Ed.2d 30-31, 88 S.Ct. 392 U.S. suspicion “reasonable (1968), have where activity presently and armed is criminal suspect engaged 532, 941; at Stanford, 353 Md. 727 A.2d dangerous.” and 873, 881, 422 v. U.S. Brignoni-Ponce, also United States see (1975) 607, 2574, 2580, (holding that 45 L.Ed.2d 616 95 S.Ct. they reason may lawfully stop agents persons Border Patrol immigrants question them suspect being illegal ably Williams, 407 citizenship); Adams about (1972) 1921, 1923, (extending 32 L.Ed.2d S.Ct. on to a based a reliable informant’s holding Terry stop illegal might carrying defendant armed tip drugs). in Michigan an Supreme exception

The also created Summers, 692, 101 452 U.S. S.Ct. L.Ed.2d “a for found that search where the Court warrant cause probable implicitly carries with contraband founded of the authority occupants premises it the limited detain Id. proper being search conducted.” while In so doing, L.Ed.2d at 351. the Court noted (1) for justifications such detention: three law enforcement fleeing contraband be suspect from should preventing (2) officers”; found; of harm to the “minimizing the risk (3) an facilitate gaining “occupants” the assistance search, example locked doors orderly by opening quick Id. at 101 S.Ct. at L.Ed.2d or containers. Court, however, open left question who 349-50. and, can be characterized as properly “occupant,” as we Stanford, split authority noted there now exists Stanford, jurisdictions of Summers. to the many scope 535, at 942. Md. at 727 A.2d

In Stanford, we noted that there are three ap different Summers. First, to Id. proaches applying jurisdictions some limit Summers to solely premises the actual residents of the See, Reid, States v. e.g., United searched. being 997 F.2d denied, cert. 1576, (D.C.Cir.1993), 1132, 1579 510 114 U.S. Carrasco, 1105, (1994); State v. L.Ed.2d S.Ct. 127 417 147 Williams, 558, v. 1231, (1985); State Ariz. 711 P.2d 1234 665 Burbank, 112, v. (La.Ct.App.1995); People So.2d 115 137 denied, 266, 348, (1984), cert. Mich.App. 358 N.W.2d 349 469 1190, 962, Lippert v. (1985); 105 83 967 U.S. S.Ct. L.Ed.2d State, 712, 664 S.W.2d 720 Another (Tex.Crim.App.1984). jurisdictions has group property held that visitor to the detained under Summers unless not be may police can “the articulable point reasonably facts associate visitor activity investigated residence or criminal being Stanford, 536, in the warrant.” at at 353 Md. 727 A.2d 943. exists, To such a determine whether connection these cases recognized have “that must make minimal intrusion to see, Id.; e.g., v. Mon Baker identity.” ascertain visitor’s roe Township, 50 F.3d 1186, 1192 (3d Cir.1995); States United McEaddy, v. 464, (E.D.Mich.1991), sub F.Supp. 780 471 aff'd Fountain, v. nom. United States 2 F.3d 656 cert. (6th Cir.), denied, 1014, 608, (1993); 510 114 126 U.S. S.Ct. L.Ed.2d 573 Glaser, v. People 354, 425, 11 Cal.4th 902 Cal.Rptr.2d 45 P.2d State, v. 729, (1995); Claffey 455, Ga.App. 734 209 433 S.E.2d 441, 335, aff'd, (1993); 442 211 439 Ga.App. S.E.2d 516 Graves, 89, 971, State v. State v. (1994); 119 N.M. 888 P.2d 974 Schultz, 130, 735, State (1985); 23 491 App.3d Ohio N.E.2d 739 Curtis, v. 604, 964 S.W.2d 612-14 (Tenn.Crim.App.1997); State Broadnax, (1982). v. 289, 96, 98 Wash.2d 654 P.2d 103 Final jurisdictions a third ly, group of defines most “occupant” broadly to all include visitors within or viewed dwelling, it, leaving provided that the law enforcement at stake interests See, United outweigh of the police e.g., level intrusion.

271 denied, (7th Cir.1990), Pace, cert. 1239 F.2d v. States (1990) (noting L.Ed.2d 795 subject building that Pace was detained within (9th F.2d warrant); Taylor, States United Cir.1983) of the visitor who the detention (permitting N.W.2d dwelling); Phipps, State leaving observed (same). (Iowa Ct.App.1995) “synthesis” be adopting claims to Majority “reasonably articulable approaches: requiring latter one two or criminal the residence facts associate visitor with warrant,” Stanford, in the search activity being investigated any visitor permitting and the other 727 A.2d if enforcement the “valid law to the searched premises intrusion.” Id. “the nature of the outweigh interests” test, the this Ultimately, applying A.2d after safety threat concludes that the inherent Majority permitted this warrant during execution however, conclusion, This during detain the search. Cotton de- surrounding Cotton’s the circumstances mischaracterizes tention.

I that the standard Majority appropriate with the agree Majori- suspicion.1 require should reasonable articulable 589-91, Nieves, 861 A.2d 72-73 1. In State v. 383 Md. suspicion,” it we articulable is: said "reasonable “ demanding is a standard being more than a ‘mere hunch' but less showing considerably requires less than probable than cause and discussing concept of reason- preponderance of the evidence. that, opined suspicion, Supreme has the United States Court able suspicion” "probable and ‘[ajrticulating precisely what “reasonable 'commonsense, possible,’ but are mean is not such terms cause” conceptions practical that deal with "the factual and nontechnical prudent everyday and life on which reasonable considerations men, "’ whether legal act.” A determination of technicians by looking at suspicion justify made exists to a search is reasonable regard, totality stated: In this of the circumstances. discussing reviewing make how courts should reasonable- When determinations, they repeatedly that must we have suspicion said whether “totality of each case to see of the circumstances” look at objective for "particularized basis” detaining and officer has wrongdoing. process officers to draw on suspecting This allows and experience specialized training to inferences from make own ty, support of its conclusion that reasonable articulable suspicion existed that the to police safety threat was so great as to justify detaining everyone inside the dwelling outside the property, states: here, executing a warrant such as that [I]n issued for a premises be an open-air drug known to market where the police are encounter likely people may who well be entitled, dangerous, they are for their safety own and that persons, and, of other to take command of the situation for except persons clearly who are unconnected with any criminal activity present and who no clearly potential dan- ger, essentially until, immobilize everyone acting with rea- expedition, sonable they know are confronting. what Maj. 872 A.2d at op. Although Majority pays lip service to the standards reasonable articulable suspicion and the use of a test balancing comparing law against individual, enforcement interests those it is actually creating a all standard which individuals present presumed are and in suspicious, which the person being detained bears the of proving burden a lack of wrongdoing. Cotton, house, who was outside the did not give any suspect posed danger them, reason to that he that he was involved criminal activities arrived at when flee, did not property, cooperated fully with instructions from the officers who him him handcuffed and sat on the circumstances, ground. would, then, Under these a person tow, diaper bag with a and toddler in or a teenager with a bag book curious about the scene suspected have been danger a to or posing police possibly being involved criminal There activity? was no indication from his or appear- conduct ance that Cotton possessed weapons contraband. One hard pressed would be to other imagine conduct which deductions about the cumulative information to available them that "might person.” well elude an untrained (Internal omitted). citations to no the danger posed he proven could have Cotton police. to danger posed the to assert that disingenuous

It is to war magnitude as was of such under circumstances such in some merely present all persons rant the detention of number overwhelming the the premises. Surely, on capacity need to any such property dispelled the small of officers on overwhelming of the light In in a detention. engage wholesale size of the the diminutive officers at the scene and number of faith that the argue cannot in Majority good the property, being free interest outweighed threat Cotton’s Moreover, the charac apart from from a seizure. warrantless market,” and drug as an premises “open-air terization of the no thereon, point can facts Majority the presence Cotton’s to reasonable articula give rise specific to Cotton would As to them. posed danger suspicion ble Cotton Illinois, in Ybarra v. 444 U.S. Supreme Court stated propinquity “a mere person’s 62 L.Ed.2d 238 S.Ct. activity does suspected of criminal independently to others more, not, to search that probable rise cause give without 342, 62 L.Ed.2d person.” Id. Therefore, justification Majority’s I no under the so- can find called test under Summers. “hybrid”

Furthermore, is in that it Majority’s position troubling beyond provides guidance spatial no boundaries case, longer applies. present no which Summers building, but still Cotton detained outside Although a few feet from front property. only Cotton door, no as to Majority guidance whether provides standing the same if been result have been Cotton had would residence, on property, on the public sidewalk front merely delivering or if had been common carrier he of being or food to the house and had misfortune package Majori- the warrant was executed. Under present when check on the reasoning apparent power there is no ty’s lack of anyone, regardless any to detain of their obvious persons upon to the and the meaningful property connection Although it claims to being executed. whom warrant suspicion balancing on reasonable articulable relying test, has not a Majority pointed single beyond fact presence justify Cotton’s its conclusion. Pringle, Maryland U.S. S.Ct. (2003),

L.Ed.2d 769 the Supreme recognized impor- tant a space distinction between confined and one that is incrementally with existence of larger respect probable to the cause: car passenger unwitting tavern patron “[A] —unlike in Ybarra —will often be in common engaged enterprise driver, the same in concealing have interest the fruits or the evidence of their Id. at wrongdoing.” 124 S.Ct. 801, 157 at 776-77. L.Ed.2d The same difference operates the facts judice. of the case sub Absent indication Cotton was in or possession weapons prior contraband detention, his presence his mere not sufficient to create nexus with the underlying reasons of warrant so as justify his detention when he is neither an of a occupant dwelling.2 vehicle or a To effectively hold otherwise would render the requirement reasonable articulable for a suspicion lawful Terry stop nullity. conclusion,

In support Majority of its cites the recent Mena, Supreme U.S.-, Court case of Muehler v. S.Ct. 161 L.Ed.2d 299 so case analogous to the at bar as to mandate the conclusion that Cotton’s detention is, however, was lawful. There be- significant difference tween the circumstances Muehler those in the present case. The facts in Muehler are as follows: 3,1998,

At February 7 a.m. on officers whom Ms. [the Mena sued], officers, team other along with SWAT execut- aed asleep warrant. Mena was in her bed when the SWAT team, clad in helmets and badges black vests adorned with “POLICE,” and the word entered her bedroom placed her in at gunpoint. handcuffs The team hand- SWAT also cuffed three other individuals on the property. found SWAT team took then those and Mena into a individuals spatial aspect 2. The of arrests of individuals vehicles continues to pose significant questions, Pringle. even after (2003). 157 L.Ed.2d 769 some beds and contained several garage, which converted one proceeded, the search furniture. While other bedroom detainees, al- four who were guarded two officers in hand- remained garage to move around the but lowed cuffs. 1468, at

Muehler, at-, 161 L.Ed.2d at 544 125 S.Ct. U.S. at 7 a.m. asleep in a bedroom -. Ms. Mena was discovered in the that she was family. in a her fact by home owned her and connection between significant house creates unlike Cotton. property, Mr. judice, the case sub apprehended in was Cotton

Conversely, never had police on the dwelling premises, outside the There of surveillance. during years him there observed presence other than Cotton’s absolutely no fact of the warrant during the time of the execution location allegedly wrongdoing him the home or the connecting Muehler, Ms. there. the circumstances occurred Under home, the to the clearly passing more than a visitor Mena was in a being involved gang suspected of a member residence used that the level force drive-by shooting, so be reasonably justified of the detention could length not do Those same connections necessary police safety. such, of force exist in the case and as a similar level present supported cannot be on these facts.

II. Michigan v. Chester Supreme The United States Court nut, (1988), 1975, set 567, 100 565 108 S.Ct. L.Ed.2d 486 U.S. person has been forth the test used to determine whether Id. Amendment. meaning within the of the Fourth “seized” 573, 1979, That test L.Ed.2d at 571-72. 108 S.Ct. at 100 to have seized establishes that “the can said if, in of all of the circumstances surround ‘only individual view incident, would have believed ing person a reasonable Id., v. United States quoting he to leave.’” was not free Mendenhall, 1877, 544, 554, 1870, 64 446 100 U.S. S.Ct. (1980). a de 497, a seizure L.Ed.2d 509 Whether facto 276 “

arrest turns on whether there was a ‘restraint on freedom movement’ of the degree associated a formal arrest.” 318, 322, Stansbury California, 1526, U.S. S.Ct. 1529, 128 293, (1994), L.Ed.2d v. Behel quoting California er, 1121, 1125, 3520, 463 U.S. 103 S.Ct. 77 L.Ed.2d (1983), Mathiason, quoting Oregon turn 429 U.S. 492, 495, 711, 714, (1977). 97 S.Ct. L.Ed.2d York, v. New Dunaway 99 S.Ct. L.Ed.2d 824 the Supreme applied its test for seizure and arrest under the Fourth Amendment and found that Dunaway’s because, seizure constituted a de arrest facto “although arrest, he told he was under he would have been he physically attempted restrained if to leave.” Id. 60 L.Ed.2d at 830. Dunaway was car, a police taken station in was not tha aware t go,” he was “free to and would have been physically restrained Court, had he to leave. Id. attempted to the these According clearly circumstances indicated that Dunaway being was not rather, Terry, detained as in but subject envisioned was to an Moreover, arrest. Id. that stated “differences form a [of de must not be exalted over sub arrest] facto 215, 2258, stance.” Id. at 99 60 at L.Ed.2d Generally, this Court has defined an arrest as taking, “the seizing another, alia, or detaining of the inter person by an that an act indicates intention to take him custody into subjects him the actual control person and will of the State, making 602, 611, the arrest.” v. Barnhard 325 Md. 602 701, (1992), State, 485, 510, A.2d 705 Little quoting v. 300 Md. 903, State, 479 A.2d 915 quoting turn Morton v. 284 526, 530, (1979). 1385, Md. 397 A.2d 1388 indicat action an intention to ing custody take into includes the “touching or State, putting hands on suspect].” [the Bouldin 276 Md. 511, 130, 133 (1976). A.2d 350 In determining whether an is investigatory detention actually requiring an arrest cause, probable courts must consider “totality S., 523, 535, circumstances.” See In re David 367 Md. 607, (2002); State, 376, A.2d Ferris 355 Md. (1999). circumstances, A.2d the totality Under of the See single dispositive. factor that no recognized have we Ferris, 614; 355 Md. S., Md. 789 A.2d David re A.2d at 501. S., asked to this Court was in In re David Recently, tantamount to of David S. was “the seizure determine whether cause,” it amounted or whether probable requiring an arrest case, In that at 609. Id. at A.2d Terry stop. to a S. and observed David surveillance conducting companion, object to his building, from a show come behind object into dealer, and a stuff drug believed who was 611. Police believed 789 A.2d at Id. at his waistband. therefore, David S. object stopped weapon, to be ground, on the them to lie face down companion, his forced drawn, the officers guns them. Id. With and handcuffed one felt was believed Id. After officer what searched David S. object waistband. from David S.’s gun, to be a he removed object, found containing Upon opening bag Id. Id. cocaine. had rea- that the appeal, this Court determined

On facts, to believe by articulable suspicion, supported sonable committed, commit, a attempting had that David S. was Id. at crime, he gun his waistband. Moreover, not stop A.2d at 616. we held reasonably the police to a formal arrest because tantamount to justify threat so as posed safety S. believed David Therefore, under the Terry. Id. the use of force under circumstances, although we determined totality severe, investigatory stop intrusion it did convert the arrest under Fourth into the of a formal equivalent 611. Id. at 789 A.2d at Amendment. 642, State, facts in Lee v. 311 Md. A.2d the

Similarly, (1988), as those circumstances found are also instructive In an arrest. investigatory stop to convert an into insufficient Lee, tip providing specific to an police, responding anonymous information the weapons suspects’ the of and presence about crime, aof in a violent conducted surveillance involvement 651, A.2d at 239. of Id. group playing men basketball. Police, armed, some of whom were basketball swarmed the ground.” court and ordered the men to “lie face on the down men, Id. The officers frisked the and the young one of officers a gun in a had been gym bag by found described anonymous informant. Id. and men Lee two other were 652, arrested. Id. at A.2d at 239.

After analyzing reliability provided information informant, anonymous this determined that informant’s information provided police “high de- gree of and suspicion [suspects] reasonable articulable that the were the carrying gym robbers and were in the handgun bag.” Id. at A.2d at 242. held that Ultimately, we the police because had reliable information that the suspects armed, and detention lasted no than more two minutes, the guns justified. use of and a hard take down were Therefore, Id. at 537 A.2d 247. we determined that Terry the detention was under and rise to proper did not of a de level arrest. Id. facto Evans, State Md. A.2d 423 we circumstances,

concluded that totality under Rowell, detention at issue a de arrest. Officer facto of a part police operation, purchased dime-bag cocaine using from Evans traceable Id. at currency. 723 A.2d at 425. The ways, two then parted Officer Rowell called vicinity other officers in the Evans. stop Id. The officers searched Evans and recovered the marked bill from Officer Rowell nine vials cocaine. Id. at 723 A.2d did not take Evans to the station nor did Id., him. they formally charge 723 A.2d at 426. Evans When eventually formally arrested, he was charged convict- ed of distribution of cocaine and possession cocaine with an intent to distribute. Id. 723 A.2d at 426. circumstances, After considering totality we determined that Evans’s detention to a was tantamount formal arrest. Id. at A.2d To at 432. our conclu- support sion, emphasized restrained, we that Evans was physically subject custody control, significant detained for a verified, and searched could be identity of time until his period Based at 432. Id. at 723 A.2d and photographed. of facts, initial [Evans] stated that “the [detention] those we not, did howev- Id. We by arrest].” the constituted police [an that er, because we determined illegal find that arrest to be arrest, formal, by probable supported not was although the at 432. cause. Id. at 723 A.2d our from distinguishable in Evans and Like our conclusion Lee, bar, I the believe in S. and in case decisions David “investigatory of the circumstances totality under an arrest because tantamount to detention” Cotton was of the were on his and the conduct restraints freedom with a formal arrest. consistent upon descended

Specifically, twenty to officers twenty-five Avenue, surrounding Brooklyn dwelling property two to three very big.” standing not Cotton was which “was door, in accordance with feet from the front where weapons drawn. procedure, entering officers were or bucket near log Cotton was handcuffed and sat on residence, least guarded porch being front while Cotton, he one Detective Henning approached officer. When rights. Henning read him his testified Miranda Detective from cooperative nothing and that there was Cotton was contraband appearance possessed Cotton’s to indicate that he totality or weapons any Considering sort. time,

circumstances, as to the officers they appeared Cotton, him under and Mir- handcuffing placing police guard, him, overwhelming number in of an andizing presence officers, suspicion without reasonable articulable Cotton was tantamount possession weapons, contraband to an arrest. Court’s decision Majority upon Supreme relies 675, Sharpe,

United States twenty-minute that a proposition L.Ed.2d 605 misplaced. not de This reliance is stop arrest. fazto Sharpe Supreme When the determined unreasonable, it not twenty-minute stop at issue was rule, a per se announcing as the Court’s opinion emphasized. In Sharpe, car following suspicious and truck on highway. Id. at 105 S.Ct. 84 L.Ed.2d at 610. When the police indicated the driver of the car to pull over shoulder, scene, onto the the truck the narrowly missing fled a Id. patrol car. On the of appeal, Sharpe challenged length the as of a Terry stop indicative de Id. at arrest. facto 84 L.Ed.2d at 613. The Supreme Court stated making determination, that in its it was to exam “appropriate ine the police diligently whether a means of pursued investiga tion that likely was confirm or dispel suspicions quickly, during the time it necessary was to detain the defen dant.” Id. at 105 S.Ct. at 84 L.Ed.2d at 615-16. Court, question, The the stated the “whether acted unreasonably failing recognize alter pursue [an nate, less intrusive means].” Id. at 105 S.Ct. at Ultimately, L.Ed.2d at 616. Supreme the Court concluded delay that the the detention the of result the actions of Sharpe and his co-defendant rather than unreasonable recognize alternate, failure to any less intrusive means. Id. at 105 S.Ct. at In present L.Ed.2d the case, twenty-minute indicia, delay is one more in a host of factors, yield collectively conclusion Cotton was under arrest.

In bar, similar factually case to the one at Baker (3d Cir.1995), Township, Monroe 50 F.3d 1186 an action brought § under 42 U.S.C. the United States of Appeals Court for the Circuit Third concluded that case, detention at issue was also de arrest. facto Bakers Griffin, were outside home of Clementh Mrs. son, Baker’s when police upon descended property execute a “no-knock” search warrant. Id. 1188. As the door, Bakers approached the front officers ran in front drawn, guns of them with “Get Id. at 1189. shouting, down.” The Bakers were ground then forced to the and remained there, handcuffed, twenty-five for minutes. Id. of Members family the Baker then subjected were to a search. Id. circumstances, the Third totality of the Examining the and, of guns that “the use handcuffs determined Circuit detention, very substantial indeed, length shows at 1193. security.” Id. personal Bakers’ invasion no Moreover, simply held “there evidence [was] the court to use the caused the officers that should have anything Therefore, to have used.” Id. alleged kind of force are support that the facts the case would determined court rights Bakers’ Fourth Amendment that the finding violated. the circumstances Majority, concerning in its analysis

The detention, particularly persuaded by surrounding Cotton’s reasoning Tenth Circuit’s Appeals United, Cir.2004). Maddox, (10th F.3d See States the Tenth Circuit in Maj. at 15-16. facts before Op. case distinguishable from those in the easily Maddox are behav- potentially exhibited erratic and violent bar. Maddox detention, leading officer during ior to his at prior both and to deadly him threat” the scene to consider “a critical and here, compliant safety. Conversely, Id. Cotton was officers’ demands, behaving abnormally, not the officer’s was specific on the scene had no reason believe that the officers his posed any safety beyond presence he mere danger Moreover, or at scene. Maddox handcuffed was Mirandized, whereas Cotton this case. courts, Majority to characterize various in attempts

The stating, unambiguous cluding Special Appeals, the Court of gratuitous “a cautious or recitation of Miranda warn ly, that arrest,” there been an ings is irrelevant to whether has State, 459, (1978); cites v. 39 387 297 Sydnor Md.App. A.2d State, 361, (1975); v. 341 A.2d 294 Cummings Md.App. 27 Alicea, 144, 506, (1978); Mass. 381 N.E.2d 149-50 Com. v. 376 158, 262, 68 Ill.2d 11 Ill.Dec. 368 N.E.2d 870 People Wipfler, v. Dozier, 388, 24 (1977); People Ill.App.3d 67 Ill.Dec. 385 (1979); v. Diaz- N.E.2d United States cf. (11th Cir.1993). Lizaraza, Maj. Op. 981 F.2d See assertion, however, This distorts the actual grossly in the reasoning opinions contained cited therein. cases merely cited by Majority support proposition that Miranda alone is not sufficient transform non-custodial interrogation into a interrogation custodial lawful deten de Sydnor, see arrest, tion into a Md.App. facto that “Miranda 387 A.2d at 301 ... (stating warnings [do not] convert an operate to non-custodial situation otherwise into a one”); Cummings, custodial 341 A.2d at Md.App. “ 304 (determining custodial situation ‘[A] cannot created modified Miranda by ”), the mere of giving warnings’ quoting Akin, (5th United States Cir.1970); 435 F.2d Alicea, 381 N.E.2d 149-50 (providing imparting “[t]he Miranda warnings was not tantamount or suggestive case); an arrest” under the circumstances of that Wipfler, Ill.Dec. at 875 (holding N.E.2d custodial “[a] Miranda situation cannot be created mere giving Dozier, warnings”); Ill.Dec. 385 N.E.2d at 158 (stating fact that Miranda warnings given only “[t]he is indicative of cautiousness officers not determi custodial”); Diaz interrogation native whether the Lizaraza, holding 981 F.2d at 1222 “mirandizing detain Terry stop ”, ee convert a ... does not into an arrest rather than the proposition that Miranda as to “irrelevant” wheth er an individual is Miranda is not Although arrested. disposi arrest, be, tive as to the existence of an it and nor should it must be considered rest of with the the circumstances sur rounding interrogation a detention and the totality under the circumstances standard. I would

Because find that Cotton’s detention resulted in a de arrest, I would address whether arrest was facto justified warrant, under the provisions “no-knock” not, if independent whether there was cause probable for the arrest.

The “no-knock” warrant in executed the instant case named three police arrest, individuals who the to empowered permitted also them to all persons “[a]rrest found in or upon premises said and vehicles who are in participating violations of statutes hereinbefore cited.” This Court has interpreted meaning of this language past. in the In our (1963), State, 194 A.2d 80 we in Md. opinion Griffin is provision determined that above-stated to duties perform than a to more directive [N]o in any command perform in the absence they that should a effect; in the execution of namely, that to that warrant committing person arrest all they warrant should search arrest, and, after valid presence, misdemeanors incident thereto and as an may search the arrestee to the criminal pertains any relevant evidence seize of said arrestee. activities case, the police A.2d 82-83. In the present

Id. at that he until Cotton’s de arrest did not know facto after rely The State cannot committing presence. crime in their arrest.3 justify Cotton’s on directive the warrant Therefore, of the warrant does provision I find this would cause for probable justification independent not provide Cotton’s arrest. legal it must be based arrest to be

For warrantless 369, 124 Pringle, 540 U.S. at probable cause. See probable cause standard (describing at 774 157 L.Ed.2d rash “citizens from and unfounded protect “long-prevailing” charges from unfounded privacy interferences with 2254, 60 crime.”); 99 S.Ct. at Dunaway, 442 U.S. at the limited (observing prior excep- L.Ed.2d 832-33 cause was the standard Terry, probable tion carved out Amendment). have held all under the Fourth We seizures if a warrant that a officer can arrest an accused without crime has been probable the officer has cause believe in the officer’s being pres- an individual committed Wallace, 137, 147, 812 A.2d 372 Md. ence. State v. 591, 611-12,

(2002); State, 556 A.2d 315 Md. Woods Any argument good provisions on the in the based on faith reliance controlling opinion also fail tlie has been warrant must because Griffin Hatcher, 507, 531-32, Md. pursuant to since Benik v. presumed to 23-24 officers are know A.2d limitations of warrant. 284 State,

(1989); Nilson 184, v. 179, 301, Md. 321 272 A.2d 304 (1974).4 cause, stated,

“Probable frequently we have is a nontechni cal of a conception ground guilt.” reasonable belief of Wallace, 148, 297-98, at quoting Doering 372 812 A.2d at Md. State, v. 384, 1281, 1290 (1988); 403, 313 Md. Pringle, 545 A.2d 799, 157 370, 124 775; at Edward 540 U.S. S.Ct. at L.Ed.2d at State, 136, (1966). sen v. 131, 547, 243 Md. 220 A.2d 551 A of finding probable requires cause evidence less than neces conviction, to a sary sustain but more evidence than would Wallace, 148, merely suspicion. arouse Md. at 812 372 A.2d at Woods, 298; 611, 246; 315 Md. at at Sterling 556 A.2d State, 240, 245, (1967); Edwardsen, 711, 248 Md. A.2d 235 714 243 Md. at 220 at A.2d 550. Our determination of probable a requires whether cause exists nontechnical com mon sense evaluation of totality circumstances in a given light situation in by of the facts found to be credible 403-04, judge. Doering, 313 Md. trial 545 A.2d at 1290-91. Probable cause exists where facts and taken circumstances as a whole lead a reasonably person would cautious to believe that a been felony being or is committed person Pringle, arrested. 124 S.Ct. at (2001), § 4. Md.Code 2-202 of the Criminal Procedure Article states: § general 2-202 Warrantless arrests —In (a) presence police Crime police committed in officer officer.—A may person attempts arrest without a a warrant who commits or felony presence commit a or misdemeanor or the view within police officer. (b) Probable presence cause believe crime committed in of offi- police probable felony cer.—A officer who has cause to that a believe being presence or misdemeanor is committed or within the police may any person view the officer arrest without warrant police reasonably whom the officer believes to have committed the crime. (c) felony Probable cause believe committed.—A officer with- may person probable out warrant arrest a if the officer has felony attempted cause to believe that a has been committed or person attempted felony has committed or to commit the whether presence not in or within the view officer. Maryland This section is declarative of the governing common law State, 675, 679, warrantless arrests. Collins v. 322 Md. A.2d Woods, (1991); 315 Md. at 556 A.2d at 246. 298; Wallace, 775; 812 A.2d 372 Md. L.Ed.2d at State, 246; Woods, A.2d at Duffy Md. at (1966). Therefore, 425, 432, justify 221 A.2d Md. specific to articulable point must arrest the warrantless from those rational inferences which, taken together facts Wallace, Md. facts, the intrusion. 372 reasonably warranted Collins, 298; 680, at at 148, Md. 589 A.2d A.2d at 322 at 812 cause in a probable had officer 481. To determine whether arrest, reviewing case, probable to “the here cause specific to the relate the information known necessarily must court of the offense that officer believed officer to the elements Wallace, at 148- 372 Md. or had been committed.” being was Davis, 18, 32, 298; Md. 729 A.2d 49, 354 at DiPino A.2d (1999). 354, 361 arrest bar, in order for warrantless

In case at Cotton’s at the cause valid, probable the officer must have to be aof possession arrest to believe Cotton was time Section weapon. or concealed dangerous substance controlled (u) “possession” Law Article defines 5-101 of the Criminal a or control over actual or constructive dominion “exercising] (2001, Supp.), or more Md.Code thing by persons.” one 5-101(u) Law Article. § Criminal State, 322 Md. 589 A.2d 479 we Collins v. for arrest involving pos- situation a warrantless addressed a subsequent challenge to cause drugs probable session case, on September In that at 3:00 a.m. for that arrest. Salisbury Department of the Police Officer Holmes standing by Mustang parked men a Ford grey five observed car Id. 589 A.2d dealership. at the entrance officer, the scene Ewing, Officer arrived at 479-80. A second and, 35mm film Mustang, back on the seat saw dangerous canister, he contained controlled which believed men Ewing one of the substances. Id. Officer asked the car him. the man the canister from Id. When retrieve his, told him Ewing the canister Officer stated that contents, it him the which turned out open and show powdered of a substance cellophane packets over white twenty Id. at to be cocaine. A.2d that the officer believed 480. All five then men were arrested for the possession suspected cocaine. Id. suppression

At his hearing appeal, Collins main- no probable tained that there cause for his arrest because offender, the mere of an to an proximity accused or to evidence, incriminating would be insufficient to find the exis- probable tence argued cause. Id. He that there must be some factual basis to suspect believe committed crime that suspect may before be arrested legally, and mere more, without suspicion, would not establish cause. probable Id.

In our determination lacked cause probable Collins, to arrest discussed the Supreme we Court case of Re, United States v. Di L.Ed. (1948). Re, Id. at A.2d 481-82. In Di Court held “we are not that a person, by convinced mere car, in presence a suspected loses immunities the search from of his he person which would otherwise be entitled.” Id. at 589 A.2d at 68 S.Ct. 92 L.Ed. at 216. The Court

explained:

There is no that it evidence is a fact or that officers any indicating information that Di Re was in the car when Buttitta, coupons Reed obtained ration from and none that he heard or took in part any conversation on the sub- ject. ... An of inference in participation conspiracy does not by seem to be particular sustained the facts to this case. argument that one “accompanies who a criminal to a crime rendevous” cannot be assumed to be bystander, circumstances, enough forceful in some is farfetched when meeting is not secretive or in a suspicious hide-out but in daylight, plain broad in of in sight passers public by, city, street large where the alleged substantive crime one which does not necessarily any act involve Di visibly criminal. If Re had witnessed the passing hand, from papers hand to it not would that he follow knew they coupons, were ration and if he they saw that coupons, ration it not would follow he know them would to be counterfeit. require expert at the trial to it appeared

Indeed that fact.... establish at 219-20. 92 L.Ed. Re, 68 S.Ct.

Di 332 U.S. in case, Collins relying holding our upon In the present Re, I hold that in Di would holding Supreme Court’s exist at the time did not cause arrest Cotton probable of surveillance years their four During de arrest. facto Avenue, never observed Brooklyn at 329 residence “no-knock” executed property. Cotton at When Re, in Di identity. As warrant, not know did Cotton’s yard, by a public in the daylight, arrested in broad Cotton was him Police did not observe street, sight by. plain passers detaining conduct, the sole basis illegal engaged any Jones, known about who was from information Cotton derives no evi- near him when arrived. There was standing the home or to the linking persons Cotton to criminally dence Re, in Di As Court noted Supreme warrant. named from indulged to be guilt lightly are not “[pjresumptions Re, Di mere meetings.” de not until after the

L.Ed. at Probable cause did arise mari- incident to arrest revealed arrest and search facto person. juana on Cotton’s

Therefore, that, totality I find under the because would circumstances, facts Cotton’s surrounding detention arrest, under permitted constituted de which was facto cause, supported probable the warrant and was not would drugs of Cotton’s statement and the suppress admission per- during Henning’s recovered Detective search of Cotton’s tree, poisonous son fruit of the and reverse decision the Court Special Appeals. me to Judge Judge

Chief BELL and GREENE authorize they join opinion. state that this

Case Details

Case Name: Cotton v. State

Court Name: Court of Appeals of Maryland

Date Published: Apr 11, 2005

Citation: 872 A.2d 87

Docket Number: 29, September Term, 2004

Court Abbreviation: Md.