State of Maryland v. Kennard Carter
No. 74
IN THE COURT OF APPEALS OF MARYLAND
January 29, 2021
September Term, 2019
Opinion by Biran, J.
State of Maryland v. Kennard Carter, No. 74, September Term, 2019. Opinion by Biran, J.
CONSTITUTIONAL LAW – FOURTH AMENDMENT – SEIZURE – The Court of Appeals held that a Maryland Transit Authority (“MTA“) police officer seized Respondent within the meaning of the Fourth Amendment when the officer announced a fare sweep aboard a Baltimore Light Rail train after it arrived at a station. A reasonable passenger would not have felt free to leave the train without first displaying proof of fare payment, or the lack thereof, to the officer.
CONSTITUTIONAL LAW – FOURTH AMENDMENT – IMPLIED CONSENT – The Court of Appeals held that Light Rail passengers do not impliedly consent to be seized in a fare sweep. No signs or other notices inform riders that they may be subject to a seizure aboard the train. In addition, the Light Rail differs from military bases, airports, and other facilities where individuals who enter reasonably expect that they may be subject to search and seizure for security reasons.
CONSTITUTIONAL LAW – FOURTH AMENDMENT – SPECIAL NEEDS DOCTRINE – The special needs doctrine is a recognized exception to the Fourth Amendment‘s warrant requirement. Under that doctrine, a program of warrantless searches or seizures undertaken without reasonable suspicion may be constitutional if the primary purpose of the program is to further a governmental interest besides the detection of ordinary criminal wrongdoing. The Court of Appeals held that the record of the suppression hearing was insufficiently developed to determine the primary purpose of a fare sweep and, therefore, whether the special needs doctrine renders MTA‘s program of fare sweeps constitutional.
CONSTITUTIONAL LAW – FOURTH AMENDMENT – ATTENUATION – The Court of Appeals held that, assuming (without deciding that) Respondent‘s seizure was not constitutional under the special needs doctrine, the discovery of an open warrant for Respondent‘s arrest did not attenuate the taint of the illegal warrantless seizure. The discovery of a warrant does not attenuate the taint of an unconstitutional seizure conducted under an agency program, where one of the directives of the program requires officers to search for open warrants.
Circuit Court for Baltimore City Case No. 117303014 Argued: September 15, 2020
Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.
Opinion by Biran, J. Watts, J., concurs.
Filed: January 29, 2021
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
Suzanne Johnson 2021-01-29 13:55-05:00 Suzanne C. Johnson,
Several million passengers ride Baltimore Light Rail (“Light Rail“) trains each year. There is no turnstile to pass through before boarding a Light Rail train. Nor does anyone check passengers for proof of fare payment before they get on a train. Thus, it is possible for a person to board a Light Rail train without paying the required fare. However, Maryland Transit Administration (“MTA“) police officers routinely check whether passengers on Light Rail trains who are required to pay the fare have done so. One of the methods that MTA police officers have used to make this determination is a “fare sweep.” In a fare sweep, after a train has arrived at a station, MTA officers simultaneously board each car of the stationary train and announce that all passengers must show their tickets or passes. If a passenger does not produce proof of fare payment, the officer at that point directs the passenger to leave the train and to speak with another officer who is waiting on the platform. Once all non-paying passengers have stepped off the train, the train departs the station. On the platform, officers then obtain identification from the non-paying passengers, conduct warrant checks on those passengers, and issue a $50 citation to each passenger for the criminal offense of fare evasion. If a non-paying passenger is not the subject of an outstanding warrant, the passenger is then free to leave.
On the evening of October 2, 2017, MTA police officers conducted a fare sweep aboard a Light Rail train after the train arrived at the Mount Royal station in Baltimore City. After an officer announced that she was checking all riders for tickets, Respondent Kennard Carter approached the officer and told her that he did not have a ticket. The officer then directed Carter to step off the train. After Carter did so, an officer on the platform obtained identifying information from Carter and ran a warrant check on him, which revealed
Carter moved to suppress the gun and other evidence allegedly found by officers after Carter left the Light Rail train, arguing that the fare sweep constituted a seizure without reasonable suspicion to believe that he had evaded payment of the fare. The circuit court denied Carter‘s suppression motion, finding that the officers did not seize Carter prior to his admission that he lacked a ticket. Alternatively, the circuit court ruled that, if officers unlawfully seized Carter, the discovery of the arrest warrant attenuated the taint of the
On appeal, Carter renewed his argument that the fare sweep constituted a warrantless seizure not based on reasonable suspicion. Both Carter and the State also addressed for the first time whether the fare sweep was constitutional under the “special needs” doctrine, one of the recognized exceptions to the
The Court of Special Appeals held that: (1) the fare sweep effected a warrantless seizure of Carter; (2) Carter did not impliedly consent to the seizure; (3) the seizure was not constitutional under the special needs doctrine; and (4) the discovery of the warrant did not attenuate the taint of the unlawful seizure. Thus, the Court of Special Appeals concluded that the circuit court should have granted Carter‘s suppression motion, and the court reversed Carter‘s convictions.
We largely agree with the Court of Special Appeals’ resolution of the parties’ contentions. However, we disagree with the intermediate appellate court that the record is sufficiently developed to assess whether or not the special needs doctrine renders Light Rail fare sweeps constitutional. Nevertheless, because it was the State‘s burden to establish the constitutionality of Carter‘s seizure at the suppression hearing in this case and the State failed to do so, we will affirm the judgment of the Court of Special Appeals.
I
Background
A. The Light Rail
MTA operates the Light Rail, an above-ground modern streetcar-like train system transporting passengers in the city of Baltimore and surrounding counties.1 The Light Rail services over seven million passenger trips annually.2 As the Light
B. Carter‘s Prosecution
1. The Fare Sweep and Carter‘s Arrest
On Monday, October 2, 2017 at approximately 8:05 p.m., Corporal Latoya Russell and Officer Zachary Tobin, along with other MTA police officers, were waiting on the platform of the Mount Royal Light Rail station in Baltimore City to conduct a fare sweep of the next Light Rail train to arrive at that station.3 Carter was a passenger on that train.
The train pulled in shortly before 8:06 p.m. Within seconds of the train‘s arrival, Corporal Russell and other officers boarded the two train cars. Officer Tobin and other officers remained on the platform. Once on the train, Corporal Russell announced the fare sweep, informing all passengers that she was checking tickets and advising them to have their tickets out.
In response to Corporal Russell‘s announcement, Carter approached Corporal Russell and told her that he did not have a ticket. At Corporal Russell‘s direction, Carter stepped off the train and reported to officers on the platform at approximately 8:07:23 p.m. The train left the station at 8:07:30 p.m. Officer Tobin instructed Carter to sit on a bench on the platform and asked him for identification. Carter was unable to provide identification, but gave Officer Tobin his name, date of birth, and social security number. A check of that information revealed an open warrant for Carter‘s arrest.
Based on the result of the warrant check, Officer Tobin began to place Carter in handcuffs. Carter resisted Officer Tobin‘s attempt to handcuff him and tried to flee. Carter then struggled on the platform with Officer Tobin and other officers. During the struggle, Officer Tobin saw that Carter had a handgun in his waistband. Carter attempted to retrieve the gun, which fell onto the train track during the struggle. After Officer Tobin was able to subdue Carter, the officers recovered the gun from the tracks and then searched Carter incident to his arrest, allegedly discovering cocaine on Carter‘s person.
2. The Suppression Hearing and Trial
Carter was indicted in the Circuit Court for Baltimore City on five counts: (1) possession
After Carter moved to suppress the gun and drugs that the officers allegedly discovered in the course of arresting him, the circuit court held a suppression hearing. As part of its evidentiary presentation, the State played the video recording that showed the officers boarding the train to conduct the fare sweep, as well as the aftermath of the fare sweep. Corporal Russell and Officer Tobin also testified at the hearing.
Both Corporal Russell and Officer Tobin explained that MTA officers routinely conduct fare sweeps such as the one that led to Carter‘s arrest. According to Corporal Russell, MTA officers perform such fare sweeps approximately six times per week, and they are a “standardized process.” Officer Tobin described the fare sweep as follows:
[S]ome officers board the train. Some officers stay on the platform awaiting officers as they pull patrons off of the train that have not paid fare.
....
[W]hen we board the train, we announce that we are conducting a fare inspection and we promptly ask everybody to show us their passes. Those who do not show passes are required to alight the train and seek an officer on the platform.
On cross-examination, defense counsel asked Officer Tobin: “The purpose of you checking for fare cards is to see if people paid, correct?” Officer Tobin responded, “Correct.”
Corporal Russell testified that, after announcing a fare sweep, “you check each patron for tickets.” She also explained that running a warrant check is a “part of the process” after a non-paying passenger leaves the train,4 as is issuing a $50 citation to the fare evader. In response to leading questions from defense counsel, Corporal Russell agreed that the purpose of the fare sweep was to “see if someone has committed a crime by riding the train without paying,” and that a fare sweep entails “an investigation to determine if someone broke the law as set by MTA.” Corporal Russell also agreed with defense counsel‘s characterization that “the fare checking also works as an apparatus to be able to check people for warrants as well.”
After the officers testified, Carter‘s attorney argued that Corporal Russell effected a Terry stop5 of Carter without reasonable suspicion to believe that he had evaded payment of the fare. Thus, defense counsel contended, Carter‘s admission that he did not have a ticket was the fruit of an illegal stop, and the court should suppress all evidence that flowed from the Terry stop.
The prosecutor argued that Corporal Russell did not restrain Carter‘s “liberty of movement” when she announced the fare sweep and directed all passengers to show their tickets. Thus, according to the prosecutor, Corporal Russell did not seize Carter prior to his telling her that he lacked a ticket. Once Carter admitted that he had evaded the fare, the prosecutor contended, Corporal Russell had probable cause (or at least reasonable suspicion) to detain Carter. Alternatively, the prosecutor argued that, if Corporal Russell seized Carter without reasonable suspicion, the discovery of an open arrest warrant attenuated the taint from the illegal seizure.
The circuit court denied Carter‘s suppression motion. The court first ruled that Corporal Russell “engaged in a mere accosting by announcing a fare inspection, and therefore the inquiry did not require Fourth Amendment justification.” The court stated that “the fare inspection, albeit investigatory, was not concentrated on [Carter] personally, nor was [Carter] threatened or physically touched by the MTA police officers in any way” prior to his admission to Corporal Russell that he did not have a ticket. Once Carter made5 See Terry v. Ohio, 392 U.S. 1 (1968).
that admission, the circuit court reasoned, the officers had probable cause to believe that Carter had committed the offense of fare evasion, and therefore they were permitted to detain him to give him a citation as well as to conduct the routine warrant check that led to Carter‘s arrest and the discovery of the evidence Carter sought to suppress.
Alternatively, the court ruled that, if Corporal Russell seized Carter at the outset, the discovery of the arrest warrant attenuated the taint of the unlawful stop. The circuit court did not consider or decide whether the fare sweep was constitutional under the special needs doctrine.
Carter‘s jury trial began on March 22, 2018. At the close of the case, the circuit court entered judgments of acquittal as to Counts 2 and 4.6 The jury found Carter guilty on Counts 1, 3, and 5, which charged Carter with two firearms offenses and resisting arrest, respectively. The circuit court sentenced Carter to 10 years’ imprisonment on Count 1 (possession of a firearm after having been convicted of a crime of violence), suspending all but a mandatory minimum five-year term without the possibility of parole. The court imposed concurrent three-year terms on the other two counts of conviction, along with three years of supervised probation.
3. Appeal
Carter appealed his conviction to the Court of Special Appeals. In a reported opinion, the intermediate appellate court concluded that the circuit court should have granted Carter‘s suppression motion. Carter v. State, 243 Md. App. 212 (2019). First, contrary to the State‘s argument, the court held that Corporal Russell seized Carter when she boarded the stationary train and announced the fare sweep, asking all passengers to have their tickets out for inspection. The court explained that, although the officers did not physically restrain Carter when they boarded the train, Corporal Russell‘s show of authority, as well as the presence of multiple officers outside the train car, implied to a reasonable person that individuals were not free to leave prior to providing proof of fare payment. Id. at 231.
The court then considered and rejected two alternative arguments that the State made to justify the warrantless, suspicionless seizure. First, the State argued that the fare sweep was constitutional under the special needs doctrine. In their briefs to the Court of Special Appeals, the parties discussed a leading Supreme Court case on the special needs doctrine, City of Indianapolis v. Edmond, 531 U.S. 32, 41-42 (2000), which held that the warrantless highway
The Court of Special Appeals agreed with Carter that the special needs doctrine did not save MTA‘s warrantless, suspicionless fare sweep from invalidation under the
Next, the State argued that Carter impliedly consented to a seizure so that officers could check whether he had paid the fare to board the Light Rail train. Id. at 234-36. The Court of Special Appeals disagreed, distinguishing cases such as Farkas v. Williams, 823 F.3d 1212 (9th Cir. 2016), in which the federal appellate court held that individuals impliedly consent to being searched upon entering a military base:
As the Court reasoned in Farkas, individuals entering a “restricted-access” base, past gate-guarded entry points, signs stating that all visitors are subject to search, and military personnel patrols impliedly consent to being searched.... By contrast, Light Rail Trains do not have such barbed-wire fencing or armed guards at their entrance, nor do their security reflect national defense concerns. As such, it cannot be assumed that individuals entering the trains have consented to searches like those individuals who enter military bases....
As the State expresses in its brief, reasonable patrons of the Light Rail understand that they may be required to show proof of payment upon request by MTA officials. However, reasonable patrons might not understand that by simply traveling on the Light Rail, they may be subject to suspicionless seizures resulting in warrant checks.
Carter, 243 Md. App. at 235-36.
Finally, the Court of Special Appeals held that the subsequent discovery of the open warrant for Carter‘s arrest did not attenuate the taint of the unlawful seizure. Id. at 236-41. In reaching this conclusion, the court applied the three factors set forth in Brown v. Illinois, 422 U.S. 590 (1975). The court observed that the first two factors – the “temporal proximity” between the unlawful seizure of Carter and the seizure of the evidence, and the “intervening circumstance” of the discovery of the open warrant – essentially canceled each other out. See Carter, 243 Md. App. at 238-39. As to the third and “especially significant” factor, the flagrancy of the police misconduct, the Court of Special Appeals again relied on
Having concluded that the officers unlawfully seized Carter and that the subsequent discovery of the open warrant for Carter‘s arrest did not attenuate the taint of the constitutional violation, the Court of Special Appeals held that the circuit court should have granted Carter‘s suppression motion. Id. Because the suppressed evidence “was a vital component of the State‘s case against [Carter] and was necessary to subsequently convict [him],” the court reversed Carter‘s convictions. Id.
On January 30, 2020, the State filed a petition for a writ of certiorari. On March 11, 2020, we granted the State‘s petition, 467 Md. 691 (2020), and agreed to review the following questions (which we have paraphrased):
- Does MTA‘s practice of conducting fare sweeps on the Light Rail comply with the
Fourth Amendment ? - If the fare sweep that resulted in Carter‘s seizure violated the
Fourth Amendment , did the subsequent discovery of an open warrant for Carter‘s arrest attenuate the violation, where any unconstitutionality of the MTA‘s fare inspection practice was not previously established?7
II
Standard of Review
Suppression rulings “present a mixed question of law and fact.” Thornton v. State, 465 Md. 122, 139 (2019). When this Court reviews a circuit court‘s denial of a motion to suppress, “ordinarily our review is limited to the evidence presented at the suppression hearing.” Jones v. State, 407 Md. 33, 44 (2008). We give deference to the trial court‘s factual findings, upholding them unless they are clearly erroneous. Id. at 45. We consider the evidence and all inferences that may be reasonably drawn from the evidence in a light most favorable to the prevailing party on the motion. Id. “The ultimate determination of whether there was a constitutional violation, however, is an independent determination that is made by the appellate court alone, applying the law to the facts found in each particular case.” Belote v. State, 411 Md. 104, 120 (2009) (citations omitted). We evaluate any questions of law de novo “without any special deference to the views of the Circuit Court or the Court of Special Appeals.” State v. Thomas, 465 Md. 288, 301 (2019).
III
Discussion
The
Evidence obtained in violation of the
A. Constitutionality of Fare Sweeps on Light Rail Trains
1. The Announcement of the Fare Sweep Effected a Seizure of Carter.
An encounter between an individual and a law enforcement officer implicates
In the Court of Special Appeals, the State defended the circuit court‘s ruling that Corporal Russell did not seize Carter. In support of this position, the State argued that “[n]o record evidence indicated that a patron could not simply elect to leave a Light Rail train at the time a [fare sweep] is announced, provided that the patron does so before his or her individual fare is checked.” The Court of Special Appeals rejected the State‘s argument, concluding that, “[a]lthough [Carter] was not restrained physically by the MTA officers when they entered the Light Rail Train, Corporal Russell‘s show of authority, as well as the presence of multiple officers outside the train car, implied to a reasonable person that individuals were not free to leave prior to providing proof of a fare ticket.” Carter, 243 Md. App. at 231. The intermediate appellate court also found significant that Corporal Russell did not inform the passengers as part of her announcement of the fare sweep that any passengers who wished to detrain at the Mount Royal station could
The State now concedes that Corporal Russell seized Carter when she announced the fare sweep, representing to us that, during a fare sweep, “a passenger generally is not free to leave ... without showing proof-of-payment.” We accept the State‘s concession that Corporal Russell‘s announcement of the fare sweep effected a seizure, as it is consistent with the record before the circuit court. Corporal Russell and other officers boarded both cars of the Light Rail train after it arrived at the Mount Royal station, while several other officers waited on the platform. This was a substantial display of law enforcement authority. Moreover, Officer Tobin testified that, in a fare sweep, when officers board a train, they “announce that [they] are conducting a fare inspection and [they] promptly ask everybody to show us their passes. Those who do not show passes are required to alight the train and seek an officer on the platform.” Corporal Russell similarly described her announcement of the fare sweep as informing all the passengers on the train car that she was “checking tickets,” and “advis[ing] them to have their tickets out.” Corporal Russell also testified that, after announcing a fare sweep, “you check each patron for tickets.” In short, the record suggests that a reasonable passenger would have believed what the State tells us, in fact, was the case: the passenger was not free to leave the train without first displaying proof of fare payment or the lack thereof.
For these reasons, we conclude that Corporal Russell seized Carter within the meaning of the
2. Implied Consent
The State contends that two of the exceptions to the warrant requirement render Carter‘s seizure constitutional. We first consider the State‘s argument that Carter impliedly consented to the seizure by traveling on the barrier-free Light Rail system.
Consent to a search or seizure is a recognized exception to the warrant requirement. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Jones, 407 Md. at 51. The State “bears the burden of proving that ‘consent was in fact voluntarily given.‘” State v. Wilson, 279 Md. 189, 201 (1977) (quoting Schneckloth, 412 U.S. at 248-49); Jones, 407 Md. at 51.
Most
The State bases its implied consent argument on the fact that the Light Rail is a barrier-free transit system that requires prepayment of the fare, and because signs on Light Rail platforms accordingly state: “Ticket or Pass Required Before Boarding Trains.” In addition, the State asserts that the requirement to show proof of payment during a Light Rail fare sweep is a minimal intrusion compared with other searches and seizures to which citizens have been found to impliedly consent in other contexts. For these reasons, the State
contends that the reasonable expectation of any Light Rail passenger is that the passenger may be subject to fare inspection on any given trip. By deciding to ride the Light Rail while maintaining this reasonable expectation, the State argues, a passenger impliedly consents to a fare sweep.
As Carter correctly observes, one of the important things that is missing in this case, but was present in the cases upon which the State relies, is express prior notice that a person may be subject to a search or seizure. For example, in Farkas, a civilian (Farkas) entered a naval base for an interview with an investigator. Farkas, 823 F.3d at 1214. The investigator directed Farkas to place his keys, wallet, and loose change in a lockbox during the interview. Id. Farkas subsequently filed a civil rights lawsuit in which he claimed, among other things, that the investigator seized him in violation of the
[T]he usual
Fourth Amendment analysis does not apply because visitors give their implied consent to be searched and seized when entering a military base. . . . [T]he typical trappings of a military base (e.g., the barbed-wire fence, the security guards at the gate, the sign warning of the possibility of search) combine to puncture any reasonable expectations of privacy for a civilian who voluntarily enters.The same trappings . . . were at play here. The Ventura County naval base is a restricted-access military base. Each point of entry is gate-guarded and dotted with warning signs alerting visitors that access is restricted, all persons and vehicles are subject to search, the base is patrolled by military working dogs, and violators will be prosecuted. Farkas‘s assertion that his consent did not extend to the storage of his personal items is belied by the objective circumstances. Farkas passed the warning signs, met the investigator in the parking lot, and agreed to place his belongings into a lockbox before voluntarily entering the interview room. By passing through an internal checkpoint, which the investigator was required to administer, Farkas reaffirmed by his conduct what had been established at the gate:
that he impliedly consented to the possibility of a Fourth Amendment intrusion.
Similarly, in Dept. of Transp., Motor Vehicle Admin. v. Armacost, 299 Md. 392 (1984), this Court analyzed a search as to which citizens had notice. Armacost concerned, as relevant here, the
would likely be deemed consensual. No Maryland resident is forced to have his vehicle inspected; the penalty for noncompliance is a loss of the right to drive that vehicle. The VEIP does not affect a citizen‘s right to drive any other vehicle or to seek alternative means of transportation. It is well accepted that consent to minimal intrusions may be required by the state as a prerequisite to use of regulated means of travel.
Id. at 407-08. The point underpinning this analysis was that, because a reasonable owner of a motor vehicle knows that the VEIP requires the insertion of a piece of equipment inside a car‘s tailpipe, the owner can make an informed decision about whether to bring the car in for inspection, thereby subjecting the vehicle to such a search.
Here, there is no signage that explicitly warns passengers they may be subject to a seizure.9 It is difficult to understand how someone can impliedly consent to a search or seizure without having notice that the search or seizure may occur. Moreover, the Light Rail contains none of the other security trappings of a military base or an airport10 that, along with signage informing visitors of the possibility of search or seizure, “combine to puncture any reasonable expectation of privacy” for someone who voluntarily enters the secure portion of such a facility. Farkas, 823 F.3d at 1216.
The State asserts that a reasonable passenger understands a barrier-free transit system requires onboard fare inspection to ensure a sufficient rate of fare payment, and therefore, impliedly gives consent to fare inspection when the passenger boards the train. Carter agrees that a reasonable Light Rail passenger likely does understand that some form of fare inspection may occur aboard a train. However, it does not follow that a reasonable passenger understands that the passenger will be seized on a stationary train by police officers for as long as it takes to check whether all passengers have paid their fare. Although the fare sweep in this case — which occurred on a weeknight shortly after 8:00 p.m. — took only approximately 90 seconds to complete, a fare sweep during peak travel hours presumably could take longer
We need not decide in this case whether a fare inspection aboard a moving Light Rail train conducted by an individual MTA police officer or civilian fare inspector,11 or by a team of police officers and inspectors,12 constitutes a seizure for purposes of the
3. The Special Needs Doctrine
Next, we consider the State‘s argument that the MTA fare sweep is constitutional under the “special needs” exception to the
An assessment of the applicability of the special needs doctrine to a program of warrantless searches or seizures requires a two-step analysis. See United States v. Fraire, 575 F.3d 929, 932 (9th Cir. 2009). First, in order for the special needs exception to apply, the “primary purpose” served by the program must be an objective other than the governmental body‘s “general interest in crime control.” City of Indianapolis v. Edmond, 531 U.S. 32, 42 (2000). If the primary purpose of the program is to advance the general interest in crime control — in other words, to “uncover evidence of ordinary criminal wrongdoing,” id. — then the program is presumptively unconstitutional under the
That second step requires the court to evaluate the program‘s “reasonableness, [and] hence, its constitutionality, on the basis of the individual circumstances.” Lidster, 540 U.S. at 426. This requires balancing three factors: (1) the “gravity of the public concerns served by the seizure,” (2) the “degree to which the seizure advances the public interest,” and (3) the “severity of the interference with individual liberty.” Id. at 427 (quoting Brown v. Texas, 443 U.S. at 51).
At the suppression hearing in this case, the parties disputed whether Corporal Russell seized Carter prior to his admission that he lacked a ticket. The State did not raise the special needs doctrine as an alternative argument if the circuit court were to determine that Corporal Russell seized Carter. In any event, the circuit court concluded that Corporal Russell had not seized Carter and did not undertake any factual or legal analysis concerning the applicability of the special needs doctrine to MTA‘s fare sweep program. In particular, the circuit court did not make a factual finding as to the primary purpose of a fare sweep. However, in the Court of Special Appeals, the State relied, for the first time, on the special needs doctrine as an alternate
Contrasting this case with the traffic safety and border cases in which courts have upheld suspicionless governmental seizure programs under the special needs doctrine, the Court of Special Appeals held that the special needs doctrine does not render MTA fare sweeps constitutional. Carter, 243 Md. App. at 232-34 & n.4. To reach this conclusion, the Court of Special Appeals made a finding concerning the primary purpose of this kind of fare inspection:
In this case . . . there is no assertion by the State that the fare inspection was being conducted to police the border or ensure roadway safety. In fact, officers testified that fare inspections are used as a vehicle to conduct outstanding warrant searches. As the primary purpose was to “uncover evidence of ordinary criminal wrongdoing,” we find that the program contravenes the
Fourth Amendment .
Id. at 233 n.4. Having found the fare sweep presumptively unconstitutional under Edmond, the intermediate appellate court did not apply the three Brown v. Texas factors. See id.
The State argues that the Court of Special Appeals erred in determining that the primary purpose of a fare sweep is to detect evidence of ordinary criminal wrongdoing. Rather, according to the State, the primary purpose of a fare sweep is not to further a general crime-control interest, but rather to deter fare evasion on the Light Rail, thereby promoting fare payment. As support for this contention, the State asks us to consider the nature of a barrier-free transit system such as the Light Rail, asserting that such a system depends on fare inspections to sustain itself.
We have no reason to doubt that some form of fare inspection is essential for the successful operation of a barrier-free transit system. However, it does not necessarily follow that the primary purpose of a fare sweep — as opposed to fare inspections that do not involve the simultaneous seizure of all passengers on the train and lead to warrant checks on all non-paying passengers — is to promote fare payment. One can imagine different governmental motivations for different types of fare inspections on the Light Rail. Thus, we are not persuaded that the primary purpose of a fare sweep on the Light Rail is to promote fare payment, simply based on the nature of a barrier-free transit system.
The State next points to a Standard Operating Procedure (“SOP“) that MTA has publicly issued regarding fare enforcement. See MTA SOP 4.58.37, Fare Enforcement Procedure, available at https://s3.amazonaws.com/mta-website-staging/mta-website-staging/files/Police/Fare%20Enforcement%20Procedure.pdf (last accessed on Jan. 12, 2021), archived at https://perma.cc/GXR6-JVH7 (the “Fare Inspection SOP“). In particular, the State directs our attention to a provision of the Fare Inspection SOP which says that “[t]he primary responsibility of the officers performing fare enforcement duties will be to deter fare evasion by the riding public.” Id. at 4.58.37.5. However, the State represented in its reply brief that this Fare Inspection SOP does not apply to a fare sweep, but rather to a different type of fare inspection in which an individual MTA police officer boards a Light Rail train and checks passengers’ proof-of-payment while the train is in transit. The State informs us that fare sweeps are governed by other SOPs that MTA has not made public.14 Nevertheless, the State invites us to conclude from the statement in the Fare Inspection
We decline the State‘s invitation. We have no way to determine whether the phrase “fare enforcement duties” in section 4.58.37.5 of the Fare Inspection SOP applies both to the individual fare inspections that are the subject of that document, and to fare sweeps that have their own governing documents we have not reviewed.
In addition, we discern material differences between an individual inspection covered by the Fare Inspection SOP and a fare sweep. First, as noted above, individual officers conduct fare inspections on Light Rail trains while the trains are in transit, whereas teams of officers, until the Court of Special Appeals issued its opinion, conducted fare sweeps while trains are stationary.
Second, in a fare sweep, if a passenger fails to show proof of payment, the officer has no discretion about what to do next. In that instance, the officer tells the passenger to step off the train and see another officer on the platform, at which time an officer will issue a citation for fare evasion to the passenger and run a warrant check. In contrast, when an individual MTA police officer conducts a fare inspection, if a passenger fails to provide proof of payment upon request, the Fare Inspection SOP directs the officer to ask why the passenger does not have proof of payment. Id. at 4.58.37.14.2. After the officer makes that inquiry, “[i]f a reasonable explanation is given for not having proof of payment, e.g., the ticket vending machine was not functioning; [the] customer should be directed to alight the train at the next available stop to purchase a ticket. The officer will stand by and verify that a ticket has been purchased.” Id. at 4.58.37.14.3. If the passenger does not provide a reasonable explanation for lacking proof of payment, the officer can choose between issuing a citation or a written warning to the passenger. See id. at 4.58.37.13 & 4.58.37.14.4. In some circumstances, the officer may arrest a non-paying passenger for a fare offense. For example, if the customer refuses to pay the required fare or if the customer refuses or fails to display identification upon request, the officer may arrest the passenger. Id. at 4.58.37.15, 4.58.37.15.1 & 4.58.37.15.2. However, the Fare Inspection SOP directs that an officer should issue a citation, give a written warning, or make an arrest only “after all other means have been exhausted to resolve the violation.” Id. at 4.58.37.13.15
These differences between a fare sweep conducted by multiple officers and a fare inspection conducted by an individual officer suggest the possibility (but in no way conclusively demonstrate) that a different primary purpose underlies these methods of fare enforcement.16
Unlike the Court of Special Appeals, we are not persuaded that MTA‘s “primary purpose” in directing officers to conduct fare sweeps on Light Rail trains is apparent from the record of the suppression hearing. There was no foundational testimony showing that the officers know, as a matter of MTA policy, what the purpose of a fare sweep is, much less the “primary purpose” of this type of fare inspection. Nor did the officers identify any particular purpose of a fare sweep as MTA‘s primary purpose, or testify that there are no other purposes of a fare sweep beyond those defense counsel asked about.17
Contrary to Carter‘s contention, the circuit court‘s description of the fare sweep as “investigatory” is not a factual finding that the primary purpose of the fare sweep is general crime control. A sobriety checkpoint is also “investigatory” in the sense that officers investigate whether drivers are impaired, and the State prosecutes drivers who are found to be impaired after such investigation. Thus, as Sitz and other checkpoint cases demonstrate, the means of a government program may be “investigatory,” but the primary purpose of the program nevertheless may be to address a
In sum, we conclude that the record is insufficient to determine the primary purpose of a fare sweep. Because we do not know the primary purpose of a fare sweep, we also do not know whether it is necessary to undertake the three-part balancing analysis set forth in Brown v. Texas, 443 U.S. at 51, let alone what the result of that analysis would be. In short, we cannot say one way or the other whether the special needs exception applies to the fare sweep at issue in this case. For this reason, we are unable to adopt the holding of the Court of Special Appeals that the special needs doctrine does not render Carter‘s seizure constitutional. Nevertheless, it was the State‘s burden to establish the applicability of the special needs exception at the suppression hearing in this case in order to argue that the seizure of Carter was constitutional on that basis. The State failed to do so. Thus, we will affirm the judgment of the Court of Special Appeals unless the State prevails in its attenuation argument, which we consider next.
B. Assuming an MTA Fare Sweep Is Not Constitutional Under the Special Needs Doctrine, the State‘s Attenuation Argument Fails.
The State argues that, even if Corporal Russell seized Carter unlawfully, we nevertheless should affirm the denial of Carter‘s suppression motion because the discovery of the warrant for Carter‘s arrest attenuated the taint of the unlawful seizure. In this section of our opinion, we assume that a fare sweep does not pass
Under the exclusionary rule, a
In Brown v. Illinois, the Supreme Court set forth three factors that courts should consider when determining the applicability of the attenuation doctrine in a particular case: (1) the temporal proximity between the unlawful conduct and the discovery of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04; Strieff, 136 S. Ct. at 2062. Although the third factor is particularly significant, see Strieff, 136 S. Ct. at 2062, “no single factor is dispositive.” Cox v. State, 421 Md. 630, 653 (2011) (internal quotation marks and citations omitted).
We agree with the Court of Special Appeals that, in this case, the first two factors essentially cancel each other out. See Carter, 243 Md. App. at 238-39. The discovery of the gun came within minutes of the fare sweep, which favors suppression. However, the discovery of the open warrant was an intervening circumstance, which cuts against exclusion of the gun. Thus, the applicability of the attenuation doctrine to this case turns on the third factor: the purpose and flagrancy of the assumed police misconduct.
The State contends that the fare sweep — if illegal — is not purposefully or flagrantly illegal, such that the exclusionary rule should apply to the evidence the officers discovered incident to arresting Carter on the open warrant. The State makes three points in support of this position. First, the State notes that a fare sweep only leads to warrant checks for those passengers who are unable to provide proof of payment. In other words, as the State puts it, if a fare sweep “is constitutionally infirm, then the infirmity lies only in the initial announcement of a fare inspection to all passengers — not the detention of an individual passenger whom officers have probable cause to cite for fare evasion, nor to conducting a warrant check on such a fare evader while the citation is prepared.” The State cites no authority for the proposition that an illegal warrantless seizure of a group of people should not be deemed flagrant misconduct if it leads to further detention of only those as to whom reasonable suspicion or probable cause develops. Surely, the State would not argue that the taint from a warrantless, suspicionless “dragnet” seizure of 20 people on a city block, so that a drug-sniffing dog could be led by each person, would be attenuated by the fact that the dog only alerted on one of those individuals, who was then detained further and searched, leading to the discovery of drugs on his person. But for the deliberate, illegal seizure at the outset, police would not have developed reasonable suspicion or probable cause to further detain that one person. In this regard, we see no meaningful distinction between this hypothetical seizure and a fare sweep.
Second, the State compares this case to Strieff, in which the Supreme Court held that the discovery of an open warrant attenuated the taint from an illegal seizure that resulted from an officer‘s negligence.19
The State‘s attempt to shift focus from a policy that requires officers to conduct what, for purposes of argument, we are assuming to be illegal seizures, to the officers’ “scrupulous adherence” to that policy, is unavailing. What matters here is the program of regular, frequent, warrantless, and suspicionless seizures that we assume, for purposes of this analysis, are unlawful. This is the type of “systemic or recurrent police misconduct,” Strieff, 136 S. Ct. at 2063, that warrants suppression of evidence, even where an intervening circumstance has provided an otherwise legitimate basis for the search that yielded the evidence in question. This is especially the case here, where MTA requires officers to run warrant checks on all individuals who are found to have evaded fare payment in the course of a sweep. We reject the State‘s circular reliance on the discovery of a warrant to attenuate the taint of an illegal agency program that requires officers to search for open warrants as part of the program.
Nor does it matter that a government program of illegal seizures has not previously been held unconstitutional. The State generally does not get a free pass when a court rules against it in the course of breaking new ground in
Finally, the State argues that there is no “deterrence benefit to be gained from ascribing
IV
Conclusion
Corporal Russell effected a seizure of Carter without reasonable suspicion when she announced the fare sweep on the Light Rail train in which Carter was a passenger. Carter did not impliedly consent to such a seizure by riding the Light Rail. Assuming the seizure was not constitutional under the special needs doctrine, the discovery of the warrant for Carter‘s arrest did not attenuate the taint of the unlawful seizure. We affirm the Court of Special Appeals on the foregoing points.
The record before us is insufficiently developed to conclude whether or not Light Rail fare sweeps are constitutional under the special needs doctrine. Because it was the State‘s burden to establish the constitutionality of Carter‘s seizure, and the State failed at the suppression hearing to meet that burden, we affirm the judgment of the Court of Special Appeals.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.
Concurring Opinion by Watts, J.
Filed: January 29, 2021
Respectfully, I concur. I agree with the Majority that officers of the Maryland Transit Administration Police (“the MTA Police“) seized Kennard Carter, Respondent, that the implied consent doctrine and the attenuation doctrine do not apply here, and that the State did not satisfy its burden to prove the applicability of the special needs doctrine. See Maj. Slip Op. at 38.
In addition, my concern is that, in discussing the State‘s failure to meet its burden in this case, the majority opinion raises the inference that Carter somehow erred in cross-examining law enforcement officers in an attempt to show that the primary purpose of a fare inspection sweep is to advance the general interest in crime control rather than an identifiable special need. See Maj. Slip Op. at 29-30. Of equal concern, the majority opinion appears to advise that “foundational testimony” is required before law enforcement officers may be permitted to testify about the primary purpose of the fare inspection sweep, or that, if law enforcement officers are permitted to testify concerning the primary purpose of the program, such testimony should not be credited without some type of a “foundational” showing. Maj. Slip Op. at 30. The majority opinion also unnecessarily, and one-sidedly, advises that, to the extent Carter alleged that the primary purpose of a fare inspection sweep is “investigatory[,]” the primary purpose of a sweep could nonetheless be to pursue a special need beyond the general interest in crime control. Maj. Slip Op. at 31.1
In
[W]e are not persuaded that MTA‘s “primary purpose” in directing officers to conduct fare sweeps on Light Rail trains is apparent from the record of the suppression hearing. There was no foundational testimony showing that the officers know, as a matter of MTA policy, what the purpose of a fare sweep is, much less the “primary purpose” of this type of fare inspection. Nor did the officers identify any particular purpose of a fare sweep as MTA‘s primary purpose, or testify that there are no other purposes of a fare sweep beyond those defense counsel asked about.
Maj. Slip Op. at 30 (footnote omitted).
First, neither Carter nor any similarly situated defendant has the burden of persuasion or any burden to call witnesses to establish the primary purpose of a program that the State claims is constitutional under the special needs doctrine, let alone to make a foundational showing for the testimony of witnesses whom they seek to cross-examine in an attempt to demonstrate the primary purpose of a State program that resulted in a seizure. The Majority states that, in support of Carter‘s contention that the record shows that the primary purpose of a fare inspection sweep is the detecting of ordinary criminal wrongdoing,
Carter relies on the officers’ agreement with defense counsel‘s leading questions suggesting that the purpose of checking for proof of payment in a fare sweep is “to see if people paid,” to “see if someone has committed a crime by riding the train without paying,” and to “investigat[e] to determine if someone broke the law as set by MTA.” Carter also points to Corporal Russell‘s agreement with defense counsel‘s characterization that “the fare checking also works as an apparatus to be able to check people for warrants as well.”
Maj. Slip Op. at 29-30 (alteration in original). To the extent that the Majority writes that law enforcement officers responded to Carter‘s counsel‘s leading questions and that the officers’ testimony lacked any foundation, it must be pointed out that Carter had no obligation to prove anything, and that finding fault with his counsel for asking leading questions on cross-examination, or implying that Carter failed to supply a “foundational” basis for the law enforcement officer‘s testimony, Maj. Slip Op. at 30, is just plain wrong. What is more perplexing is that the Majority chose to do this. The analysis of the applicability of the special needs doctrine in this case is straightforward — the State had the burden to prove the applicability of the special needs doctrine as an exception to the requirement for reasonable suspicion or probable cause to seize Carter, and the State failed to do so. That is the beginning and the end of the story.
That Carter was represented by trial counsel who chose to cross-examine law enforcement officers to preempt or counter an anticipated argument by the State that Carter‘s seizure was constitutional under the special needs doctrine does not, as the majority opinion implies, transfer the burden of proof to Carter. The critical part of the analysis concerning the special needs doctrine is that, in the circuit court, the State never raised an issue as to the special needs doctrine or the primary purpose of the fare inspection sweep. See Maj. Slip Op. at 25. Of course, a defendant would be motivated to attempt to cross-examine law enforcement officers to
This is not a situation in which an appellate court is unable to tell the primary purpose because, somehow, Carter failed to present witnesses with an adequate foundation, or his counsel asked improper leading questions; this is a situation in which the State failed to meet its burden. Carter had no burden to call any witnesses with respect to the applicability of the special needs doctrine, let alone call witnesses and make a foundational showing as to the testimony of the witnesses. At the suppression hearing, unless a valid objection had been lodged — and it was not — Carter was free to cross-examine the State‘s witnesses, who were law enforcement officers, and those witnesses were free to testify, regarding the purpose of their participation in fare inspection sweeps without any foundational showing.
The majority opinion also advises that, although Carter alleges that the police action at issue was investigatory, the primary purpose of the program may still be found to satisfy a special need. See Maj. Slip Op. at 31. This is information that will undoubtedly be helpful to the State to prove, in a future case, that there is a special need for fare inspection sweeps. Specifically, the majority opinion states:
Contrary to Carter‘s contention, the circuit court‘s description of the fare sweep as “investigatory” is not a factual finding that the primary purpose of the fare sweep is general crime control. A sobriety checkpoint is also “investigatory” in the sense that officers investigate whether drivers are impaired, and the State prosecutes drivers who are found to be impaired after such investigation. Thus, as Sitz and other checkpoint cases demonstrate, the means of a government program may be “investigatory,” but the primary purpose of the program nevertheless may be to address a special need beyond the general need for law enforcement.
Maj. Slip Op. at 31. As to the other side of the analysis, the majority opinion simply goes on to state: “Of course, after hearing evidence at a suppression hearing, a court may find that the primary purpose of a program of ‘investigatory’ government seizures is general crime control.” Maj. Slip Op. at 31. With this single sentence, the Majority gives short shrift to the circumstance that an investigatory program could in actuality be one that pursues a general interest in crime control. Moreover, the Majority does not in any way describe the circumstance that, although the State may contend that an investigatory program has a primary purpose that exceeds the general interest in crime control under Michigan Dep‘t of State Police v. Sitz, 496 U.S. 444 (1990), the program may still be found to indeed further an interest in crime control.
As to the State‘s contention, the Majority states:
[A]ccording to the State, the primary purpose of a fare sweep is not to further a general crime-control interest, but rather to deter fare evasion on the Light Rail, thereby promoting fare payment. As support for this contention, the State asks us to consider the nature of a barrier-free transit system such as the Light Rail, asserting that such a system depends on fare inspections to sustain itself.
Maj. Slip Op. at 26. Unlike with the points raised by Carter, the Majority does not go to the length of pointing out that the position taken the State may be incorrect. In the interest of providing balance lacking in the majority opinion, I provide the following thoughts about the
In addition, from my perspective, although promoting fare payment in general may be a benefit of deterring fare evasion, it may be collateral to the primary purpose of the fare inspection sweep, which, as identified by the State, is deterring fare evasion. In Sitz, 496 U.S. at 447-48, the Supreme Court upheld a sobriety checkpoint, where the arrest of drunk drivers was involved, on the ground that the primary purpose of the checkpoint was to promote highway safety. In Sitz, the law enforcement activity of arresting a person for drunk driving was directly related to the primary purpose or goal of promoting highway safety. The difference here is that citing or arresting a person for fare evasion during a fare inspection sweep does nothing to immediately or directly promote fare payment by the general public. Any benefit in the area of promoting payment of fares and more broadly, as the State alleges, providing “a barrier-free transit system” may be speculative and occur only on the assumption that members of the public somehow become aware of the existence of fare inspection sweeps and thereby in the future pay a fare that they otherwise would not have paid as a result. In other words, any benefit in terms of promoting fare payment and the existence of a barrier-free transportation system may be uncertain and clearly attenuated from the act of conducting a fare inspection sweep; accordingly, despite whatever the State may say, and the majority opinion may leave unsaid, deterring fare evasion may not be distinct from pursuing a general interest in crime control.
In closing, the Majority unnecessarily gives advice to the State, criticizes Carter‘s counsel, and implies that Carter failed to lay a foundation for the State‘s witnesses’ testimony that the purpose of a fare inspection sweep is to determine whether members of the public have committed a crime. See Maj. Slip Op. at 30. To the extent that the majority opinion implies that Carter had the burden to lay such a foundation, or that any law enforcement officer needs such a foundation to testify, such an implication is merely dicta and indeed in this case is wrong. For these reasons, I do not join the majority opinion but rather I concur.
Notes
The reality is that this Court is not required to negate Carter‘s argument that the primary purpose of an MTA fare inspection sweep is plain from the record. In other words, to conclude that the MTA fare inspection sweep was not shown to be constitutional under the special needs doctrine, this Court does not have to adopt Carter‘s contention that the record shows that the primary purpose was the general interest in crime control. Instead, all that is needed is for this Court to determine that the State did not meet its burden to prove that the special needs doctrine applies. It is unnecessary to refute Carter‘s assertions as to the special needs doctrine, as he has no burden of proof. And, there is no refuting that the Majority does not make a similar critique of the State‘s arguments concerning a fare inspection sweep, i.e., that a sweep furthers the deterrence and the payment of fares. There is no denying that the State will likely cite the dicta in the majority opinion in any future attempt to demonstrate that the primary purpose of a fare inspection sweep is not a general interest in crime control, namely, that a foundation is required for police officer testimony and that a fare inspection sweep, while an investigatory program, may still pursue a special need. In a positive development, though, in responding to the concurrence, the Majority now acknowledges that Carter had no burden of proof, and expressly disavows criticizing his counsel. See Maj. Slip Op. at 30-31 n.17.
(1) Does [MTA‘s] practice of fare inspection on the Light Rail comply with the
(2) If fare inspection does not comply with the
This case involves a fare “sweep,” which we understand to be one specific kind of fare “inspection” that MTA personnel have conducted. Accordingly, we have rephrased the questions presented to refer specifically to fare sweeps.