*1 149A.3d Maryland STATE Rasheed SIZER Jamal Term, 0784, Sept. No. Maryland. Appeals of Special
Court of November *2 brief) Gen., (Brian on the Frosh, Atty. E. Carrie J. Williams *3 MD, Baltimore, for Appellant. Defender, DeWolfe, on (Paul the B. Public Philipsen
Helki brief) Baltimore, MD, for Appellee. (Senior Judge, Jr.
Graeff, Moylan, E. Leahy, Charles Assigned), JJ. Specially
Moylan, J. from emanates undergirding appeal
The State wisdom Proverbs, 1: of the Book chapter Verse twenty-eighth the no man pursueth; “The flee when wicked lion,” a are righteous the bold Terry Ohio. And begat the Book Proverbs And y. Jamal Rasheed appellee, indictment the begat Ohio the the Sizer, Jury County. When the Howard by Grand fled, Schlossnagle pursued, leading Officer Andrew appellee possession of a charged unlawful being the with the appellee’s 4, trafficking. On December drug a firearm with nexus suppress pre-trial filed motion appellee alleging Fourth Amendment viola- person, from taken his tion. A hearing 26, 2016, was held on that motion May on granted. close which motion was Appeal
The State on timely appeal The State filed June 2016. appeal is Code, authorized Maryland Courts and Judicial Proceed- 12—302(e)(4). Article, § ings (c)(4)(iii) Pertinent are subsections (iv): “(iii) taking Before the appeal, certify the State shall appeal the court that the is not taken for purposes delay and that the evidence excluded property required be returned proof is substantial a material fact in the appeal proceeding. The shall be heard and the decision days rendered within 120 time that the on record appeal appellate Otherwise, filed court. the decision of the trial court shall be final.
“(iv) case, Except if in homicide appeals State of this paragraph, basis if on final appeal the decision affirmed, charges the trial court against the defendant shall in the be dismissed which the appeal case case, taken. In prosecute State defen- dant on those or on charges specific any other related charges arising out same incident.” August The record filed with this Court on 2016. Accordingly, our must no decision rendered later than argument 2016. heard December We oral on November *4 Appellate
Standard Review Longshore 486, 498-99, In Md. A.2d Appeals definitively the Court summarized the stan- governing appellate dards the review decision to suppress a That first evidence. standard delineates the evidence argument subject to review: grant
“When
reviews
court’s
an
court
trial
appellate
to suppress
a motion
evidence under
Fourth
denial
the
only
information
facts and
Amendment,
the
it will consider
hearing.”
suppression
of the
in the record
contained
That
supplied).
(Emphasis
Id. in full fact, we will recount detail. findings extensive which a conflict there is also states when standard presented the respective versions the between defense, appellate review will by the tilt the State and go decisively prevailing party: in favor all “An court further will view evidence and appellate that evidence the light inferences drawn from reasonable prevailing on the party motion[.]” most favorable Id. any In case, prevailing party appellee.
In this evidence, therefore, of the competing conflict between versions version that we will appellee’s accept it would be case, however, potentially particular historic fact. In empty victory. for the appellee essentially tilt is favorable no version of the significant1 has alternative He offered might testify. tilt. He He evidence toward which we did on his behalf. His no evidence own essentially presented case, there peripheral On a issue not critical to State’s Schlossnagle. slight testimony ambiguity in the of Officer Did declaration, pistol” an instant before the appellee's "I have occur appellee contemporaneous with the or was touch- officer touched ambiguity appellee, ing? who was We will resolve that favor suppression hearing. prevailing party at the
645 counsel, before the hearing judge, argue any did even contrary interpretation of the evidence. The State’s evidence effectively unchallenged.
Once the evidence has presented, however, and once the hearing judge has possible fact, made findings there remains the ultimate issue determining legal signifi- cance of the accepted facts. On this legal issue, appellate court will make its own de novo determination: court,
“An appellate however, an independent under de standard, novo review must consider the application of the law to those facts determining whether the evidence at issue was law, obtained and, violation accordingly, suppressed.” should be 499, Nieves,
399
at
also,
Md.
924
A.2d
v.
See
State
383
573,
Laney
State,
Md.
581-82,
(2004);
861
62
A.2d
v.
379 Md.
State,
522, 533-34,
(2004);
“The police today testified without embellishment. The Court found them be truthful and credible.” 20, On the afternoon of approximately November p.m., 5:30 testifying officers, three along with two other officers, patrol were the Owen Village bike near Brown State, standard, fine-tuning 2. For a final of the see Morris v. 480, 487-90, denied, Md.App. 837 A.2d cert. Md. (2004); Charity 598, 606, Md.App. A.2d 402 753 A.2d denied, (2000). cert. 360 Md. A.2d Unit, Pathway Patrol all members They were Center. *6 the The officers known the Bike Unit. described informally to They of the referred reputation and area. general character surrounding footpaths its Village Brown Center and the Owen Zammillo, supervisor the of Corporal area.” “high as a crime Unit, the Brown Owen Patrol testified Pathway the police area that a satellite high a crime area such Village control The keep to close of it. nearby office established how, night on the November before witnesses recounted handgun of a a brandishing reports person had been there of such the Center. Because Village around footpaths the by local officers had asked business activity, the been criminal to respect in the With presence to increase their area. owners respect to the of the and patrol the bike with responsibilities area,” neighborhood “high the as a crime characterization of fact. following specific findings the hearing judge the made to duty pathways the Columbia patrol “[T]heir before, the had safety public. night That there ensure brandishing or complaint display- made of someone a lot handgun parking in the of the Owen Brown a ing was, con- Library, and understandably, Cradlerock there high higher- general, a or In is considered area cern. crime area in Columbia. There had been number police certainly robberies, this and and the had mind-set they supposed doing, certainly doing what were were be is, patrolling the area.” supplied). (Emphasis November, lot area p.m. parking largely
At 5:30 approaching The officers observed between five and dark. standing parking a mini-van lot. persons seven around “passing an alcoholic appeared The was loud and be group forth.” One unidentified member beverage back and Baker, ground. on the glass threw bottle Officer group moreover, group, one recognized Joseph member Davis, “repeat Village as a offender” who was banned hearing judge specific factfindings The Center. made respect group milling observations about the mini-van. darker,
“They’re in a They group less lit see area. Defendant, individuals which That includes the Mr. Sizer. loitering; group appears group be that the appears alcohol, drinking open containers, somebody be and cannot group—they Mr. sure whether was Sizer concerned, not—threw a were bottle. understand- ably, approached group. On They were in uniform. bright-blue jackets respective their are their names and the “Police,” they verbally word identified themselves as they area, police. While in darker themselves had been testimony lighting was that there in the was sufficient parking group.” lot area to see the
Unprovoked Flight As the civilians, of officers group approached the group they announced their official presence by saying, Stop. “Police. uniform, Don’t run.” in They jackets were with the bright-blue word “Police” in At prominent letters. point, appellee that the “turned and immediately began away.” Officer sprinting Schlossnagle along with Officer off in Burris took immediate pursuit, “multiple repeatedly giving commands to run- stop Schlossnagel Because ning.” Officers were on and Burris bikes on appellee foot, pursuit and the the brief. As two was the caught up officers the to appellee with and were about “take down,” him his appellee up “Okay, the yelled, threw and hands pistol. I I a pistol.” have have the The officers wrestled to appellee the and ground started him handcuffs. place Superseding
The Arrest as a Rationale It point, after first Schlossnagle seconds Officer the caught appellee Schlossnagle and Officer while Officer and him, Burris were still attempting Corporal handcuff unit, Zammillo on arrived the scene. As the of the supervisor Corporal Zammillo had seen two the chase begin the officers on he, bike, off only Corporal and set seconds them. behind immediately Zammillo recognized appellee the as someone he had Of multiple prior with whom had critical interactions. his knew, from check Zammillo also importance, Corporal System, Department’s Management Records the Police the had active arrest issued appellee an warrant County Corporal Zammillo Department. Howard Sheriffs many of Knowing name. well face appellee by knew the and area, Zam- Corporal crime high a particular the characters setting out his day just before with explained that, millo each for area, look over the list particular unit he would patrol their appellee warrants for arrest. The outstanding those with for both the outstanding had arrest warrants distribution marijuana probation. for the violation and just scene Zammillo arrived on “take
Corporal down” wrestling appellee were and Burris Schlossnagle Officers him. process handcuffing were ground and appellee informed that there was Corporal Zammillo him. of the arrested As outstanding warrant his arrest and arrest, a and Fourth superseding moment of that fresh case, propri- and the took control Amendment rationale immaterial ety preceding non became vel arrested, being As he was that followed. respect with events officers, “I and piece to the have appellee announced pills me.” Incident Frisk the Search wearing his had been appellee
During flight, brief fell him. ground, backpack As he fell backpack. on the officers appellee, As soon as the handcuffs were immediately a .38 backpack looked in the caliber observed *8 potentially I.D. a revolver, along appellee’s with the Because the immediately officers took gathering, hostile crowd the adjourned backpack nearby police his and to appellee and satellite office. office,
At satellite removed from the officers back- of revolver, loaded five rounds pack the .38 caliber of four rounds ammunition. Also recovered were additional A office produced search at the satellite ammunition. further pills. At that appellee’s baggie containing from the sock proper it to conclusion point, legal but remained draw evidentiary unchallenged this predicate. Suppression Ruling
Although hearing judge’s factfinding unvaryingly supportive of the reasonableness behavior through every step confrontation, court’s legal ruling in abruptly turned an direction. opposite As we examine de novo the legal where to analysis suppression lead went, evidence our novo judgment, astray, de Terry analysis seemed insist that stop on must be based nothing short of the illegality se the suspect’s behavior. per The hearing court’s analysis began: is,
“The ran, issue before the when Court Mr. was it Sizer reasonable for the after argue run him? One could that was, it why guy because is running? [Defense But points out, right, flight, Counsel] and he’s itself, or not sticking around for the police investigate you illegal.” is not itself on flight not, itself,
Reliance
the fact that
in and
illegal sets
unduly high
for a
A
bar
clear.
suspicion
occurred,
reasonable articulable
that a crime has
then
occurring,
is about to
does not
occur
demand
legally
sufficient
sustain a criminal conviction. Nor
does
State,
so
probable
demand much as
cause. In
Butler v.
651,
(2013),
Md.App. 635,
“[Rjeasonable suspicion
mere
requires ‘more than a
hunch
demanding
probable
but is “a less
than
standard
cause and
requires
showing considerably
preponderance
less than
’ ”
the evidence.”
omitted).
State,
(Emphasis supplied; citation
v.
See also Holt
Crosby
State,
443, 459-60,
(2013);
435 Md.
650 for a standard constitutional easily quantitative
same satisfied Terry stop: on ‘hunch’ is insuffi- reliance a mere officer’s
“Although an activity of criminal need a the likelihood justify stop, cient to probable cause, required for and it falls level rise to the satisfying preponderance considerably short of a standard[.]” omitted). v. (Emphasis See also Adams supplied; citations Williams, 145, 1921, 612 92 32 143, U.S. S.Ct. L.Ed.2d 407 (1972) (“The a require policeman does not Fourth Amendment necessary for proba of information precise lacks the level who shrug a simply arrest to his shoulders and allow ble cause to White, or a to v. escape.”); crime to occur criminal Alabama (1990); 2412, 301 496 110 L.Ed.2d 110 U.S. S.Ct. Sokolow, 1, 7, 109 v. S.Ct. United States U.S. 417-18, Cortez, (1989); v. United States U.S. L.Ed.2d (1981). 690, 66 L.Ed.2d infra, point may out in and itself flight As shall we se, it a constitutional illegal not be well be but per Terry detention, wit, a investigative stop, an for justification Terry Ohio, 88 S.Ct. pursuant (1968). L.Ed.2d 889 analysis
As then went on invalidate could the court’s what Terry weapons, suggested for have frisk been a a might dangerous a suspect officer’s fear that armed if there were unreasonable unrebutted would be rendered might gun a license he suspect have possibility that carrying. down, “So, says, Sizer take Mr. and Mr. Sizer Schlossnagle taking him down— process Officer says, basically weapon. per I there’s no se And have assuming illegality having weapon. I’m the Defen- permit, that, I carry. know dant have don’t didn’t per illegal weapon.” se have a And so it’s not (Emphasis supplied). hearing analysis there goes astray court’s because frisk is predicated
it fails to appreciate *10 illegality of the suspect’s in behavior handgun a possessing on very predicate different of an officer’s for fear his own safety when confronting suspect who the reasonably officer believes armed A dangerous. be suspect li- with a handgun just censed dangerously as armed isas a suspect with an handgun. unlicensed handguns Licensed shoot bullets just that deadly are as as are those unlicensed handguns. A permit to carry handgun no would more vitiate need for a frisk than the suspect’s would promise not to shoot anybody with Even if stopee it. had his permit carry to handgun pinned to the front of his shirt and if even the officer it conducting read before the frisk, that in no way would eliminate or even diminish the need Indeed, the frisk. it would enhance Per se illegality need. is simply not a requirement for the reasonable articulable suspicion sup- Terry port a frisk.
As hearing analysis concluded, court’s it seemed reaffirm the quintessential reasonableness of Officer Schloss- nagle’s conduct even as grudgingly held that “the rules were not followed.” Schlossnagle
“Officer likely, most probably did—in addi- tion to Zammillo—probably Officer Baker Corporal and public potentially saved the from additional crimes did_Do evening; one argue that. Probably could I have any doubt that the Defendant because ran he didn’t want to arrested, had, probably, illegal weapon be because he an on person; his that he was on probation, and that and of likely precluded itself most him from having any weapons reasonably on illegal I person? his Am sure that he had drugs person? yester- on his Of I course am. I wasn’t born day. is, But that’s The issue issue. were all the rules I although followed? And can understand the heat of the moment, I can high-crime area, understand the the fact that ran, itself, Mr. Sizer particular based on the scenario that’s being given here today, is not sufficient.” The hearing court referred “Officer Schlossnagle’s act of physically his putting and, hands Defendant any sugges- him there words, down.” Lest taking
officer’s otherwise might take a “hard down” render tion there that S., Md. unreasonable, In re see David good (2002): 523, 539, 789 A.2d down’ a ‘hard take officers conducted
“Several drawn, forced officers, weapons their respondent. This him in handcuffs. ground placed respondent reason- officers was not unreasonable because conduct respondent posed suspected ably have could safety. circum- Considering totality threat their time, in stances, to the officers at the they appeared handcuffing respondent and safety, their order maintain *11 placing ground for time reasonable him on the a brief was into an arrest investigatory stop the and did not convert Although is a severe the Amendment. under Fourth intrusion, circumstances, that under form of we conclude the it was reasonable.” also, State, 642, 661— v. 311 Md. Lee
(Emphasis supplied). See State, 413, 429-30, (1988); 417 66, A.2d 235 Elliott v. Md. 537 Bailey State, 8,n. (2010); 349, 412 v. Md. 371-72 A.3d 761 631, 646-47, (2010); 224 Md.App. A.2d 72 Chase v. (2015). A.3d 630 257, aff'd, 121 A.3d Md. Terry Flight Dispositive Unprovoked as a Factor constitutional Our novo determination is de The Fourth Amend scrupulously observed. protocols were offended, not have been was and the evidence should ment Terry for the suspicion reasonable articulable suppressed. The It moreover, flight. no stop, merely was means based on It far than that. based was more multi-factored was high unprovoked upon approach of the in a flight Illinois v. replay was a paradigmatic crime area. This case Wardlow, (2000) 673, 528 U.S. L.Ed.2d itself. Wardlow, case, eight
In in in present as team even neighborhood on a known for converged Chicago officers area, high specifically heavy “an area known for being crime trafficking.” Wardlow, narcotics theretofore unknown to police, standing bag. next to a building, holding opaque Wardlow, here, as appellee did looked the direction of officers, turned, officers, as inexplicably then fled. Two case, in this took off in A pursuit. away, short distance Officer Nolan stopped immediately pat- Wardlow conducted a weapons. frisk, down search for As Nolan part Officer opaque bag Wardlow was squeezed carrying and felt heavy, object hard similar in to a shape gun. opened He bag and handgun. recovered loaded .38 caliber Wardlow was 121-22, 120 then arrested. 528 U.S. S.Ct. 673. Wardlow, us,
The issue
the case
now before
Terry Ohio,
whether,
v.
pursuant
had reasonable
initial
suspicion
justify the
detention
the suspect based
on his flight. The trial court denied
motion to
Wardlow’s
however,
suppress
Appellate Court,
the evidence. The Illinois
conviction, holding
reversed the
that Officer Nolan
did
Terry
People
suspicion
justify.a
stop.
have reasonable
Wardlow,
Ill.App.3d
678 N.E.2d
Prominent the factors that the Court found *12 Terry strongly supportive to be of the reasonableness neighborhood high was the character of the as a crime stop area. in presence expected
“An an area of criminal individual’s alone, enough is not to activity, standing support reason- able, person committing that the is particularized suspicion Texas, 2637, a crime. v. 99 61 Brown U.S. S.Ct. ignore (1979). required But officers are not to L.Ed.2d 357 determining characteristics of location in the relevant suspicious sufficiently whether the circumstances are previ- investigation. Accordingly, we have warrant further ‘high ously stop in a crime noted the fact that the occurred among in a relevant contextual considerations area’ Williams, 148, 144, 147- 407 U.S. v. analysis. Adams (1972).” 1921, 32 L.Ed.2d
148, 92 S.Ct. also, See supplied). 673. (Emphasis at S.Ct. 528 U.S. (2001); State, 415-16, A.2d 612 v. 362 Md. Stokes (1978). 387 A.2d n. 282 Md. Anderson is crime area then combined high the character When police, arrival of the noticing flight upon unprovoked reached: mass has been critical merely respondent’s case, moreover, it
“In this trafficking heavy presence narcotics an area of in flight unprovoked suspicion, his officers’ but aroused the noticing police. recognized also upon cases have Our factor deter- nervous, pertinent ais evasive behavior Headlong flight—wherever it suspicion. mining reasonable It is not neces- consummate act evasion: occurs—is certainly suggestive wrongdoing, sarily it is indicative of such.” omitted). citations internal (Emphasis supplied;
Id. hear- suppression at the doggedly insisted counsel Defense to cooperate to refuse right has a case that citizen ing in this The Supreme go “to one’s business.” entitled about and is just argument. articulately responded such Court cooper- flight simply “[Ujnprovoked not a mere refusal is ‘going Flight, by very nature, one’s about its is ate. opposite. fact, just business’; Allowing officers fugitive and investi- flight such confronted with right consistent with the individual’s quite gate further silent in the or to and remain stay put his go business about questioning.” of police fact supplied). (Emphasis just hearing judge ruled argued, himself
Wardlow flight. explanation an innocent case, may that there be innocent behavior even explained Court Supreme Terry, and, may suspicious under nonetheless be *13 suspicious: cognizably
“Respondent and amici
argue
also
that there are innocent
flight
for flight
reasons
from police
that, therefore,
and
necessarily
ongoing
activity.
indicative of
criminal
This
undoubtedly true,
fact is
but does not establish a
violation
Terry,
the Fourth Amendment.
in
Even
justify-
conduct
ing the stop was ambiguous
susceptible
and
of an innocent
explanation.
officer observed
pacing
The
two individuals
back
forth
in
store,
front of a
peering into the window
and periodically conferring.
5-6,
“In allowing detentions, such Terry accepts the risk officers may stop innocent people. Indeed, the Fourth accepts Amendment that risk in connection more dras- persons tic police action; probable arrested and detained they cause to believe have committed crime turn out to be innocent.” 125-26, 120 at S.Ct. 673. (Emphasis supplied). State,
In Bost v.
341, 358,
Md.
“Appellant was seen trafficking area. Appellant fled the police and the flight unprovoked. nature the area is factor in assessing suspicion.” reasonable 359-60,
406 Md. at
“A Wardlow, the Illinois impact v. In an effort to deflect if not interesting, ultimately persuasive, an interposes appellee posits area.” He that when high of “a crime interpretation Columbia,” were they “a area in high crime described police se,” as in case crime area high “a describing per In relativism Chicago.3 south burst Illinois Wardlow’s relatively that seems to be even rampant, suggestion run law-abiding community might generally crime in a “high area” “lower relatively actually dangerous be than would be less community. criminal The pervasively crime area” of a more police if the “the argument seem to be that describe would in in or “the block dangerous most corner Guilford” meanest Homeland,” up rack reason- descriptions those should far than same able-suspicion points rapidly less those would or in Barbary Court of Francisco descriptions San Kitchen, Hell’s York. New course, salu- parochial fine-tuning, of would
Such drain virtually rule of tary any precedential Illinois v. Wardlow Chicago. Court potency beyond Supreme the streets south however, way. They propound do that opinions, work application. They speak, general capable rules national readily necessity, simple language in can be broad and readily applied by the American average understood and officer, Valley, it in south Chicago Happy be give describing help Minnesota. In the circumstances that significance, Illinois v. unprovoked flight investigative its to Fourth Amendment Wardlow invaluable contribution join will not to trivialize it into inconse- attempting law. We quentiality. Suspicion and Individualized
Particularized however, in a of denial appellee, seems state respect the antecedent about v. Wardlow. With Illinois hearing, Confining inquiry suppression comers of the our four crime, whether, record as a does not demonstrate seedbed Chicago. Columbia is more or less notorious than south observations occurred before appellee’s unpro flight, voked the appellee suggests that “no there was testi mony the officers providing individualized, objective reasonable suspicion appellee] [the was involved those incidents.” The appellee may right well be that is hardly point. circumstances, Under such the prudent thing for the appellee to have done would have pat stand the police allow suspicion remain unparticularized un- individualized. he simply Had quietly by, stood as did his companions, he would have been immune from any police re *15 straint, but a guilty conscience leads to judgment. flawed It was only when appellee, the unwisely, began turned and flee he turned the focus onto himself and elevated what only had been non-particularized into suspicion highly partic ularized highly individualized suspicion. very The fact of flight evidenced guilt. consciousness of dispositive This is the lesson of Illinois v. Wardlow.
As we seek to apply the rule of Illinois v.
Wardlow
hand,
case at
the critical
itself,
focus is on the flight scenario
not on the pre-flight
In
flight
circumstances.
terms of the
scenario, no one other than
appellant
the
run away.
tried to
The appellee’s
flight, therefore,
by
solo
was
definition both
“particularized” and
In
“individualized.”
the
words Ward-
low, “headlong flight” was “not necessarily indicative of
wrongdoing, but it
certainly suggestive of
[was]
such.” 528
U.S.
Both the Frisk and the Search Incident Were Reasonable Wardlow,
On the basis of Illinois v. we that the hold unprovoked flight of the appellee high upon crime area the arrival of the constituted articulable reasonable Terry suspicion to support for investigation. further The ensuing search the backpack weapons would also Terry qualify frisk, as a justifica if a superseding reasonable tion justification had not rendered that redundant.
658 the officers of the .38 caliber revolver as discovery
The constitutionally backpack into unas- appellant’s looked the was of two Fourth Amendment overlapping under either sailable being stopped, he twice an- appellee As theories. was nounced, “I alone constituted pistol.” That would have have appellee was armed. suspicion that reasonable articulable of the Accordingly, opening backpack immediate would Terry constitutionally proper as frisk. The have been back- wit, reach, lunge grasp, or clearly itself within the pack Michigan Long, 463 v. Chimel perimeter, stoppee, (1983). 1201 1048-49, S.Ct. 77 L.Ed.2d State, See, 204, 213-14, Md.App. 310 A.2d Williams v. (1973). however, backpack opened,
In the seconds before Terry inci superseded rationale was frisk search California, of Chimel 395 U.S. lawful rationale dent arrest (1969). 752, 763, again, L.Ed.2d Once reach, clearly lunge within the backpack grasp, itself was wit, of the arrestee. Feaster v. perimeter, the Chimel (2012). 230-31, very Md.App. 202, 47 A.3d frisk one of the purposes two purpose course, same, are one arrest, and the search incident to *16 perimeter officer. The of the search-incident protection accordingly are The search perimeter frisk conterminous. the was, quality caliber revolver like Portia’s produced the .38 of mercy, produced baggy of the twice-blest. search however, its sock, rely for pills appellee’s must theory That, justification on the alone. howev search-incident er, necessary. all was that was
A Chase is Not a Fourth Amendment
Seizure
this,
In a
such as
the constitutional measure
situation
Terry
justification
of
ment
Fourth Amendment
for a
chase,
place
lay
at the
of
when the
only
police
takes
end
a
subject
detention, wit,
on a
him to
to
suspect
hands
actual
chase,
a
The antecedent
until
it achieves its
stop.
to
yet subject
analysis
not
Fourth
purpose,
Amendment
it is
nor a
It
neither a “search”
“seizure.”
is a case
Fourth
Amendment
until the
inapplicability and
Fourth Amendment
D.,
is applicable,
cannot
be violated. California v.
Hodari
621, 626,
(1991)
U.S.
111 S.Ct.
“The narrow us whether, before respect with to a authority respect show of to application physical force, though subject a even occurs seizure does not yield. hold that it not. We does
“The language course, Fourth Amendment, cannot respondent's contention. sustain ‘seizure’ The word readily meaning laying aof bears hands application physical movement, force restrain even (‘She ultimately when it is purse- unsuccessful. seized snatcher, he broke out her not grasp.’) It does remotely apply, prospect policeman however, of a yelling, ‘Stop, fleeing in the name of the law!’ form that flee. continues to That is no seizure.” Michigan Chesternut, 567, 575, U.S. 108 S.Ct. (1988), 100 L.Ed.2d the same spoke effect. the Court’s
“Applying case, test facts of this we respondent conclude was seized before packets he containing discarded sub- controlled Although Officer stance. Peltier referred con- ‘chase,’ Magistrate duct as a and the originally who dis- description, complaint impressed by missed the enough, standing alone, implicate characterization is protections.” Fourth Amendment omitted).
(Emphasis supplied; footnote County Lewis, Sacramento v. high- L.Ed.2d case in which
speed pólice motorcycle fleeing chase resulted in motorcyclist Although off the road and spinning being killed. *17 police have for civil no may been liable Fourth damages, for analysis called the Fourth Amendment was because simply Amendment involved. was 660 only sei- Amendment covers ‘searches
“The Fourth place zures,’ suggests here. No one took neither of which finding a search, cases foreclose there and our was seizure.” see, And U.S. at S.Ct.
523
County
Inyo,
103
S.Ct.
Brower v.
489 U.S.
(1989).
Amendment,
may
stingy
It
Fourth
be
L.Ed.2d
chases.
unreasonable
proscribe
does not
Terry Stops
and Police Use
Force
down”
physical “take
Schlossnagle’s
Because Officer
if it
have
appellee
pivot
been the
seems
evidence,
suppress
decision
brief
hearing court’s
use of
is in
about the
force
the course
comment
order
Terry
Terry
course,
not a
stop,
of a
A
mere
stop.
State,
139, 149-52,
accosting
equals. Swift v.
Md.
between
(2006).
has risen
the level
Once
above
suspicion
899 A.2d
reasonable,
into a
articula-
hunch” and ripened
an “inchoate
authorized to
suspicion,
constitutionally
are
ble
turn,
suspect
question
suspect,
and to
him.
detain
required,
certain limitations as
time and
lawfully
within
A
questioning.
still
submit
place,
stand
not a
governmental authority,
is a lawful exercise
mere
A
disregarded.
suspect
physically
request
may be
who
That in
being
can
restrained.
physically
resists
detained
being
being handcuffed. For a
cludes
tackled
vivid
and/or
restraining
fleeing suspect,
of a
see
description
process
Supreme
recounting
process
Court’s
California v.
D.,
Hodari
499 U.S.
661 Independent The Source as an Antidote To “Fruit
of the Poisonous Tree” Doctrine
moreover,
State,
The
enjoys the benefit of
alterna
arguendo,
Terry
if,
tive rationale. Even
purely
unconstitutional,
case had been
the .38 caliber revolver taken
appellee’s backpack
plastic
and the
of
baggie
27
pills
narcotic
taken from the
sock
not
appellee’s
should still
have
suppressed.
theory
of exclusion urged by
appellee is that
of
pro
those two items
evidence were only
as a
of
wit,
cured
result
the unconstitutional
stop,
they
“fruit
poisonous
were the
tree.”
The “Fruit of the Poisonous Tree” Doctrine traces
back
States,
385,
Silverthorne
Co. v.
251
Lumber
United
U.S.
40
(1920).
S.Ct.
“The of a provision forbidding acquisition essence in a isway merely evidence certain that not evidence so acquired shall be used before the Court that it shall not be at all. Of course this does not mean that the used facts thus and obtained become sacred inaccessible.” S.Ct. 182. States, In v. Nardone United 308 U.S. S.Ct. (1939),
L.Ed.
was Justice Frankfurter who first em-
the term
ployed
“derivative evidence”
who coined the
poisonous
felicitous label “fruit
doctrine. It was
tree”
also
who
recognized
Justice Frankfurter
first
limitation
reach, as
out that
pointed
the doctrine’s
he
between
evidence,
original illegality
ultimate derivative
and the
may have
so
as to dissipate
“connection
become
attenuated
taint.”
Over the course of the next Court universally recognized hammered out what are now to be on, from, exemptions three limitations the exclusion on the “Fruit of the Poisonous Tree” Doctrine. based 2) 1) Taint, Source, They Independent are the Attenuation 3) ana- Discovery. They Inevitable each have different application. separate have rules each lytic They rationale. end, the non- the same they all are directed toward Although confused with one evidence, they should be exclusion 399, 403, 771 A.3d In 138 Md.App. another. Gibson modes determin- this Court looked three not mandated: ing that exclusion was ways are three recognized come to that there “It has ‘unpoisoning the colorfully has been described as what *19 actually are accurately, more these colorfully fruit.’ Less but poisoned ways determining not of the fruit was that three the first instance.”
(Emphasis supplied). That on of taint. its focus attenuation is first turned
Gibson not on the “fruit” the fact that theory non-exclusion based has, that poisoned poison through not the idea and that it circumstances, so strained diluted time and become at explained, Md.App. longer is no lethal. 138 771 Gibson A.2d 536: Nardone, first, presaged by
“The Justice Frankfurter States, Wong the attenuation of Sun v. United is taint. 471, 488, (1963), rejected 83 S.Ct. L.Ed.2d explained rule in the doctrine applying for’ ‘but to respect answered with derivative proper question be Vhether, of the granting primary illegality, establishment objection evidence to instant is made has been which by by illegality come at or instead exploitation sufficiently distinguishable purged of means be primary taint.’ Search, Seizure, 2255: Amsterdam, A
“Tony
Section
Comment,
pointed
U. Pa. L.Rev.
out
underlying purpose of the attenuation test is to
that the
point
diminishing
mark ‘the
returns
the deterrence
”
principle.’
three
that the exclu-
determining
Of the
distinct modes
for,
jump
not called
let us
forward
sion
evidence third
modalities,
and last of those
inevitable discovery, before
zeroing
arguendo,
in on
could,
the one that
applicable
case now before us.
respect
With
discovery,
inevitable
observed,
Gibson
Md.App.
A Pre-Existing Arrest Warrant However constitutional or unconstitutional the antecedent Terry stop of appellee the been, this case have the prior existence two warrants the appellee’s arrest an independent constituted source for the discovery the .38 caliber revolver and the plastic baggie of pills taken from the appellee. Corporal Zammillo was of the existence of aware the arrest warrants placed and he appellee the under arrest to prior police the opening of the appellee’s backpack. As field, Gibson the surveyed it said with to respect independent source:
“A way second of determining poi- that evidence is not fruit, soned notwithstanding suspicious “post hoc—propter hoc” time sequence, the proceeded when evidence has Murray States, from an independent source. v. United (1988), S.Ct. 101 L.Ed.2d 472 applies exception ‘independent source’ the explained during an for the first time obtained ‘only evidence search,’ independent initially ‘also evidence lawful but of, an consequence or as a unlawful during, discovered independently from activities search, later obtained but ” by illegality.’ initial untainted 403-404, Md.App. at A.2d Segura States, In United 468 U.S. into entry an effected unlawful
L.Ed.2d inside, however, they did apartment. the defendants’ Once it while other mem- merely secured apartment search team, anything of the -without the benefit bers entry apartment proceeded the unlawful of the observed 19 hours Notwithstanding the fact that a search get warrant. obtained, only by the search warrant was before went at the apartment the search was executed warrant when course of the incriminating evidence discovered holding Supreme authorized the warrant. The of the search very Court was clear: entry, illegality show, has no
“The of the initial as we will bearing question. The of this on second resolution question determine whether the requires second we now discovery initial entry tainted the evidence issue, challenged. On that the discov- we hold during subsequent apartment of the ered search following day pursuant valid search issued warrant wholly entry known to the officers information before apartment suppressed ‘fruit’ into the need not have been illegal entry warrant and the information because the entry on which it was based unrelated were independent therefore for the evi- constituted source *21 dence[.]”
(Emphasis supplied). pursuant The search was search warrant, There no taint to which never been tainted. had attenuate.
Murray States, 533, v. United U.S. 108 S.Ct. Segura L.Ed.2d 472 followed four years later and was completely compatible itwith in terms of result. The opinion Scalia, however, Justice presented a far more cogent conceptualization of Segura independent source than had Segura, Murray opinion. Unlike opinion did wander into random and unnecessary uses of the verb “attenuate.” Murray spoke only of “independent source” as distinct and specific exemption from exclusion and did not use language borrowed a very different species wit, of exemption, the attenuation of taint. Justice Scalia denominated indepen- dent source as a self-standing doctrine its right. own
“Almost simultaneously with our development the ex- clusionary rule, in the first quarter century, this we also ‘independent announced what has be come known source’ doctrine.”
“[T]his does not mean all the facts thus obtained knowledge become sacred and If inaccessible. them is gained independent they may proved from an source like any others.”
Murray, 487 U.S. on to goes explain: long later, “So aas genuinely independent lawful seizure is of an earlier, tainted one ... there is no why reason independent not apply.” source doctrine should Murray opinion’s conceptualization pieces how the this fit body law together completely dovetails Court’s conceptualization that same phenomenon Gibson State, supra.4 Unpoison Maguire, In Robert F. How to the Fruit—The Fourth Exclusionary Rule, Amendment and the 55 Journal Law, of Criminal
666 Seizure; LaFave, A
5 Wayne R. Treatise on Search 11.4(a) (3d 1996), con- ed. § 236-37 the Amendment Fourth the Attenuation Doctrine with Independent trasts the Source of Taint Doctrine: simplicity test of paragon source’ is a ‘independent
“The ordi- the connection’ formula. As compared to ‘attenuated if can the ‘but for’ test narily means that even applied, met, prior evidence not a fruit of the clearly the is then stated, the ‘independent So Fourth Amendment violation. unquestionably taint is limitation the upon source’ doctrine sound.” (2002),
In the Md. A.2d 231 Williams v. 813 of to the same effect: Court wrote Appeals States, Co. [Lumber “The v. United Silverthorne (1920)] 182, 183, noted, L.Ed. 319 Court in of dicta, government knowledge even if the obtains that manner, long in an as knowledge certain facts unlawful lawful, independent from a source those facts was derived illegality, they the initial be admissi untainted rule the exclusionary The does not when apply ble.... from an challenged independent State learns evidence source,” 411, that Nothing
372 Md. A.2d 231. occurred even Terry stop presumptively the tainted contributed course justified any preexisting probable that way cause appellee’s issuance of warrant arrest. The search incident result of that was the untainted arrest. Myers State, Md.App. 502,
In A.2d 920 subjected suspect stop to a traffic on a Pennsylvania was 1964), (September Criminology, the author Police Science notes: eliminating obvious means of unlawful search or seizure “One was, tainting proffered as a influence is to establish that the evidence fact, act discovered as result not the unlawful but rather lawfully completely indepen- known authorities information simply say dently of act. In such a can situation one and, hence, proffered produce not the the unlawful act untainted,” highway ultimately held have been an unconstitu- officer, stop. stopping however, tional aware of out- standing for the suspect’s warrants arrest and him arrested basis those warrants. The evidence subsequently recov- ered from suspect’s car was held be not the suppressi- product ble legitimate the unlawful product *23 a search incident arrest. The holding to lawful of this Court was clear that arrest an outstanding the warrant was an followed; for independent the that source search illegal stop, “In this us, case there before was an preexisting there was a arrest The warrant. officer not did make the stop purpose enforcing warrant, the for and the fact, in did the not person know then-unidentified subject vehicle an outstanding warrant.... exclusionary require suppression rule does of the evi- dence as a result obtained of the search incident a valid outstanding arrest on an warrant.” 527-28, 165 at 885 Md.App. A.2d 920. (Emphasis supplied). strong There had for such a ruling intimations Torres State, 129-33, (“The v. 95 (1998) 619 Md.App. A.2d 566 for applying reason poisonous the ‘fruit tree’ doctrine is that is a there clear the chain of break cause and State, effect.”); 183, 197-202, Brown v. 124 Md.App. 720 A.2d (1998). Myers State, certiorari, Appeals On the Court of in its 395 Md. A.2d affirmed the decision of this Court. It that, notwithstanding held unconsti- antecedent stop suspect, tutional of an discovery outstanding provided police arrest warrant with “an and independent intervening to arrest suspect. reason and search” the Myers’s
“Once Officer Weikert learned identity and dis- outstanding arrest, covered an warrant for his the officer gained independent intervening an and reason arrest and Myers. subsequent Thus, search search of Myers separate apart stop. his vehicle from the We initial (7th agree Green, Court in U.S. v. F.3d discovery Cir. that a chance of an outstanding arrest 1997)J circumstance intervening compelling more makes a warrant than others.” footnote (Emphasis supplied; 909 A.2d
395 Md. at omitted). in Cox v. decision similar Appeals
The Court reached (2007). have It did not even 916 A.2d 397 Md. had been the defendant the initial to decide whether arguendo. so, it assumed simply illegal; arguendo, constituted encounter “Assuming, to determine appropriate it more stop, an we deem illegal the trial proper whether was question: ultimate suppress motion to the evidence.” Petitioner’s grant court holding was 203-04, 311. The Court’s 916 A.2d Md. equally straightforward: of an discovery officer’s shall hold
“We Petitioner’s for Petitioner’s arrest and outstanding warrant intervening represents circum- *24 thereto pursuant arrest to appears taint of what to stance sufficient attenuate illegal an stop.” 916 A.2d
Id.
—
Strieff,
-,
136 S.Ct.
In Utah v.
subject-
initially
Strieff was
the defendant
L.Ed.2d
Terry stop. The
a
unconstitutional
State
presumptively
ed to
suspicion
that
was no reasonable
of Utah conceded
there
Terry
pro-
Court
Supreme
analysis
and the
justify
stop
stop,
At the outset
Strieff
assumption.
on that
ceeded
stopping
furnished identification. The
for and he
was asked
dispatcher,
a
who
information
officer called that
outstanding
an
warrant
that
there was
reported back
traffic
Strieff was arrested and
s arrest for a
violation.
Strieff
arrest. The search
as an incident
that
then searched
methamphetamine
drug parapherna-
baggie
revealed a
suppress
trial court refused to
the evidence but
lia. The
had
ultimately held that the evidence
Supreme
Utah
Court
(2015).
unconstitutionally seized.
The “But For” Test Is Almost Discredited independent source of a pre-existing arrest warrant arguendo Terry assumption renders the of a stop tainted totally originating irrelevant as the cause of the inci- search backpack dent of the the superseding followed arrest. We longer no care need whether the antecedent arguendo, If, tainted, tainted or untainted. we no longer need unattenuated, care that taint was whether attenuated be- even an taint cause unattenuated would be irrelevant.
In irrelevance, an effort to stave off that dispositive the a for” appellee interposes argument. classic “but “But for the hypothetically argument goes, unreasonable the stop,” “the never have in a to arrest the position would been at that appellant ensuing and conduct the search incident particular at “But for particular place.” time and that not stop, independent superseding cause could
tainted
superseded
precise
at that
moment.”
have
however,
arguments,
traditionally
“But for”
have
Court,
rejected
universally
by
Supreme
by
the Court
Michigan,
In
Appeals,
this Court.
Hudson v.
547 U.S.
592,
2159,
586,
Supreme
“[Exclusion obtaining violation a constitutional was ‘but-for’ cause causality only evidence. Our cases show but-for sufficient, not a for necessary, suppression.” condition Segura States, supra, prototypical v. United was the case rejection for Independent Doctrine. Its Source “but- emphatic. for” test
“The Court has never is ‘fruit of held poisonous simply tree' ‘it have come to because would light illegal police.’ for the actions of the The illegal but ... into entry petitioners’ apartment any did not contribute discovery warrant; way evidence seized under the clear, therefore, even the threshold for’ ‘but requirement was met in this case.” omitted). (Emphasis internal citations supplied; Wong States, 487-8, As early as Sun v. United Supreme early Court noted that even rule, days exclusionary it had declined to “hold that all evidence is ‘fruit of poisonous simply tree’ light it would not have come to illegal because police.” actions also, Ceccolini,
See
United States v.
435 U.S.
98 S.Ct.
(1978).
L.Ed.2d
Myers
In
671
would not
goal
deterring
otherwise
further the
unlawful
police activity,
but would result
an
application
rejected by
for’
unreasonable ‘but
test
that was
the Su-
preme
Wong Sun,
Court in
supra.”
In rejecting
rationale,
a “but for”
this
consistently
Court has
State,
followed suit. In Cox
“He argues that
this statement was the ‘fruit’ of illegal
police conduct, asserting that his arrest was
on the
based
gun
pursuant
search,
found
to
illegal
detention and
arrest,
absent his ‘unlawful
he would never have
been
to
position
talk
[a fellow detainee].”
194 Md.App.
Court,
at
5
for
Writing
A.3d 730.
Judge
roundly rejected
Graeff
on a
for”
reliance
“but
rationale.
“For
be
‘fruit of
excluded under the
poisonous
doctrine,
tree’
‘there must be a “cause-and-effect”
relationship
poisonous
or nexus
between
tree and it’s
alleged fruit.’ Evidence is not
to be ‘fruit of the
considered
poisonous tree,’
merely
however,
because it
would
have
illegal
police.
discovered ‘but
actions
Wong Sun,
L.Ed.2d 268 have declined se or any evidence, for’ rule” ‘but make would inadmissible tangible testimony, whether or live-witness somehow which n came light through began chain of causation illegal ”). arrest.’ 655-56, 194 Md.App. at (Emphasis supplied; A.3d 730. some omitted). quotations internal citations and early Md.App. 133, As Baker v. 383 A.2d Baker, rejected this Court has a “but for” test. In 136-37, Md.App. upon 383 A.2d the defendant relied admittedly illegal urge rejection his for” arrest “but everything that followed from it. pre- arrest his illegal however, contends
“Appellant, way in no him, so that he should any identification cludes freed. The and must be offense with the be connected styled by appellant as the argument ‘but advanced *27 illegal not have approach. arrest he would ‘But for’ for’ caught and, ergo, as the identified have been could culprit.” supplied).
(Emphasis
Garvin, 448
from
v.
Commonwealth
Quoting
approval
for”
rejected
“but
Court
“No suspect illegal have been would never for the arrest the required Thus, conclude that the we face his accusors. was to hasten the inevitable only illegal effect of the arrest its outcome.” not to influence confrontation and (Emphasis supplied). A.2d 698. Md.App. at 410-11, 771 A.2d Md.App. In v. Gibson a blight sweepingly out destructive pointed this Court how exclusionary for” would inflict. approach “but however, tentatively, somewhat “At oral and argument, strain of the ‘fruit a more virulent appellant championed that, upon if ever loosed tree’ doctrine poisonous in a single of fruit or two law, piece not contaminate would argues He would and level entire forests. blight orchard but stopping of him on November that BUT FOR their 1) identity, 2) his his have learned would never parole lengthy history burglary in New and his status away 3) York, from fact that he lived a few blocks and January argues crime. He further of the the scene they information, had no occa- would have BUT FOR that parked during from his home across the street sion to be 14 in February February hours of early morning after he left his they the observations did to make position argues finally house. He that those are observations exclud- ” poisonous able ‘fruits of the tree.’ pointed out might We how the derivative evidence admis- be under sible the Attenuation of Taint or might Doctrine be admissible under the Independent Doctrine, Source but would in no suppressible be event under “but for” rationale. arguendo,
“Even assuming, on November (we remotely was), was bad are not suggesting that operate would bar from evidence or other uses February observations February admissibility “The observations would clear whether considered as an instance the attenuation of the Wong States; taint, initial v. United United v. Sun States Ceccolini, product independent source, or as the of an Segura States; Murray v. United States.” United *28 412, Md.App. (Emphasis at A.2d supplied).5 Cautionary Analytic
A Note6 Strieff, wit, to Although the bottom line decision of Utah v. by that the evidence the search to produced incident Strieff s lawful arrest would not is suppressed, unquestionably be correct, analysis uncomfortably shaky. is at times Strieff There growing seems to be a trend the more recent caselaw generally analytic approach to utilize the that Strieff same confirms, opinion times seems to As the employ. concurring is a and growing analytic approach there trend to utilize this that is the reason for cautionary note. The bottom-line by result of is not this trend non-suppression threatened analysis analysis solid shaky because and more both Grayson, 138, (2011), by 5. The case of Missouri cited S.W.3d concurring opinion example application of is a classic of the a "but for” rationale. Cautionary respect opinion, 6. With "A to this final section "Conclusion,” Analytic Judge Moylan writing for himself Note” and is panel. alone and not for the direction, in the is same toward non-exclusion. push What threatened, however, understanding is cogent and overview fine, analysis of The is body of this result is entire law. muddle, moreover, to rapidly It is in a that seems be muddled. metastasizing.
The of culprit promiscuous is a overuse and the verb misuse of “to an almost attenuate” and robotic criteria misapplication doctrines, “Attenuation of Doctrine” to other Taint “Independent Discovery,” as and such Source” “Inevitable not pertinent. at all “atten- those criteria are The word where any is to being suppress uate” misused refer to reason to refer to properly only evidence whereas should be used of possible suppress. body three reasons of law one conceptualize need to is the we “Fruit Poisonous Compa- Beginning Tree Doctrine.” with Silverthorne Lumber ny why, following doctrine explained unconstitu- police, tional behavior the exclusion investigative necessary evidence secondary deterrent derivative misbehavior, just as surely pri- is the exclusion mary or direct evidence. Wong
Beginning with Sun v. in 1963 United States recognized Illinois in Brown v. law set circum- stances calling exemption from evidence. such exclusion recognized The first has come exemption such was what Attenuation Taint Doctrine. In determining be called the not, whether the exclusion appropriate chain of doctrine examines the cause-and-effect between behavior) (the (the recovery cause tainted effect evidence). itself, Brown v. Illinois 95 S.Ct. speaks *29 L.Ed.2d “the causal chain illegal arrest between the and statements made subse quent certain, Where causation is close and thereto.” Where, hand, exclusion is appropriate. the other the chain is, circumstances, of causation time or other long drawn out attenuated, may appropriate. why exclusion be This is measuring the criteria for has along what that chain happened of cause-and-effect such includes Brown v. Illinois consider 1) 2) circumstances, temporal proximity, intervening ations 3) purpose and flagrancy of the official Those misconduct. criteria are of attenuation measures between original taint and the ultimate evidence. After a certain point, original causation loses potency, its so exclusion of is a case of get To a proper conceptualization overkill. of what about, Attenuation Taint Doctrine is all one should carefully follow, step by step, the protracted oft-interrupt ed chain of causation that was before the Supreme Court in Wong Sun v. United It is a prime States. example of what attenuation means.
To picture the field as it has developed, it may helpful to be think genus of a and its relationship its species. constituent The genus broad dealing we are with Exemption from Exclusion. That genus 1) now embraces three species: distinct 2) Doctrine, Attenuation of Taint the Independent Source 3) Doctrine, and the Inevitable Discovery Doctrine. When Brown v. Illinois was in 1975, written however, attenuation exemption taint from only exclusion that had been recognized. The species genus, therefore, and the were one and the same. There was no difference between speaking specifically about attenuation and speaking generically about the whole That, field of exemption. course, why present day reliance on language Brown v. Illinois can treach It specific problem erous. describe a in inappropriately generic species terms. Brown describes one exemption, it does not the entire describe As genus exemption.
however, Brown Illinois no yet that, v. had way knowing because only one species existed. other two had not yet recognized. Segura Murray
With in United States 1984 and v. United species States genus, a second was added to the Independent Source Nix v. Doctrine. With Williams species genus, Discovery third was added the Inevitable doctrines, however, Doctrine. These two do not involve attenu- ation, no and attenuation criteria have pertinence them, examination of these dealing doctrines. When therefore, one rely cannot on Brown v. Illinois. *30 tainted original analysis,
In actual attenuation chain of pertinent in the still the “cause” activity remains or to which time the extent measure cause and effect. We the poi- or have diluted diminished intervening circumstances supra, 11.4(a) out, § LaFave, points at taint. sonous of ‘density’ of or thickness’ ‘diminution “attenuation refers ” doctrines, by In the other two intensity.’ or ‘force attenuating or diluting contrast, are not concerned with we longer is no activity originally tainted taint because the displaced It has new chain causation. the cause our issuance cause: the by a new and different superseded or cases and independent in the source the arrest warrant discovery in the inevitable compelling supposition logically cases. in the new immaterial
Attenuation criteria are because causation, no taint to longer any there is superseding chains causative a discarded tainted cause of be attenuated. The cause of a new and different replaced by new chain has been Two chains chain, a cause that untainted. causative intertwine; distinct. One chain of they not remain causation do Terry frisk, a completely to a causation have lead They of causation lead different chain the search incident. not conflat- they fall should together not rise and need mean that the search incident ed. To conflate the two would could also be unless the frisk could be deemed valid taint, attenuating only talk about valid. We should deemed therefore, literally dealing with the Attenuation when arewe dealing are Doctrine and when we Taint Discovery or Inevitable Doctrine Independent Source Doctrine. source, moreover, is independent or an superseding cause
A intervening “an circumstance” thing no the same by means An analysis. intervening that is a familiar factor attenuation along something happens circumstance is within International of causation. Webster’s Third New original chain (4th 1976), gives as definition 3 Dictionary p. ed. by way “to come in or modification.” “intervene”: between (the to B stop) “A leads which leads It is internal. bad (the evidence).” to C which leads to D recovery of B and C are intervening circumstances that interrupt tend movement along the cause-and-effect thereby chain and to dilute or *31 weaken the force of the original taint. With the Independent Doctrine, contrast, Source we look to a different and untainted starting cause as the of point independent an distinct chain of causation. Webster’s Third New International (4th 1976), Dictionary ed. p. gives at 4 for definition Wong Sun, “supersede”: “to place take the of.” at explained exclusionary “the rule has no application because the of Government learned the evidence from an independent Why source.” then do we speak even of attenuating taint when is there no taint to attenuate?
Why, might asked, be did these very three different of species exemptions from get exclusion ever grouped togeth- er in first place? It obviously of because the seductive or power song siren logical irresistible of fallacy “Post hoc, ergo this; propter therefore, hoc”—“After because of this.” “The recovery chase; of the evidence occurred after the therefore, it must have occurred because the chase!” It is a beguiling sequence, time but it is The fallacious. Attenuation Doctrine, indeed, of Taint calls for analysis “post under such hoc” framework. Independent The Doctrine Source and the Discovery Doctrine, hand, Inevitable on the other not. A do preexisting independent source, arrest warrant is an and there nothing is that needs to be attenuated.
Although the phenomena might two occur at roughly the narrative, same moment in real in a given investigative time circumstance,” hand, an “intervening the one and an “inde- pendent cause,” or “superseding hand, source” on the other are critically different and must not be confused with each other. An “intervening circumstance” is an event within chain of tainted causation and is a factor in measuring the extent to which has the taint An been diluted attenuated. “independent cause,” or “superseding by contrast, source” is not an event within that tainted chain of It is an causation. overriding event that renders the chain of tainted causation immaterial. chain That of causation no It has longer matters. chain causation that displaced by entirely different and, therefore, no needs place never tainted the first “intervening An source” is not an “independent
attenuation. circumstance.”
Conclusion being casually misused to cover The word “attenuate” from every variety exemption the exclusion Doctrine, under the Fruit of the Poisonous Tree whereas it properly only one the three distinct modes pertinent If, therefore, robotically picks up the caselaw exemption. attenuating-taint species exemption criteria from one illogically very those criteria on a imposes exclusion exemption, HANDLE EXTREME species different WITH risk, practical CAUTION. result but the *32 analysis of our is. cogency OF
ORDER SUPPRESSION REVERSED AND CASE TRIAL; REMANDED FOR COSTS TO BE PAID BY APPELLEE. Graeff,
Concurring Opinion by J.
Graeff, J.
I I judgment only. agree concur with of the much Opinion, i.e., that the Majority police suspicion had reasonable if appellant, they to detain and even not did and the initial unlawful, suppression detention was the evidence obtained not discovery warranted because the arrest warrant I purged any illegal the taint of separately detention. write because, although I agree judgment be re- should versed, I not respectfully agree do with that the conclusion source doctrine this case. independent applies notes, Majority “purging As the there are three methods of police provide exceptions taint” unlawful conduct exclusionary rule: First, independent source doctrine allows trial courts in an if admit evidence obtained unlawful search officers independently acquired it from a separate, independent
679
source. See Murray
States,
v.
United
533,
537,
487 U.S.
108
(1988).
2529,
S.Ct.
101
Second,
L.Ed.2d 472
the inevitable
discovery doctrine
for the
allows
admission
evidence
would have been discovered even without the unconstitu
Williams,
tional
See Nix v.
source.
431,
443-444,
467 U.S.
2501,
(1984).
Third,
S.Ct.
Utah v. Strieff,
-,
2056, 2061,
U.S.
136 S.Ct.
(2016)
omitted).
L.Ed.2d 400
Accord Cox v.
(parallel citations
State,
652,
(2011);
Md.
Williams v.
The Supreme Court of Missouri
addressed
similar scenar-
Grayson,
State v.
(Mo. 2011).
io in
As the United States
Williams,
467 U.S.
Here, Officer bag methamphet Lambert obtained by amine chain of taking advantage direct events arising Gray- initial on Mr. illegality perpetrated Grayson driving son. Had Mr. detained while been Officer innocently and further detained after as Lambert Reed, not Terry certained he was then Officer Lambert in position Grayson never have to arrest Mr. would been in bag methamphetamine and later discover while specting patrol transporting car’s backseat after Mr. jail. Grayson properly the state have arrested While Grayson outstanding point, Mr. warrant at some it is arrest on of posses the warrant but the conviction sion of methamphetamine patrol found car some time objected Here, the arrest that is to here. “prosecu after tion in a than it if put position better have would Nix, no illegality transpired.” had (footnote Grayson, at 150-151 cita- parallel S.W.3d omitted). tions
I I agree analysis. disagree with that with the conclusion that, illegal, if the initial Majority indepen- apply prevent dent source doctrine would exclusion evidence.
I
in this
apply
would
the attenuation doctrine
case. That is
Supreme
the rationale followed
the United States
Court
Maryland
Appeals
and the
Court
circumstances similar
*34
to the
of this
Strieff,
facts
case. See
Pursuant doctrine, attenuation facts following must be considered:
First, look to we the “temporal proximity” between unconstitutional discovery conduct and evidence closely determine how discovery evidence followed Second, unconstitutional pres- search. we consider “the ence intervening Third, circumstances.” “particular- and ly” significant, we examine “the purpose flagrancy the official misconduct.” (citations omitted).
Strieff,