____________________________________________________________________
IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
September Term, 2004
________
Case Number: 02818
______
William Sykes
v.
Appellant
State of Maryland
Appellee
_____________________________
Appeal from the Circuit Court for Baltimore County
(The Honorable Michael J. Finifter, Circuit Judge)
_______________________
APPELLANT’S REPLY BRIEF
_______________________
Richard W. Winelander
1005 North Calvert Street
Baltimore, Maryland 2l202
rw@rightverdict.com
(410) 576-7980
Stanley H. Needleman
1005 North Calvert Street
Baltimore, Maryland 2l202
(410) 385-2020
Counsel for Appellant
______________________________________________________________________
TABLE OF CONTENTS
TABLE OF AUTHORITIES ………………………………………………….………..…1
ARGUMENT
I
The failure of the police to question Appellant rendered the subsequent
groping unreasonable…..……..……………………………………...…..………..….....2
II
That was no frisk--it was a Grope for Dope.……………...………..………………………4
CONCLUSION………………………………………………………………….……......7
CONSTITUTIONAL PROVISIONS..................................................................................8
STATEMENT OF FONT TYPE AND SIZE……..…………………………..…...……………..8
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
U. S. Constitution: Amendment IV……………………………………..………………..6
CASES
Adams v. Williams, 407 U.S. 143, 145 (1972)…………………………...……….3, passim
Anderson v. State, 282 Md. 701, 387 A.2d 281 (1978)....................................................... 2
Berkemer v. McCarty, 468 U.S. 420 (1984)........................................................................ 3
Katz v. United States, 389 U.S. 347 (1967)......................................................................... 6
Minnesota v. Dickerson, 508 U.S. 366 (1993) ...................................................... 4, passim
Sibron v. New York, 392 U.S. 40 (1968) ............................................................................. 5
State v. Smith, 345 Md. 460, 693 A.2d 749 (1997)......................................................................... 5
Terry v. Ohio, 392 U.S. 1 (1968)............................................................................ 3, passim
United States v. Brignoni-Ponce, 422 U.S. 873 (1975) .................................................. 3, 4
Williams v. Adams, 436 F.2d 30(2nd Cir. 1972) ………………………………………………..6
MISCELLANEOUS
Webster'
s Revised Unabridged Dictionary (1913) ............................................................ 16
Priar & Martin, Searching and Disarming Criminals, 45 J.Crim.L.C. & P.S. 481 (1954)..5
1
____________________________________________________________________
IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
September Term, 2004
________
Case Number: 02818
______
William Sykes
v.
Appellant
State of Maryland
Appellee
_____________________________
Appeal from the Circuit Court for Baltimore County
(The Honorable Michael J. Finifter, Circuit Judge)
_______________________
APPELLANT’S REPLY BRIEF
_______________________
ARGUMENT
I.
THE FAILURE OF THE POLICE TO QUESTION APPELLANT
RENDERED THE SUBSEQUENT GROPING UNREASONABLE
The State claims that the “Terry Court did not require an officer to make any
inquiry or receive a reply before conducting a pat-down for weapons.” (Brief at 13). In
this assertion, the State is wrong on both the facts and the law. The fact of the matter is
that, in Terry, Officer McFadden made inquiries. McFadden, who faced three possibly
2
armed men, without backup, began the encounter by asking the group their names—to
which he only received mumbles in reply. Terry v. Ohio, 392 U.S. 1, 6 (1968). As to the
law, the State’s position ignores the very limited nature of government intrusions based
on nothing more than suspicion. It also forgets the language of the Terry Court:
where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others'safety, he is entitled for the protection
of himself and others in the area to conduct a carefully limited search of
the outer clothing of such persons in an attempt to discover weapons which
might be used to assault him.
(Emphasis supplied). 392 U.S. at 30-31. Thus, a Terry stop allows police to “investigate
the circumstances that provoke suspicion.” United States v. Brignoni-Ponce, 422 U.S.
873, 881, (1975). They do this by asking the “detainee a moderate number of questions
to determine his identity and to try to obtain information confirming or dispelling the
officer’s suspicions.” Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
The Terry Court adopted a dual inquiry for evaluating the reasonableness of police
conduct: “Whether the officer'
s action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the interference in the
first place.” Terry, 392 U.S. at 20. “A brief stop of a suspicious individual, in order to
determine his identity or to maintain the status quo momentarily while obtaining more
information, may be most reasonable in light of the facts known to the officer at the
time.” Adams v. Williams, 407 U.S. 143, 145 (1972). At times an “officer may question
3
the driver and passengers about their citizenship and immigration status, and he may ask
them to explain suspicious circumstances, but any further detention or search must be
based on consent or probable cause.” Brignoni-Ponce, 422 U.S. at 882.
The Adams Court found Williams’ failure to follow instructions caused him to
become “an even greater threat”, Adams, 407 U.S. at 148, justifying a further intrusion.
In the case sub judice, Sykes and Dargon were cooperative, did every thing asked of
them, had their hands on a car while they were surrounded by three police officers with
drawn guns. At this point, Sykes and Dargon posed no danger to either the police or
other citizens.
What would have been constitutionally reasonable at this point in time, under the
facts of this case, would have been to ask a few simple questions. As a result, under the
totality of the circumstances of this case, the failure of the police to direct questions to
Sykes and Dargon rendered the frisk constitutionally unreasonable.
II
THAT WAS NO FRISK –IT WAS A GROPE FOR DOPE
If it looks like a grope1! And feels like a grope! It must be a grope, which is by
nature constitutionally unreasonable, Dickerson, supra.
The State referred to the
following groping technique as both a “frisk” and a “pat down” (Brief at 17):
The procedure is we start at the head, work down on the shoulders and
arms, grabbing and crumbling the clothes as we check for weapons. When
I got to the right outer pocket, same procedure; grabbed, crumbled, rolled
1
To search or attempt to find something in the dark, or, as a blind person, by feeling; to move
about hesitatingly, as in darkness or obscurity; to feel one'
s way, as with the hands, when one
cannot see. Webster'
s Revised Unabridged Dictionary (1913).
4
my hand slightly, felt the object, heard a plastic bag and felt two vials – two
decks maybe, two objects which I recognized to be glass vials…
On the other hand, the Terry Court, when authorizing a limited patdown, described
a frisk2 as follows:
The officer must feel with sensitive fingers every portion of the prisoner'
s
body. A thorough search must be made of the prisoner'
s arms and armpits,
waistline and back, the groin and area about the testicles, and entire surface
of the legs down to the feet.
Terry, 392 U.S. at 17 n.13. The Dickerson Court described a procedure whereby the
officer “pats down a suspect'
s outer clothing” Dickerson, 508 U.S. at 375. If, as here, a
“protective search goes beyond what is necessary to determine if the suspect is armed, it
is no longer valid under Terry and its fruits will be suppressed.” Id at 373.
The purpose of a Terry frisk is not to discover evidence, but rather to protect the
police officer and bystanders from harm, Terry, 392 U.S at 29, see also, Sibron v. New
York, 392 U.S. 40 (1968), the frisk should be “confined ... to an intrusion reasonably
designed to discover guns, knives, clubs, or other hidden instruments for the assault of
the police officer." Id. Terry frisks are limited to a search for weapons that might place
the officer or the public in danger, Dickerson, 508 U.S. at 373, and “must be limited to
the least intrusive means of determining whether a suspect is armed.” State v. Smith, 345
Md. 460, 472 (1997). Just as an officer thrusting his hand into a citizen’s pocket is
unconstitutional, Sibron, supra, so too is the groping technique, which incorporated the
2
Although, the Terry Court quoted from Priar & Martin, Searching and Disarming Criminals, 45
J.Crim.L.C. & P.S. 481 (1954), the authors of the text make it absolutely clear that the
procedures described are for use when a suspect has been placed under arrest.
5
grabbing, squeezing, rolling and manipulation of the contents of Sykes’ pocket.” The
groping technique was far too intrusive in nature to have been envisioned by the Terry
and Dickerson Courts as constitutionally reasonable.
Obviously, Officer Anderson’s technique was far too exploratory in nature and
intensity to be reasonable under the circumstances. In Maryland, “general exploratory
searches are not permitted and police officers must distinguish between the need to
protect themselves and the desire to uncover incriminating evidence.” Smith, 345 Md. at
645.
In closing, it needs to be repeated that Terry frisks are the exception to the rule,
not the rule itself. Each time an appellate court extends the permissible scope and
intensity of warrantless police intrusions, the Fourth Amendment suffers, Katz v. United
States, 389 U.S. 347 (1967). In fact, we all suffer a loss of dignity. Justice Scalia, in his
concurring opinion in Dickerson, doubted there was a constitutional base for a frisk at all.
He stated, “I am unaware, however, of any precedent for a physical search of a person
thus temporarily detained for questioning.” Id. at 508 U.S. at 380. He went on to state,
“I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth
Amendment would have allowed themselves to be subjected, on mere suspicion of being
armed and dangerous, to such indignity.” Id.
In 1972, when Adams v. Williams was decided, Justice Brennan, in his dissent,
gave warning of the consequences of the Terry doctrine. Quoting the following language
from Chief Judge Friendly:
6
To begin, I have the gravest hesitancy in extending (Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) to crimes like the possession
of narcotics . . .. There is too much danger that, instead of the stop being the
object and the protective frisk an incident thereto, the reverse will be true.
Adams, 407 U.S. at 151 (citing dissenting opinion, Williams v. Adams, 436 F.2d 30, 38—
39 (2nd Cir. 1972)). Twenty-one years later, Justice Scalia pointed out that, “As a policy
matter, it may be desirable to permit ‘frisks’ for weapons, but not to encourage ‘frisks’
for drugs by admitting evidence other than weapons.
Dickerson, 508 U.S. at 382.
(Emphasis in the original).
There can be no doubt Officer Anderson’s groping
technique was designed to be overly intrusive and exploratory for the sole purpose of
discovering drugs where no weapon could be detected from “contour or mass.” Id at 372.
As a result, the technique was constitutionally and impermissibly overbroad, and
anything found as a result should have been suppressed.
CONCLUSION
It is abundantly clear that Officer Anderson’s suspicion, that the two adult men
approaching him were the teenage robbers, was unreasonable—he utterly failed to ask
any questions designed to dispel his unreasonable suspicion. Further, the groping of the
Appellant was far too exploratory and intrusive in nature. Therefore, the Appellant
respectfully requests that this Honorable Court reverse the conviction below and remand
for a new trial, with instructions to suppress the evidence seized during the search and the
derivative evidence that flowed therefrom.
7
Respectfully Submitted,
William Sykes
By and through counsel
________________________________
Richard W. Winelander
1005 North Calvert Street
Baltimore, Maryland 2l202
rw@rightverdict.com
(410) 576-7980
________________________________
Stanley H. Needleman
1005 North Calvert Street
Baltimore, Maryland 2l202
(410) 385-2023
CONSTITUTIONAL PROVISIONS
U. S. Constitution: Amendment IV.
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
STATEMENT OF FONT TYPE AND SIZE
The font in this brief is Times New Roman and the size is 13-point type for the
body of the text, while the headings are in 16-point type.
8