"Mere Accosting" and "Stop, Detention, and Frisk" Are Not Arrest


I. "Mere accosting" and "stop, detention, and frisk" are not arrest

In Swift v. State, 393 Md. 139 (2006) (internal citations omitted), the Court of Appeals stated:

Fourth Amendment guarantees are not implicated in every situation where the police have contact with an individual. Many courts have analyzed the applicability of the Fourth Amendment in terms of three tiers of interaction between a citizen and the police. The most intrusive encounter, an arrest, requires probable cause to believe that the person has committed or is committing a crime. The second category, the investigatory stop or detention, known commonly as a Terry stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop and detain an individual. . . . A Terry stop is limited in duration and purpose and can only last as long as it takes a police officer to confirm or dispel his suspicions. . . .

The least intrusive police-citizen contact, a consensual encounter . . . involves no restraint of liberty and elicits an individual's voluntary cooperation with non-coercive police contact. A consensual encounter need not be supported by any suspicion and because an individual is free to leave at any time during such an encounter, the Fourth Amendment is not implicated; thus, an individual is not considered to have been "seized" within the meaning of the Fourth Amendment.

Id. at 149-50.

Police-citizen interaction ranges from a non-Fourth Amendment "mere accosting" to a Fourth Amendment "stop" or "detention" (and possibly a "frisk") to a Fourth Amendment "arrest." Terry v. Ohio, 392 U.S. 1, 10-12 (1968); see Ferris v. State, 355 Md. 356, 374 (1999) (mere police questioning does not constitute a seizure).

In Graham v. State, 146 Md. App. 327 (2002), police, upon spotting the defendant leaning on a vehicle, pulled his vehicle over, approached the defendant, and asked his name. The Court of Special Appeals held that the brief conversational phase was an uneventful mere accosting, but the subsequent pat-down was a Fourth Amendment seizure. The Court rejected the State's argument that there is a level of intrusion between mere accosting and a Terry-stop, which the State characterized as a "field interview." The Court held that there is danger in

creating, without any imprimatur from the Supreme Court, a term of art or a category called the "field interview." A field interview is simply one instance, out of innumerable instances, of a mere accosting. [C]haraterizing every . . . encounter between a citizen and the police as a "seizure," while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of law enforcement practices.

Id. at 365-66; see United States v. Mendenhall, 446 U.S. 544, 553 (1980).

In Swift, 393 Md. 139, the Court of Appeals recognized that an encounter may begin as consensual, and may evolve into an investigatory detention, and may become an arrest, stating: "An encounter has been described as a fluid situation, and one which begins as a consensual encounter may lose its consensual nature and become an investigatory detention or an arrest once a person's liberty has been restrained and the person would not feel free to leave." Id. at 152.

A. Mere accosting does not implicate the Fourth Amendment

The least intrusive police-citizen encounter is no Fourth Amendment intrusion at all. Jones v. State, 319 Md. 279, 282-83 (1990). An accidental, voluntary, and/or consensual encounter in public, in which police identify themselves and ask questions, is a "mere accosting" and does not implicate the Fourth Amendment. See Cornish v. State, 215 Md. 64, 68 (1957) (mere accosting when approached by police and merely questioned as to his identity and actions).

In Jones v. State, 139 Md. App. 212 (2001), the Court of Special Appeals held that "[a]n accosting occurs when a police officer approaches a person and engages in an inquiry as to the person's identity, destination, and other general information, a practice known as a field interview." Id. at 221. In United States v. Drayton, 536 U.S. 194 (2002), the Supreme Court stated: "Law enforcement officers do not violate the Fourth Amendment . . . merely by approaching individuals on the street or other public places and putting questions to them if they are willing to listen." Id. at 200.

In Florida v. Royer, 460 U.S. 491 (1983), the Supreme Court stated:

Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering evidence in criminal prosecution of his voluntary answers to such questions. Nor would the fact that the officer identified himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. The person approached, need not answer any questions put to him; indeed he may decline to listen to the questions at all and may go on his way.

Id. at 497-98 (citations omitted).

If a reasonable person would feel free "to disregard the police and go about his business," the encounter is a consensual mere accosting and not a stop or detention or an arrest. California v. Hodari D., 499 U.S. 621, 628 (1991).

In Mendenhall, 446 U.S. 544, the Supreme Court stated: "As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." Id. at 554; Terry, 392 U.S. at 33; Sibron v. New York, 392 U.S. 40, 43 (1968). In Reynolds v. State, 130 Md. App. 304 (1999), the Court of Special Appeals stated that there is a mere accosting when an "encounter is consensual [and] a reasonable person would feel free to end the encounter and simply walk away." Id. at 324.

B. Seizure implicates the Fourth Amendment

The latter two police-citizen encounters—stop and arrest—are both seizures and thus both implicate the Fourth Amendment.

1. When does a seizure occur?

A person is seized by police, thus implicating the Fourth Amendment, when (a) police apply physical force to the defendant, however slight; or (b) notwithstanding a lack of physical force, police demonstrate a "show of authority" and the individual submits to that show of authority. Ferris, 355 Md. at 377. In Reynolds, 130 Md. App. 304, the Court of Special Appeals stated that the Fourth Amendment is implicated when police "indicate that compliance with their requests is required by means of physical force or show of authority." Id. at 322-23 (quoting Stanberry v. State, 343 Md. 720, 730 (1996), cert. denied, 520 U.S. 1210 (1997)).

The test for a "show of authority" is an objective test. See, e.g., Green v. State, 145 Md. App. 360, 378 (2002). In United States v. Gray, 883 F.2d 320 (4th Cir. 1989), the Fourth Circuit held:

The courts have examined a number of factors when determining whether an officer did, in fact, display a "show of authority." The factors most frequently looked to by the courts include: (a) the number of officers present; (b) whether the police officers were in uniform and whether they displayed their weapons; (c) whether the officer touched the Defendant or made any attempt to physically block his departure or restrain his movement; (d) whether the officer's questioning was conversational rather that intimidating, i.e., did the officer raise his voice or threaten the Defendant; (e) whether the officer informed the Defendant that he positively suspected him of illegal activity rather than treating the encounter as routine in nature; and (f) whether, if the officer requested from the Defendant either his plane ticket or some form of official identification, the officer promptly returned it.

Id. at 322-23 (internal citations and quotations omitted).

Submission to a claim of authority is non-consensual, and implicates the Fourth Amendment, regardless of whether police claim of authority is valid or invalid. In Hodari D., 499 U.S. 621, police showed authority by chasing the defendant, but because the defendant refused to submit, there was no seizure. The Court stated:

The word "seizure" readily bears the meaning of a laying on the hands or application of physical force to restrain movement, even when it was ultimately unsuccessful. . . . It does not remotely apply, however, to the prospect of a policeman yelling "Stop, in the name of the law!" at a fleeing form that continues to flee.

Id. at 626. In Hodari D., police eventually tackled the defendant and, when police made physical contact, the Fourth Amendment was implicated. Id. at 629.

In Partee v. State, 121 Md. App. 237, 247 (1998), the Court of Special Appeals held that there was no seizure when police chased the defendant on foot, commanded him to "halt," and attempted to shoot, because the defendant did not submit to the "show of authority." Police eventually shot the defendant and, when the bullet made physical contact, the Fourth Amendment was implicated. Id. at 249.

In Brummell v. State, 112 Md. App. 426, 433-5434 (1996), the Court of Special Appeals held that there was no seizure, and the Fourth...

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