What Is A Fourth Amendment Stop Or Detention That Is Less Than A Full Custodial Arrest?

• Jurisdiction: Maryland

XIII. What is a Fourth Amendment stop or detention that is less than a full custodial arrest?

In Terry v. Ohio, 392 U.S. 1, 27 (1968), the Supreme Court approved intrusions upon persons based on less than probable cause. This lesser intrusion is known as a "stop" or a "detention." A stop or detention means that the Fourth Amendment is implicated, but is implicated at a level less than a full custodial arrest. The Court stated: "An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons. . . ." Id. at 26.

A stop or detention occurs when there is (a) an application of force, however slight; or (b) an official "show of authority" and a submission thereto. California v. Hodari, 499 U.S. 621 (1991). The key is whether, under a totality of the circumstances, a reasonable person would believe that he or she is not free to go. Id. at 625-26. See Michigan v. Chesternut, 486 U.S. 567, 577 (1988); State v. Lemmon, 318 Md. 365, 375-76 (1990); Anderson v. State, 282 Md. 710, 704-05 (1978). Carter v. State, 243 Md. App. 212 (2019) ("Whether a reasonable person would have felt free to leave police presence is a highly fact-specific inquiry").

In determining whether an individual has been subjected to a Fourth Amendment stop or detention, courts consider, among other things, (a) the time and place of the encounter; (b) the number of officers present and whether they are uniformed; and (c) whether an officer made physical contact with the defendant or physically blocked departure or restrained movement.

In Brower v. County of Inyo, 489 U.S. 593 (1989), the Supreme Court held that the defendant was seized when police set up a roadblock, during a high speed pursuit, which the defendant could not avoid. The Court stated:

In determining whether the means that terminate the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant for the leg. We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.

Id. at 599-60. In Tennessee v. Garner, 471 U.S. 1, 7 (1985), the Supreme Court held that the fleeing suspect was seized when police shot him while fleeing from the scene of a burglary, stating: "[T]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." In Partee v. State, 121 Md. App. 237, 249 (1998), the Court of Special Appeals held that the defendant was seized by police when he was shot in the leg.

Courts also consider (a) whether police removed the person to a different location or isolated the person from others; (b) whether police seized and failed to return documents that, if on the person, would enable the defendant to leave, such as a plane ticket, passport, or driver's license; (c) whether the person was or was not informed or being free to leave; and (d) whether police commanded the defendant to stop or remain with the officer(s).

In Lemmon, 318 Md. at 373-74, the Court of Appeals held that the defendant was seized when police ordered him to "come here." In Jones v. State, 319 Md. 279, 282-83 (1990), the Court of Appeals held that the defendant was seized when an officer, in uniform and driving a police vehicle, commanded him to stop.

Courts also consider (a) whether police treated the person in a routine manner or indicated that the person was suspected of a crime and/or under investigation; and (b) whether police exhibited threatening behavi or or displayed weapons or merely conversed in a conversational and non-threatening manner. In Trott v. State, 138 Md. App. 89, 104 (2001), the Court of Special Appeals held that there was no show of authority when the officer's tone was purely conversational.

A. Constitutional requirement for a stop or detention

1. Reasonable suspicion standard

For a seizure to be constitutional at the stop or detention level, police must have reasonable suspicion, based on articulable facts, that criminal activity is afoot. United States v. Arvizu, 534 U.S. 266, 273-74 (2002); Terry, 392 U.S. at 30 and 37; Crosby v. State, 408 Md. 490, 503 (2009); Mosley v. State, 289 Md. 571, 577-78 (1981).

In determining whether reasonable suspicion exists, an officer's judgment is entitled to great deference. Cross v. State, 165 Md. App. 164, 187 (2005). Nonetheless, the reasonable suspicion standard does not allow police to simply assert that innocent conduct was suspicious to that officer. Crosby, 408 Md. at 508; Bost v. State, 406 Md. 341, 357 (2008); Anderson, 282 Md. at 705; Sellman v. State, 449 Md. 526 (2016). In State v. Holt, 206 Md. App. 539 (2012), the Court of Special Appeals held that officers had reasonable articulable suspicion to stop the defendant, stating:

[B]ased on a totality of the circumstances, the detectives possessed a reasonable articulable suspicion that [the defendant] had just engaged in a narcotics transaction in order to conduct a brief investigatory stop. The detectives knew that [the defendant] met in a public location with a known drug dealer . . . in what appeared to be a pre-arranged meeting. The detectives knew that [the suspected drug dealer entered the defendant's] car, and the two drove around . . . before quickly parting ways. The detectives knew that neither party worked out at the exercise station [in the area]. The detectives knew that neither party went to a location to have lunch . . . The detectives knew that [the suspected drug dealer] just traveled from the North Avenue courthouse to Baltimore County to pick up a small container and then drove . . . 1.7 miles away from where he started. The detectives noticed that [the suspected drug dealer] was looking rapidly around . . . Finally, the detectives were familiar with a previous confirmed narcotics transaction in which [the suspected drug dealer] participated. The detectives knew that the previous transaction also took place in a seemingly pre-arranged public location where the parties arrived separately and parted ways quickly after meeting.

Id. at 553-54.

2. Sources of reasonable suspicion based on informant's information

Subject to determining reliability, reasonable suspicion may be based on facts provided by informants. Florida v. J.L., 529 U.S. 266, 269 (2000); Alabama v. White, 496 U.S. 325, 328 (1990); Adams v. Williams, 407 U.S. 143, 148 (1972); Lee v. State, 311 Md. 642, 668 (1988) (informant provided reasonable suspicion despite some inaccuracies); Cross, 165 Md. App. at 183 (informant provided reasonable suspicion, coupled with suspicious behavior observed by police).

Citizen informants

In Bryant v. State, 142 Md. App. 604, 615, cert. denied, 369 Md. 179 (2002), the Court of Special Appeals held that police had reasonable suspicion that the defendant operated a vehicle while intoxicated, despite not seeing him drive, when several eyewitnesses stated that the defendant had been driving erratically and he appeared intoxicated when approached.

Anonymous tip sufficient for reasonable suspicion

In Millwood v. State, 72 Md. App. 82, 93-94 (1987), the Court of Special Appeals held that an anonymous tip established reasonable suspicion because the details indicated the informant was well acquainted with the defendant and were confirmed by police observation. In Johnson v. State, 50 Md. App. 584, 590 (1982), the Court of Special Appeals held that an anonymous informant may provide reasonable suspicion, particularly when partially verified.

In Allen v. State, 85 Md. App. 657, 664-68 (1991), the Court of Special Appeals held that the anonymous tip provided reasonable suspicion because it accurately described the suspect's appearance and precise location, which were verified by police. An anonymous informant's reliability can be confirmed by self-verifying details and/or the accuracy in predicting future behavi or, plus police corroboration. See also Trott v. State, 473 Md. 245 (2021).

In Hardy v. State, 121 Md. App. 345, 363, cert. denied, 351 Md. 5 (1998), the Court of Special Appeals held that an anonymous tip did not establish reasonable suspicion when there was only a meager description of the vehicle, occupants, and destination. To support an investigatory vehicle stop, based on an anonymous informant's tip, the tip must provide more than facts or details that are readily visible to the public. In State v. Lemmon, 318 Md. 365, 378-81 (1990), police received an anonymous tip of drug dealing by a "black male." The Court of Appeals held that the tip lacked reasonable suspicion. See also Mack v. State, 237 Md. App. 488 (2018) (anonymous tip lacked sufficient indicia of reliability to establish reasonable suspicion to make an investigatory stop); Ames v. State, 231 Md. App. 662 (2017).

3. Conclusory statements by police insufficient for reasonable suspicion

In In re Jeremy P., 197 Md. App. 1, 14-15 (2011), the Court of Special Appeals held that police did not have reasonable suspicion when they merely observed the defendant fidgeting with his waistband, even though that behavior could be consistent with carrying a gun. The Court held that mere conclusory statements by the officer that what he saw made him believe the defendant had a weapon were insufficient to establish reasonable suspicion. The officer's account of the stop must include specific facts from which the court can make a meaningful evaluation of whether the officer's suspicion was objectively reasonable under a totality of the circumstances.

In Gibbs v. State, 18 Md. App. 230, 240-41, cert. denied, 269 Md. 759 (1973), the Court of Special Appeals held that there was no reasonable suspicion when the defendant was loitering in a high-crime area, and police could not articulate what...