Case Notes

Highest Case Note from Write-On 2018, discussing Sizer v. State, 456 Md. 350, 174 A.3d 326 (2017)


 Nicholas B. Jordan*

 The Court of Appeals of Maryland affirmed the holding of the Court of Special Appeals, which found that the Circuit Court for Howard County erred by granting Petitioner’s motion to suppress evidence of a handgun and bottle of oxycodone pills discovered by police after conducting an unlawful search. Under the totality of the circumstances, the officers had reasonable suspicion to lawfully investigate the group and seize Petitioner.  Additionally, the Court of Appeals held that even if the stop and search had not been lawful, the evidence would still be admissible under the attenuation doctrine.  Sizer v. State, 456 Md. 350, 174 A.3d 326 (2017).

I.  Introduction

     Sizer v. State presents two main issues. First, the Court examines whether the officers had “reasonable suspicion” to lawfully stop Mr. Sizer after approaching his group to investigate possible open container and littering violations, leading to the discovery of potentially incriminating evidence.[1]  Reasonable suspicion is not a rigidly defined term, but instead is measured by considering the totality of the circumstances present at the time of the stop and search.[2]  Second, assuming the stop had been unconstitutional, the Court then examines whether the evidence obtained would be admissible under the attenuation doctrine.[3]

II.  Historical Development

A.  An Investigatory Stop Based on Reasonable Suspicion of Criminal Activity Does Not Violate the Fourth Amendment.

 The Fourth Amendment to the U.S. Constitution guarantees freedom from unreasonable searches and seizures without probable cause.[4]  This individual right to not be unlawfully detained is often incompatible with a police officer’s ability to effectively investigate suspicious behavior.[5]  In Terry v. Ohio, the Supreme Court reconciled this tension by declaring that “the investigatory nature of a stop does not violate the Fourth Amendment if the stop is based on reasonable suspicion.”[6]  Reasonable suspicion falls somewhere between an unparticularized suspicion or hunch and probable cause.[7]

In Stokes v. State, reasonable suspicion was described as a particularized and objective basis that the particular person who is stopped was possibly and reasonably engaged in criminal activity.[8]  The Court in Crosby v. State elaborated that the objective component requires that the observed conduct gives rise to suspicion to a reasonable person and “does not allow [a] law enforcement officer to simply assert that innocent conduct was suspicious to him or her.”[9]  Instead, the analysis involves a common sense consideration of how reasonable and prudent people are expected to act in daily situations compared to unusual behavior that may give rise to the possibility of criminal activity.[10]

Reasonable suspicion is not a calculus that can be determined by the presence of certain criteria.  Rather, it must be examined under the totality of the circumstances surrounding the suspicious conduct.[11]  In Cartnail v. State, the Court declared that a police officer is tasked with using all of the circumstances upon him, including objective information such as police reports and patterns of similar law breakers, as well as his own deductions based on his experience in the field to conclude that there is reasonable suspicion of a particular person engaged in wrongdoing to justify the stop.[12]  In Crosby, the Court stressed the need for a trial court to consider the totality of the circumstances particularly “when wholly innocent actions take place in a high crime area.”[13]  The Supreme Court has not imposed a “bright line rule” that flight in a high crime area automatically amounts to reasonable suspicion.  However, in Wardlow v. Illinois, the Supreme Court determined that the petitioner’s unprovoked flight in a high crime area was relevant in a totality of the circumstances analysis.[14]  In Bost v. State, the Court factored in both the high crime area and the unprovoked flight to declare that the officers had reasonable suspicion of petitioner.[15]

B.  The Discovery of an Outstanding Arrest Warrant After an Unlawful Stop Makes Otherwise Inadmissible Evidence Admissible Under the Attenuation Doctrine.

Ordinarily, courts are required to suppress any evidence acquired from an unlawful search and seizure.[16]  In Utah v. Strieff, the Supreme Court identified an exception to this rule that applies if the unconstitutional stop is sufficiently attenuated from the discovery of evidence due to an intervening circumstance.[17]  The court applied a three-factor test previously established in its decision in Brown v. Illinois: (1) the time elapsed between the illegality of the arrest and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.[18]

In Myers v. State, the Court held that when applying the Brown test, the existence of a valid arrest warrant is an intervening circumstance.[19]  In People v. Maggit, the Court of Appeals of Michigan did not apply the attenuation doctrine despite the existence of a valid arrest warrant because the evidence that was suppressed was discovered after the warrant came to light.[20]  However, in Cox v. State, the Court held that the proximity of time factor in the Brown test was not alone dispositive, and ruled that the attenuation doctrine may apply even when evidence is found before an arrest warrant is found.[21]

III.  Instant Case

     On the evening of November 20, 2015, a bicycle patrol unit of Howard County police officers observed a group of individuals described as “loud and disorderly” congregated in a public parking lot drinking from what appeared to be an open container of alcohol.[22]  After observing one of the members of the group throw the bottle to the ground, the police approached the group to investigate which member threw it.[23] Upon the officers’ approach, Mr. Sizer fled and was subsequently chased and stopped.[24]  Upon his seizure, one of the officers recognized Mr. Sizer as having an arrest warrant.[25]  Mr. Sizer’s seizure also led to the discovery of a .38 caliber revolver in his backpack.[26]

At the hearing, the Circuit Court for Howard County granted Mr. Sizer’s motion to suppress the firearm and pills recovered from his unlawful seizure.[27]  The State argued that under the totality of the circumstances, the officers had enough reasonable suspicion to conduct a stop of Mr. Sizer under Terry.[28]  The State contended that the Owen Brown Village Center was a high or higher crime area.[29]  The officers testified that the area was a higher crime area compared to other areas of Columbia, Maryland, based on the number of calls for service they receive versus other parts of the city.[30]  Officer Schlossnagle testified that the area had been subject to an “ongoing robbery series” and business owners had requested an increase in police presence in light of “quality of life issues” like people loitering and controlled dangerous substance violations.[31]

Given the high crime area, the group’s general disorderliness, and the suspected open container and littering violations, the State argued that Mr. Sizer’s flight gave rise to reasonable suspicion to stop him considering all of the circumstances.[32]  The court disagreed holding that the fact that Mr. Sizer ran is not alone sufficient to create reasonable suspicion that criminal activity is afoot.[33]  Further, the judge concluded that the existence of a warrant for Mr. Sizer’s arrest did not sufficiently attenuate the taint of the unlawful stop.[34]

The Court of Special Appeals reversed the suppression of evidence, holding that the totality of the circumstances did give rise to reasonable suspicion and Mr. Sizer’s seizure was justified.[35]  Further, a majority of the Court of Special Appeals relied upon the independent source doctrine in determining that the evidence would not be suppressed even had the stop been unlawful.[36]  Upon review, the Court of Appeals agreed with the Court of Special Appeals that the suppression hearing judge erred in its application of the totality of the circumstances analysis.[37]  The judge based her decision on ambiguous testimony, considered Mr. Sizer’s flight as a dispositive factor, and failed to consider additional pertinent factors of the reasonable suspicion calculus.[38]

Under the totality of the circumstances, the Court of Appeals held that prior to Mr. Sizer’s flight, the officers had reasonable suspicion to investigate a possible open container violation as well as improper disposal of a glass bottle, whether or not they were in a high crime area.[39]  When the patrol unit witnessed a bottle being passed around the group and then discarded onto the ground, they had reasonable suspicion to believe that some kind of criminal activity was afoot.[40]  Although the officers did not have a particularized suspicion of Mr. Sizer in the moment of their approach, his flight could have reasonably heightened their suspicion that he was the particular individual who threw the glass bottle.[41]  The Court concluded the officers had reasonable suspicion to investigate the group based on the two suspected misdemeanors alone, and only when Mr. Sizer ran did the officers have a particularized reasonable suspicion of him individually.[42]

The Court of Appeals also agreed with the Court of Special Appeals, which held that even assuming the stop of Mr. Sizer was unconstitutional the evidence obtained would still be admissible.[43]  However, instead of relying on the independent source doctrine, the Court of Appeals adopted the attenuation doctrine when justifying the admissibility of the evidence.[44]  Applying the three factors articulated in Brown, the Court reasoned that the intervening circumstance of an outstanding arrest warrant and the absence of flagrant police conduct sufficiently attenuated the discovery of evidence from the hypothetical unconstitutional conduct.[45]  In stating its holding, the Court rejected Mr. Sizer’s contention that the warrant could not attenuate the taint of the alleged unlawful stop because his admission about the handgun came before the discovery of the outstanding warrant.[46]

IV.  Analysis

A.  The Court Gave Great Weight to Mr. Sizer’s Unprovoked Flight and Disregarded the “High Crime Area” Factor.

After a lengthy discussion of “high crime” as a factor in the totality of the circumstances analysis, the Court of Appeals never reaches a conclusion about Owen Brown Village Center’s “high crime” status.[47]  In a departure from Wardlow, the Court ultimately held that the officers had reasonable suspicion to investigate Mr. Sizer after observing a possible open container violation as well as improper disposal of a glass bottle, whether or not they were in a high crime area.[48]  In Wardlow, the suspect’s behavior, including his flight, while in an area “known for heavy narcotics trafficking” gave the officers reasonable suspicion that Wardlow was engaged in drug trafficking.[49]  In the instant case, however, there was no indication of what kind of crime was likely to be committed in the Village Center and Mr. Sizer’s behavior before his seizure could not give the officers reasonable suspicion that he was engaged in a particular crime.[50]

Despite the explanation of the Circuit Court’s error by identifying Mr. Sizer’s flight as the dispositive factor, the instant case has the potential to effectively give unprovoked flight alone enough weight to give rise to reasonable suspicion, notwithstanding the other factors in a totality of the circumstances analysis.[51]  The Court claims that the suppression hearing judge abandoned consideration of the totality of the circumstances and relied on ambiguous testimony to make her decision.[52]  However, the Circuit Court may have relied on ambiguous testimony because ambiguous testimony was all that was given and the State failed to satisfy its burden.[53]

Since reasonable suspicion requires a “particularized and objective basis for suspecting [a] particular person,” the issue in this case should have been whether the officers had reasonable suspicion of Mr. Sizer, not just reasonable suspicion generally.[54]  Before Mr. Sizer’s flight, it was unclear who was drinking or who threw the bottle and the officers only had an unparticularized suspicion that crimes were occurring.[55]  In fact, the Court claimed it was only when Mr. Sizer took off that the officers could have had particularized reasonable suspicion that he committed a crime.[56]  Despite its conclusion that the Circuit Court erred when it identified Mr. Sizer’s flight as the dispositive factor, that is precisely what the Court of Appeals did.[57]  Without Mr. Sizer’s flight, the officers had no more reason to suspect him than any other member of his group.[58]  The Court gives far too much weight to Mr. Sizer’s unprovoked flight, which could open the door to more unconstitutional stops for wholly innocent actions, whether or not they occur in high crime areas.[59]

B.  The Attenuation Doctrine Applies Despite the Discovery of Evidence Before the Discovery of an Arrest Warrant.

Mr. Sizer argues that the attenuation doctrine does not apply because the existence of his outstanding arrest warrant was discovered after he disclosed that his backpack contained a pistol.[60]  Despite conceding that the proximity in time weighs in Mr. Sizer’s favor, the Court of Appeals rejected this argument holding that it was outweighed by the other two Brown factors.[61]  Mr. Sizer, knowing he had an outstanding arrest warrant, disclosed he had a handgun as he was being taken down by the police.[62]  Distinguishing Maggit and following Myers, the Court’s flexible application of the factors and extension of the attenuation doctrine to this situation were proper.[63]  To hold otherwise would allow criminals to escape culpability merely by revealing they are armed before their outstanding warrant is discovered.[64]  Such a rigid linear application of the attenuation doctrine would produce unjust results based on technicalities.[65]

V.  Conclusion

     Sizer v. State demonstrated the justification for a flexible application of the attenuation doctrine that allows a weighing of factors versus strict adherence to a linear timeline.[66]  The instant case greatly extended the scope of reasonable suspicion by effectively nullifying the “high crime area” factor in the totality of the circumstances analysis.[67]  By holding that the officers were justified in investigating the group and Mr. Sizer, despite not having a particularized suspicion of him individually, this case further muddied the definition of reasonable suspicion and what kind of police intervention is permissible without probable cause under the Fourth Amendment.[68]


* Nicholas is a second-year student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review.  Nicholas is also a teaching assistant for Professor John Bessler’s ILS/Civil Procedure I course, a writing fellow at the Legal Writing Center, the Law Scholar for Professor Donald Stone’s Criminal Law course, and works for Professor Robert H. Lande as a research assistant.  This summer, Nicholas assisted Professor Mortimer Sellers with organizing the annual conference of the International Association for the Philosophy of Law and Social Philosophy, and worked as a judicial intern for Hon. Clayton Greene Jr. at the Court of Appeals of Maryland.  This spring, Nicholas will be competing as a member of the National Appellate Advocacy Moot Court Team.

[1] Sizer v. State, 456 Md. 350, 356, 174 A.3d 326, 329 (2017).

[2] Id. at 365-66, 174 A.3d at 355 (citing State v. Holt, 206 Md. App. 539, 558, 51 A.3d 1, 12 (2012)).

[3] Id. at 375, 174 A.3d at 340.

[4] U.S. Const. amend. IV.

[5] Sizer, 456 Md. at 373, 174 A.3d at 339.

[6] Id. (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)).

[7] Id. at 364, 174 A.3d at 334. See also Alabama v. White, 496 U.S. 325, 330 (1990).

[8] Stokes v. State, 362 Md. 407, 415, 765 A.2d 612, 616 (2001) (holding that petitioner pulled over for driving at a high rate of speed and reckless conduct was inconsistent with the officer’s belief that he had committed a robbery earlier that evening).

[9] Crosby v. State, 408 Md. 490, 508, 970 A.2d 894, 904 (2009).

[10] Bost v. State, 406 Md. 341, 356, 958 A.2d 356, 365 (2008).

[11] State v. Holt, 206 Md. App. 539, 558, 51 A.3d 1, 12 (2012).

[12] Cartnail v. State, 359 Md. 272, 288, 753 A.2d 519, 527-28 (2000) (holding that considering the totality of the circumstances, the arresting officer did not have reasonable suspicion at the time of the stop where petitioner was not engaged in any suspicious activity and there was no reason to believe he was involved in criminal activity).

[13] Crosby, 408 Md. at 508, 970 A.2d at 904 (“The combination of factors, viewed in their totality, are no more indicative of criminal activity than any one factor assessed individually.”).

[14] Sizer, 456 Md. at 362, 174 A.3d at 333 (“It was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police.  Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.  Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”) (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)).

[15] Bost, 406 Md. at 360, 958 A.2d at 367 (holding that Bost’s unprovoked flight in a high crime area, plus his clutching of his waistband consistent with someone trying to conceal a weapon, gave rise to reasonable suspicion under the totality of the circumstances).

[16] Myers v. State, 395 Md. 261, 278, 909 A.2d 1048, 1058 (2006) (“The Federal Exclusionary Rule, ordinarily, is the appropriate remedy for a violation of the Fourth Amendment.”).

[17] Utah v. Strieff, 136 S. Ct. 2056, 2063 (2016).

[18] Brown v. Illinois 422 U.S. 590, 603-04 (1975).

[19] Myers, 395 Md. at 291, 909 A.2d at 1066.

[20] People v. Maggit, 319 Mich. App. 675, 702, 903 N.W.2d 868, 883 (2017) (holding the unlawful stop was not attenuated because the discovery of the warrant had no effect on the actions of the police as the evidence had already been seized).

[21] Cox v. State, 397 Md. 200, 218, 916 A.2d 311, 322 (2007) (“Although, the two minute time lapse in this case, on the surface weighs in the Petitioner’s favor, it is not, on its own, dispositive.”).

[22] Sizer, 456 Md. at 355, 174 A.3d at 329.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at 356, 174 A.3d at 329.

[28] Id. at 358, 174 A.3d at 330.

[29] Id.

[30] Id.

[31] Id. at 358–59, 174 A.3d at 331.

[32] Id. at 360, 174 A.3d at 332.

[33] Id. at 361, 174 A.3d at 332.

[34] Id.

[35] Sizer v. State, 230 Md. App. 640, 657–58, 149 A.3d 706, 717 (2016).

[36] Sizer, 230 Md. App. at 663, 149 A.3d at 720.

[37] Sizer, 456 Md. at 370, 174 A.3d at 337.

[38] Id.

[39] Id. at 372, 174 A.3d at 339 (“Pursuant to Maryland Code, Criminal Law § 10-110 (2002, 2012 Repl. Vol., 2015 Supp. Vol.), the improper disposal of waste is a criminal misdemeanor punishable by imprisonment or fines.  Pursuant to the Howard County Code, Title 8, Subtitle 7, § 8.700 (2016), consuming or possessing alcoholic beverages on posted commercial property or posted public parking lots is a criminal misdemeanor punishable by imprisonment or fines.”).

[40] Id.

[41] Id. at 363, 372, 174 A.3d. at 334, 339.

[42] Id. at 374, 174 A.3d at 340.

[43] Sizer v. State, 230 Md. App. 640, 663, 149 A.3d 706, 720 (2016) (holding that the independent source exception barred the application of the exclusionary rule, as the two arrest warrants, and Mr. Sizer’s arrest itself, were an independent source for discovering the firearm and bottle of pills).

[44] Sizer, 456 Md. at 357, 174 A.3d at 329; see also id. at 680-81, 149 A.3d at 730 (Graeff, J., concurring) (“I disagree with the conclusion of the Majority that, if the initial stop was illegal, the independent source doctrine would apply to prevent exclusion of the evidence.  I would apply the attenuation doctrine in this case.   That is the rationale followed by the United States Supreme Court and the Maryland Court of Appeals in circumstances similar to the facts of this case.”).

[45] Sizer, 456 Md. at 376-77, 174 A.3d at 341 (acknowledging that the temporal proximity factor weighs in Mr. Sizer’s favor but is ultimately outweighed by the other two factors).

[46] Id. (“We have previously held that ‘the question of timing is not dispositive on the issue of taint, especially because there was an outstanding arrest warrant between the initial stop and the subsequent search incident to arrest, even though some of the evidence was discovered shortly after the illegal stop.’”) (quoting Myers, 395 Md. at 292, 909 A.2d at 1066).

[47] Id. at 379, 381-82, 174 A.3d at 343-44 (Adkins, J., concurring in part, dissenting in part) (arguing the State failed to satisfy its burden that the Village Center was a high crime area because “[i]ncreased calls for service and concerned business owners do not permit a conclusion that an area is ‘high crime.’  An ongoing series of robberies at unknown locations and times, as well as a single sighting of an individual with a handgun do not suffice absent greater specificity.”); see also Sizer, 230 Md. App. at 656, 149 A.3d at 716 (“[E]ven a relatively ‘high crime area’ in a generally law-abiding community might actually be less dangerous than would be a relatively ‘lower crime area’ of a more pervasively criminal community.”).

[48] Sizer, 456 Md. at 372, 174 A.3d at 338–39.

[49] Id. at 381, 174 A.3d at 344 (Adkins, J., concurring in part, dissenting in part) (citing Wardlow, 528 U.S. at 124, 120 S. Ct. at 676, 145 L. Ed. 2d at 570).

[50] Id. at 380 & n.2, 174 A.3d at 344 & n.2 (Adkins, J., concurring in part, dissenting in part) (“A generalized description of an area as ‘high crime,’ without a greater connection to the observed activities, does not support reasonable suspicion.”) (“[O]fficers did not testify that the group’s behavior was ‘consistent with the nature of the crimes that led them to conclude that the Village Center was a high crime area.’”).

[51] Id. at 370, 174 A.3d at 337.

[52] Id. at 371, 174 A.3d at 338.

[53] Id. at 378-79, 386, 174 A.3d at 342–43, 347 (Adkins, J., concurring in part, dissenting in part) (citing Raynor v. State, 440 Md. 71, 81, 99 A.3d 753, 758 (2014)) (“[T]he State did not meet its burden of showing that the totality of the circumstances created reasonable suspicion justifying the officer’s decision to chase Mr. Sizer and use a hard take-down.  We should not resolve this case by repairing the deficiencies in the State’s arguments and evidence to provide a sufficient factual basis for reasonable suspicion . . . A reviewing court accepts the suppression court’s factual findings unless they are clearly erroneous.’  Because [the motion] was granted, inferences in this case should be drawn in the light most favorable to him.”).

[54] Sizer, 456 Md. at 380, 174 A.3d at 343 (Adkins, J., concurring in part, dissenting in part) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).

[55] Id. at 387, 174 A.3d at 348 (Adkins, J., concurring in part, dissenting in part) (“The officers could not reasonably believe it was Mr. Sizer when they testified that they had not observed anyone in particular doing these activities.”).

[56] Id. at 372, 174 A.3d at 339.

[57] Id. at 370, 174 A.3d at 337.

[58] Id. at 385, 174 A.3d at 346-47 (Adkins, J., concurring in part, dissenting in part) (“[T]here is no reason to suspect Mr. Sizer was littering without placing unwarranted weight on his flight.  The officers never testified that they believed there was a connection between Mr. Sizer’s flight and the littering of the alcohol violations.  Put simply, he ran, so they chased him.”).

[59] Id. at 372, 174 A.3d at 339; see, e.g., Crosby, 408 Md. at 490.

[60] Sizer, 456 Md. at 376, 174 A.3d at 341.

[61] Id. (“The question of timing is not dispositive on the issue of taint, especially because there was an outstanding arrest warrant between the initial stop and the subsequent search incident to arrest, even though some of the evidence was discovered shortly after the illegal stop.”) (citing Myers, 395 Md. at 292, 909 A.2d at 1066).

[62] Id. at 376, 174 A.3d at 341.

[63] Id. at 390-91, 174 A.3d at 349-50 (Adkins, J., concurring in part, dissenting in part) (“The court pointed out that Strieff involved a ‘fact pattern[] of (1) invalid seizure; (2) discovery of a valid arrest warrant; and (3) search and discovery of contraband . . .’ The court distinguished Maggit based on the difference in fact pattern: ‘(1) invalid seizure; (2) search and discovery of contraband; and (3) discovery of a valid arrest warrant.’ The court determined that the warrant in that case was not an intervening act because it ‘had no effect on the actions taken by the police in this case, nor did it have any effect on the evidence that was recovered from the defendant.’ Here, the fact pattern diverges from both Strieff, Cox, and Maggit, but is consistent with Myers: (1) An invalid seizure and some evidence; (2) discovery of an arrest warrant; and (3) search and discovery of contraband.”) (citing Maggit, 319 Mich. App. 675, 903 N.W.2d 868) (citations omitted).

[64] Id. at 376-77, 174 A.3d at 341 (acknowledging that when applying the attenuation doctrine, timing is not a dispositive factor).

[65] See e.g., Maggit, 319 Mich. App. at 700, 903 N.W.2d at 881.

[66] Sizer, 456 Md. at 390-91, 174 A.3d at 349-50.

[67] Id. at 372, 174 A.3d at 339.

[68] Id.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s