concluding that officer improperly subjected motorist to second seizure when, after handing him ticket and returning his license, he asked him to step out of car at night on shoulder of highway to answer questions about use and possession of narcotics without first advising him that he was free to depart
How later courts described this case
- concluding that officer improperly subjected motorist to second seizure when, after handing him ticket and returning his license, he asked him to step out of car at night on shoulder of highway to answer questions about use and possession of narcotics without first advising him that he was free to depart
- holding that “[i]n the absence of any testimony or scientific evidence as to some direct, observable correlation between eyes that are bloodshot, even extremely so, and drug usage or, intuitively less likely, drug possession, we find this fact to carry little, if any, weight”
- stating that “[bjloodshot eyes, in conjunction with the odor of alcohol emanating from the person, would ordinarily provide the police with reasonable suspicion that a driver was under the influence of alcohol”
- stating the difficult question was whether the trooper’s questioning of Ferris after he issued a citation and returned his driver’s license and registration “constituted a detention, and hence raise[d] any Fourth Amendment concerns, or was merely a ‘consensual encounter ]’ ... implicating no constitutional overview”
Written by the judges who cited it.
Distinguished
Distinguished by Wilkes v. State, 364 Md. 554 (2001)
Ferris is distinguishable from the case sub judice.
The opinion
*394 CHASANOW, Judge,
dissenting:
The defendant was validly stopped and issued a citation by a Maryland State Trooper. Before the defendant drove away, the trooper asked the defendant: “Would you mind stepping to the back of your vehicle to answer a few questions?” This request was made immediately after the citation was signed and the defendant’s license and registration were returned to him but before the defendant had time to drive away. These circumstances alone should not preclude a finding that the defendant’s answers were freely and voluntarily given. In fact, the trial judge did make a finding that the defendant “voluntarily” answered the trooper’s questions “without intimidation,” 1 and this fact finding was neither clearly erroneous nor constitutionally invalid. The defendant’s answers unquestionably supplied probable cause for the search.
Instead of affording any deference to the trial judge’s fact finding, the majority either makes its own contrary fact finding or it decides, as a matter of law, that the defendant’s answers were not voluntary and the defendant was intimidated. The majority states: “We thus conclude that a reasonable person in Ferris’s circumstances would have reasonably believed he was neither free to leave the scene nor to ignore and disobey the police officer’s ‘requests.’ ” 355 Md. 356, 378 , 735 A.2d 491, 502 (1999). This case represents a good example of why appellate courts should not make fact findings contrary to those made by a trial judge.
As a partial basis for its appellate fact finding, the majority notes that “an officer’s failure to advise a motorist that he or she could refuse, or was free to leave, remains a factor to be considered.” 355 Md. at 380 , 735 A.2d at 503 . Having made this observation the majority proceeds to ignore it. Giving the *395 defendant back Ms license and registration could be found and was found by the trial judge to be a way of informing the defendant that he was now free to leave. Had the trooper made his “requests” before returning the license and registration or before the ticket was signed, then the defendant would not have felt free to leave; but, once the license and registration were returned and the ticket was signed, the trial judge could determine that the trooper signaled to the defendant that he was free to leave. The request for further information, made as the defendant was preparing to drive off, could be and was found by the trial judge to be a mere accosting and, as the majority recognizes, a seizure does not occur merely because an officer approaches an individual and requests the person to answer a few questions. Florida v. Royer, 400 U.S. 491 , 501, 108 S.Ct. 1319, 1326 , 75 L.Ed.2d 229, 239 (1983). No case has been cited, and I doubt any court has ever held that merely posing questions to a validly stopped motorist before the motorist has had an opportunity to drive away is an illegal detention as a matter of law and precludes a finding that there was no intimidation and the questions were answered voluntarily. I agree with the trial judge and the Court of Special Appeals that the trial judge did not err in finding the police officer’s questions were not improper and that the defendant’s answers were freely and voluntarily given. The defendant’s convictions should be affirmed.
Judge RODOWSKY has authorized me to state that he joins in this dissenting opinion.
. The majority states these fact findings "refer to the questioning at the rear of the Camry, and not to the earlier point in time when Ferris exited the Camry.” 355 Md. 356 , 366-67 n. 3, 735 A.2d 491 , 496 n. 3 (1999). This is improperly reviewing the announced finding in the way least favorable to the State and to the judge’s decision. See Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240-41 (1990).