# Watkins v. State > Court of Appeals of Maryland · October 3, 1980 · 288 Md. 597 URL: https://www.frixlaw.com/law-library/cases/9734372 ## Case - **Full name:** CALVIN WATKINS A/K/A Vincent Watkins v. STATE OF MARYLAND - **Court:** Court of Appeals of Maryland - **Decided:** October 3, 1980 - **Citations:** 288 Md. 597; 420 A.2d 270; 1980 Md. LEXIS 221 - **Precedential status:** Published - **Opinion:** Dissent by Cole - **Judges:** Cole, Digges - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9734372 ## How later opinions describe it (automated extraction) - holding that the reasonable suspicion justifying an investigative stop involves a significantly lower degree of objective evidentiary justification than does a probable cause for arrest ## Opinion text Cole, J., dissenting: The Court holds today that when a police officer receives a broadcast that a fellow officer has "lost” two armed suspects he was in pursuit of in a certain vicinity and one black man out of thirty to fifty blacks in that vicinity runs when his companion says "run, police,” the stopping officer is justified in harboring a "high level of suspicion that a crime *611 had just occurred,” and can forcibly stop the runner. This holding I believe is in direct conflict with the protection afforded by the fourth amendment which guarantees all citizens freedom from unreasonable governmental interference with their personal security. I, therefore, respectfully dissent. It is clear to me from an examination of the record of Officer McEntee’s (the stopping officer) testimony, that he had no idea for whom he was looking 1 nor did he know what, if any, crime had been or was about to be committed. He had no information as to how the suspects were armed, whether with guns, knives, baseball bats, sticks or stones. He did not know whether the suspects were both black, white, Indian, Mexican, Chinese or a combination of such groupings; nor whether the suspects were juveniles, teenagers or adults; nor whether they were both male or both female or one of each; nor whether they were short, tall, thin, fat, or medium in build; nor if the suspects were clothed in tuxedoes or jogging suits. He had absolutely no description. Nevertheless, because the defendant ran, in ghetto-like Pavlovian response to the command "run, police,” this Court holds that Officer McEntee had reasonable suspicion to pursue, apprehend and ultimately search the defendant though an initial "pat down” had indicated that he was unarmed. The majority seems to take a rather myopic view of the facts. It cites as fact that "the suspects had eluded the foot patrolman 2 just a few moments before Officer McEntee *612 entered the city block in which they had last been seen.” However, Officer McEntee testified that "[A]s I was driving north in the 2000 block of Barclay St., the officer in pursuit said he lost the suspects in the area of 21st and Barclay. At this time, I slowed my vehicle down and began to observe other people on the street and in the houses and in the alleys ....” Thus, Officer McEntee was in the block when the other officer lost sight of the suspects; he could see to 21st and Barclay St. There was no time lapse as the majority suggests. This is significant because it gives the defendant no time in which to go from the act of running to elude the pursuing officer to the act of calmly standing with a friend exhibiting no physical exertion (such as sweating or breathing hard) when Officer McEntee saw him in what Officer McEntee described as appearing in no unusual manner. In Terry v. Ohio, 392 U.S. 1 , 88 S. Ct. 1868 , 20 L. Ed. 2d 889 (1968), the Supreme Court approved a lesser standard than probable cause to justify a stop of a citizen by a police officer. However, the Supreme Court made it clear that In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. [ 392 U.S. at 21 .] In Terry , the officer of 30 years experience had observed the suspects over a considerable period of time. He followed them and attempted to interview them before he physically seized them. Their actions indicated to him that they were about to commit a hold-up, thus making the suspects a danger to the community. The officer had a well-founded concern for his safety in conducting the stop, viz., the officer could "point to specific and articulable facts” justifying the intrusion. When we contrast those facts with the case sub judice, we find Officer McEntee’s decision is supported only by the radio broadcast and the defendant’s running. Certainly this *613 Court should require the State to produce at the suppression hearing evidence giving rise to reasonable suspicion. The majority in footnote 6 suggests that Watkins’ reliance on Whiteley v. Warden, 401 U.S. 560 , 91 S. Ct. 1031 , 28 L. Ed. 2d 306 (1971), is misplaced because Whiteley dealt with probable cause rather than reasonable suspicion to justify police action. However, there is no basic difference between the two concepts that dictates a different result in the case of a stop based on a radio broadcast. In Whiteley, acting on a tip, the sheriff signed a complaint charging the defendant and another person with breaking and entering a business establishment. The complaint was made before a justice of the peace and a warrant was issued. The sheriff put out a statewide broadcast to pick up the two persons named in the complaint. The radio transmission was picked up by the Albany County Sheriffs office and communicated to the Laramie Police Department. The message contained names and descriptions of the two suspects, the type of car probably being driven, and the amount of money taken. On the date of the broadcast, a Laramie policeman arrested the defendant and his companion in reliance on the information in the radio broadcast. The Supreme Court held that the sheriff did not have probable cause to arrest and, therefore, he could not delegate this function to another officer. Thus, the arrest was illegal. The language of the Court is significant. We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest. *614 In sum, the complaint on which the warrant issued here clearly could not support a finding of probable cause by the issuing magistrate. The arresting officer was not himself possessed of any factual data tending to corroborate the informer’s tip that Daley and Whiteley committed the crime. Therefore, petitioner’s arrest violated his constitutional rights under the Fourth and Fourteenth Amendments; the evidence secured as an incident thereto should have been excluded from his trial. Mapp v. Ohio, 367 U.S. 643 (1961). [Whiteley v. Warden, supra, 401 U.S. at 568 .] The principle announced in Whiteley was applied to a Terry case in United States v. Robinson, 536 F.2d 1298 (9th Cir. 1976). There an officer received a radio message to be on the lookout for a possible stolen 1976 Oldsmobile Cutlass, Nevada license plate CKC 434. Based solely on that message, the officer saw the described vehicle, stopped and searched it. The United States Court of Appeals 19th Cir.) in reversing the District Court said: The fact that an officer does not have to have personal knowledge of the evidence supplying good cause for a stop before he can obey a direction to detain a person or a vehicle does not mean that the Government need not produce evidence at trial showing good cause to legitimate the detention when the legality of the stop is challenged. The Government’s argument that effective law enforcement requires us to validate stops made in response to calls from fellow law enforcement officers, without any proof at trial that a factual foundation existed to support the call, was made and firmly rejected by Whiteley v. Warden [citations omitted], Whiteley involved probable cause, rather than founded suspicion, but we perceive no substantive difference between the two doctrines that would warrant a different result. [Id. at 1300.] *615 See Franklin v. State, 143 Ga. App. 3 , 237 S.E.2d 425 (1977); Price v. State, 37 Md. App. 248 , 376 A.2d 1158 (1977); State v. Benson, 198 Neb. 14 , 251 N.W.2d 659 (1977); State v. Lange, 255 N.W.2d 59 (N.D. 1977). The majority cites Anderson v. State, 282 Md. 701 , 387 A.2d 281 (1978), as support for its position. In Anderson the officer suspected the defendant of a particular crime, robbery. The defendant, who was in company with another man, matched a vague description of the suspects being sought. He was in an area the suspect was reported to frequent and his behavior, walking away and looking over his shoulder at the police, was suspicious. We found that there were not sufficient articulable facts to constitute reasonable suspicion. Officer McEntee’s pursuit of a man without knowing whether or not a crime had been committed and without having any description upon which to base a rational judgment hardly conforms to either Terry 3 or Anderson . The majority suggests that United States v. Wright, 565 F.2d 486 (8th Cir. 1977), in which it was determined that a Terry stop was valid, is factually akin to the present case, in that the court relied on a report of a recent robbery, the suspect’s proximity to the reported crime, and the defendant’s suspicious conduct upon awareness of the police officer’s presence. However, the majority does not mention that the radio report contained the following information noted by the court. As of the moment of the actual investigatory stop, the following "articulable facts” were available to the officers: at approximately 10:00 p.m., a radio dispatch had informed them, while on routine auto *616 patrol, that a nearby gas station had just been robbed by two adult black males, one 5'11" and the other a little taller, possessing a long-barreled handgun; they were last seen running in an easterly direction from the gas station; an estimated six to eight minutes later, the officers observed Wright and Bell, both black, standing about 150 feet away from the patrol car in a parking area located in a racially mixed part of the city within eight blocks of the gas station; although the area was well-lighted, the officers could not tell whether one of them was taller than the other; although it was a warm evening, one of them was wearing a long leather jacket; Wright and Bell looked at the police car, faced each other as if conferring, then entered a Lincoln Continental parked nearby at the curb; as the officers approached in their car, the Lincoln Continental pulled away from the curb, stopped, backed up to the curb, stopped, pulled forward again, and proceeded down the road before being cut off and stopped by the police car; such forward-backward driving activity was not necessary to move from the curb into the road. Applying the standard prescribed in Terry, supra, we hold that such facts, considered as a whole, warranted Hofmann and Erbes, as reasonable and cautious police officers guided by their training and experience, in making the investigatory stop. [Id. at 489], In United States v. Collins, 532 F.2d 79 (8th Cir. 1976), the initial stop of a white over gold 1969 Cadillac being driven by a black male three miles and a few minutes from the scene of a bank robbery was held to be permissible where the arresting officer had received a radio report informing him that a particular bank had just been robbed and that the suspects were three Negro males who left in a light brown, late model Cadillac. *617 The Oregon Court of Appeals, in State v. Hall, 32 Or. App. 133 , 573 P.2d 332 (1978) held that a radio report of a bank robbery committed a few minutes earlier by a white male, approximately 20 years of age, having brown shoulder length hair, a full beard, standing between 5'9" and 5'10", weighing 170 pounds and wearing a red jacket and Levi’s gave a receiving officer reasonable suspicion to stop a white male, 5'9" with dark shoulder length hair and a full beard, wearing Levi’s and a gray jacket. The person who was stopped weighed 50 pounds more than the suspected person, and was wearing a different colored jacket, but the particularities were considered insignificant in light of all the other consistencies. If the Court here were to disregard any of the information that was available in this case, there surely would not even be a case in the first instance. If as the Supreme Court said in Terry reasonableness is the standard by which we balance the public interest against the citizen’s right to personal security free from police intrusion, then in this case the actions of Officer McEntee were totally unreasonable. In Terry the public interest was the prevention of a crime of violence — a hold-up — and the officer was able to articulate specific facts that afforded him the right to make a considered judgment. In the instant case, the facts are all non-specific. Not only does Officer McEntee not know of a crime but he has no basis in fact to single out any one person as opposed to another as the perpetrator of a crime. The Court, in effect, says defendant’s flight is enough. Well, suppose four had run or the entire crowd had dispersed in flight? Whom would he choose to stop and on what basis? The majority does violence to the principle that there must be "a reasonable suspicion that someone is about to commit or has just committed a crime.” In this case there is absolutely no evidence of criminal activity. The Court’s decision today has the potential for becoming a true chimera, especially in the economically depressed areas of the State where police-community relations are, to say the least, strained. The Court gives license to the police to stop any individual who runs when the police happen upon the scene. To justify the stop, the police need only explain that some *618 unidentified fellow officer broadcast that he had lost pursuit of two suspicious-looking characters. In holding that such meager information rises to the level of being articulable facts (as required in Terry) sufficient to reasonably warrant police intrusion, the majority demonstrates a profound lack of understanding of the realities of ghetto life. The majority places its imprimatur on a course of police conduct which is bound to interfere with the liberty of law-abiding citizens who choose to avoid unwarranted confrontations with police. Judges Eldridge and Davidson have authorized me to state that they join in this opinion. . On direct examination Officer McEntee repeatedly admitted that the broadcasting officer gave him no description whatsoever of the suspects. On cross-examination when asked about the people who were in the street when he arrived in the area he responded Q Were there two black males, is that what came over the radio? A There were two black males, because he was running. . The majority indicates that the unidentified police officer was a foot patrolman but nothing in the testimony of Officer McEntee substantiates this or indicates that he knew by what mode of travel the suspects were being pursued. The majority apparently relies on the statement of the State’s Attorney when presenting the agreed statement of facts. . Cases that have applied Terry to investigative seizures have followed a similar vein. In United States v. Brignoni-Ponce, 422 U.S. 873 , 95 S. Ct. 2574 , 45 L. Ed. 2d 607 (1975), where the Court considered the illegal flow of aliens into the United States to be a very significant governmental interest, the Court still found this fact insufficient to justify the stopping near the border of a vehicle occupied by people of Spanish descent. The Court held that even though the car stop was a minor intrusion, personal freedom was more significant. See also Delaware v. Prouse, 440 U.S. 648 , 99 S. Ct. 1391 , 59 L. Ed. 2d 660 (1979); Dunaway v. New York, 442 U.S. 200 , 99 S. Ct. 2248 , 60 L. Ed. 2d 824 (1979); Brown v. Texas, 443 U.S. 47 , 99 S. Ct. 2637 , 61 L. Ed. 2d 357 (1979). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9734372. Public record. Not legal advice.