Petition for Writ of Certiorari — Maryland v. Gadson
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No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1995
STATE OF MARYLAND,
Petitioner,
Vv.
TYRONE JEROME GADSON,
Respondent.
On Petition For Writ of Certiorari
To The Court of Appeals of Maryland
PETITION FOR WRIT OF CERTIORARI
J. JOSEPH CURRAN, JR.
Attorney General of Maryland
Gary E. Bair*
Mary Ellen Barbera
Thomas K. Clancy
Assistant Attorneys General
Office of the Attorney General
200 Saint Paul Place
Baltimore, Maryland 21202
(410) 576-6422
Counsel for Petitioner
*Counsel of Record
i
QUESTION PRESENTED
Is it reasonable under the Fourth Amendment to
momentarily detain a visitor at a prison drug checkpoint to
conduct a canine scan of the exterior of that visitor's
vehicle, rather than the less intrusive procedure of
permitting the visitor to leave the prison grounds after he
is advised of the scan?
an
ii
PARTIES TO THE PROCEEDING
The caption contains the names of all the parties below.
TABLE OF CONTENTS
Page
QUESTION PRESENTED .................... i
PARTIES TO THE PROCEEDING ........._._.. ii
NI oe oc once ccdece. en... l
STATEMENT OF JURISDICTION ............. 2
CONSTITUTIONAL PROVISION INVOLVED ... 2?
STATEMENT OF THECASE ................. 2
I. BASED ON CONFLICTING LANGUAGE
IN THIS COURT'S OPINIONS, MANY
FEDERAL AND STATE COURTS
CONTINUE TO EXAMINE LESS
INTRUSIVE ALTERNATIVES AS AN
ELEMENT OF REASONABLENESS ...___. 8
[l. THIS COURT SHOULD ESTABLISH THE
STANDARD OF REASONABLENESS
FOR INTRUSIONS DIRECTED AT
eT eee ce . 14
I cee re 20
EEE aa
TABLE OF AUTHORITIES
Page
Cases:
Alexander v. City and County of San Francisco,
29 F.3d 1355 (9th Cir. 1994), cert. denied,
bee a Ge PE sb ce bc kwh eiesweee 12
Barreras v. New Mexico Corrections Dep't,
Soe Pca ee es ED nn tc tcvicecere 12
Baughman v. State, 45 Cal. Rptr. 2d 82
8 Oe Bre ere 12
Bell v. Wolfish, 441 U.S. 520 (1979) ....... 10, 15
Berger v. New York, 388 U.S. 41 (1967) ...... 10
Blackburn v. Snow, 771 F.2d 556
Cn I a ee ee 19
Cady v. Dombrowski, 413 U.S. 433 (1973) ...... 9
Camara v. Municipal Court,
Be en ge sid a 10
Chapman v. Nichols, 989 F.2d 393
Ce Gt hie tad Wins Rites tie'g e-ero w 2 11
Colorado v. Bertine, 479 U.S. 367 (1987) ....... 8
Del Raine v. Williford, 32 F.3d 1024
L* 4. FES ie ee ae 11
Delaware v. Prouse, 440 U.S. 648 (1979) ...... 10
Estes v. Rowland, 17 Cal. Rptr. 2d 901
Cn. Se 0s he ee we oe a a 12, 15
F.E.R. v. Valdez, 58 F.3d 1530 (10th Cir. 1995) . 11
Florida v. Royer, 460 U.S. 491 (1983) ...... 9,12
Gaines v. State, 888 S.W.2d 504
eS SS SR ae 13
Gettleman v. Werner, 377 F. Supp. 445
aes Sk a Ue eae eo we ows 15
Vv
Hawkins vy. United Ssates, 663 A.2d 1221
OS ee ee 13
Illinois v. LaFayette, 462 U.S. 640 (1983) ...... 9
Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995) .. 11
Kraushaar v. Flanigan, 45 F.3d 1040
Pee ME 6 Oa hu Sb ob HOS evden ccs 1]
Mathis v. Appellate Dep't of Superior Court,
105 Cal. Rptr. 126 (1972) .............. 19
Michigan Dep't of State Police v. Sitz,
496 U. S. 444 (1990)... ........... 8, passim
Morgan v. State, 906 S.W.2d 620
eNO Oe 7)
Morgan v. Woessner, 997 F.2d 1244
(9th Cir.1993), cert. dismissed,
et RS 13
National Treasury Employees’ Union v. Van Raab,
psiloc. a PE ee ee 14, 17
New York v. Burger, 482 U.S. 691 (1987)...... 17
New York v. Class, 475 U.S. 106 (1986)........ 9
Osborn v. New York, 385 U.S. 323 (1966) ..... 10
People v. Heimel, 812 P.2d 1177
GU eo eS Se St 16
People v. Hyde, 524 P.2d 830
es 16
People v. Turnbeaugh, 451 N.E.2d 1016
Gee I a oer ive cb veces. 16, 19
Pennsylvania v. Mimms, 434 U.S. 106 (1977) ... 18
Romo v. Champion, 46 F.3d 1013
EE i fon ae ss oo 6a 15, 16, 18
Schmerber v. California, 384 U.S. 757 (1966) .... 9
Skinner v. Railway Labor Executives’ Ass'n,
rail t... Be 8, 14
Spear v. Sowders, 71 F.3d 626
(i Cir. 1955) Ga bene) ............. 15, 18
Se i
a
vi
State v. Garcia, 860 P.2d 217
en SINS or on ok ds Chew tie 0 es 12
State v. Hughes, 899 S.W.2d 92
GP HT A icles Sow eS se ys eeu 13
State v. Manghan, 313 A.2d 225
Grey SS TE bw be eb 0c cae esées 15, 16
State v. Miller, 520 P.2d 1115
GRR Se ee or ae oo oe te eats C4 16
State v. Moreno, 619 So. 2d 62 (La. 1993) ..... 13
State v. Ohlsen, 537 N.W.2d 794
SOW Rs ee 0k or en ee oe oe we FS 13
State v. Patterson, 582 A.2d 1204
(Me. 1990), cert. denied, 500 U.S. 941 (1991) . 12
State v. Plante, 594 A.2d 165
(N.H.), cert. denied, 502 U.S. 984 (1991) .... 16
Thomas v. Commonwealth, 434 S.E.2d 319
(Va. App. 1993), rev'd on other grounds,
444 S.E.2d 275 (Va. App. 1994) (en banc) ... 13
United States v. Albarado, 495 F.2d 799
CAB Ce ee wr ad Lek Vee Soe ck tes 15
United States v. Brignoni-Ponce,
Gis ey SP a ek ods eva wbénwuts 10
United States v. Bueno, 21 F.3d 120
Ca: Se or a ars Soto does ve wes 13
United States v. Davis, 482 F.2d 893
gk Renna eon ot Wy eee eee 16
United States v. DeAngelo, 584 F.2d 46
(4th Cir. 1978), cert. denied, 440 U.S.
FeTTo cede Gees Sek ee 16
United States v. Dixon, 51 F.3d 131
Cs oe. Se ob ae ee eee 13
United States v. Haynie, 637 F.2d 227
(4th Cir. 1980), cert. denied,
SSt GS. Fie Crees 6 i ee eee eb ea eee 16
vii
United States v. Herzbrun, 723 F.2d 773
ee 16
United States v. King, 990 F.2d 1552
I 13
United States v. Martinez-Fuerte,
ME ED gn cn cc lec cceeee 10
United States v. Mathews, 431 F. Supp. 70
ee 16
United States v. Montoya De Hernandez,
i 8
United States v. Pierre, 958 F.2d 1304
(Sth Cir.) (en banc), cert. denied, 506
Wee ee 9,11
United States v. Place, 462 U.S. 696 (1983) .... 18
United States v. Pulido-Baquerizo,
800 F.2d 899 (9th Cir. 1986) ............ 16
United States v. Safeels, 982 F.2d 1199
(8th Cir. 1992), vacated on other
grounds, 1148S. Ct. 41 (1993) ............ 13
United States v. Sharpe, 470 U.S. 675 (1985) .... 9
United States v. Sokolow, 490 U.S. 1 (1989) ..... 8
United States v. Withers, 972 F.2d 837
ee ae 13
Vernonia School District 47] v. Acton,
fe Re 8, 14, 17
Wells v. State, 402 So. 2d 402
I 17
Williams v. State, 400 So. 2d 988
(Fla. App.), pet. for rev. denied,
GEE Gas Be ooo Ore, PSOE) www wc tcc 18
Winston v. Lee, 470 U.S. 753 (1985) .......... G
Wyman v. James, 400 U.S. 309 (1971) ......... 10
Constitutional and Statutory Provisions:
if ge ky 2 oe 2, passim
PS ogg nbs cg OP ee eee 2
Mh Es ob ob eke bee oe 2
Miscellaneous:
WAYNE R. LAFAVE, SEARCH AND SEIZURE
Ii oicte cee. 12, passim
Russell W. Galloway, Basic Fourth
Amendment Analysis, 32 SANTA
CLARA L. REV. 737 (1992) .............. 12
Nadine Strossen, The Fourth Amendment
in the Balance: Accurately Setting
the Scales Through the Least Intrusive
Alternative Analysis, 63 N.Y.U. L.
BeOS EBTP CN 8 OW SESS os os hee ks 12
IN THE
Supreme Court of the United States
OCTOBER TERM, 1995
No.
STATE OF MARYLAND,
Petitioner,
vV.
TYRONE JEROME GADSON,
Respondent.
On Petition For Writ of Certiorari
To The Court of Appeals of Maryland
PETITION FOR WRIT OF CERTIORARI
Petitioner, the State of Maryland, respectfully requests
that a writ of certiorari issue to review the judgment of the
Court of Appeals of Maryland in this case.
OPINIONS BELOW
The reported opinion of the Court of Appeals of
Maryland, 341 Md. 1, 668 A.2d 22 ( 1995), reversing the
judgment of the Court of Special Appeals of Maryland, is
reproduced in Appendix A. (App. 1a-22a).
The reported opinion of the Court of Special Appeals of
Maryland, 102 Md. App. 554, 650 A.2d 1354 (1994),
affirming the denial of the motion to suppress, is
reproduced in Appendix B. (App. 23a-42a).
The unreported memorandum opinion of the Circuit
Court for Anne Arundel County denying Gadson's motion
to suppress is reproduced in Appendix C. (App. 43a-48a).
STATEMENT OF JURISDICTION
The decision of the Court of Appeals of Maryland
reversing Gadson's conviction was filed on December 7,
1995. This petition is filed within ninety days of that
decision, as required by Rule 13 of the Rules of the
Supreme Court. Therefore, jurisdiction of this Court is
properly invoked pursuant to 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISION INVOLVED
United States Constitution, Amendment IV provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.
STATEMENT OF THE CASE
On September 13, 1992, at approximately 4:45 p.m.,
Respondent Tyrone Gadson turned off Maryland Route
175 and drove his truck along the private access road
leading to the state correctional institution in Jessup,
Maryland. (2a, 34a). Gadson planned to deliver money
to a prison inmate. (2a).
Before reaching the prison, Gadson passed two
warning signs posted on the access road to alert
Sahl
|
3
prospective visitors of the prison's policy of searching
visitors and their vehicles. The first warning sign was
about 150 yards from Route 175. That large sign stated in
large letters: "WARNING. ALL VISITORS, INCLUDING
VEHICLES AND OCCUPANT‘S) ARE SUBJECT TO
BE SEARCHED UPON ENTERING OR EXITING THE
PREMISES.” (36a). Gadson drove past a second warning
sign on the road shortly thereafter, which stated:
“WARNING: DRUG DETECTION DOGS BEING
UTILIZED ON INSTITUTIONAL PROPERTY." (36a).
After passing these signs, Gadson had the opportunity to
turn around and leave but, unlike numerous other visitors,
did not do so. (37a).
Gadson finally came to a guard booth approximately
150 yards past the second sign and approximately a
quarter mile from the prison. (35a). An additional sign
there read: "ALL VEHICLES SUBJECT TO
INSPECTION." (36a-37a).
Gadson stopped at the guard booth and advised the
guard where he was going. (25a-26a). While Gadson was
speaking to the guard, and within 30 seconds of Gadson's
arrival, Maryland State Police Trooper Charles Prince
approached Gadson and identified himself. Prince had
specialized training in K-9 dog handling and was assigned
to the prison at Jessup pursuant to the state's drug
checkpoint policy.
Prince informed Gadson that Gadson's vehicle was
subject to scanning by a trained canine. (3a). Gadson
then asked to leave. Pursuant to the checkpoint guidelines,
however, Prince detained Gadson to perform the scan.
(3a, 8a-9a, 31a, 39a). Gadson turned off his vehicle in
response to Prince's order to do so. Within a minute, a
certified drug detection dog was led around the outside of
the vehicle and alerted to the presence of drugs. (24a-25a,
30a, 41a). Cocaine, marijuana, and drug paraphernalia
were recovered in a subsequent search of the vehicle. (2a,
24a).
After his indictment on several drug offenses, Gadson
filed a motion to suppress physical evidence. At the
hearing on that motion, which was held on May 21,
1993, in the Circuit Court for Anne Arundel County,
Maryland, it was established why the checkpoints were
set up and the procedures utilized at the checkpoints.
Because approximately 70 percent of all inmates at two
of Maryland's prisons had been testing positive for
narcotics, the governor requested the Maryland State
Police to combat the problem by preventing drugs from
entering the prisons. (42a). As a result of the governor's
directive, the state police established drug detection
checkpoints at state correctional facilities, using trained
drug detection dogs. (3a, 42a). The checkpoints,
however, were not continuously staffed by the K-9 units.
(19a).
State guidelines regulating the operation of the
checkpoints provide that a K-9 officer approach vehicles
that are stopped at the guard house. The K-9 handler
informs the driver that the vehicle is to be scanned,
meaning that the officer walks around the outside of the
vehicle with the dog. To protect the officers, drivers are
ordered to turn off their vehicles and to remove the keys
from the ignition. Visitors who reach the checkpoint are
not given the option to leave. (2a-4a, 26a, 29a-30a,
39a).
In a written opinion filed June 10, 1993, the circuit
court denied the motion to suppress. (43a-48a). The court
found that the state's interest in preventing the introduction
of contraband into the prison justified the intrusion. (47a).
The court believed that the intrusion was reasonably
related to the state's interest because only those vehicles at
the guard booth on the access road were subject to search
and those vehicles had passed warning signs. (47a).
4
5
Believing that Gadson had had ample opportunity to
depart before reaching the guard house, the court rejected
Gadson's argument that he should have been allowed to
depart when he learned that his vehicle would, in fact, be
scanned. To allow Gadson to depart at this juncture, the
court reasoned, would constitute a "one-way street for the
benefit of the party planning mischief, as there is no
guarantee that he would not return later and be more
successful." (47a).
On August 10, 1993, Gadson was tried before the
circuit court, sitting without a jury. Gadson was found
guilty of possession with intent to distribute cocaine and
of possession with intent to distribute marijuana. Gadson
was sentenced on October 22, 1993, to concurrent prison
sentences of five years for each conviction.
The Court of Special Appeals of Maryland affirmed the
denial of Gadson's motion to suppress. (23a-42a). In
assessing the reasonableness of the intrusion, the court
balanced the competing individual and state interests,
analogized the situation to checkpoint cases, factored in
the notice given to Gadson prior to his reaching the
checkpoint and the absence of discretion the K-9 handlers
had in determining whom to check, and concluded that the
seizure was reasonable. (32a-42a). The court reasoned
that subjecting the visitor to the canine sniff advanced
society's compelling need to reduce the scourge of drugs
in prisons by detecting violations of the law and by
deterring others from attempting unlawful smuggling.
(40a). As had the circuit court, the intermediate appellate
court believed that the state's interest would be frustrated
by giving persons the option to depart at the guard booth,
because they could return when the dog was not present.
(40a-4 la).
In a divided opinion dated December 7, 1995, the Court
of Appeals of Maryland reversed. (1a-22a). The majority
believed that the motorist must be permitted to turn around
6
rather than submit to the canine sniff because the state's
interest in keeping narcotics out of its prisons was
accomplished when the person departed. (9a-1la). The
court rejected the state's contention that simply turning
away visitors who decline to submit to a dog sniff fails to
satisfy the government's interest, because the checkpoint
is not always staffed with drug detection dogs and the
smuggler can simply return when no dog was present. The
majority asserted that "the solution to this problem is to
continually staff the prison with drug detection dogs.”
(19a).
Chief Judge Murphy, joined by Judge Rodowsky,
dissented. (20a-22a). The dissent rejected the view that
the danger of drugs entering the prison ends once a driver
manifests an intent to leave. (21a). The dissenting judges
saw the majority as giving Gadson the "risk-free
opportunity” to determine if a dog was present and to
return when no dog was in use. (21a). Believing that the
majority "devalue[d] the state's interest by asserting that
the state should acquire more drug detection dogs and
thereby ensure that all gates to all prisons are covered
every day," Chief Judge Murphy said:
In every Fourth Amendment decision, a citizen's
privacy interest could have been more fully
protected had the state adopted a more expensive
alternative. The alternatives available to the state
are not before us, however, and we must balance
the means actually chosen to protect the state's
interest against the privacy interest asserted by
the defendant.
(22a). Chief Judge Murphy concluded that the "state's
interest in preventing repeated attempts to introduce drugs
into its prisons justifies the minimal, temporary detention
at issue in this case." (22a).
5
REASONS FOR GRANTING THE WRIT
Review by this Court of the decision of the Court of
Appeals of Maryland is warranted for two reasons. First,
based on conflicting language from this Court's Opinions,
many lower courts persist in believing that a less intrusive
means analysis is a component of the Fourth Amendment's
reasonableness determination. The result in this case turns
on whether such an analysis is a factor in the
reasonableness inquiry; this case therefore affords the
Court an opportunity to clarify this important aspect of
Fourth Amendment law.
Second, this Court has never addressed a search or
seizure of a prison visitor and has not identified the
governmental and individual interests implicated by such
intrusions. As a consequence, the lower courts have
differing views regarding the permissibility of the
procedure used in this case, which involves detaining
prospective visitors for the duration of a canine sniff
With this case, the Court can both identify the competing
individual and governmental interests implicated by
attempts to prevent contraband from entering prisons and
provide a framework for measuring the validity of such
procedures.
8
I.
BASED ON CONFLICTING LANGUAGE IN
THIS COURT'S OPINIONS, MANY
FEDERAL AND STATE COURTS
CONTINUE TO EXAMINE LESS
INTRUSIVE ALTERNATIVES AS AN
ELEMENT OF REASONABLENESS.
In analyzing the reasonableness of Gadson's detention,
the Court of Appeals of Maryland used a less intrusive
means analysis. Specifically, the court deemed the
procedure unreasonable because Gadson was not
permitted to leave. (9a-1la). The majority opined that an
alternative method requiring the state "to continually staff
the prison with drug detection dogs," should be used to
effectuate the state's interest. (19a). Two dissenting judges
believed that this Court's opinions foreclose such an
analysis and recognized that "we must balance the means
actually chosen to protect the state's interest against the
privacy interest asserted by the defendant." (22a).
In many cases, this Court has declared that a less
intrusive means analysis is not an element of
reasonableness: "We have repeatedly refused to declare
that only the ‘least intrusive’ search practicable can be
reasonable under the Fourth Amendment." Vernonia
School District 47J v. Acton, 115 S. Ct. 2386, 2396
(1995). Accord Michigan Dep't of State Police v. Sitz, 496
U. S. 444, 453-54 (1990); United States v. Sokolow, 490
U.S. 1, 11-12 (1989); Skinner v. Railway Labor
Executives’ Ass'n, 489 U.S. 602, 629 n.9 (1989); Colorado
v. Bertine, 479 U.S. 367, 374-75 (1987); United States v.
Montoya De Hernandez, 473 U.S. 531, 542 (1985);
9
Illinois v. LaFayette, 462 U.S. 640, 647-48 (1983); Cady
v. Dombrowski, 413 U.S. 433, 447 (1973).
In many other cases, however, this Court has embraced
the view that the examination of less intrusive means is a
component of reasonableness. See New York v. Class, 475
U.S. 106, 118-19 (1986) (finding that the officer's actions
of moving papers on car's dash was "no more intrusive
than necessary" to locate VIN and stating that the officer
cannot enter the passenger compartment if the VIN is
visible from outside the vehicle);' United States v. Sharpe,
470 U.S. 675, 686-87 (1985) (rejecting unrealistic judicial
second guessing as to existence of less intrusive means but
stating: "The question is not simply whether some other
alternative was available, but whether the police acted
unreasonably in failing to recognize it or to pursue it.");
Winston v. Lee, 470 U.S. 753, 760-61 (1985) (discussing
surgical intrusions into a person's body for evidence and
citing Schmerber v. California, 384 U.S. 757 (1966), as an
example of a search that was "not more intrusive than
reasonably necessary to accomplish its goals"); Florida v.
Royer, 460 U.S. 491, 501 (1983) (plurality opinion) ("the
investigative methods employed should be the least
intrusive means reasonably available"); id. at 511 n.*
(Brennan, J., concurring) (noting that the availability of
' Some courts read Class as mandating a less intrusive
means analysis, while others do not. See, e.g., United States v.
Pierre, 958 F.2d 1304, 1309-10 (5th Cir.) (en banc) (using less
intrusive means analysis based on Class), cert. denied, 506 U.S.
898 (1992); Morgan v. State, 906 S.W.2d 620, 623 n.1 (Tex.
App. 1995) (Class provides clear rule authorizing VIN
searches); id. at 634 (Dauphinot, J., dissenting) (Class requires
less intrusive means analysis).
10
less intrusive means may make an otherwise reasonable
intrusion unreasonable but adding, because a lawful stop
must be strictly limited, "it is difficult to conceive of a less
intrusive means that would be effective to accomplish the
purpose of the stop"); Delaware v. Prouse, 440 U.S. 648,
659-60 (1979) (rejecting use of spot checks of drivers’
licenses and vehicular registrations at the discretion of the
officer in the field in part because of the availability of
alternative mechanisms); United States v. Brignoni-Ponce,
422 U.S. 873, 884-87 (1975) (declining to permit roving
patrols by immigration authorities to engage in
suspicionless stops and requiring articulable suspicion for
stop, the latter allowing "the Government adequate means
of guarding the public interest"); Wyman v. James, 400
U.S. 309, 318-24 (1971) (receipt of benefits for dependent
children permissibly tied to a home visit by governmental
authorities because home visit provided information that
could not be obtained through interview anywhere else);
Berger v. New York, 388 U.S. 41, 57-58 (1967)
(commenting on limitations placed on wiretap device used
in Osborn v. New York, 385 U.S. 323 (1966), as involving
no greater invasion of privacy "than was necessary under
the circumstances"); Camara v. Municipal Court, 387 U.S.
523, 537 (1967) (area-wide health and safety code
inspections reasonable because other canvassing
techniques would not achieve acceptable results).”
* Even in cases seemingly rejecting a less intrusive
means analysis, this Court nonetheless has used such an
analysis. See, e.g., Bell v. Wolfish, 441 U.S. 520, 529 (1979)
(noting that less intrusive means analysis is not required but also
assuming that it is and concluding that hypothesized alternative
was not as effective); United States v. Martinez-Fuerte, 428
4
9
§
F
g
a
:
}
3
4
1]
That many of this Court's cases using a less intrusive
means analysis predate other cases rejecting such an
analysis has had little effect on the lower courts. Indeed,
within the last six years, many lower courts have looked
to the availability of less intrusive alternatives in assessing
the reasonableness of a search or seizure. See, e.g., FER.
v. Valdez, 58 F.3d 1530, 1535 (10th Cir. 1995) (inquiring
whether state could have achieved its objectives in less
intrusive manner and finding that dissemination of
patients’ records was proper); Kraushaar v. Flanigan, 45
F.3d 1040, 1046 (7th Cir. 1995) (using less intrusive
means analysis to conclude that a more intrusive search of
minor offender was necessary based on facts);? Chapman
v. Nichols, 989 F.2d 393, 396-97 (10th Cir. 1993) (strip
search in jail of minor offender unreasonable because of
availability of pat-down search); United States v. Pierre,
958 F.2d 1304, 1309 (Sth Cir.) (en banc) (analyzing
agent's actions while interrogating occupants of vehicle
stopped at checkpoint to establish that they were "no more
U.S. 543, 556-57 & n.12 (1976) (although stating that less
restrictive alternative arguments could raise inseparable barriers
to the exercise of search and seizure powers, also rejecting the
suggested alternative and adding that the traffic-checking
program in the interior was "necessary" because the flow of
illegal immigrants could not be controlled effectively at the
international border).
* In two other cases involving prisons, the Seventh
Circuit rejected a less intrusive means analysis. See Johnson v.
Phelan, 69 F.3d 144, 145-46 (7th Cir. 1995) (rejecting less
intrusive means analysis in prison context as interfering with
management of prison by administrators); Del Raine v.
Williford, 32 F.3d 1024, 1042 (7th Cir. 1994) (same).
12
intrusive than necessary"), cert. denied, 506 U.S. 898
(1992); Baughman v. State, 45 Cal. Rptr. 2d 82, 87 (Cal.
App. 1995) (stating rule in invasion of privacy action);
Estes v. Rowland, 17 Cal. Rptr. 2d 901, 904-05, 909-10,
920 (Cal. App. 1993) (applying less intrusive means
analysis to searches of prison visitors); State v. Patterson,
582 A.2d 1204, 1205 (Me. 1990) (stating rule in context
of vehicle safety roadblocks), cert. denied, 500 U.S. 941
(1991); Barreras v. New Mexico Corrections Dep't, 838
P.2d 983, 987 (N.M. 1992) (applying less intrusive means
analysis to canine searches of correctional officers); State
v. Garcia, 860 P.2d 217, 219 (N.M. App. 1993) (applying
less intrusive means analysis to strip search of prison
visitors and finding that permitting visitor to depart from
prison was required alternative). See also Alexander v.
City and County of San Francisco, 29 F.3d 1355, 1368
(9th Cir. 1994) (Kozinski, J., concurring) (employing less
intrusive means analysis of using tear gas or waiting out
suspect to show that storming of suspect's residence was
unreasonable), cert. denied, 115 S. Ct. 735 (1995); 4
WAYNE R. LAFAVE, SEARCH AND SEIZURE § 10.7(b) at 658
(3d ed. 1996) (arguing for less intrusive means analysis for
screening prison visitors); Russell W. Galloway, Basic
Fourth Amendment Analysis, 32 SANTA CLARA L. REV.
737, 772 n.214 (1992) (availability of less restrictive
alternatives is factor to be considered); Nadine Strossen,
The Fourth Amendment in the Balance: Accurately
Setting the Scales Through the Least Intrusive Alternative
Analysis, 63 N.Y.U. L. REV. 1173, 1208-66 (1988)
(advocating less intrusive means analysis) .
In one area, the assessment of the reasonableness of an
investigative stop, many lower courts routinely cite Royer
and other of this Court's cases for the necessity of a less
13
intrusive means analysis. See United States v. Dixon, 51
F.3d 131, 132 (8th Cir. 1995); United States v. Bueno, 21
F.3d 120, 125 (6th Cir. 1994); Morgan v. Woessner, 997
F.2d 1244, 1254 n.5 (9th Cir. 1993), cert. dismissed, 114
S. Ct. 671 (1994); United States v. Safeels, 982 F.2d 1199,
1205-06 (8th Cir. 1992), vacated on other grounds, 114 S.
Ct. 41 (1993); United States v. Withers, 972 F.2d 837, 843
(7th Cir. 1992); Hawkins v. United States, 663 A.2d 1221,
1227-28 (D.C. 1995); State v. Ohisen, 537 N.W.2d 794,
797-98 (lowa App. 1995); State v. Moreno, 619 So. 2d 62,
66 (La. 1993); State v. Hughes, 899 §.W.2d 92, 99 (Mo.
App. 1994); Gaines v. State, 888 S.W.2d 504, 509 (Tex.
App. 1994); Thomas v. Commonwealth, 434 S.E.2d 319,
323 (Va. App. 1993), rev‘d on other grounds, 444 S.E.2d
275 (Va. App. 1994) (en banc). Cf United States v. King,
990 F.2d 1552, 1562-63 (10th Cir. 1993) ("While police
officers are not required to use the least intrusive means in
the course of [an investigative stop], we must determine
whether [the officer's] failure to use less intrusive means
was unreasonable.").
Relying upon some of these decisions, the Court of
Appeals of Maryland used a less intrusive means analysis
to support its decision. (1la-14a). The ultimate question
is, however, whether the procedure chosen by the state is
reasonable—not whether other, less intrusive procedures
may achieve the state's interests. The availability of lesser
intrusions, such as permitting persons at checkpoints to
turn around, should not be part of the judicial assessment
of the reasonableness of a search or seizure procedure
chosen by politically accountable officials. This case
presents the issue squarely and gives this Court the
Opportunity to guide lower courts in assessing
reasonableness in all Fourth Amendment cases.
14
II.
THIS COURT SHOULD ESTABLISH THE
STANDARD OF REASONABLENESS FOR
INTRUSIONS DIRECTED AT PRISON
VISITORS.
This Court has never addressed a search or seizure of a
prison visitor and has not identified the pertinent
governmental and individual interests. The lower courts
differ regarding what governmental interests are advanced
by emtrance-way screening techniques: Are such
techniques only appropriate to turn away a visitor who
declines to submit to the procedure, or may they be used
to investigate whether the visitor is carrying contraband?
In particular, a conflict exists as to the permissibility of
detaining prospective visitors during a canine sniff. With
this case, the Court can identify the competing individual
and governmental interests when authorities attempt to
prevent contraband from entering prisons, and provide a
framework for measuring the validity of such procedures.
The permissibility of a law enforcement practice is
assessed by balancing the promotion of legitimate
governmental interests against the intrusion on the
individual's Fourth Amendment interests. Vernonia
School District 47J v. Acton, 115 §. Ct. at 2390. Searches
and seizures often have been upheld when the
government's interests involve administrative inspections
or special needs. See, e.g., id. at 2391; Skinner v. Railway
Labor Executives’ Ass'n, 489 U.S. 602 (1989); National
Treasury Employees' Union v. Van Raab, 489 U.S. 656,
668-69 (1989). This Court has recognized that the
15
government has essential and unique interests in the prison
environment. Bell v. Wolfish, 441 U.S. 520, 558-60
(1979) (discussing searches of pretrial detainees and
convicts). Those interests include securing correctional
facilities and excluding illegal drugs from those facilities.
See, e.g., Romo v. Champion, 46 F.3d 1013, 1015 (10th
Cir. 1995); Gettleman v. Werner, 377 F. Supp. 445, 451
(W.D. Pa. 1974); Estes v. Rowland, 17 Cal. Rptr. 2d 901,
908 (Cal. App. 1993); State v. Manghan, 313 A.2d 225,
227 (N.J. Super. 1973) .
The procedure at issue here responded to a very serious
and immediate problem: 70% of all Maryland inmates test
positive for illegal narcotics. The state designed the
checkpoint program to combat the influx of drugs onto
prison property, but limited resources dictated that the
checkpoints not be staffed continuously.
The proliferation of drugs in prisons is not a problem
unique to Maryland. Given the national interest in the
issue, this Court must decide whether such a procedure is
reasonable. In so deciding, the Court likewise can resolve
a conflict among the lower courts regarding what
government interests may be advanced in all cases
involving entrance-way procedures into secured
facilities—prisons, airports, courthouses, and the
like—and, therefore, what procedures are permissible.
Some courts believe that only specific deterrence may
be furthered and the individual must be given the right to
leave. See, e.g., Spear v. Sowders, 71 F.3d 626, 630-32
(6th. Cir. 1995) (en banc) (concluding that prison visitor
must have option to leave before a strip and cavity search
may be performed); United States v. Albarado, 495 F.2d
799, 807-08 (2d Cir. 1974) (even after activating the
magnetometer at an airport, the "prospective passenger
16
may refuse to submit to a frisk and instead forfeit his
ability to travel by air, because this serves the purpose of
the whole search procedure, which is not to catch
criminals, but rather to keep armed hijackers from getting
on airplanes"); United States v. Davis, 482 F.2d 893, 908,
910-11 (9th Cir. 1973) (purpose of airport screening is to
deter persons from carrying weapons and explosives on
board aircraft and screening process must "recognize the
right of the person to avoid search by electing not to board
the aircraft"); People v. Hyde, 524 P.2d 830, 834, 837
(Cal. 1974) (in banc) (airport checkpoints are designed to
prevent hijackings and not to ferret out contraband or
evidence of criminal activity; individual may elect not to
be searched by not boarding plane); State v. Miller, 520
P.2d 1115, 1117-18 (Ariz. 1974) (air passenger must be
given option to depart rather than submit to search).
Other courts maintain that individuals do not retain the
right to leave once they reach the checkpoint. See, e.zg.,
United States v. Pulido-Baquerizo, 800 F.2d 899, 902 (9th
Cir. 1986) (after briefcase had gone through X-ray
machine at airport); United States v. Herzbrun, 723 F.2d
773, 776 (11th Cir. 1984) (airport); United States v.
Haynie, 637 F.2d 227, 230-31 (4th Cir. 1980) (airport),
cert. denied, 451 U.S. 972, 988 (1981); United States v.
DeAngelo, 584 F.2d 46, 48 (4th Cir. 1978) (airport), cert.
denied, 440 U.S. 935 (1979); United States v. Mathews,
431 F. Supp. 70, 71-73 (W.D. Okl. 1976) (military base);
People v. Heimel, 812 P.2d 1177, 1181-82 (Colo. 1991)
(airport); State v. Plante, 594 A.2d 165, 167 (N.H.)
(courthouse), cert. denied, 502 U.S. 984 (1991); People v.
Turnbeaugh, 451 N.E.2d 1016, 1019 (Ill. App. 1983)
(canine checkpoint at prison); State v. Manghan, 313 A.2d
at 228-29 (same). See also Romo v. Champion, 46 F.3d
Se a
ates _ a oe
17
at 1016-20 (dog sniff at roadblock on prison access road
permissible; visitor did not ask to leave).
With this case, the Court can determine what
governmental interests vis-a-vis prison visitors are
permissibly advanced through the use of an administrative
checkpoint: mere one time deterrence or an investigation
to detect whether the visitor is carrying contraband. Cf
National Treasury Employees Union v. Van Raab, 489
U.S. at 668 (can use administrative search to prevent or
detect latent or hidden conditions); New York v. Burger,
482 U.S. 691, 709 (1987) (inspections do not lose
administrative character merely because their ultimate
purpose is deterrence of criminal behavior and that, as a
result of the inspection, violations of penal statutes are
disclosed).
This case also allows the Court to address the intrusion
on the visitor's privacy, which is an issue of equal
importance in the reasonableness inquiry. The Fourth
Amendment protects only those subjective expectations of
privacy of an individual that society recognizes as
legitimate. Vernonia School District 47J v. Acton, 115 S.
Ct. at 2391. "What expectations are legitimate varies, of
course, with context, depending, for example, upon
whether the individual asserting the privacy interest is at
home, at work, in a car, or in a public park." Jd. See also
Michigan Dep't of State Police v. Sitz, 496 U.S. at 451-52
(intrusion upon motorist stopped at checkpoint
is"minimal").
The lower courts need guidance identifying the strength
of a prison visitor's privacy interest. Some courts have
opined that, given the nature of the activity—visiting a
prison—there is no reasonable expectation that the person
would not be searched. See, e.g., Wells v. State, 402 So.
18
2d 402, 404-05 (Fla. 1981) (stating that it "is doubtful that
most visitors to a prison have any subjective expectation
of privacy that they will not be searched for weapons or
other contraband" and holding that any subjective
expectation is not one that society is prepared to recognize
as reasonable); Williams v. State, 400 So. 2d 988, 989
(Fla. App.) (same), pet. for rev. denied, 411 So. 2d 385
(Fla. 1981). Other courts have held that the visitor retains
some legitimate expectation of privacy. See, e.g., Spear v.
Sowders, 71 F.3d at 629; Romo v. Champion, 46 F.3d at
1018.
This case presents the additional issue whether warnings
of an impending search or detention are relevant to the
reasonableness analysis. Gadson was properly stopped at
the guard house as an incident of his attempt to enter the
prison. The only challenged interference with Gadson's
privacy was Trooper Prince's prolonging that seizure
momentarily to perform the canine scan.‘ This was after
Gadson had driven past warnings posted along the private
access road informing visitors of the search policy. The
lower courts are divided regarding the significance of such
* Gadson has never challenged the validity of the initial
stop at the guard house nor did he assert that the dog sniff was
a search. See United States v. Place, 462 U.S. 696, 707 (1983)
(dog sniff not a search). Gadson also did not contend that the
order to turn off his car violated his rights. In any event, the
purpose of that order was not to facilitate the dog sniff but to
protect the trooper's safety while the dog scanned the car. The
law permits such incidental intrusions to protect the safety of an
officer to effectuate an otherwise permissible primary intrusion.
See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)
(per curiam) (as an incident of traffic stop, officer may, for his
safety, order driver out of car).
19
warnings. See, e.g., Blackburn v. Snow, 771 F.2d 556,
567 (ist Cir. 1985) (no consent when access to jail
conditioned on search); People v. Turnbeaugh, 451 N.E.2d
at 1020 (signs warning of search at prison bore on
reasonableness of search); Mathis v. Appellate Dep't of
Superior Court, 105 Cal. Rptr. 126, 127 (1972) (a driver
passing sign warning that vehicle is subject to search
impliedly consents to search); see generally 4 WAYNE R.
LAFAVE, supra, § 10.7(b) at 658-60 (cataloguing views
and discussing importance of notice to prison visitor as
bearing on reasonableness of intrusion). This case thus
presents the opportunity to identify the scope of any
legitimate expectation of privacy a prison visitor may have
and the effect of notice on that expectation of privacy.
In sum, the authorities are divided regarding the
propriety of the procedure used in this case, that is,
prolonging the detention of a prison visitor for the limited
purpose of conducting a dog sniff of the exterior of that
person's vehicle after the visitor has entered prison
property. This is an ideal case for this Court to address for
the first time the competing governmental and individual
interests implicated when the government seeks to prevent
visitors traveling by vehicle from bringing contraband into
prisons and provide a constitutional framework for
measuring the validity of such procedures.
ee
20
CONCLUSION
For the foregoing reasons, the State of Maryland
respectfully requests that this Court issue a writ of
certiorari to review the judgment of the Court of Appeals
of Maryland.
Respectfully submitted,
J. JOSEPH CURRAN, JR.
Attorney General of Maryland
GARY E. BAIR*
MARY ELLEN BARBERA
THOMAS K. CLANCY
Assistant Attorneys General
Counsel for Petitioner
*Counsel of Record
March 4, 1996
APPENDIX
a Oe te te ns os
CONTENTS OF APPENDIX
Page
APPENDIX A:
Reported opinion of the Court of Appeals
of Maryland, Tyrone Jerome Gadson v.
State of Maryland, 341 Md. 1,
ee i: ir la
APPENDIX B:
Reported opinion of the Court of Special Appeals
of Maryland, Tyrone Jerome Gadson v.
State of Maryland, 102 Md. App. 554,
ee 8). a Ne 23a
APPENDIX C:
Memorandum opinion of the Circuit
Court for Anne Arundel County,
filed June 10, 1993, State of
Maryland v. Tyrone Jerome Gadson,
GA POWs EIN oo os Si ooo ove sen ns 43a
la
APPENDIX A
Court of Appeals of Maryland.
No. 25, Sept. Term, 1995
TYRONE JEROME GADSON
V.
STATE OF MARYLAND
December 7, 1995
Argued before MURPHY, C.J., ELDRIDGE.
RODOWSKY, CHASANOW, KARWACKL RAKER and
BELL, JJ.
CHASANOW, Judge.
The question presented in this case is whether the State
may constitutionally detain a prospective visitor to a
prison long enough to conduct a "canine sniff" of the
visitor's motor vehicle after the visitor, upon being told of
the procedure, objects and expresses a desire to leave
without entering the prison. While it is absolutely proper
to require the visitor to submit to such a detention as a
condition of entry, we hold that absent reasonable,
articulable suspicion of criminal activity, it is
unreasonable under the Fourth Amendment of the United
States Constitution and Article 26 of the Maryland
Declaration of Rights to detain those visitors who, prior to
2a
entering the prison, indicate a preference to leave rather
than submit to the detention.
L.
Tryone Jerome Gadson, Petitioner, was convicted in the
Circuit Court for Anne Arundel County of possession of
cocaine with intent to distribute and possession of
marijuana with intent to distribute. The convictions were
based on evidence seized during a search of Gadson's
truck, including three bags of "crack" cocaine, two bags of
marijuana, an electronic scale and other drug
paraphernalia. The sole issue on appeal is whether the
physical evidence should have been suppressed as the fruit
of an illegal seizure.
On September 13, 1992, Gadson and a friend planned
to drive to the House of Correction in Jessup to drop off
money for an inmate of the facility. Gadson turned off
Maryland Route 175 and onto an access road leading to
the prison building. The road also gives access to some
houses owned by the Division of Correction and some
construction trailers. After traveling up the access road
approximately 300 yards, Gadson came to a stop at a
"guard booth” next to the road. The House of Correction
itself is located approximately a quarter of a mile beyond
the booth. Although three signs along the access road
warned that visitors were subject to search, Gadson
testified that he failed to notice them.' Shortly after
' Three signs on the prison access road warn that
visitors are subject to search. The first is located approximately
150 yards from the point where the road turns away from
Maryland Route 175. It states: "WARNING. ALL VISITORS
INCLUDING ALL VEHICLES AND OCCUPANTS ARE
SUBJECT TO BEING SEARCHED UPON ENTERING OR
(continued...)
<td Sa “
3a
Gadson's truck stopped next to the guard booth, Trooper
Charles Prince of the Maryland State Police approached
Gadson's truck, identified himself, and informed Gadson
that he intended to perform a "canine sniff" of the vehicle
using a trained drug detection dog named "Sandy."
Pursuant to State police policy, Trooper Prince ordered
Gadson to turn off his vehicle so that he could perform the
drug scan. Gadson told Trooper Prince he objected to the
canine sniff, and asked for permission to leave the area.
The trooper denied Gadson's request. In compliance with
the trooper’s order, Gadson turned off his truck and waited
for the dog to be brought over. The dog "alerted" Trooper
Prince that it smelled drugs in the truck, and at that point,
Gadson admitted to the trooper that there was marijuana
in the truck. Gadson's truck was searched and the
contraband seized.
At a suppression hearing before Judge Raymond G.
Thieme Jr., Trooper Prince testified that, in 1992 at the
governor's request, the Maryland State Police established
drug detection "checkpoints" at two state correctional
facilities. The purpose of the checkpoints is to prevent
transportation of drugs into the prisons. The trooper
explained the typical procedure at these checkpoints is for
an officer to wait until the visitor's vehicle stops at the
guard shack. As the driver explains to the guard his
'(...continued)
EXITING THE PREMISES." A second Sign states
"WARNING: DRUG DETECTION DOGS BEING UTILIZED
ON INSTITUTIONAL PROPERTY," and a final sign, located
at the guard booth itself, warns "STOP. ALL VEHICLES
SUBJECT TO INSPECTION."
* Sandy "alerts" Trooper Prince to the presence of
contraband in a vehicle by sitting down and turning his head to
the right when he detects the odor of narcotics.
da
business on the premises, a trooper approaches the vehicle
and informs the driver of the required dog sniff. The
driver is ordered to turn off the engine and remove the
keys from the ignition. The trooper then brings the dog
over to the vehicle and the sniff is performed.
Gadson argues that, once informed of the canine
sniffing procedure by Trooper Prince, he should have been
given the option to turn back rather than submit to further
detention and the dog sniff. Judge Thieme ruled against
Gadson, and that ruling was affirmed by the Court of
Special Appeals. Gadson v. State, 102 Md. App. 554, 650
A.2d 1354 (1994). We granted certiorari to consider the
important question raised in this case.
Il.
The narrow issue before us is whether Trooper Prince's
detention of Gadson at the guard shack constituted an
"unreasonable seizure” within the meaning of the Fourth
Amendment of the United States Constitution and Article
26 of the Maryland Declaration of Rights.’ Gadson does
not contend that the dog sniff itself implicated his Fourth
Amendment rights.* Nor does Gadson dispute that once
* Article 26 of the Maryland Declaration of Rights is in
pari materia with the Fourth Amendment, and decisions of the
Supreme Court interpreting the Fourth Amendment are entitled
to great respect in construing Article 26. Little v. State, 300
Md. 485, 493 n.3, 479 A.2d 903, 907 n.3 (1984).
* A dog sniff of a vehicle conducted during a lawful
detention is not a “search” within the meaning of the Fourth
Amendment. United States v. Morales-Zamora, 914 F.2d 200,
203 (10th Cir. 1990); United States v. Dovali-Avila, 895 F.2d
206, 207 (Sth Cir. 1990). Accord In re Montrail M., 87 Md.
(continued...)
ee eee
ae
a a Oe ee
tie
Sa
Sandy the dog alerted Trooper Prince to the presence of
illegal drugs in the vehicle, sufficient probable cause
existed to support a warrantless search of the truck. See
United States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir.
1990) (a "dog alert” is sufficient to create probable cause
to conduct a warrantless vehicle search); Jn re Montrail
M., 87 Md. App. 420, 437, 589 A.2d 1318, 1327 (1991)
(trained drug dog's reaction "properly served as probable
cause to search the vehicle" without a warrant), aff'd, 325
Md. 527, 601 A.2d 1102 (1992). Nor does Gadson argue
that the initial stop at the guard shack was not justified as
a way of screening potential visitors to the prison.
Rather, Gadson's theory is that the detention he was
required to endure in his truck after being ordered to turn
off the engine and wait while Trooper Prince retrieved the
dog and conducted the drug sniff constituted an
unreasonable "seizure" with [sic] the meaning of the
Fourth Amendment and Article 26. If Gadson is correct
that the seizure was unreasonable, then everything that
flowed from it, including the search of Gadson's truck and
the contraband that was seized during the search, was
tainted and the physical evidence should have been
suppressed. See Ott v. State, 325 Md. 206, 225, 600 A.2d
111, 120 (noting that physical evidence obtained as the
result of an illegal seizure is suppressed under the "fruit of
the poisonous tree” doctrine), cert. denied, Maryland v.
On, _US.__, 113 S.Ct. 295, 121 L.Ed.2d 219 (1992).
‘(...continued)
App. 420, 436-37, 589 A.2d 1318, 1326 (1991), affd, 325 Md.
527, 601 A.2d 1102 (1992). See also United States v. Place,
462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L_Ed.2d 110,
121 (1983) (dog sniff of luggage does not constitute a "search"
under Fourth Amendment).
6a
There is no disputing that Trooper Prince's detaining of
Gadson was a "seizure" under the Fourth Amendment.
See Little v. State, 300 Md. 485, 493, 479 A.2d 903, 907
(1984) ("It is well recognized that stopping an automobile
and detaining its occupants constitutes a ‘seizure’ within
the meaning of the Fourth and Fourteenth Amendments to
the federal constitution, even though the purpose of the
stop is limited and the resulting detention is quite brief.")
(citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct.
1391, 1396, 59 L.Ed.2d 660, 667 (1979)). The only issue
is the reasonableness of that seizure. See Little, 300 Md.
at 493, 479 A.2d at 907 (noting that the Fourth
Amendment only prohibits seizures that are unreasonable).
Ii.
As a general rule, the Fourth Amendment prohibits
police from detaining an individual, even briefly, absent
some "articulable reason" that the person seized is or has
been engaged in criminal activity. Little, 300 Md. at 494
n.4, 479 A.2d at 907 n.4 (citing Brown v. Texas, 443 U.S.
47, 51, 99 S.Ct. 2637, 2640-41, 61 L.Ed.2d 357, 362
(1979)). See also Florida v. Royer, 460 U.S. 491, 498,
103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983) (A
person "may not be detained even momentarily without
reasonable, objective grounds for doing so."); Terry v.
Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d
889, 906 (1968) (holding that even limited seizures must
be justified by "specific and articulable facts"); United
States v. Torres, No. 92-5246, slip op. at 6 (4th Cir. Oct.
4, 1995) (noting that investigative detention must be
supported by reasonable, articulable suspicion). As Chief-
Justice Burger explained in Brown, when even a limited
seizure "is not based on objective criteria, the risk of
arbitrary and abusive police practices exceeds tolerable
limits." 443 U.S. at 52, 99 S.Ct. at 2641, 61 L.Ed.2d at
7a
363.
Here, the State does not contend that Trooper Prince
possessed any articulable suspicion to justify detaining
Gadson to conduct the drug sniff. Instead, the State relies
on an exception to the general rule that allows police to
briefly detain motorists at "checkpoints" even when there
is no individualized suspicion of criminal activity. See
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110
S.Ct. 2481, 110 L.Ed.2d 412 (1990) (upholding required
stop at sobriety checkpoints); United States v. Martinez-
Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116
(1976) (upholding required stop at checkpoint for illegal
immigrants); Little, supra (upholding sobriety
checkpoints). These "checkpoint" cases hold that a limited
"seizure" of motorists is permissible even without
individualized suspicion where the State's interests in
conducting the stop outweigh the motorist's interest in
avoiding a relatively minor intrusion of their privacy
interests. See Sitz, 496 U.S. at 449-55, 110 S.Ct. at 2484-
88, 110 L.Ed.2d at 419-23; Martinez-Fuerte, 428 U.S. at
561-62, 96 S.Ct. at 3084-85, 49 L.Ed.2d at 1130-31; Little,
300 Md. at 504-06, 479 A.2d at 912-14.
In Little, this Court upheld the use of "sobriety
checkpoints" where motorists were required to stop on a
public highway and submit to a very brief police
examination for signs of intoxication. We judged the
reasonableness of the checkpoints "by balancing [the]
intrusion on the individual's Fourth Amendment interests
against [the] promotion of legitimate government
interests.” Little, 300 Md. at 494, 479 A.2d at 907
(quoting Prouse, 440 U.S. at 654, 99 S.Ct. at 1396, 59
L.Ed.2d at 667-68). Stressing the unintrusive nature of the
stops, we found that the burden on the liberties of
individual motorists was "minimal" and held, given the
"State's compelling interest in detecting and deterring
drunk driving," that the checkpoints were reasonable
8a
within the meaning of the Fourth Amendment and Article
26. Little, 300 Md. at 506, 479 A.2d at 913. Similarly, in
Sitz, the Supreme Court found "the balance of the State's
interest in preventing drunken driving ... and the degree of
intrusion upon individual motorists who are briefly
stopped, weighs in favor of the state program." 496 U.S.
at 455, 110 S.Ct. at 2488, 110 L.Ed.2d at 423.
In short, the reasonableness of a checkpoint detention is
determined by balancing the intrusion of the motorist's
privacy interests against the societal need served by the
seizure. In the instant case, the State contends that
detaining Gadson for the few moments it took to perform
the dog sniff was a "minimal intrusion" that was
outweighed by the State's "compelling interest" in
preventing the flow of illegal narcotics into state prisons.
We certainly concur with the State, and with the Court of
Special Appeals, that the State has a strong interest in
keeping drugs out of its correctional facilities. We hold,
however, that because the seizure in this case was not
designed to serve that articulated interest, it was
unreasonable.
The undisputed testimony from the suppression hearing
before Judge Thieme indicated that once Gadson learned
of the dog sniff procedure, a quarter mile from the prison
building, he hold Trooper Prince that he wanted to leave
the area rather than submit. At the hearing, Gadson
testified as to what happened after he pulled up to the
guard booth:
"[GADSON]: Then all of a sudden this officer
comes Over to my truck and tells me your truck is
subject to search, something of that nature. And
I was like I'm not going in I don't want you
searching my truck, you know, I'll just leave.
You know I'm just here to leave money and
everything. And [Trooper Prince] said no, no ...
shut your vehicle off ... [and he went to] get his
eet
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OLA OR hel hells te A ttn S or tr vite Bo Net
EP IS ta NP be DP
9a
dog, Sandy is his name I think.
"[DEFENSE COUNSEL]: Did he detain you at
the time?
"[GADSON]: Yeah, he told me to turn my truck
off and everything.
Trooper Prince testified:
"[PRINCE]: I advised [Gadson] that I needed
him to shut his truck off and the [dog] scan of the
vehicle would be done. It was at this time Mr.
Gadson stated to me that that was all right that he
would leave.... He was advised ... that since he
was already on State property that a [dog] scan of
the vehicle would be done."
If the purpose of the dog sniff was, as the State contends,
to prevent the flow of drugs into the prison, then that
purpose was fully served once Gadson agreed to turn
around a quarter mile away from the prison building. At
that point, the checkpoint had accomplished its stated goal.
Gadson intended to turn back without entering the House
of Correction. Rather than allowing Gadson to tum
around, however, Trooper Prince ordered him to shut off
his truck and remain at the guard shack while the canine
was brought out to perform the sniff.
There is no doubt that the detention of Gadson by
Trooper Prince in this case was aimed at serving a
governmental interest. That interest, however, appears to
have been the detection and seizure of illegal narcotics
generally, rather than, as the State suggests, keeping drugs
out of the prison. As already noted, that purpose was
accomplished when Gadson asked to leave. The detection
and seizure of narcotics generally, although clearly a
legitimate governmental interest, is beyond the scope of
10a
the articulated purpose of the prison checkpoint.*
We believe there is a fundamental difference between
the seizure in the case sub judice and those upheld in the
police checkpoint cases relied on by the State. In Little
and Sitz, supra, the articulated governmental interest was
getting drunk drivers off the road. Clearly, if a drunk
driver arriving at a sobriety checkpoint were allowed to
turn back once arriving at the checkpoint, the State's
interest would not be served because the intoxicated
motorist would still be a public danger.© In Martinez-
Fuerte, supra, the articulated state interest justifying
checkpoint stops along public highways was the need to
control the flow of illegal immigrants. Allowing vehicles
to turn around once arriving at these checkpoints would
likewise defeat the stated purpose, because illegal
immigrants inside the vehicles would avoid detection and
continue to be at large within the United States. On the
other hand, the governmental interest asserted in the
instant case, keeping illegal narcotics out of the House of
Correction, is accomplished by turning away motorists
* We need not decide in this case whether a police
checkpoint established for the express purpose of detecting and
seizing illegal narcotics from vehicles on a public highway
would violate the Fourth Amendment.
* In Little, we noted that, under the police procedures at
issue in that case, motorists were allowed to turn around before
reaching the sobriety checkpoints, and that drivers who stopped
at the checkpoint but refused to roll down their windows were
allowed to proceed. 300 Md. at 506, 479 A.2d at 913-14
Although we stressed that these policies supported our
conclusion that the checkpoint stops at issue were mini
intrusive, we did not decide whether checkpoints would be
unconstitutional if drivers were not given these options to avoid
the investigative purpose of the stop.
lla
who decline to submit to the dog sniffing procedures.
Once the motorist decides to tum away from the prison
checkpoint, a quarter mile away from the prison, the
danger of drugs entering the prison evaporates. See 3
WAYNE R. LAFAVE, SEARCH AND SEIZURE § 10.7(b) at 46
(2nd ed. 1987) ("A search without probable cause of a jail
visitor is justified only by the need to prevent the
introduction of contraband and weapons into the jail, and
this is accomplished if the person declines to be searched
and departs.").
In essence, the State asks us to expand its authority to
detain motorists beyond the time when the stated goal of
the detention has already been accomplished. We decline
to do so. It is well established that a limited seizure of the
kind at issue here may not be extended beyond the point
where its purpose has been accomplished unless there is
reasonable, articulable suspicion of criminal activity to
justify further detention. See United States v. Ramos, 42
F.3d 1160, 1163 (8th Cir. 1994) (holding that continued
detention after traffic stop for seatbelt violation was
unreasonable after occupants produced valid drivers
licenses and there was no objective reason to raise
suspicion of criminal activity), cert. denied, US. ,
115 S.Ct. 2015, 131 L.Ed.2d 1013 (1995); United States
v. Walker, 933 F.2d 812, 816 (10th Cir. 1991) (holding
that once police officer had fully investigated the basis for
traffic stop, it was unreasonable under the Fourth
Amendment to extend the duration of the stop without
reasonable suspicion of other criminal activity), cert.
denied, 502 U.S. 1093, 112 S.Ct. 1168, 117 L.Ed.2d 414
(1992); United States v. Guzman, 864 F.2d 1512, 1519-20
(10th Cir. 1988) (same); Munafo v. State, 105 Md. App.
662, 673, 660 A.2d 1068, 1073 (1995) (holding that once
purpose of initial traffic stop for speeding and reckless
driving had been fulfilled, continued detention of driver
was unreasonable without articulable suspicion); Snow v.
—— ee
i
12a
State, 84 Md. App. 243, 264-65, 578 A.2d 816, 826
(1990) (finding that extension of traffic stop detention was
not justified without reasonable, articulable suspicion of
criminal activity once reason for initial stop had been
addressed); Powell v. State, 649 So.2d 888, 889 (Fla. App.
1995) ("A continued detention is illegal if the reason for
the initial stop is resolved."). See also Florida v. Royer,
460 U.S. at 500, 103 S.Ct. at 1325, 75 L.Ed.2d at 238
("The scope of the detention must be carefully tailored to
its underlying justification."). Cf United States v.
Morales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990)
(upholding a dog sniff of a vehicle as reasonable because
it was completed before police had accomplished the
purpose of the checkpoint stop).
The opinion of the Court of Special Appeals in Snow,
supra, is instructive. In Snow, state police stopped a
vehicle for speeding on Interstate 95. After issuing Snow
a warning for speeding, the officer then developed a
"hunch" that there were drugs in the vehicle. Snow
refused a request to search the vehicle. Nonetheless, the
trooper detained Snow and a passenger long enough to
conduct a drug scan of the vehicle using a trained police
dog. The intermediate appellate court first held there was
a "seizure" within the meaning of the Fourth Amendment
when Snow was ordered to remain by the side of the road
while the trooper conducted the dog sniff. Snow, 84 Md.
App. at 259, 578 A.2d at 824. The court then found that
the seizure was unreasonable because:
"The intrusion permitted ‘must be temporary
and last no longer than is necessary to effectuate
the purpose of the stop.’ Florida v. Royer, 460
U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d
229[, 238] (1983). Here, the purpose of the stop
was tO warn or issue a ticket to Snow for
speeding. That purpose was fully fulfilled, but
the detention was continued. ... Although it is true
l3a
that the duration of a stop is a factor in
calculating whether an intrusion is within
constitutional limitations ... the State must first
demonstrate a reasonable, articulable suspicion
that a crime is being or is about to be committed.
The State, as we have stated above, did not
adequately demonstrate a reasonable, articulable
suspicion." (Citation omitted).
Snow, 84 Md. App. at 264-65, 578 A.2d at 826.
Therefore, prolonging the detention was unreasonable. In
sum, the court held that because police had already
fulfilled the purpose of the initial stop when the officer
issued a warning for speeding, and because the officer did
not possess reasonable, articulable suspicion that Snow
had drugs in his vehicle, there was no justification for
further detention to conduct the dog sniff.
Similarly, in Munafo, supra, the defendant was stopped
for speeding and reckless driving. He produced a valid
license and registration. Rather than ending the stop
promptly and sending the defendant on his way, police
officers detained him for a few minutes to investigate a
"hunch" that he was in possession of narcotics. The Court
of Special Appeals ruled that once the purpose of an initial
traffic stop has been satisfied, "continued detention of a
vehicle and its occupant(s) constitutes a second stop, and
must be independently justified by reasonable suspicion."
Munafo, 105 Md. App. at 670, 660 A.2d at 1072. Since
there was no sufficient basis for such suspicion, the court
held that contraband seized from Munafo's vehicle should
have been suppressed. 105 Md. App. at 676, 660 A.2d at
1075.
We believe this reasoning applies here. Trooper Prince
testified, and the State concedes, that the purpose of
detaining Gadson at the guard shack was to prevent drugs
from entering the House of Correction. Once Gadson
agreed to turn back a quarter mile from the prison, that
l4a
goal was fulfilled. Continued detention of Gadson would
have been justified only if Trooper Prince had "reasonable,
articulable suspicion" that there were drugs in Gadson's
truck. The State does not contend that Trooper Prince
possessed any basis for such suspicion, and none appears
on the record.’ Therefore, we hold the detention was
unreasonable.
IV.
Although the State places great emphasis on the police
checkpoint cases discussed in Part III, supra, we believe
this case is also closely analogous to those cases involving
searches and seizures required as a condition of entry into
” Trooper Prince testified that he suspected that there
were drugs in the vehicle once Gadson indicated he did not
want the dog sniff to proceed. When asked why he refused to
allow Gadson to turn around and leave, the officer testified:
"There were several reasons. If I was to let him
go by the time I made my initial contact with
Mr. Gadson two other vehicles had pulled up
behind us, so therefore he couldn't back up. If
he went forward he would be further into the
D{ivision] of Correction [] property. His
comment to me that, that's okay, I'll leave,
brought to my suspicions that there was
something in the vehicle that he did not want the
dog to find. At that time I felt that there were
narcotics in the vehicle. And I did not let him
leave."
It is settled that a person's refusal to consent to a search or dog
sniff may not be considered in determining whether the police
had reasonable, articulable suspicion of criminal activity to
justify continued detention. See United States v. Torres, No.
92-5246, slip op. at 9 (4th Cir. Oct. 4, 1995); Snow v. State, 84
Md. App. 243, 260, 578 A.2d 816, 825 (1990).
lSa
secure areas, such as prisons, military installations, or
commercial aircraft. In those cases, courts have held that
the government may require individuals to submit to a
search or seizure prior to entry, but the individual retains
the right to decline entry rather than submit. See United
States v. Davis, 482 F.2d 893, 910-11 (9th Cir. 1973)
(noting that airport screening searches are reasonable only
if passengers are given the option of leaving rather than
submitting); United States v. Miles, 480 F.2d 1217, 1219
(9th Cir.) (per curium) (noting that searches required as a
condition of entrance to a secure area of a military base
are reasonable as long as individuals are given the option
of avoiding the search by electing not to seek entry), cert
denied, 414 U.S. 1008, 94 S.Ct. 369, 38 L.Ed.2d 245
(1973); Jordon v. Wolke, 450 F. Supp. 213 (E.D. Wis.
1978) (noting that rule governing searches required of
prison visitors "should also provide that visitors will be
informed that they may refuse to be searched but will
thereby forfeit the opportunity to visit each time they so
refuse"); Commonwealth v. Dugger, 486 A.2d 382, 384
(Pa. 1985) ("A visitor comes to a prison voluntarily. If he
or she refuses to be searched they may leave."); LAFAVE,
supra, § 10.7(b) at 46 (Suspicionless search procedures at
prison gates that are “reasonable under the Fourth
Amendment as means of preventing certain conduct
should not be extended to situations in which only
detection rather than prevention is accomplished.”).
Contra United States v. Skipwith, 482 F.2d 1272 (Sth Cir.
1973), People v. Turnbeaugh, 451 N.E.2d 1016 (Ill. App.
1983).
In Davis, supra, the Ninth Circuit considered the
constitutionality of an airport search of a passenger's
briefcase prior to boarding. The court found that pre-
boarding screening of all passengers and carry-on luggage
was reasonable under the Fourth Amendment as a way of
preventing the smuggling of weapons or explosives onto
l6a
aircraft. Davis, 482 F.2d at 910. The court stressed,
however, that such "airport screening searches are valid
only if they recognize the right of a person to avoid search
by electing not to board the aircraft." Davis, 482 F.2d at
910-11 (emphasis added) (footnote omitted). The court
went on to explain:
“It is difficult to see how the need to prevent
weapons and explosives from being carried
aboard the plane could justify the search of a
person who had elected not to board. Perhaps it
could be argued that a compelled search might
lead to the apprehension of a potential hijacker,
eliminating or at least reducing the chance that he
would try again. Compared to the degree of
additional intrusiveness that compulsory searches
involve, however, this possibility seems so slight
as to be inconsequential. The risk of successful
hijacking is not enhanced by allowing a potential
passenger to avoid a search on a particular
occasion by electing not to fly.
. * * * * «
"Since a compelled search of persons who elect
not to board would not contribute to barring
weapons and explosives from the plane, it would
serve only the purpose of apprehending violators
of either the criminal prohibition against
attempting to board an aircraft while Carrying a
concealed weapon, ... or some other criminal
Statute....
In sum, airport screening searches of the
persons and immediate possessions of potential
passengers for weapons and explosives are
reasonable under the Fourth Amendment
provided each prospective boarder retains the
right to leave rather than submit to the search."
(Emphasis added).
LS
17a
Davis, 482 F.2d at 911-12. Although Davis addressed the
question of whether a warrantless airport search of a
prospective passenger was reasonable, we believe the
reasoning applies with equal force in the instant case,
where a limited seizure is at issue.
More recent cases have upheld the constitutionality of
X-Tay screening at airports based on the theory of implied
consent. In United States v. DeAngelo, 584 F.2d 46 (4th
Cir. 1978), cert. denied, 440 U.S. 935, 99 S.Ct. 1278, 59
L.Ed.2d 493 (1979), for example, the Fourth Circuit held
that once a passenger voluntarily submitted his briefcase
for x-ray examination, he no longer retained the option of
avoiding further inspection of the case by electing not to
board the flight.’ Accord United States v. Pulido-
Bagerizo, 800 F.2d 899 (9th Cir. 1986); United States v.
Henry, 615 F.2d 1223 (9th Cir. 1980).
The key to these cases, however, was the fact that the
passengers consented to the use of the x-ray scanning of
their luggage by voluntarily surrendering it for x-ray
examination. Accordingly, they are far different from the
case sub judice, where Gadson never agreed to be detained
* In addition to upholding the search on the basis of
implied consent, the Fourth Circuit in United States y.
DeAngelo, 584 F. 2d 46 (4th Cir. 1978), also held that the
search was justified as a means of avoiding an "immediate
danger" to people in the airport. 584 F.2d at 47. During an
initial x-ray scan of DeAngelo's briefcase, a large portion of the
case appeared black on the x-ray screen. Thus, the court held
that it was reasonable for security officers to conclude that
DeAngelo may have been carrying explosives or a gun, either of
which could have posed a danger to security officers and
bystanders. Jd. Therefore, the officers were justified in opening
the case as a means of preventing a possibie threat to security
officers and bystanders. Jd. No such public safety concerns
were present in the instant case.
18a
for the dog sniff. Upon arriving at the guard shack and
being told of the procedure, Gadson expressed a desire to
leave rather than enter the House of Correction. Hence,
there was no consent, express or implied.°
In the final analysis, the pivotal question here is at what
moment did Gadson reach the "point of no return:" that
crucial instant when, like an airline passenger surrendering
his bag for an airport x-ray scan, he consented to
governmental intrusion into his privacy interests. The
State would have us hold that, once Gadson reached the
guard booth on the prison access road, a full quarter mile
from the House of Correction, he had reached the point
where he could no longer withdraw. We disagree. In our
view, Gadson retained the right to turn around and leave
until the point Trooper Prince informed him of the dog
sniffing procedures. Upon learning that the dog sniff was
required, Gadson, like the airline passenger who walks up
to the airport gate and sees that he must submit his bags
for an x-ray scan, retained the right to depart from the
guard booth unfettered rather than submit.
In holding that Gadson had no right to turn back from
the guard booth, the Court of Special Appeals relied on
Turnbeaugh, supra, in which the intermediate appellate
court of Illinois held that a motorist who was stopped on
* The State places great emphasis on the three signs
posted along the road leading up to House of Correction,
warning that visitors were subject to search. Although the
presence of the signs may bear on the overall reasonableness of
the Fourth Amendment intrusion at issue here, we doubt their
presence is sufficient to support a conclusion that Gadson
consented, impliedly or otherwise, to be detained by the time he
reached the guard shack. See State v. Salit, 613 P.2d 245, 253-
54 (Alaska 1980) (holding that presence of signs warning that
luggage would be searched at airport was insufficient to support
warrantless search on the basis of implied consent).
19a
a prison access road did not have the right to avoid a
search of his vehicle by leaving the area. 451 N.E.2d at
1019. The Illinois court ruled "[a}n option to depart rather
than be searched would constitute a one-way street for the
benefit of the party planning mischief. as there is no
guarantee that he would not return later and be more
successful." Jd. We find this to be an inadequate
justification for the detention. The risk that a drug
smuggler might return after having been turned back from
the prison guard booth and escape detection the second
time is small, and we do not believe it justifies the
additional intrusiveness of compulsory seizures of
nonvisitors who have driven up to a checkpoint a full
quarter mile from the prison itself.'° See LAFAVE, supra,
at 46.
V.
The articulated purpose of the detention at issue in this
cas€ was to prevent illegal drugs from entering the House
of Correction. Once Gadson agreed to turn back from the
guard booth, that purpose was wholly accomplished.
Therefore, further detention could only be justified if
Trooper Prince possessed reasonable, articulable suspicion
that Gadson had engaged in criminal activity. Because
" The State also argues that simply turning away visitors
who decline to submit to the dog sniff is insufficient because the
checkpoint is not always staffed with drug detection dogs.
Therefore, a drug smuggler could simply drive up to the gate
repeatedly, turning away each time a dog was being used, until
he arrived at a time when no dog was present. We believe the
solution to this problem is to continually staff the prison with
drug detection dogs, not to authorize the suspicionless
detention of motorists and passengers who indicate a preference
to leave without entering the prison.
20a
there was no proper basis for such suspicion, the detention
of Gadson was unreasonable under the Fourth Amendment
and Article 26. Accordingly, the evidence discovered
pursuant to that detention should have been suppressed.
Therefore, we reverse.
JUDGMENT OF THE COURT OF SPECIAL APPEALS
REVERSED. CASE REMANDED TO THAT COURT
WITH INSTRUCTIONS TO REMAND THIS CASE TO
THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY
FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID BY ANNE
ARUNDEL COUNTY.
Dissenting opinion by MURPHY, C.J., in which
RODOWSKY, J., joins.
MURPHY, Chief Judge, dissenting.
In my view, the state's interest in preventing contraband
from entering prison facilities justifies the minimal
intrusion at issue here. I, therefore, respectfully dissent.
As the majority correctly notes, this Court and the
Supreme Court have found limited detentions of motorists
to be permissible under the Fourth Amendment. See
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110
S. Ct. 2481, 110 L. Ed. 2d 412 (1990); Little v. State, 300
Md. 485, 479 A.2d 903 (1984). In such cases, no
particularized suspicion of wrongdoing is required when
the officer conducting the detention is governed by
appropriately drawn regulations and the state's interest in
conducting the detention outweighs the motorist's privacy
interest. See Sitz, supra, 496 U.S. at 449-55. I disagree
with the majority's conclusion that the second of these _
requirements is not met.
The privacy interests in this case are far more attenuated
2la
than even the minimal interests at issue in Sitz. In addition
to their short duration, the detentions at issue here involve
a very narrowly defined class of individuals. In Sitz, the
Supreme Court upheld the use of drunk-driving
checkpoints where every driver traveling on a public
highway was stopped and subjected to a temporary
seizure. Jd. In contrast, the temporary detention at issue
in this case is limited to persons who drive 300 hundred
[sic] yards up a private prison access road to a guard
house, intending to enter the prison grounds and having
been warned by three separate signs posted on the access
road that they will be subject to search and that drug
dogs may be used for this purpose. Members of this
limited subset of the driving population are then detained
for approximately one minute while a drug sniffing dog
walks around the outside of their car.
The majority asserts that the state has no interest
sufficient to counterbalance this minimal intrusion. The
majority distinguishes Sitz by asserting that "if a drunk
driver arriving at a sobriety checkpoint were allowed to
turn back once arriving at the checkpoint, the State's
interest would not be served because the intoxicated
motorist would still be a public danger." In contrast, the
majority assumes that the danger of drugs entering the
prison ends once a driver manifests an intent to leave the
prison property.
I disagree with this conclusion. Because the drug-
detecting dogs are not always present at every gate on
every day, an individual attempting to introduce
contraband into a prison facility will only be subject to
detection some of the time. Under the majority's
holding, Gadson now has a risk-free opportunity to
determine whether drug dogs are in use on any particular
day. Gadson can approach the gate house, "change his
mind" about visiting the prison when he learns that a dog
22a
is in use and return another day. When no dog is in use,
Gadson can proceed onto the prison grounds without
fear.
The question before us is whether the state's interest in
preventing this sort of repeated attempt to introduce
drugs into its prison facilities justifies the minimal,
temporary detention of those who approach the guard
house and change their mind about entering the prison
once they learn that a drug dog is in use. The majority
devalues the state's interest by asserting that the state
Should acquire more drug detection dogs and thereby
ensure that all gates to all prisons are covered on every
day. In every Fourth Amendment decision, a citizen's
privacy interest could have been more fully protected had
the state adopted a more expensive alternative. See
Skinner v. Railway Labor Exec. Ass'n, 489 U.S. 602,
629 n.9, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989)
(stating that "judges engaged in post hoc evaluations of
government conduct 'can almost always imagine some
alternative means by which the objectives of the
[government] might have been accomplished'") (quoting
United States v. Montoya de Hernandez, 473 U.S. 531,
542, 87 L. Ed. 2d 381, 105 S. Ct. 3304 (1985)). The
alternatives available to the state are not before us,
however, and we must balance the means actually chosen
to protect the state's interest against the privacy interest
asserted by the defendant. I believe that the state's
interest in preventing repeated attempts to introduce
drugs into its prisons justifies the minimal, temporary
detention at issue in this case.
For the reasons stated, I would affirm the judgment of
the Court of Special Appeals.
Judge RODOWSKY has authorized me to state that he
concurs with the views expressed herein.
23a
APPENDIX B
TYRONE JEROME GADSON
V.
STATE of Maryland
No. 1729, Sept. Term, 1993.
Court of Special Appeals of Maryland.
Dec. 28, 1994.
Argued before MOYLAN and FISCHER, JJ., and
MARVIN H. SMITH, Judge of the Court of Appeals
(Retired), Specially Assigned.
MOYLAN, Judge.
The appellant, Tyrone Jerome Gadson, was convicted
in the Circuit Court for Anne Arundel County by Judge
Raymond G. Thieme, Jr., sitting without a jury, of
possession of cocaine with intent to distribute and of
possession of marijuana with intent to distribute. On this
appeal, he raises the single contention that, at the pretrial
suppression hearing, Judge Thieme erroneously failed to
exclude the physical evidence seized from him by the
police.
The merits of the conviction are not in dispute. The
case was submitted to Judge Thieme on an agreed
statement of facts. On September 12, 1992, the appellant
drove a truck to the guard shack in front of the Maryland
24a
House of Correction in Jessup. Maryland State Police
Trooper Charles Prince searched the truck and recovered
from the glove compartment three bags of crack cocaine
and two bags of marijuana. Also recovered from under
the driver's seat and floor mat were cigarette rolling
papers. There was also found in the truck an electronic
scale. The appellant freely admitted to Trooper Prince
that the drugs were his and that he sold them to pay his
bills because he did not have a job. The only issue on
this appeal is the Fourth Amendment reasonableness of
the search of the truck that produced that evidence.
By a process of elimination, we can isolate the single
narrow issue before us. To do that, it behooves us to
work backward from the ultimate search to the
antecedent actions that preceded that search.
A Non-Issue:
The Ultimate Search of the Truck
There can be no disputing that the ultimate search of
the cab of the truck and its glove compartment for
narcotics was a legitimate warrantless search under the
Carroll Doctrine. Carroll v. United States, 267 U.S.
132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v.
Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419
(1970). A good warrantless search under the Carroll
Doctrine or so-called "automobile exception" requires, of
course, the combination of exigency plus probable cause.
The ready mobility of the appellant's truck satisfied the
exigency requirement. California v. Carney, 471 U.S.
386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).
The probable cause to believe that the truck contained
contraband narcotics was supplied by "Sandy," a member
of the Maryland State Police K-9 corps, who had been
25a
licensed as a certified drug detection dog and who
worked regularly with Trooper Prince. As Sandy stood
outside the appellant's truck, with its doors closed, he
"alerted" to the presence of narcotics. That the "alert"
to the presence of narcotics by a trained and certified
drug-sniffing canine is ample to establish probable cause
is well established law. Snow v. State, 84 Md.App. 243,
247-248, 578 A.2d 816 (1990); In re Montrail M., 87
Md.App. 420, 435-437, 589 A.2d 1318 (1991), aff'd,
325 Md. 527, 601 A.2d 1102 (1992); Grant v. State, 55
Md.App. 1, 14-15, 461 A.2d 524 (1983), cert.
dismissed, 299 Md. 309, 473 A.2d 455 (1984). See also
Florida v. Royer, 460 U.S. 491, 505-506, 103 S.Ct.
1319, 1328-1329, 75 L.Ed.2d 229, 241-242 (1983).
Looking forward from the moment when Sandy, by
"alerting," communicated his belief to Trooper Prince
that narcotics were in the truck, the Fourth Amendment
was not offended by the ensuing warrantless Carroll
Doctrine search of the truck for those narcotics.
Another Non-Issue:
The Antecedent Sniffing of the Truck
The question remains, however, of whether, looking
backward, the Fourth Amendment was offended by
Sandy's sniffing of the truck. Whether the Fourth
Amendment was even involved, so as to require
Satisfaction, at that particular stage of the total
investigative episode depends upon whether a sniff or
smell by a drug detection dog constitutes a "search"
within the contemplation of the Fourth Amendment. It
does not.
Trooper Prince described what he and his colleagues
refer to as the "drug checkpoint." He explained that
26a
after vehicles have entered the property of the
Department of Corrections and are approaching the
House of Correction itself, they have to come to a stop
at a guardhouse. The driver is questioned by the guard
on duty and advises him as to which facility the driver
wishes to visit. Trooper Prince then described the modus
operandi of the attendant scan of the vehicle by a drug
sniffing canine.
While they're at that guard house, at this time,
either a Maryland State Police K-9 or Department
of Corrections, Narcotics K-9, will go up and scan
the vehicles. When I say scan the vehicles I mean
just walk the dog on the outside of the vehicle.
(emphasis supplied).
The elementary physics of the olfactory sense, at least
in circumstances such as these, is that the dog's nose
never intrudes into a constitutionally protected area, such
as the appellant's truck. It is rather the case that the
dog's nose remains outside, where the dog's nose has a
constitutionally unassailable right to be, and that the
Suspicious and incriminating vapors come wafting out
across the public air to meet the dog's nose on the dog's
nose's turf. We see no doctrinal difference, be the
investigator man or beast, between standing outside and
smelling aromas emanating from a truck, on the one
hand, and standing outside and hearing sounds resonating
from a truck, on the other. In each case, the Sensory
receptor remains outside where it has a right to be and
the stimuli come out to meet it there.
If Trooper Prince, while standing outside, had himself
detected a suspicious smell escaping from the truck, no
one could dispute his entitlement to factor that sensory
data into his accumulation of probable cause. Taylor v.
United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951
(1932); Johnson v. United States, 333 U.S. 10, 68 S.Ct.
27a
367, 92 L.Ed. 436 (1948). That the Maryland State
Police chose to rely on Sandy's nose rather than on
Trooper Prince's nose was a tactical decision without
constitutional significance; it was nothing more than the
most efficient deployment of the respective investigative
talents of available personnel.
Utilizing an alternative framework of analysis, the
Supreme Court in United States v. Place, 462 U.S. 696,
707, 103 S.Ct. 2637, 2644-2645, 77 L.Ed.2d 110, 121
(1983), agreed that a "canine sniff" of a piece of luggage
(or of a vehicle or of a school locker, etc.) made from
outside the repository does not constitute a "search" of
the repository within the contemplation of the Fourth
Amendment:
A "canine sniff" by a well-trained narcotics
detection dog, however, does not require opening
the luggage. It does not expose noncontraband
items that otherwise would remain hidden from
public view, as does, for example, an officer's
ruminaging through the contents of the luggage.
Thus, the manner in which information is obtained
through this investigative technique is much less
intrusive than a typical search. Moreover, the sniff
discloses only the presence or absence of narcotics,
a contraband item. Thus, despite the fact that the
sniff tells the authorities something about the
contents of the luggage, the information obtained is
limited. This limited disclosure also ensures that
the owner of the property is not subjected to the
embarrassment and inconvenience entailed unless
discriminate and more intrusive investigative
methods.
The Supreme Court was dealing in that instance with
a piece of luggage. The analysis of Justice O'Connor
would apply with equal validity to any repository of
28a
possible evidence:
[T]he canine sniff is sui generis. We are aware of
no other investigative procedure that is so limited
both in the manner in which the information is
obtained and in the content of the information
revealed by the procedure. Therefore, we conclude
that the particular course of investigation that the
agents intended to pursue here—exposure of
respondent's luggage, which was located in a public
place, to a trained canine—did not constitute a
"search" within the meaning of the Fourth
Amendment.
462 U.S. at 707, 103 S. Ct. at 2644-2645. And see In re
Montrail M., 87 Md. App. 420, 435, 589 A.2d 1318
(1991), aff'd, 325 Md. 527, 601 A.2d 1102 (1992).
Looking forward from the instant when Sandy stood
close by but still scrupulously outside the truck and
prepared to inhale his first whiff, the Fourth Amendment
could not conceivably have been offended by the
immediately ensuing sniff or sniffs for the reason that
the Fourth Amendment does not guard against sniffing,
reasonable or unreasonable, and was not, therefore, in
any way involved.
A Possible Issue:
The Detention That Preceded or Attended the Sniff
The question remains, however, of whether, looking
backward, the Fourth Amendment was offended by
Trooper Prince's ordering of the appellant to turn off the
ignition and to leave the truck in place for the few
moments, described as less than a minute, that it took to
bring Sandy onto the field. Everything hinges upon the
reasonableness of that brief detention—if the detention
29a
was material.
It is only by the narrowest of margins that the
detention itself is, indeed, material in a Fourth
Amendment sense. Before examining the reasonableness
of the detention, it is necessary to determine whether it
represented an actual causative link in the investigative
chain or whether it was merely a coincidental measure,
attendant upon the investigation to be sure but not critical
to it. We gather from the testimony that, generally
speaking, the drug sniffing dog and its handler are
routinely present in the immediate vicinity of the
guardhouse as each arriving motorist stops to respond to
the questioning of the guard. In such a case, the
olfactory scan by the dog would be essentially
simultaneous with the conversational exchange between
the motorist and the guard. Any further detention
beyond pausing at the guard shack would not be
indispensable in order for the dog and its trainer to carry
out their scanning mission. Even a vehicle moving from
a dead stop into forward gear or reverse would remain
vulnerable to the sniffing process and its possibly
incriminating results for the time necessary for a canine
smell.
Indeed, the stated purpose of the police in ordering the
motorist to turn off the ignition and to keep the vehicle
immobile for the brief period of canine inspection is not
to enable the dog and handler to carry out the inspection
per se but rather to enable them to do so in a way that
more adequately guarantees the safety of dog and
handler:
When we do this we have the person turn the
vehicle off, take, usually take the keys out of the
ignition, that prevents the people from trying to run
us over. There have been times at the Correctional
Institute where people tried to run us over when we
30a
were trying to perform these scans. (emphasis
supplied).
If the sniffing of the appellant's truck by Sandy were
going to be carried out in any event, regardless of
whether the truck was at rest or was shifting into gear
and beginning to move, the detention, reasonable or
unreasonable, would have no bearing on the ultimate
Suppression issue. Trooper Prince would have had the
benefit of Sandy's olfactory sensations, whether that data
was gathered safely or perilously. If the only purpose of
the detention was to ensure that neither Trooper Prince
nor Sandy would be hit or run over by the appellant's
truck, the detention would not have been the source of
the incriminating data and would have been a merely
coincidental safety measure. Cf. Pennsylvania v.
Mimms, 434 U.S. 106, 109-111, 98 S.Ct. 330, 332-334,
54 L.Ed.2d 331, 336-337 (1977). It isa simple matter
of cause and effect. If the immobilization of the
appellant's truck made the scan possible, the
reasonableness of that immobilization would be material
to the suppression issue. If the immobilization did
nothing more than guarantee that Sandy, while sniffing,
would not go in harm's way, it would be immaterial to
the suppression.
In this particular case, the testimony lends itself to the
interpretation that Sandy was not immediately present at
the guardhouse when the appellant's truck came to a stop
but had to be brought to the scene from a short distance
away, albeit within a fraction of a minute. Since
warrantless Fourth Amendment intrusions are
presumptively unreasonable and the burden is on the
State to rebut that presumption, any doubt in this regard
must be resolved in the appellant's favor. We will,
therefore, treat the brief detention as having been a
necessary predicate for the olfactory scan and will
3la
examine its reasonableness under the Fourth
Amendment.
Yet Another Non-Issue:
Consent, Express or Implied
It is that the appellant did not consent to that detention.
Consent is in no way a factor in this case. After the
initial brief exchange between the appellant and the guard
at the guard shack, Trooper Prince approached the
appellant and directed him to turn off the ignition
because Sandy was about to walk around the truck and
smell it. The appellant demurred, expressing his
unequivocal desire to turn around and drive away from
the prison rather than to submit the vehicle to the
sniffing. The appellant, however, no longer had any
option. He was ordered to turn off the ignition and
remain in place. He complied. Self-evidently, there was
no express consent.
Neither is this a case in which the appellant's
acquiescence to the police order could be deemed implied
consent. Had the appellant gone on to proceed deeper
into the prison compound and had he, for that purpose,
complied with the necessary condition precedent of
subjecting his truck to the dog sniff, that might be
analyzed as an instance of implied consent even if no
words of consent were spoken. Implied consent,
moreover, is frequently relied upon as the rationale for
airport searches, where proceeding through the metal
detectors is a precondition for boarding the plane or even
for proceeding to the departure gate. In cases of implied
consent, however, the person whose consent is
requested, either expressly or by the circumstances,
retains the option to consent to the search or to forego
32a
entry into the prison, onto the plane, etc., thereby
avoiding the search. It is an inherent characteristic of
consent that it can be denied at any time or, having been
given, can be revoked at any time.
The brief immobilization of the appellant's truck in
this case was in direct obedience to an express order
from Trooper Prince. Our Fourth Amendment
examination will proceed in that context.
The Narrow Issue:
Ordering the Appellant Not to Drive Away
This, in the last analysis, is a "checkpoint" case. We
are not dealing with a brief detention of the appellant at
a random time or in a random place. We are dealing,
rather, with the reasonableness of a required brief stop at
a checkpoint. That a required stop at a checkpoint is a
significant enough interference with an individual's
freedom of movement to engage the gears of the Fourth
Amendment was made very clear by the Supreme Court
in Michigan Dept. of State Police v. Sitz, 496 U.S. 444,
450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412, 420
(1990), where Chief Justice Rehnquist observed:
Petitioners concede, correctly in our view, that a
Fourth Amendment "seizure" occurs when a vehicle
is stopped at a checkpoint. The question thus
becomes whether such seizures are "reasonable"
under the Fourth Amendment. (citations omitted).
In Little v. State, 300 Md. 485, 493-494, 479 A.2d
903 (1984), the Court of Appeals spoke to the same
effect. Chief Judge Murphy there observed:
It is well recognized that stopping an automobile
and detaining its occupants constitutes a "seizure"
within the meaning of the Fourth and Fourteenth
33a
Amendments to the federal constitution, even
though the purpose of the stop is limited and the
resulting detention is quite brief. The Fourth
Amendment, however, does not prohibit all seizures
but only those which are unreasonable. In other
words, as the Supreme Court made clear both in
Prouse and Martinez-Fuerte, such seizures are not
per se violative of the Fourth Amendment simply
because the stop was not based on either probable
cause to believe or reasonable suspicion that the
motorist was engaged in conduct in violation of the
criminal law. As Prouse states, the essential
purpose of the Fourth Amendment is to impose a
Standard of reasonableness upon the exercise of
discretion by governmental officers in order to
safeguard the privacy and security of individuals
against arbitrary invasions. Hence, "the
permissibility of a particular law enforcement
practice is judged by balancing its intrusion on the
individual's Fourth Amendment interests against its
promotion of legitimate governmental interests."
(citations omitted).
See also Brown v. State, 78 Md.App. 513, 553 A.2d
1317 (1989).
Although both Michigan Dept. of State Police v. Sitz
and Little v. State were cases involving sobriety
checkpoints, the Supreme Court in United States v.
Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49
L.Ed.2d 1116 (1976), upheld the reasonableness of fixed
checkpoints near the Mexican border to deter and to
inhibit illegal entry into the country. In Delaware v.
Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660
(1979), moreover, it set out the circumstances under
which checkpoints would be reasonable to further the
interest of traffic safety by stopping motorists in order to
34a
inspect their operator permits and vehicle registration
documents.
The common denominator of all of the checkpoint
cases is that the reasonableness of the brief detention of
the motorist must be measured against the societal need
being served. In Little v. State, 300 Md. at 501, 479
A.2d 903, the Court of Appeals discussed some of the
factors to be considered in the assessment of
reasonableness:
A majority of courts, however, have sustained the
use of roadblocks as a proper law enforcement tool.
As a general rule, the constitutionality of traffic
checkpoints has been upheld where: (1) the
discretion of the officers in the field is carefully
circumscribed by clear objective regulations
established by high level administrative officials; (2)
approaching drivers are given adequate warning that
there is a roadblock ahead; (3) the likelihood of
apprehension, fear or surprise is reduced by a
display of legitimate police authority at the
roadblock; and (4) vehicles are stopped on a
systematic, nonrandom basis that shows drivers they
are not being singled out for arbitrary reasons.
a. The Location of the Checkpoint on a Private Access
Road
As a key factor, it behooves us to look first at the
location of the checkpoint in this case. The guard
booth—to wit, the checkpoint—where all vehicles entering
the Maryland House of Correction are required to stop is
on a private access road leading from Maryland Route
175 to the House of Correction. The guard booth or
checkpoint is approximately 300 yards from Route 175
along that access road. For at lest 250 yards of that 300-
35a
yard approach, the visitor is on the private property of
the Department of Corrections. Beyond the guard booth,
it is approximately a quarter of a mile further to the
House of Correction itself.
We find highly persuasive the decision of the Illinois
Court of Appeals in People v. Turnbeaugh, 116
Ill.App.3d 199, 71 Ill.Dec. 862, 451 N.E.2d 1016
(1983), the primary authority relied on by Judge Thieme
in this case. People v. Turnbeaugh is on all fours with
the situation before us. There, as here, the defendant
who was stopped had pulled off a state highway onto an
access road leading to a correctional facility. In
upholding the legitimacy of a stop that was actually more
intrusive than the one at bar, the Illinois Court
considered a key factor to be the location of the
checkpoint. It described that location, 71 I].Dec. at 864,
451 N.E.2d at 1018:
Defendant turned off a state highway onto an
access road which leads only to Graham
Correctional Center near Hillsboro, Illinois....
Defendant had driven about 50 yards on the
access road when he was stopped by guard
Garland Reed.... Defendant and Reynolds were
ordered to open the glove box, get out of the
car, unlock the trunk, and stand aside. The
vehicle was then searched by a canine officer
using a dog. A clear plastic bag containing
cannabis was seized from the console between
the seats.
It noted again, 71 Ill.Dec. at 865, 451 N.E.2d at 1019.
the significance of the location:
[I}t is important to note that vehicles travelling
on the road which led only to the institution
were the only ones subject to search, i.e., the
group is self-selected since only those who
36a
choose to go to the institution use that road.
(citations omitted).
b. The Abundance of Notice
Another prominent factor in assessing the Fourth
Amendment reasonableness of a checkpoint in which
motorists are required to stop and give appropriate
response is whether the motorist has been given adequate
notice that he is approaching such a checkpoint. In
approving the sobriety checkpoint in Little v. State, Chief
Judge Murphy observed, 300 Md. at 506, 479 A.2d 903,
"Adequate advance warning of the checkpoint is given;
motorists who do not wish to stop may make a U-turn
and follow a different route." That was also the case
here.
The notice of the approaching checkpoint in this case
was abundant. At a point approximately 150 yards along
the access route from Maryland Route 175, the first
warning sign appears. It is no mere traffic sign in
dimensions but is the size of a small billboard. Framed
in red and in large, bold capitals is the single word
"WARNING." There then follows the stark message,
"ALL VISITORS INCLUDING ALL VEHICLES AND
OCCUPANTS ARE SUBJECT TO BEING SEARCHED
UPON ENTERING OR EXITING THE PREMISES."
A short distance further along the road is a second
warning sign. Again, the word "WARNING," in all
capitals, is framed in red. The message then alerts the
approaching motorist of the fact that drug detection dogs
are being used: "DRUG DETECTION DOG BEING
UTILIZED ON INSTITUTIONAL PREMISES."
Just before the guard booth itself is a traditional
octagonal "STOP" sign and the additional special
waming: "ALL VEHICLES SUBJECT TO
37a
INSPECTION." To be sure, all but the most far-sighted
might have passed the point of no return by the time they
could read that third warning. For purposes of the
present analysis, however, the third warming was
redundant.
Trooper Prince testified, moreover, that after the first
two warning signs had been passed, there were still
places along the access road where vehicles could easily
have stopped and made a U-turn. He referred
specifically to "a driveway on the right" and "a pull-off
area on the left." He testified that on numerous
occasions, vehicles had been observed making U-turns on
the access road before reaching the guard booth.
Notice was also a key factor in determining that the
detention was reasonable in People v. Turnbeaugh. The
Illinois Court of Appeals described the notice in that
case, 71 [ll.Dec. at 864, 451 N.E.2d at 1018:
Defendant testified that he "assumed" that he
was already on institution grounds when
stopped. He had already passed 40 to 45 feet
beyond a sign which stated: "ALL PERSONS
AND VEHICLES ENTERING OR LEAVING
THE GRAHAM CORRECTIONAL CENTER
ARE SUBJECT TO SEARCH AT ANYTIME.
ANY PERSON FOUND IN POSSESSION OF
CONTRABAND WILL BE PROSECUTED."
It went on to comment upon the significance of that
notice, 71 Il.Dec. at 865, 451 N.E.2d at 1019:
Also significant is that visitors to the institution
were warned at the point of entry by a
prominent sign stating that they and their
vehicles would be subject to search at any time
if they continued on into the institution. Such
notice bears upon the reasonableness of the
selection process: Because the group subject to
38a
search is self-selected by their decision to enter
the institution, it is important that this decision
be made with knowledge of the risks attendant
upon further pursuance of their chosen course of
conduct and with an opportunity to leave behind
anything which might be embarrassing or
incriminating if discovered. (citation omitted).
c. The Absence of Arbitrary Discretion in the Police
A key factor in assessing the reasonableness of a
checkpoint is whether all persons will be stopped or
whether the selection of those to be checked is left to the
discretion of the officers manning the checkpoint. The
Court of Appeals in Little v. State, 300 Md. at 496, 479
A.2d 903, relied heavily on United States v. Martinez-
Fuerte, 428 U.S. 543, 559, 96 S.Ct. 3074, 3083, 49
L.Ed.2d 1116 (1976), in finding that the minimizing of
such police discretion was a significant factor in
determining the checkpoint there under review to be
reasonable:
Motorists using these highways are not taken by
surprise as they know, or may obtain knowledge
of, the location of the checkpoints and will not
be stopped elsewhere. Second, checkpoint
operations both appear to and actually involve
less discretionary enforcement activity. The
regularized manner in which established
checkpoints are operated is visible evidence,
reassuring to law-abiding motorists, that the
Stops are duly authorized and believed to serve
the public interest. The location of a fixed
checkpoint is not chosen by officers in the field,
but by officials responsible for making overall
decisions as to the most effective allocation of
ee eee rere en ey a
39a
limited enforcement resources. We may assume
that such officials will be unlikely to locate a
checkpoint where it bears arbitrarily or
oppressively on motorists as a class.
One of the serious contentions in United States v.
Martinez-Fuerte with which the Supreme Court had to
deal was that only a small percentage of cars passing the
checkpoint were subjected to further intrusion and that
this singling out process raised the specter of those
selected being "stigmatized":
The defendants arrested at the San Clemente
checkpoint suggest that its operation involves a
significant extra element of intrusiveness in that
only a small percentage of cars are referred to
the secondary inspection area, thereby
"stigmatizing" those diverted and reducing the
assurances provided by equal treatment of all
motorists.
428 U.S. at 560, 96 S.Ct. at 3084. That same concern
was what caused the Supreme Court to note in Delaware
v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59
L.Ed.2d 660 (1979):
[Our] holding does not preclude the State of
Delaware or other States from developing methods
for spot checks that involve less intrusion or that do
not involve the unconstrained exercise of discretion.
Questioning of all oncoming traffic at roadblock-
type stops is one possible alternative. (emphasis
supplied).
In this case, all vehicles entering the House of
Correction grounds were required to stop and to remain
immobile long enough for the canine scan to be
conducted. There was no Fourth Amendment risk that
certain individuals might be singled out arbitrarily and
the appellant, indeed, makes no claim in that regard. We
40a
note in this respect that the checkpoint here was
reasonable even as was the sobriety checkpoint approved
by the Court of Appeals in Little v. State. "The
regulations severely restrict the discretion of the officers
in the field. All vehicles are stopped; there is virtually
no risk that motorists will be singled out arbitrarily."
300 Md. at 506, 479 A.2d 903. Thus it was in the case
here.
d. Denying the Motorist the Option to Turn Around
and Leave
The appellant argues that even as of the moment he
was stopped at the guard shack and informed by Trooper
Prince of the impending sniff, he should stil] have been
given the option of turning around and leaving. We do
not agree.
The societal need to reduce somehow the scourge of
narcotics in the state's prison system is a compelling one.
To permit a motorist carrying drugs to proceed all the
way to the final barrier in order "to get the lay of the
land" and then back off if a canine surveillance appeared
imminent, with the unburdened option to come back and
try again another day, would be an ill-advised disservice
to that societal need. To require, on the other hand, a
visitor who had progressed thus far into the institutional
setting to stand and be subjected to scrutiny would
advance that societal purpose in several ways. It would,
of course, detect violations of the law per se. The
knowledge that such a measure was in place, moreover,
would deter others from even attempting unlawful
smuggling. It was this consideration that caused People
v. Turnbeaugh to note, 71 Ill.Dec. at 865, 451 N.E.2d at
1019:
Defendant also suggests that he should at least
4la
have been given the opportunity to either
consent to a search of his car or choose to
depart. We disagree. An option to depart rather
than be searched would constitute a one-way
Street for the benefit of the party planning
mischief, as there is no guarantee that he would
not return later and be more successful.
And cf. State v. Manghan, 126 N.J.Super. 162, 313 A.2d
225, 228-229 (1973).
e. Balancing the Degree of Intrusion Against the
Societal Need
The assessment of the reasonableness of a checkpoint
necessarily involves a balancing of the degree of the
intrusion into individual liberty against the State interest
or societal need being served. In Little v. State, the
Court of Appeals deemed the brief intrusion occasioned
by a checkpoint "minimal," particularly when measured
against the State's "compelling interest" in combating the
problem of drunken drivers:
Balanced against the State's compelling interest
in detecting and deterring drunk driving, the
intrusion on individual liberties caused by the
checkpoints is minimal. The checkpoints are
operated under limitations imposed by clear,
carefully crafted regulations approved by high
level administrators.
300 Md. at 506, 479 A.2d 903.
The intrusion occasioned by the checkpoint in this case
consisted only of requiring that a motorist, already
legitimately stopped at a guard shack to answer
questions, turn off the ignition and allow his vehicle to
remain in place for approximately one minute. We deem
such an intrusion minimal.
42a
Balanced against it was a compelling State interest
approved by the highest level of governmental authority.
Trooper Prince testified that it was the Governor who
had requested the State Police to take over the effort to
curb the flood of narcotics into the State's correctional
facilities. Trooper Prince explained that approximately
seventy percent of all inmates tested both at the House of
Correction and at the Maryland Penitentiary test positive
for some type of narcotic drug. He explained that it was
in response to that epidemic problem that the Governor
directed the State Police K-9 Unit to move to interdict the
illegal transportation of drugs into both the House of
Correction in Jessup and the Maryland Penitentiary in
Baltimore. That was a clearly articulated policy.
Conclusion
On balance, we hold that subjecting motorists who
have already proceeded as far as the last sentry post
guarding a sensitive facility to the modest drill of
remaining in place for a quick canine surveillance was
not an unreasonable defensive measure. To do less
would be unthinkable. The evidence was properly not
suppressed.
JUDGMENTS AFFIRMED; COSTS TO BE PAID BY
APPELLANT.
——
43a
APPENDIX C
IN THE CIRCUIT COURT FOR
ANNE ARUNDEL COUNTY
STATE OF MARYLAND
Vv. : Case Number: K-92-2885
TYRONE JEROME
GADSON
MEMORANDUM OPINION
This matter is before the court on defendant's Motion
to Suppress evidence obtained as a result of a search and
arrest which occurred on the grounds of the Maryland
House of Correction, Jessup, Maryland. On May 21,
1993, arguments were made and the matter was held sub
cura. After careful review of the briefs filed in this
matter, the arguments made by counsel and relevant case
law, this court finds that the search conducted of
defendant's vehicle and the actions of the Maryland State
Trooper were reasonable under the circumstances.
Defendant Gadson asserts that he drove to the
Maryland House of Correction on September 13, 1992,
in order to deliver money to a friend confined there.
While approaching the prison, Gadson turned onto an
access road which lead to the penal institution.
Defendant passed several signs warning visitors that they
44a
were subject to search’ and proceeded to a guard house
where his vehicle was stopped by a State Trooper. The
State Trooper instructed Gadson to turn his vehicle off
and advised the defendant of his intention to search.
Defendant Gadson then objected and voiced his interest
in leaving the premises. Despite defendant's objection,
the State Trooper used a canine unit to conduct a search
of the exterior of the defendant's vehicle. The dog
alerted the Trooper to evidence of controlled dangerous
substances which lead to a more thorough search of the
defendant's vehicle in which cocaine and marijuana were
found. Defendant was then arrested. Defendant asserts
that the search of his vehicle, which was done without his
express consent, was in violation of his constitutional
rights. While this court was unable to find any Maryland
cases addressing this issue, rulings from other states have
been very persuasive.
In People v. Turmbeaugh, 451 N.E.2d 1016 (Ill.App.
5 Dist. 1983), an Illinois appellate court was faced with
facts very similar to those before this court. In
Turmbeaugh, a defendant was convicted of unlawful
possession of cannabis and with bringing contraband into
a state penal institution. Like defendant Gadson, the
defendant in Turmbeaugh was in an automobile which
was on an access road which lead to a correctional
institution. Approximately fifty yards down the access
road the defendant was stopped by a guard and ordered
to submit his vehicle for a routine search notwithstanding
the fact that the guard testified that he had no reason to
' Specifically, the signs stated: (1) Warning: all visitors
including all vehicles and occupant(s) are subject to be searched
upon entering or exiting the premises. (2) Warning: drug
detection dogs being utilized on institutional property.
ciiaianaaaiaia ia aee
45a
suspect that the automobile or its occupants contained
contraband. The subsequent search was conducted with
the use of a dog which detected cannabis. Importantly,
while on the access road and approximately forty to
forty-five feet before the guard house, defendant
Turnbeaugh had passed a sign which warned visitors that
all persons and vehicles were subject to search.”
In determining that the search of defendant
Turnbeaugh's vehicle was justified, the Illinois appellate
court balanced the competing interests.
The purpose of the Fourth Amendment
proscriptions is to impose a standard of
reasonableness upon the exercise of discretion
by governmental officials, including law
enforcement agents; thus, the permissibility of a
particular law enforcement practice is judged by
balancing its intrusion on the individual's Fourth
Amendment interests against its promotion of
legitimate governmental interests.
People _v. Turmbeaugh, 451 N.E.2d at 1019, citing
Delaware v. Prouse, 440 U.S. 648, 653-54 (1979). In
upholding the search in Turnbeaugh, the court was
satisfied that the strong interest of the state in keeping
contraband out of correctional institutions was sufficient
to warrant what the court deemed as a substantial
intrusion on the defendant.
In Williams v. State of Florida, 400 So.2d 988
(Fla.App. 1 Dist. 1981), a Florida appellate court, in
recognizing the strong interest of the state in preventing
? Specifically, the sign stated: All persons and vehicles
entering or leaving the Graham Correctional Center are subject
to search at anytime. Any person found in possession of
contraband will be prosecuted.
ee
Fe
contraband from entering a correctional facility, upheld
a conviction which resulted from the defendant's
possession of contraband discovered during a warrantless
search when she sought to visit an inmate at a
correctional institution. The court found the search
reasonable under the circumstances despite the lack of
evidence that the defendant even had actual knowledge of
the rule which may require visitors at the correctional
facility submit to a search of their persons or
possessions.
[TJhe search was not unreasonable (and thus, not
constitutionally invalid), because the
governmental interest to be protected (preventing
the introduction of contraband into a prison or
correctional facility) substantially outweighs the
governmental intrusion of privacy suffered by
the Appellant at a time and place where she had
only a minimal expectation of privacy.
«mk
Thus, as a visitor at the correctional facility,
Appellant did not have a reasonable expectation
of privacy to be free from some type of search
of her person or possessions.
Williams, 400 So.2d at 988-89.
The Turnbeaugh court was also concerned about the
scope of the search and its relationship with the state's
interest in keeping contraband out of the penal institution.
Due to the fact that only those vehicles on the access
road which lead exclusively to the institution were
Subject to search after having traveled passed warning
Signs posted at the point of entry that they were subject
to search, the Turmbeaugh court reasoned that the search
was reasonably related in scope to the purpose of the
State in keeping contraband out of the institution.
Because the group subject to search is self-
47a
selected by their decision to enter the institution,
it is important that this decision be made with
knowledge of the risks attendant upon further
pursuance of their chosen course of conduct and
with an opportunity to leave behind anything
which might be embarrassing or incriminating if
discovered.
Turnbeaugh, 451 N.E.2d at 1019.
This court is satisfied that the strong interest of the
State of Maryland in keeping contraband out of the
House of Correction is sufficient to warrant the intrusion
experienced by the defendant. Additionally, because
only those vehicles which were on the access road which
lead to the Maryland House of Correction were subject
to search and considering the fact that those vehicles
would have already passed the signs warning that all
visitors are subject to search, this court believes that the
scope of the search is reasonably related to the State's
interest.
Defendant Gadson further argues that the search of his
vehicle was in violation of his rights because he should
have been allowed an opportunity to depart without being
searched when he no longer intended to pursue
admittance. This court does not agree with the defendant
but rather concurs with Justice Kasserman's reasoning in
Tumbeaugh where he recognized that "[a]n option to
depart rather than be searched would constitute a one-
way street for the benefit of the party planning mischief,
as there is no guarantee that he would not retum later and
be more successful." Id., citing State v. Manghan, 313
A.2d 225, 228-29 (N.J. 1973). See also
Dowthard, 554 N.E.2d 816 (Ill.App. 3 Dist. 1990),
where an Illinois appellate court found that a person only
intending to deliver a message to an inmate at a
correctional institution was deemed to be within that
48a
institution despite being in the second floor entrance
foyer area.”
Defendant Gadson had ample opportunity prior to
approaching the guard house in which to exercise his
option not to proceed with his visit to the Maryland
House of Correction. Accordingly, this court finds no
merit to defendant's argument that the [sic] he must be
allowed an opportunity to depart without interference at
the very moment the defendant realizes that his covert
plan to import contraband into the institution may be
revealed.
Based on the foregoing, it is this 10 day of June, 1993,
ORDERED that defendant's Motion to Suppress is
hereby DENIED.
[S/
Raymond G. Thieme, Jr., Judge
* The defendant in Dowthard had passed a sign warning
visitors that they were subject to search.
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