Petition for Writ of Certiorari — Shaw v. Maryland

No. 02-

EF CLERK

IN THE

Supreme Court of the United States

HORACE SHAW, JR.,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

On Petition for Writ of Certiorari

_ to the Court of Appeals of Maryland

PETITION FOR WRIT OF CERTIORARI

PAUL R. KRAMER*

101 North Charles Street

The Jefferson Building

Suite 700

Baltimore, Maryland 21202

(410) 727-5531

Counsel for Petitioner

*Counsel of Record

i

QUESTIONS PRESENTED

(1) Did the Maryland Court of Appeals

improperly determine reasonable §articulable

suspicion existed under the facts of the instant

matter, and in doing so, create a standard wherein

factors such as “extreme nervousness” and

“overwhelming” odors cannot be properly judicially

reviewed?

(2) Did the Maryland Court of Appeals

improperly find probable cause to search existed in

the instant matter and fail to consider whether and/or

when probable cause, if it existed at all, dissipated?

il

_ PARTIES

In addition to the parties set forth in the caption

to this writ, a list of all parties to the proceeding below

whose judgment is the subject of this petition is as

follows:

Corinthius James Nathan

ID# 293-839

Maryland Correctional Institution, Hagerstown

18601 Roxbury Road

Hagerstown, Maryland 21746

1-301-733-2800

ill

TABLE OF CONTENTS

, Page

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Reith chiasatineabncdundaaeWbdsevaedansenessdedecaovesedscereess ii

ID ssccenkcsnkssssscnsncssssceusddisonsiiersevees iii

I UII: csnncnsniconssaccseseacconcssecsesssiscovees vi

Opinions Below...........:ssssceseesssestesseeeteeneetneeeeens 1

Grounds for Juriadiction SNCS CHERRIES OPO CE 2

Constitutional Provisions................ccececseeeeesenenecenes 3

Statement of the Case.............:c.csscesseeececseceeeceseees 4

Argument in Support of Granting

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The Maryland Court of Appeals improperly

determined reasonable articulable suspicion

existed in the instant matter, and in doing so,

created a standard wherein factors such as

extreme nervousness and overwhelming

odors cannot be judicially reviewed............ 11

iV

Table of Contents continued

Page

The Maryland Court of Appeals improperly

found probable cause existed in the instant

matter and did not consider whether and/

or when probable cause, if it existed at all,

Appendix A: Opinion of the Maryland Court of

Appeals (August 29, 2002)............:ssceeeeeeeees la -

Appendix B: Opinion of the Maryland Court of

Special Appeals (June 05, 2001)................... 4la

Appendix C: Opinion of Circuit Court of

Maryland (March 09, 2000)...............ceeeeeeees 74a

Appendix D: Order of the Maryland Court of

Appeals Granting Certiorari (August

Appendix E: Order of the Maryland Court of

Appeals Denying Reconsideration

Vv

Table of Contents continued

vi

TABLE OF AUTHORITIES

Page(s)

Cases:

California v. Acevedo, 500 U.S. 565 (1991)...........0.ceeee 24

Carroll v. United States, 267 U.S. 132 (1925)............44 24

Ferris v. State, 355 Md. 356, 735 A.2d 491

(OGG, TDI s ace cavevicinnnpiveticsdbeineiiasrccrecsiessenees 17,18

Florida v. Bostick, 501 U.S. 434(1991)...........cceeceeeeeeees 12

Florida v. Royer, 460 U.S. 491, 500 (1983)............66 13, 28

Illinois v. Gates, 462 U.S. 213 (1983)............ceeceeeees 24, 28

Illionois v. Wardlow, 528 U.S. 119 (2000).......... 16, passim

Immigration & Naturalization Service v. ue

466 U.S. 210 (1984).... oi sennioen eee

Mapp v. Ohio, 367 US. 643 (1961)... iis binenakewcbsbaretnsteeas 3

Maryland v. Wilson, 519 U.S. 408 (1997).........c.cseceeees 16

Michigan v. Chesternut, 486 U.S. 467 (1988)................ 12

Ornelas v. United States, 517 U.S. 690, (1996).............. 21

Pennsylvania v. Mimms, 434 U.S. 106 (1977)... ........4. 16

Terry ©. Gitid, FFa US. TIER i cscscccssccssesevscnsccsccsees 13

United States v. Arvizu, 534 U.S. 266 oe Liskpensieieetan 14

United States v. Ross, 456 U.S. 798 (1982)........00.+.0ss0024

United States v. Sokolow, 490 U.S. 1 (1989)............00e0 22

United States v. Sharpe, 470 U.S. 675 (1985..............06 13

Whitehead v. State, 116 Md. App. 497,

698 A.2d 1115 (Md. App. 1998)............ sss 7,18

Wolf v. Colorado, 338 U.S. 25 (1949).........c0esceeeseeseeee ees 3

Wren v. United States, 517 U.S. 806 (1996)..............0++0012

Vii

Table of Authorities continued

Page(s)

Constitutional Provisions:

U. S. Constitution, Amendment

FV ..coxcscnsensvousesnnnocnnnsncnibiscestoanensovcsnenesosoosoueneces eon ensues 3, passim

U. S. Constitution, Amendment

TREE SS Gran ONT SA OT EORTC RRO NE 3,4

Other Authorities

OE LATE OTL ART

1

The Petitioner, Horace Shaw, Jr., respectfully prays this

Honorable Court grant a writ of certiorari to review the

judgment and opinion of the Maryland Court of

Appeals entered on August 29, 2002.

OPINIONS BELOW

The August 29, 2002, opinion of the Maryland

Court of Appeals,! which is reported at Nathan v. State

of Maryland, 370 Md. 648, 805 A.2d 1086 (Md. 2002).2, is

set out at pages 1a-20a of the Appendix to this petition.

(Petitioners’ Appendix A). The dissent to the opinion

of the Maryland Court of Appeals is set out at pages

21a-40a of the Appendix to this petition. (Petitioners’

Appendix A).°

The June 05, 2001, opinion of the Maryland

Court of Special Appeals, which was not officially

1 The Maryland Court of Appeals Order, dated October 08, 2002,

denying, without comment, the Petitioner’s request to reconsider

is set out page 100a of the Appendix to this Petition. (Petitioners’

Appendix E).

2 Petitioner refers to the case as Nathan v. State of Maryland

because in the official citation it is noted as such. The reason for

this is the Maryland Court of Appeals issued one (1) opinion in

conjunction with the separate appeals of the Petitioner and

Corinthius Nathan, the other individual in the vehicle with

Petitioner.

3 The Order granting the State of Maryland’s writ of certiorari to

the Maryland Court of Appeals in this matter, reported at State of

Maryland v. Shaw, 365 Md. 266, 778 A.2d 382 (Md. 2001)., was

dated August 15, 2001, and is set out at pages 97a-99a of the

Appendix to this petition (Petitioner's Appendix D).

2

reported but noted here as Horace Shaw, Jr., v. State of

Maryland, 282, September Term, 2000 (Md. Ct. Spec.

App., June 05, 2001)., is set out at pages 41a-66a of the

Appendix to this petition. (Petitioners’ Appendix B). —

The dissent to the opinion of the Court of Special

Appeals of Maryland is set out at pages 67a-73a of the

Appendix to this petition. (Petitioners’ Appendix B).

The written opinion, which was also not

officially reported, of the Honorable Daniel M. Long, of

the Circuit Court for Somerset County (sitting in

Wicomico County by designation), dated March 09,

2000, is set out pages 74a-96a of the Appendix to this

petition. (Petitioners’ Appendix C).

GROUNDS FOR JURISDICTION

The Petitioner is Horace Shaw, Jr. The

Respondent is the State of Maryland.

The jurisdiction of this Honorable Court is

invoked in the instant matter, reported as Nathan v.

State of Maryland, 805 A.2d 1086 (Md. 2002), pursuant to

28 U.S.C. § 1257(a). The Maryland Court of Appeals

decided the case on August 29, 2002. Subsequently, a

timely rehearing/reconsideration was sought by

Petitioner, Horace Shaw, Jr. The Petitioner’s request

for reconsideration was denied, without comment by

the Maryland Court of Appeals, on October 08, 2002.

No extension has been requested, or granted, with

regards to the time in which this Petition is to be filed.

3

An issue, sufficiency of the evidence to sustain

the trial level conviction, unrelated to the issues raised

for review in this petition was remanded to the

Maryland Court of Special Appeals, the State of

Maryland’s intermediate Appellate Court, for

consideration.* This issue is still pending before the

Maryland Court of Special Appeals.

CONSTITUTIONAL PROVISIONS

This case involves the fourth Amendment to the

Constitution of the United States of America, which

provides as follows: “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 of things seized.

The Fourth Amendment to the Constitution of

the United States of America is applicable to the State

of Maryland> through the so-called “incorporation

clause” of Section 1 of the Fourteenth Amendment of

4 The Maryland Court of Special Appeals previously did not rule

on this issue because it found the search and seizure issue raised

by the Petitioner, Horace Shaw, Jr., required reversal. (Pet. App.

42a).

5 See; Mapp v. Ohio, 367 U.S. 643 (1961); Wolf v. Colorado, 338 U.S.

25 (1949).

4

the Constitution of the United States of America which

provides:

“All persons born or naturalized in the

United States, and subject to the juris-

diction thereof, are citizens of the of the

United States and of the State wherein

they reside. No State shall make or en-

force any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State de-

prive any person of life, liberty, or prop-

erty, without due process of law; nor

deny to any person within its jurisdiction

the equal protection under the laws.”

STATEMENT OF THE CASE

The underlying case stems from the arrest, and

subsequent conviction of the Petitioner, Horace Shaw,

Jr. (hereinafter, “Shaw” or “the Petitioner”). The arrest

of Shaw took place on July 14, 1999, and was the result

of a traffic stop. The traffic stop was initiated for a

minor violation (speeding) of the traffic laws of

Maryland. (Pet. App. 77a). The traffic stop culminated

with the interior ceiling panels of a van Shaw was a

passenger in being ripped apart by a Maryland State

Trooper, Sgt. Mike Lewis. At the time of this extremely

invasive search, Shaw was sitting on the side of the

road, in handcuffs, guarded by Maryland State

Trooper, Tfc. Robert Penny.

5

Prior to trial Shaw timely filed a Motion to

Suppress. A hearing on Shaw’s Motion to Suppress

was held on November 05, 1999. Briefs, and associated

materials, on the issues argued at the hearing were

submitted for consideration by the court, at the court's

request, after the hearing. In a written opinion, dated

March 09, 2000, Shaw’s Motion to Suppress was denied

by the Honorable Daniel M. Long, of the Circuit Court

for Somerset County (sitting in Wicomico County by

designation). Judge Long found probable cause existed

for the search in the instant case based the detaining

officers’ observations of the Petitioner, the individual

driving the vehicle the Petitioner was in- and- the

vehicle itself. (Pet. App. 89a-93a).

On March 20, 2000, Shaw was tried and found

guilty by a jury, presided over by the Honorable D.

William Simpson (of the Circuit Court of Wicomico

County). On March 28, 2000, the afore-mentioned .

Judge Simpson sentenced the Petitioner to a term of

incarceration totaling twenty-five (25) years, fifteen (15)

of those years without the possibility of parole. (Pet.

App. 43a, 44a).

An appeal of the conviction was timely noted

with the Maryland Court of Special Appeals wherein

the Petitioner raised a number issues including the

issues advanced in this Petition. (Pet. App. 50a-66a). In

an unreported opinion dated June 05, 2001, the

intermediate appellate court reversed the decision of

6

the trial court ruling the detaining officers observations

of the vehicle seized, when combined with his

observations of the Petitioner did not warrant a finding

of probable cause to search. (Pet. App. 50a-66a).

The State of Maryland sought review of the

Maryland Court of Special Appeals ruling in this

matter by way of a Petition for writ of certiorari to the

Maryland Court of Appeals. The Maryland Court

granted said Petition on August 15, 2001. (Pet. App.

97a-99a).

On August 29, 2002, the Maryland Court of -

Appeals reversed the decision of the intermediate

appellate court in a written opinion. The Maryland

Court of Appeals found probable cause existed to

search in the instant matter based on the detaining

officer’s observations that Petitioner and the driver

acted suspiciously® and said officer’s belief the vehicle

the Petitioner was traveling in contained a secret

compartment. (Pet. App. 17a).

6 The suspicious activity the Maryland Court of Appeals referred

to was based on the following factors: the fact that the driver of

the vehicle was unable to produce identification, the driver's and

Shaw’s “extreme nervousness,” Shaw’s apparent pretense of sleep

when the vehicle was initially stopped, the driver’s evasive

answers about his travel plans, inconsistent travel versions of

vehicle’s journey, the “overwhelming” odor of air freshener and

alterations to the vehicle. (Pet. App. 15a).

3

The circumstances surrounding the Petitioner’s

arrest, the pertinent underlying facts of the case, are as

foilows;?/ On Wednesday, July 14, 1999, at

approximately 8:15 p.m., Shaw was a passenger in a

conversion van® driven by Corinthius Nathan

(hereinafter “Nathan” or “the driver”). (Pet. App. 77a).

At the time of the stop, Shaw was lying down in the

rear of the van. (Pet. App. 78a). Sgt. Mike Lewis

(hereinatter, “Sgt. Lewis” or “the detaining officer”), a

Maryland State trooper, testified he paced the van

traveling 70-71 miles per hour in a posted 60 mile per

hour zone. While the trooper was “pacing” the van,

the vehicle allegedly drifted onto the shoulder. Asa

result, Sgt. Lewis activated the cruiser’s police lights

and initiated a traffic stop. Sgt. Lewis also reported

one of the van’s brake lights was out and, he thought,

the van took too long to stop. (Pet. App. 77a).

After the van stopped, Sgt. Lewis approached

the van on the passenger’s side and spoke to the driver,

7 The facts surrounding the vehicle stop and the events

subsequent thereto were largely undisputed at all stages of the

proceedings below because the entire incident was video taped

(with sound). (Pet. App. 76a). An outline of the videotape was

prepared by Petitioner for the lower courts and submitted to said

courts at every level of the proceedings below. See; Memorandum

Exhibit A at suppression level, set out here as pages 101a-105a of

the Appendix to this petition. (Petitioners’ Appendix F).

8 The conversion van in this case is a 1988 Dodge Ram Van with a

raised roof, working television and working video game system.

(Pet. App. 77a).

8

Nathan. Sgt. Lewis informed Nathan of the reason for

the stop and asked Nathan for his license and

registration. Nathan could not produce a driver's

license. Sgt. Lewis inquired about passengers in the

van; at which time Shaw moved to the front of the van.

Sgt. Lewis requested Shaw’s information and Shaw

provided his (Shaw’s) driver’s license and the

registration card for the van. Sgt. Lewis kept Shaw’s

license and the registration. (Pet. App. 77a, 78a). Sgt.

Lewis ordered Shaw to “sit tight” and requested

Nathan step out of the vehicle and onto the shoulder of

the road. Sgt. Lewis questioned Nathan regarding his

(Nathan’s) identity? and matters unrelated to the traffic

stop, such as the origin and destination of the van’s

trip. (Pet. App. 78a). Sgt. Lewis subsequently patted

Nathan down for officer safety.

After speaking with Nathan, and before Set.

Lewis questioned Shaw, Sgt. Lewis believed criminal

activity was afoot. Sgt. Lewis expressed the reasons for

his suspicions as being Nathan’s lack of identification,

chest palpitations, trembling hands and carotid artery

pulsing. (Pet. App. 78a). Sgt. Lewis returned to the van

to interrogate Shaw separately about the van and the

trip. Nathan was left on the side of the road in

between the van and police cruiser watched by

Maryland State Trooper Tfc. Robert Penny (hereinafter, —

“Tfc. Penny”). Sgt. Lewis testified Nathan’s version of

9 Sgt. Lewis obtained Nathan’s full name, date of birth and social

security number

9

the van’s journey differed from Shaw’s and Shaw

appeared nervous. (Pet. App. 79a). Sgt. Lewis further

testified when he spoke to Shaw, he (Sgt. Lewis) spoke

in a low tone so Nathan could not hear what was being

said.

Sgt. Lewis requested Shaw consent to a search of

the van for guns and drugs, stating: “We have a big

problem with guns and drugs up and down this

highway. I’m getting ready to get a bit to eat but I

was going to check another vehicle real quick. Do

you mind if I check the vehicle for guns and drugs

real quick and I'll have you guys on your way. We

check them all the time.” (Pet. App. 50a). Shaw

submitted to Sgt. Lewis’ request. (Pet. App. 55a). Sgt.

Lewis asked Shaw to exit the vehicle and patted Shaw

down for weapons (officer safety). (Pet. App. 79a). No

weapons or contraband were discovered and Shaw

was directed to the side of the road near Nathan. Shaw

and Nathan were then guarded by Tfc. Penny.

Sgt. Lewis entered the van and conducted his

first search of the vehicle. Sgt. Lewis then exited the

vehicle and returned to his patrol car. Three (3) times

Sgt. Lewis entered the van and searched it without

finding any guns or drugs. On at least one (1) of these

occasions, Sgt. Lewis entered the van with a

screwdriver. (Pet. App. 79a). Sgt. Lewis admitted

_ when he took the screwdriver from his cruiser to the

van, he (Sgt. Lewis) intentionally kept the screwdriver

hidden from Shaw and Nathan. (Pet. App. 56a).

10

Before entering the vehicle a fourth time, and

more then eight (8) minutes after the stop was

initiated, Sgt. Lewis told Shaw and Nathan he (Sgt.

Lewis) would have the detainees on their way shortly

and finally starts calling in (to the dispatcher) the

information obtained from Shaw and Nathan. Before

receiving any answer on the information, Sgt. Lewis

then informed Shaw and Nathan the tags on the

vehicle were stolen. Sgt. Lewis knew this statement

was untrue. At this time, Sgt. Lewis handcuffed Shaw

and Nathan on the basis of the van’s “stolen tags”. Sgt.

Lewis was admittedly lying to Shaw and Nathan. (Pet.

App. 57a, 58a). Sgt. Lewis had no information

disputing the suspect’s valid ownership of the van

prior to the arrest and handcuffing. Shaw and Nathan

were ordered to sit on the ground, and were again

guarded by Tfc. Penny.

Sgt. Lewis then told Shaw he (Sgt. Lewis) would

tear open the ceiling if Shaw did not reveal how to

open the suspected compartment. Shaw replied, “I

don’t know what you are talking about.” (Pet. App.

59a). Sgt. Lewis then entered the van a fourth and fifth

time. Sgt. Lewis searched around the front of the van,

but did not search any of the baggage in the vehicle.

Sgt. Lewis then began tearing at the front overhead

console (map light, etc.) with a claw hammer.!° After

10 Sgt. Lewis testified at the suppression hearing that he had

recently found a secret compartment in a conversion van where

the entrance to the compartment had been behind the front

overhead console. Sgt. Lewis further testified that he tore down

11

pulling said console down and finding nothing, Set.

Lewis noted he could not believe it, that is where he

(Sgt. Lewis) thought the compartment would be

located. Sgt. Lewis then began tearing apart the panel

holding a working television. After forcibly removing

the panel holding the television, Sgt. Lewis recovered

narcotics from a space behind the panel. The narcotics

were found roughly nineteen (19) minutes after the

initial traffic stop. (Pet. App. 80a). No citations were

issued at the scene of the stop."

ARGUMENT IN SUPPORT OF GRANTING THE

WRIT OF CERTIORARI

The Maryland Court of Appeals improperly

determined reasonable articulable suspicion existed

in the instant matter, and in doing so, created a

standard wherein factors such as extreme

nervousness and overwhelming odors cannot be

judicially reviewed.

The stop of an automobile and detention of its

Occupants constitutes a “seizure” for Fourth

the front overhead console in the present case expecting to find an

entrance to a secret compartment Finding nothing, Sgt. Lewis then

forcibly pulle1 down the panel holding the van’s television and

video game system, which was located behind the van’s front

seats.

11 The driver of the van, Nathan, was given a citation later at the

station.

12

Amendment analysis even when purpose of the stop is

limited (i.e. to issue a traffic citation) and the actual

detention time is brief. See; Whren v. United States, 517

U.S. 806 (1996).

It is clear from the inception of the traffic stop at

issue in this case the Petitioner was detained. This

Honorable Court has stated, “In order to determine

whether a reasonable person would have felt free to

disregard the police... it is necessary to focus on what

the person’s ‘business’ was; only then may we

determine if the police questioning and conduct at

issue would likely have impeded that person’s freedom

to proceed with such business.” See; Michigan v.

Chesternut, 486 U.S. 467, 578, (1988); Florida v. Bostick,

501 U.S. 434 (1991); Immigration & Naturalization Service

v. Delgado, 466 U.S. 210, 218 (1984).

In the instant matter, Shaw’s “business” was to

continue on his way down the interstate to his ultimate

destination. With the driver of Shaw’s detained vehicle

being held at a police cruiser by an armed uniformed

officer, and Sgt. Lewis holding Shaw’s license, it was

impossible for Shaw to “go about his business.” More

Importantly, Sgt. Lewis ordered Shaw to “sit tight.”

Under these circumstances, it is unreasonable to think

Shaw, a black out-of-state suspect, would feel free to

walk away form the officers down an interstate

highway and leave his means of travel, his license,

registration and companion behind. Under the totality

of the circumstances Shaw was simply not free to leave.

13

Under the facts of this case, no reasonable person

in Shaw’s position would believe he/she could “just

walk away” from two (2) armed police officers. It is

clear Petitioner was detained, for the purposes of

constitutional analysis, from the moment Sgt. Lewis

told Shaw to “sit tight,” and stopped investigating the

traffic stop to interrogate Shaw on unrelated matters.

Therefore, in order to justify the continued detention!2

of the Petitioner, Sgt. Lewis required either a valid

consent to search or, at a minimum, reasonable

articulable suspicion. See; Terry v. Ohio, 392 US. 1

(1968).15

12 The Petitioner does not contend his initial detention, based on

the stop of vehicle for a violation of the traffic laws, was improper.

Rather, Petitioner addresses his continued detention on a matter

unrelated to the traffic stop. See; United States v. Sharpe, 470 U.S.

675 (1985); Florida v. Royer, 460 U.S. 491 (1983).

13 Petitioner is mindful of the fact he (Petitioner) purportedly

consented to a “real quick” search of the vehicle detained.

Petitioner, however, addresses the issues presented herein in this

matter because the Maryland Court of Appeals determined

reasonable suspicion ripening into probable cause and exigent

circumstances justified the search of the vehicle, it did not discuss

at any length the consent issue. (Pet. App. 4a). Therefore, the

Maryland Court of Appeals did not treat this matter as a consent

issue. Furthermore, the Maryland Court of Appeals specifically

declined to rule on the issue of whether the nature and scope of

any consent validly given was exceeded by Sgt. Lewis’ extremely

invasive search. (Pet. App. 16a). If this Honorable Court were to

grant the relief sought herein and ultimately determine no

probable cause to search existed, Petitioner asserts this matter

would have to be remanded back to the Maryland Court of

Appeals for a finding of whether any validly received consent was

exceeded.

14

This Honorable Court recently discussed the

concept of reasonable articulable suspicion in United

States v. Arvizu, 534 U.S. 266 (2002). In Arvizu, this

Court again re-iterated that in making reasonable

suspicion determinations, courts must look at the

totality of the circumstances of each individual case to

determine whether a detaining officer has a

particularized and objective basis for suspecting

wrongdoing."

In the present case, the Maryland Court of

Appeals determined Sgt. Lewis had a reasonable

suspicion based on the following factors: the fact that

the driver of the vehicle was unable to produce

identification, the driver and Shaws “extreme

nervousness,” Shaw’s apparent pretense of sleep

(when the vehicle was initially stopped), the driver's

evasive answers about his travel plans, inconsistent

travel versions of vehicle’s journey, the

“overwhelming” odor of air freshener and alterations

to the vehicle. (Pet. App. 15a). Looking at these

4 In Arvizu, this Honorable Court again declined to provide a

detailed definition of reasonable suspicion. Rather, the Court

noted the likelihood of criminality needs to be rooted in more than

a mere hunch, but need not rise to the level of probable cause.

5 A review of Sgt. Lewis’ searches and detentions from January of

1995 through September of 1999, from Sgt. Lewis’s Form 130s

(Form 130s are reports of every search conducted by the Maryland

State Police.) indicates Lewis relied on one or more of these factors

to justify 114 of the 147 automobile searches he conducted during

that period (74% of the time). Interestingly, of the 114 times Lewis

relied on these facto's to justify the search, Sgt. Lewis failed to

15

factors under the totality of the circumstances, it is

clear Sgt. Lewis did not have a particularized and

objective belief that the Petitioner was involved in any

wrongdoing (either possession of guns or narcotics).

Initially, Petitioner points out the Maryland

Court of Appeals should have not imputed any factors

involving the driver of the vehicle to a reasonable

suspicion analysis of the Petitioner. The findings that

driver of the vehicle was evasive regarding his travel

plans, gave a different travel itinerary than the

Petitioner, the driver’s “extreme” nervousness and the

driver’s inability to produce identification simply have

no bearing on whether the officer developed a

justifiable reason to detain the Petitioner. If anything,

the fact the Petitioner was able to produce

find drugs or contraband 84 times (70% of time). On those

occasions when Sgt. Lewis did find drugs, 16 times other, more

obvious, indicators of criminality (ie., smell or sight of drugs,

rental car violations, arrestable traffic offenses, “wanted”

occupant, etc.) were present. Based on Sgt. Lewis’s past

experience, Sgt. Lewis was aware nervousness, etc., are not

reliable indicators of criminality. See; Memorandum Exhibit B at

suppression level, set out here as pages 106a-107a of the Appendix

to this petition. (Petitioners’ Appendix:F). Sgt. Lewis’ repetitive

use of these factors in the great majority of his (Sgt. Lewis’) vehicle

searches indicates these observations are mere pretense to justify a

search. Interestingly, Tfc. Penny, the officer who guarded Shaw

and Nathan, did not notice any physical factors noted by the Sgt.

Lewis, and the Muryland Court of Appeals accepted, to justify the

continued detention of Shaw and Nathan (as well as, the search of

the seized vehicle).

16

identification and provided the officer with the

vehicle’s information should have weighed in Shaw’s

favor under the totality of the circumstances.

Similarly, Shaw’s asserted pretense of sleep

adds little to an analysis of reasonable suspicion. There

is no way the officer could know whether Shaw had

been asleep before the initial stop in this case. More

importantly, Petitioner can find no reasonable basis for

this assertion entering the required analysis. Shaw did

not attempt to hide from the officer, voluntarily moved

to the front of the seized vehicle and complied with

Sgt. Lewis’ every direction. If Sgt. Lewis was

concerned for his safety, this concern obviously quickly

dissipated. Sgt. Lewis did not immediately ask the

Petitioner to exit the vehicle, or search the Petitioner for

a weapon, as was his right to do. Furthermore, Set.

Lewis left the Petitioner in the vehicle while he

removed the driver for questioning.

The Maryland Court of Appeals characterization

that Shaw was “extremely” nervous was also an

insufficient basis upon which to build reasonable

suspicion. Petitioner acknowledges this Honorable

Court has found types of nervous, evasive, behavior

pertinent in the consideration of reasonable suspicion.

For example, In Illinois v. Wardlow, 528 U.S. 119 (2000).,

this Court found a suspect’s running away from law

16 See; Pennsylvania v. Mimms, 434 U.S. 106 (1977); Maryland v.

Wilson, 519 U.S. 408 (1997).

17

enforcement officers, in conjunction with the suspect's

presence in an area known for narcotics sales, was

sufficient to establish reasonable articulable

suspicion.!” In the instant case, however, Shaw did not

exhibit the same type of evasive behavior found in

Wardlow. Rather, in the instant case the Petitioner was

the victim of a far more subjective standard. In this

matter, the allegation against Shaw was that he merely

acted “extremely” nervous.

Prior to ruling on the instant case, the Maryland

Court of Appeals addressed the issue of nervousness in

Ferris v. State, 355 Md. 356, 735 A.2d 491 (Md. 1999). In

finding nervousness, or the lack thereof, wanting as a

basis of reasonable suspicion, the Maryland Court of

Appeals noted:

suspicion based on nervousness is unjust-

ified and cannot support detention of a

suspect. As Judge Sonner stated in Whitehead

v. State: “nervousness, or lack of it, of the

driver pulled over by a Maryland State trooper

is not sufficient to form the basis of

police suspicion that the driver is engaged

in the illegal transportation of drugs.

There is no earthly way that a police officer

can distinguish the nervousness of an

ordinary citizen . . . from the nervousness

17 In Wardlow, however, this Honorable Court declined to create a

per se nervousness rule.

18

of a criminal who traffics in narcotics.” 116

Md. App. 497, 698 A.2d 1115 (1997).

-Ferris, 355 Md. at 388.

Petitioner urges this Honorable Court to adopt

the view nervousness espoused in Ferris and treat

claims of “extreme” nervousness with even more

caution. Petitioner asserts it is impossible for a law

enforcement officer to either assess, or determine, an

individual’s nervousness level (especially when, as in

the instant matter, the law enforcement officer has had

no previous contact with the individual) in such a

general sense.

The clear suggestion by the Maryland Court of

Appeals is that while nervousness is of limited use in

the determination of reasonable suspicion under a

given set of facts, “extreme” nervousness, as

determined by a law enforcement agent and not the

court, is highly relevant in the analysis of reasonable

suspicion. Permitting law enforcement officers to

make determinations such as this, the level and/or

character of a detainee’s nervousness, effectively

removes the role of judicial review.

Petitioner asserts, it is a vastly different

circumstance when law enforcement officers observe

an individual evasively running away from them in a

high-drug area, as was the case in Illinois v. Wardlow,

compared to a law enforcement officer merely

19

testifying, as in the instant case, that in his/her opinion

the suspects appeared “extremely nervous.” In the

first case, the suppression court is given circumstances

upon which it can exercise its role as an independent

fact finder, in the latter case (the instant matter) the

same court cannot. The reason; in the first case (based

on Illinois v. Wardlow), the suppression court can

examine the facts; that the suspect was in a high drug

area, observed law enforcement agents and ran away,

and make an independent evaluation under the totality

of the circumstances. In the instant case, the

suppression court will now pre-suppose, at a

minimum, reasonable suspicion because a law

enforcement officer characterizes nervousness as

“extreme” whether said officer has any basis (either

through past experience with the suspect or some type

specialized training) for that finding or not.18

Quite simply, giving credence to law

enforcement observations concerning the subjective

character and nature of a suspect's nervousness will

permit those same law enforcement officials to

establish reasonable suspicion and/or probable cause

based on nothing more than the clever use of adjectives

and/or adverbs. Petitioner asserts such a situation

would effectively replace the rule of law with the rule

18 No scientifically based evidence was offered at any level of

these proceeding tc demonstrate observations of nervousness are

indicative of criminal behavior. Petitioner notes, however, Sgt.

Lewis testified there are types of nervousness that indicate

criminal activity.

20

of men and render the Fourth Amendment to the

Constitution of the United States meaningless.

The Maryland Court of Appeals also found

reasonable suspicion existed in the instant matter, in

combination with the other factors discussed herein,

due to the presence of air fresheners in the vehicle

detained. Specifically, the Maryland Court of Appeals

seemed concerned with the fact the detaining officer,

Sgt. Lewis, was “overwhelmed” with the odor of air

freshener in the vehicle detained.

Initially, Petitioner notes four (4) air fresheners

were located in the detained vehicle, a full size van.!9

Two (2) of the air fresheners were located in the front

of the van and two (2) were located in the rear of the

van. Shaw states, the presence of air fresheners in and

of itself is meaningless to a determination of reasonable

suspicion and/or probable cause. The mere presence

of air fresheners could never lead to more than a mere

hunch, even if combined with other relevant factors.

Certainly, however, Petitioner acknowledges the

number of air fresheners in a vehicle, or their

positioning, could possibly create a relevant factor for

consideration in an individual case. For example, if a

compact vehicle contained a large quantity of air

fresheners, Petitioner concedes this information

19 To be specific, the vehicle was a 1988 Dodge Ram Van with a

raised roof and working entertainment system (television and

video game system).

21

combined with other pertinent factors could lead to a

reasonable suspicion.

In the instant case, as was the case with

“extreme” nervousness already discussed herein, the

Maryland Court of Appeals again ceded the relevant

importance of the presence of air fresheners to the

detaining officer.

The Maryland Court of Appeals did not find the

presence, number or position of air fresheners

important to the reasonable suspicion determination,

rather the Maryland Court of Appeals found it

pertinent that the detaining officer was

“overwhelmed” by the odor of air freshener. Petitioner

states this type of highly subjective determination

confers a level of discretion to police not grounded in

any legitimate expertise and assures a finding not

susceptible to any meaningful judicial review.

Under the ruling in the instant case the

Maryland Court of Appeals again conducted no

independent analysis and blindly accepted the

characterization of Sgt. Lewis.21

20 In Ornelas v. United States, 517 U.S. 690 (1996)., this Honorable

Court noted reviewing courts must view the facts observed by law

enforcement agents from the point of view of a reasonable police

officer.

21 The obvious inference Sgt. Lewis wanted drawn from his

feeling/sensation of being “overwhelmed” by the odor of air

freshener was the one the Maryland Court of Appeals found, that

22

Again, permitting determinations based on such

a subjective observation will permit law enforcement

officials to establish reasonable suspicion and/or

probable cause based on nothing more than the

colorful use of the English language. Petitioner asserts

such a situation renders judicial review nothing more

than a rubber stamp for law enforcement.2

For all of these reasons, the Maryland Court of

Appeals improperly found reasonable articulable

suspicion existed for the continued detention of the

Petitioner.

the passengers of the vehicle detained were attempting to hide

something.

2 Petitioner addresses the issue of the alteration to the vehicle in

question in the section of this brief dealing with probable cause

because the- van alteration was the ultimate factor in the

determination of probable cause in the instant matter.

23 Justice Marshall, with whom Justice Brennan joined in the

dissent in United States v. Sokolow, 490 U.S. 1, (1989), provides the

appropriate language to appreciate the absurdity of Sgt.

Lewis's “suspicions” in the instant matter and the Maryland Court

of Appeals reliance on them:

Reflexive reliance on a profile of drug courier

characteristics runs a far greater risk than does ordinary,

case-by-case police work, of subjecting innocent

individuals to unwarranted police harassment and

detention. This risk is enhanced by the profile’s

”chameleon-like way of adapting to any particular set of

observations.” Compare, e.g., United States v. Moore, 675

F.2d 802, 803 (CA 6 1982, cert. denied, 460 U.S. 1068 (1983)

(suspect was first to deplane), with United States v.

Mendenhall, 446 U.S. 544, 564, (1980) (last to deplane, with

23

The Maryland Court of Appeals improperly

found probable cause existed in the instant matter

and did not consider whether and/or when probable

cause, if it existed at all, dissipated.

United States v. Buenaventura-Ariza, 615 f.2d 29, 31 (CA2

1980) (deplaned from middle); United States v. Sullivan,

625 F.2d 717, 7210 (CA6 1980) (one-way tickets), with

United States v. Craemer, 555 F.2d 594, 595 (CA6 1977)

(round-trip tickets), with United States v. McCaleb, 552 F.2d

717, 720 (CA6 1977) (non-stop flight), with United States v.

Sokolow, 808 F.2d 1366, 1370 (CA9 1987), vacated 831 F.2d

1413 (CA9 1987) (changed planes); Craemer, supra, at 595

(no luggage), with United States v. Sanford, 658 F.2d 342,

343 (CA5 1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1618

(1982) (gym bag), with Sullivan, supra, at 12 (new

suitcases); United States v. Smith, 574 F.2d 882, 883 (CA6

1978) (traveling alone), with United States v. Fry, 622 F.2d

1218, 1219 (CA5 1980) (traveling with companion); United

States Andrews, 600 F.2d 563, 566 (CA6 1979), cert. denied

sub nom. Brooks v. United States, 444 U.S. 878, 100 S.Ct 166

(1979) (acted nervously), with United States v.

Himmelwright, 551 F.2d 991, 992 (CAS), cert. denied 434 US.

902, 98 S.Ct. 298 (1977) (acted too calmly). In asserting

that it is not “somehow” relevant that the agents who

stopped Sokolow did so in reliance on a prefabricated

profile of criminal characteristics, the majority thus ducks

serious issues relating to a questionable law enforcement

practice, to address the validity of which we granted

certiorari in this case.

-Sokolow, 490 U.S. 1, 109 S.Ct. at 1588-89.

24

The Maryland Court of Appeals improperly

determined Sgt. Lewis had probable cause for the

highly invasive search in the instant matter.

Absent a valid consent, probable cause is

required for a warrantless search of an automobile.

This Honorable Court has stated the “Carroll?4

doctrine” (which provides for the warrantless searches

of automobiles) includes “a ‘probing search’ of

compartments and containers within automobiles as

long as the search is supported by probable cause.”

California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982 (1991),

quoting, United States v. Ross, 456 U.S. 798 (1982).

Probable cause is a practical, common sense decision

whether, given all the circumstances..., there is a fair

probability that contraband or evidence of a crime will

be found in a particular place. Illinois v. Gates, 462 U.S.

213, 238 (1983).

In the instant case, the Maryland Court of

Appeals concluded probable cause existed for the

highly intrusive search of the vehicle Shaw was a

passenger in because of Sgt. Lewis’ observations of the

van’s ceiling and Petitioner and Nathan's suspicious

behavior. (Pet. App. 7ia).

Petitioner hereby asserts, Sgt. Lewis’ hunch that

the vehicle in question contained a hidden overhead

compartment does not amount to probable cause,

24 Carroll v. United States, 267 U.S. 132 (1925).

25

when considered in conjunction with the factors used

by the Maryland Court of Appeals to establish

reasonable articulable suspicion, that such a

compartment existed (and that the suspected

compartment contained contraband). There was

nothing facially unusual about the overhead

compartment and panel that housed the television and

video game systems. (Pet. App. 62a). Furthermore, all

of the electronic equipment in the van was operational

at the time of the stop in question. (Pet. App. 62a).

Petitioner states there is nothing unusual about

the owner of a van refurbishing the vehicle by adding

televisions, entertainment systems, etc. Common sense

dictates if such a refurbished vehicle houses an

entertainment system, the panel holding a television

and entertainment system necessarily has to rigid and

strengthened to hold said equipment. More

importantly, any modification such as this would

automatically presume space behind it to house the

wiring and components.

The Maryland Court of Appeals, in finding the

suspected presence of a compartment tipped the scales

in favor of a finding of probable cause in the instant

case, has essentially formulated a standard whereby

any customization, alteration or upgrade to a vehicle

will now constitute “a fair probability that contraband

or evidence of crime will be found in a particular

place” as long as a law enforcement says the passenger

was extremely nervous and a strong odor of air

26

freshener was present (regardless of how many air

fresheners are ultimately found). This standard

offends any fundamental protection offered by the

fourth Amendment to the United States Constitution

because it places all manner of innocent drivers at risk

for unwarranted governmental intrusion.

The Maryland Court of Appeals maintained, at

least in part, Sgt. Lewis’s probable cause was rooted in

his past experience with hydraulic compartments. Part

of this experience is Sgt. Lewis’s discovery of an

overhead compartment during the traffic stop of a

separate van four (4) weeks before the vehicle Shaw

was in was stopped. (Pet. App. 17a). By way of

background, Sgt. Lewis discovered a compartment in

the modified front overhead console of that vehicle

during a traffic stop. As in the instant case, Sgt. Lewis

tore out the overhead console and found a hidden

compartment. In fact, during the stop in the present

case Sgt. Lewis repeatedly makes reference to this van

being “just like the last one.” |

In this case, Sgt. Lewis, relying on the “training

and experience” of the earlier stop, developed the

hunch that all vans with newly customized overhead

consoles must also contain secret compartments (and

that all of these compartments must contain

contraband). Following this hunch, Sgt. Lewis, used a

2% See; Memorandum Exhibit A at suppression level, set out here

as pages 101a-105a of the Appendix to this petition. (Petitioners’

Appendix F).

27

claw hammer to try and tear down the front overhead

console. When this hunch yielded nothing,” Set.

Lewis, without further “training and experience” to

rely on, began to tear down the panel and upholstery

which housed the van’s television and computer

games. Shaw asserts herein any suspicions regarding

hidden compartments that may have been justified by

Sgt. Lewis’s prior traffic stop, or any other factors in

this case, completely dissipated after Sgt. Lewis tore

down the front overhead console and found no

compartment.

Even if this Honorable Court was to agree with

the Maryland Court of Appeals that Sgt. Lewis did

have probable cause prior to Sgt. Lewis’ attempt to tear

out the front console, which Shaw submits Sgt. Lewis

did not, said probable cause did not exist afterward

(before Sgt. Lewis discovered any contraband in a

separate area).

Probable cause does not exist indefinitely in a

vacuum. When Sgt. Lewis tore out a portion of the

vehicle the Petitioner was a passenger in and did not

2 Sgt. Lewis was so sure he was going to find some contraband

when he (Sgt. Lewis) tried to open this portion of the van that on

the police video tape it is clear Sgt. Lewis could not believe it,

because that is where Sgt. Lewis thought the compartment would

be located. See; Memorandum Exhibit A at suppression level, set

out here as pages 101a-105a of the Appendix to this petition.

(Petitioners’ Appendix F).

28

discover a hidden compartment any probable cause

ceased to exist. It is important to remember here, the

initial reason for the intrusion in this matter was

routine traffic stop for a violation of the traffic laws.

This Honorable Court has stated such instructions

must be temporary and last no longer than necessary to

. effectuate the purpose of the stop. See; Florida v. Royer,

460 U.S. 491 (1983).7

As previously noted, probable cause is a

practical, common sense decision whether, given all

the circumstances..., there is a fair probability that

contraband or evidence of a crime will be found in a

particular place. [Illinois v. Gates, 462 U.S. 213, 238

(1983). If Sgt. Lewis had developed probable cause,

said probable cause ended when Sgt. Lewis tore out the

front section of vehicle's ceiling. Obviously, Sgt. Lewis

believed he would find a hidden compartment in this

particular place in the vehicle. When Sgt. Lewis did

not discover a compartment in this particular place, the

search should have ended. Any legitimate reason for

the continued intrusion in this matter had dissipated

and more than a reasonable amount of time had

expired to justify the purpose for the initial stop

(ostensibly, to issue a traffic citation).

2 Petitioner certainly acknowledges seizures of this nature can be

extended by a valid consent or the development of reasonable

suspicion and/or probable cause.

29

In blessing Sgt. Lewis’ continued dismantling of

the vehicle the Petitioner was in, the Maryland Court of

Appeals has disallowed the basis upon which all

search and seizure law is predicated, reasonableness.

Quite simply, it was unreasonable for Sgt. Lewis to

coritinue his highly destructive and intrusive search of

the vehicle Shaw was in after dismantling the front

overhead section of vehicle’s ceiling and finding no

contraband. It was Sgt. Lewis, based upon the totality

of the circumstances, applying his knowledge, training

and experience, who determined a _ hidden

compartment would be located in the front section of

vehicle’s ceiling, not the detainees. When Sgt. Lewis

did not find a secret compartment in this are of the ©

vehicle, all of his subsequent actions constituted

nothing more than a fishing expedition not supported

by probable cause.

Petitioner states permitting the continuation of

searches in cases of this manner would subject all types

of innocent citizens to protracted unreasonable seizures

based upon nothing more than a hunch. Worse, no

framework is established delineating when a seizure

should appropriately end. Under the ruling of the

Maryland Court of Appeals in the instant case, it is

conceivable that once a search is initially justified by

probable cause, it can continue indefinitely until the

detaining officer is satisfied, with no protection,

reasonable or otherwise, afforded to a detainee.

30

As the ultimate search that revealed contraband

in the instant matter was unsupported by probable

cause, it constituted an unreasonable search in

violation of the Fourth Amendment and should not

have been upheld by the Maryland Court of Appeals.

CONCLUSION

For the reasons stated herein, Petitioner :

respectfully represents a writ of certiorari should issue P

to review the judgment and opinion of the Maryland :

Court of Appeals.

Respectfully submitted

Paul R. Kramer* ;

101 North Charles Street i

The Jefferson Building,

Suite 700

Baltimore, Maryland 21202

(410) 727-5531

Counsel for Petitioner

*Counsel of Record

hace 3