# Petition for Writ of Certiorari — Shaw v. Maryland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1194

## Text

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
I ai ais cis csdtivicessnscinessceseestevescescces i
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

Rae PURE OE CPIRIO IE, si siissisi cn cnsccscsconssccccscccsscensee 11

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0988%3A1. Public record. Not legal advice.