987 A.2d 72 (2010) 412 Md. 349

Robert BAILEY
v.
STATE of Maryland.

No. 10, September Term, 2009.

Court of Appeals of Maryland.

January 14, 2010.

*77 Piedad Gomez, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore, MD), on brief, for Petitioner.

Carrie J. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

GREENE, Judge.

In this case, we are asked to determine whether the search and seizure of the petitioner, Robert Bailey, violated the Fourth Amendment to the United States Constitution and the Maryland Declaration of Rights. To reach a decision, we must consider whether the odor of ether, a lawful *78 substance that is allegedly associated with contraband, constitutes probable cause to support an arrest when the arrestee, who is standing in a high crime drug area, has the odor of ether emanating from his person, and fails to respond to police questions. We shall hold that the totality of the circumstances do not provide a concrete reason to associate the odor of ether with criminal activity or contraband, and, accordingly, the officer did not have probable cause to arrest the petitioner.

I.

On the night of August 16, 2006, Officer Rodney Lewis of the Prince George's County Police Department was patrolling the 6800 block of Hawthorne Street in Landover, Maryland. The area was known for drug activity, though there were no specific complaints on the night in question. At approximately 11:35 P.M., while patrolling on foot, Officer Lewis spotted the petitioner, Robert Bailey, standing alone on the side of 6890 Hawthorne Street. Officer Lewis testified about the encounter at the suppression hearing:

... I observed the defendant standing on the side of a home, ... just standing in the shadows, at which time I yelled out to him, "Excuse me, sir, do you live there?" I didn't get any acknowledgment from the individual, at which time I assumed that he probably didn't hear me. I repeated the same thing, "Excuse me, sir, do you live there," which again I received no acknowledgment from the suspect, at which time myself, along with another officer, walked over to the individual. At that time, I just happened to step out of the shallow [sic] area on the sidewalk where I could visibly see his hands. And from the area at which he was standing at the time, I could smell a strong odor of ether ...

When Officer Lewis smelled the odor of ether, he was within a few feet of the petitioner, close enough to "reach out and touch him." The odor was emanating "[f]rom [the petitioner's] body odor." The odor of ether, according to Officer Lewis's testimony, is associated with phencyclidine, more commonly known as PCP.^[1] Officer Lewis acknowledged on cross-examination that it is not illegal to possess ether *79 and that ether is a solvent that is used in several household products. Upon smelling the odor of ether, Officer Lewis "reached over and grabbed both of [the petitioner's] hands and ... had him place them over top of his head." Officer Lewis then conducted a search of the petitioner, which uncovered a glass vial, approximately three to four inches in length and one inch in diameter, half-full of liquid,^[2] in the petitioner's right front pants pocket. Field tests confirmed that the liquid contained PCP, and the petitioner was subsequently taken into custody and charged with possession of a controlled dangerous substance.

People under the influence of PCP, according to Officer Lewis's testimony, "possess various strengths, sometimes they could be incoherent in reference to trying to understand if someone is saying something to them, and very glossy [sic] eyes...."^[3] Officer Lewis did not explain what he meant by "glossy" eyes or elaborate any further. In addition to observing the odor of ether, Officer Lewis noted that the petitioner had "glossy eyes" and that the petitioner failed to respond to the inquiries about whether he lived in the house. Officer Lewis did not, however, indicate whether he observed the petitioner's glossy eyes before or after he initially seized the petitioner.

The petitioner moved to suppress the physical evidence recovered from the search, asserting that the glass vial was the fruit of an illegal search and seizure under the Fourth Amendment, as well as the Maryland Declaration of Rights. Following a suppression hearing at which Officer Lewis was the sole witness, the trial court found that Officer Lewis had reasonable articulable suspicion to stop and question the petitioner based on the smell of ether, the petitioner's failure to respond to Officer Lewis's questions,^[4] and the petitioner's presence in a "high crime drug area with a number of complaints from citizens." The suppression court also determined that Officer Lewis conducted a valid pat-down of the petitioner for "officer safety" and that, based on the totality of the circumstances, the search and seizure were valid.

The petitioner proceeded to trial on an Agreed Statement of Facts. The State entered a nol pros as to the first count, possession of a controlled dangerous substance with intent to distribute. Based upon the Agreed Statement of Facts, the Circuit Court for Prince George's County entered verdicts of guilty to the second count, possession of a controlled dangerous substance, and sentenced the petitioner to four years in prison, all but two years suspended, with three years of supervised probation upon release.

The petitioner filed a timely appeal to the Court of Special Appeals. The intermediate appellate court, in an unreported opinion, affirmed the judgment of the trial court. The court determined that Officer Lewis had a reasonable, articulable suspicion to conduct an investigatory stop based on the odor of ether, the petitioner's "glossy" eyes, the petitioner's presence "in *80 the shadows" in a high drug crime area, and the petitioner's failure to respond to Officer Lewis's inquiries. The court also held that

the officer's testimony did not provide a basis for a frisk, [but] it did provide probable cause for arresting [the petitioner] for the possession of illegal drugs and hence searching him. That is to say, although Officer Lewis did not articulate a reasonable suspicion for believing [the petitioner] had weapons in his possession, he did have probable cause to arrest [the petitioner] for the possession of unlawful drugs, and therefore he had the lawful authority to conduct a search incident to that arrest.

The court based its probable cause determination on "the smell of material clearly associated with illegal drugs ... combined with both the appearance and conduct of [the petitioner]," specifically his "glossy" eyes, failure to respond to Officer Lewis's inquiries, and presence in a high drug crime area "standing in the shadows at 11:30 p.m. ... back off the street, well in the shadows."

II.

"When reviewing the disposition of a motion to suppress evidence alleged to have been seized in contravention of the Fourth Amendment ..., we view the evidence adduced at the suppression hearing, and the inferences fairly deducible therefrom, in the light most favorable to the party that prevailed on the motion." Crosby v. State, 408 Md. 490, 504, 970 A.2d 894, 902 (2009); Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129, 1135 (2007). The appellate court defers to the trial court's fact-finding at the suppression hearing, unless the trial court's findings were clearly erroneous. Crosby, 408 Md. at 504-05, 970 A.2d at 902. "Nevertheless, in resolving the ultimate question of whether the detention or attendant search of an individual's person or property violates the Fourth Amendment, we `make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.'" Crosby, 408 Md. at 505, 970 A.2d at 902 (quoting State v. Williams, 401 Md. 676, 678, 934 A.2d 38, 40 (2007)); Longshore, 399 Md. at 499, 924 A.2d at 1136. Thus, this Court considers the evidence adduced at the suppression hearing, construed in the light most favorable to the State as the prevailing party at the suppression hearing.

III.

The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." When the police obtain evidence through a search or seizure that violates the Fourth Amendment, "exclusion of evidence obtained in violation of these provisions is an essential part of the Fourth Amendment protections." Swift v. State, 393 Md. 139, 149, 899 A.2d 867, 873 (2006) (citing Mapp v. Ohio, 367 U.S. 643, 655-56, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961); State v. Lee, 374 Md. 275, 297-98, 821 A.2d 922, 934-35 (2003)). The Fourth Amendment, however, is "not implicated in every situation where the police have contact with an individual." Swift, 393 Md. at 149, 899 A.2d at 873 (citing California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991); Scott v. State, 366 Md. 121, 133, 782 A.2d 862, 869 (2001)). This Court analyzed the applicability of the Fourth Amendment to varying levels of police interaction in Swift, 393 Md. at 149-51, 899 A.2d at 873-74:

Many courts have analyzed the applicability of the Fourth Amendment in *81 terms of three tiers of interaction between a citizen and the police. The most intrusive encounter, an arrest, requires probable cause to believe that a person has committed or is committing a crime. The second category, the investigatory stop or detention, known commonly as a Terry stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop and briefly detain an individual.... The least intrusive police-citizen contact, a consensual encounter, ... involves no restraint of liberty and elicits an individual's voluntary cooperation with non-coercive police contact. A consensual encounter need not be supported by any suspicion and because an individual is free to leave at any time during such an encounter, the Fourth Amendment is not implicated; thus, an individual is not considered to have been `seized' within the meaning of the Fourth Amendment.

Id. (internal citations omitted). We will consider how the petitioner's encounter with Officer Lewis proceeded from consensual encounter to custodial arrest, in light of settled Fourth Amendment precedent. See id.

IV. Consensual Encounter or Investigatory Stop

We agree with the intermediate appellate court that Officer Lewis's initial questioning of the petitioner was not an investigative stop, but rather a "consensual encounter" or accosting. As Swift, 393 Md. at 151, 899 A.2d at 874, instructs us, a consensual encounter does not implicate the Fourth Amendment because the individual with whom the police are interacting is free to leave at any time. The Court of Special Appeals analyzed the petitioner's encounter with Officer Lewis as follows:

When the police officers asked [the petitioner] if he lived at the house in whose shadows he was standing, [the petitioner] could not have reasonably believed that the police were doing anything more than making a routine inquiry. The officers' inquiry was a request for basic information, not an order. Officer Lewis "yelled" the question because of the distance between the officers and [the petitioner], and the officers began to walk toward [the petitioner] only after he did not respond to their questions, presumably to find out why he had not.... In sum, [the petitioner] was not seized by the officers but merely was accosted at the point at which the officers began to approach him.

Thus, this Court need not consider whether Officer Lewis had reasonable articulable suspicion of criminal activity when he decided to approach the petitioner after the petitioner twice failed to respond to his question. There was no investigative stop of the petitioner under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

V. Seizure and Search

"An encounter has been described as a fluid situation, and one which begins as a consensual encounter may lose its consensual nature and become an investigatory detention or arrest once a person's liberty has been restrained and the person would not be free to leave." Swift, 393 Md. at 152, 899 A.2d at 874-75. Officer Lewis's testimony indicates that his encounter with the petitioner proceeded quickly from an accosting, in which he shouted questions to the petitioner from the street, to a physical detention, when he grabbed the petitioner's hands.

As the Supreme Court observed in Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16, "[w]hen the officer, by means of *82 physical force or a show of authority, has in some way restrained the liberty of a citizen [we may] conclude that a `seizure' has occurred." In determining whether a person has been seized, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would `have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'"

Swift, 393 Md. at 152-53, 899 A.2d at 875 (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988))). The inquiry is fact-specific and based on the perception of a reasonable person under the totality of the circumstances. E.g., Bostick, 501 U.S. at 439, 111 S.Ct. at 2389, 115 L.Ed.2d at 401-02 ("We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all circumstances surrounding the encounter...."). This Court identified factors that are probative of whether a reasonable person would feel free to leave in Ferris v. State, 355 Md. 356, 377, 735 A.2d 491, 502 (1999), including

the time and place of the encounter, the number of officers present and whether they were uniformed, whether the police removed the person to a different location or isolated him or her from others, whether the person was informed that he or she was free to leave, whether the police indicated that the person was suspected of a crime, whether the police retained the person's documents, and whether the police exhibited threatening behavior or physical contact that would suggest to a reasonable person that he or she was not free to leave.

In the present case, it is clear that, once Officer Lewis grabbed the petitioner's hands and placed them over his head, a reasonable person in the petitioner's position would have understood that he was physically detained and thus not free to leave or go about his business. Thus, when Officer Lewis grabbed the petitioner's hands, he seized the petitioner for purposes of the Fourth Amendment.

Because the officer seized and searched the petitioner without a warrant, the seizure was presumptively invalid unless it was supported by a reasonable, articulable suspicion of a threat to officer safety or by an exception to the warrant requirement. Belote v. State, 411 Md. 104, 112, 981 A.2d 1247, 1252 (2009); Wilson v. State, 409 Md. 415, 439, 975 A.2d 877, 892 (2009). "It is well established that the State has the burden of proving the legality of a warrantless search and seizure." Paulino v. State, 399 Md. 341, 348, 924 A.2d 308, 312 (2007) (citing Sifrit v. State, 383 Md. 77, 114, 857 A.2d 65, 86 (2004); State v. Bell, 334 Md. 178, 191, 638 A.2d 107, 114 (1994); Stackhouse v. State, 298 Md. 203, 217, 468 A.2d 333, 341 (1983)). We must consider whether this seizure of the petitioner was a temporary detention and protective frisk pursuant to Terry, as the Circuit Court found, or a lawful arrest of the petitioner, as the Court of Special Appeals held.

VI. Terry Frisk

We disagree with the Circuit Court's conclusion that the search and seizure of the petitioner was an investigatory stop and protective frisk pursuant to Terry.^[5] The purpose of a protective Terry *83 frisk is "not to discover evidence, but rather to protect the police officer and bystanders from harm." Longshore, 399 Md. at 508, 924 A.2d at 1141 (quoting State v. Smith, 345 Md. 460, 465, 693 A.2d 749, 751 (1997)). Pat-down frisks are proper when the officer "has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Longshore, 399 Md. at 508-09, 924 A.2d at 1141 (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909). The officer has reason to believe that an individual is armed and dangerous if a reasonably prudent person, under the circumstances, would have felt that he was in danger, based on reasonable inferences from particularized facts in light of the officer's experience. Longshore, 399 Md. at 509, 924 A.2d at 1141-42.

Even if we were to assume that the encounter with the Officer Lewis was a Terry stop, "[t]he reasonableness of a Terry stop is determined by considering `[w]hether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'" Longshore, 399 Md. at 506, 924 A.2d at 1140 (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905). Further, assuming arguendo that Officer Lewis had reasonable, articulable suspicion to believe that criminal activity was afoot and, accordingly, detain the petitioner, he still lacked the basis for a protective Terry frisk. At the suppression hearing, Officer Lewis indicated that he searched the petitioner to "[c]heck for weapons," but did not provide any basis for his suspicion that the petitioner was armed and dangerous. Officer Lewis did not testify as to any factors that would lead to a suspicion that the petitioner was carrying a weapon. Further, there are no objective factors in the record that indicate that the petitioner was armed and dangerous. Although the encounter took place at nighttime, the petitioner was alone and the officer "could visibly see his hands," which, presumably because the officer did not indicate otherwise, were empty. There is no indication in the record that the petitioner made any threatening movements, or any movements at all, nor is there any indication that Officer Lewis suspected that the petitioner was dealing drugs. Thus, we concur with the Court of Special Appeals, and hold that Officer Lewis had no basis to conduct a protective frisk.^[6]

*84 Even if Officer Lewis had reasonably believed that the petitioner was armed and dangerous, therefore providing the basis for a proper Terry frisk, the search in the present case exceeded the scope of a proper protective frisk. A proper Terry frisk is limited to a pat-down of the outer clothing "not to discover evidence of a crime, but rather to protect the police officer and bystanders from harm" by checking for weapons. In re David S., 367 Md. 523, 544, 789 A.2d 607, 619 (2002).

If during a lawful pat-down an officer feels an object which obviously is not a weapon, further patting of it is not permissible. The Supreme Court has made it clear that "if the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed." On the other hand, "[i]f a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons."

Id. (quoting Minnesota v. Dickerson, 508 U.S. 366, 373, 375, 113 S.Ct. 2130, 2136-37, 124 L.Ed.2d 334 (1993)) (internal citations omitted) (emphasis added). Generally, "a pat down is ... a proper, minimally intrusive means of determining whether a suspect is armed." State v. Smith, 345 Md. at 465-66, 693 A.2d at 751.

The officer may not exceed the limited scope of a patdown for weapons to search for contraband. "General exploratory searches are not permitted [pursuant to Terry], and police officers must distinguish between the need to protect themselves and the desire to uncover incriminating evidence." In re David S., 367 Md. at 545, 789 A.2d at 619 (quoting State v. Smith, 345 Md. at 465, 693 A.2d at 751) (holding that the officer exceeded the permissible scope of a Terry frisk when he opened a bag found in the individual's waistband after realizing the bag did not contain a weapon). If the pat-down uncovered an object that is not a weapon and "the incriminating character of the object was not immediately apparent ... [but] [r]ather, the officer determined that the item was contraband only after conducting a further search," then the further search exceeded the permissible scope of Terry. Smith, 345 Md. at 470, 693 A.2d at 754 (quoting Dickerson, 508 U.S. at 379, 113 S.Ct. at 2139, 124 L.Ed.2d at 347-48 (citation omitted)).

In the present case, Officer Lewis testified that he patted down the petitioner's right front pocket and that he did not manipulate the object contained therein. Officer Lewis testified that he "felt and recognized a glass vial in [the petitioner's] pocket." He further testified that generally, in his experience, PCP is "[c]ontained in a glass vial." Based on Officer Lewis's testimony, however, the incriminating nature of the object in the defendant's pocket was not immediately apparent upon his initial touch of the object in the pat-down. Rather, Officer Lewis testified that he field-tested the liquid contained in the vial after removing it from the petitioner's pocket, thereby determining that the liquid contained PCP. The removal of the vial from the petitioner's pocket and field test of the liquid contained in the vial constituted a general exploratory search exceeding the permissible scope of a protective Terry frisk. Accordingly, we hold that Officer Lewis lacked the proper basis for a Terry frisk at the inception of the search, and *85 that the search was a general exploratory search that exceeded the permissible scope of a Terry frisk, which serves as a basis to exclude the evidence seized from the petitioner's pocket.

VII. Arrest

We must consider, alternatively, whether Officer Lewis's seizure of the petitioner in the present case constituted a de facto arrest, as the Court of Special Appeals determined.^[7] This Court analyzed what constitutes an arrest in Bouldin v. State, 276 Md. 511, 515-16, 350 A.2d 130, 133 (1976).

It is generally recognized that an arrest is the taking, seizing, or detaining of the person of another ... by touching or putting hands on him.... It is said that four elements must ordinarily coalesce to constitute a legal arrest: (1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person; and (4) which is understood by the person arrested.

In Belote v. State, 411 Md. at 117, 981 A.2d at 1254, this Court further analyzed the factors set forth in Bouldin:

[W]here a police officer's objective conduct unambiguously reflects an intent to make a custodial arrest, the subjective intent inquiry ... takes on less significance. In other words, when an arresting officer's objective conduct, which provides significant insight into the officer's subjective intent, is unambiguous, courts need not allocate significant weight to an officer's subjective intent that is revealed partially in the form of his testimony at the suppression hearing; the officer's objective conduct, in effect, will have made his subjective intent clear.

A show of force is objective conduct demonstrating the officer's intent to make an arrest. "[G]enerally, a display of force by a police officer, such as putting a person in handcuffs, is considered an arrest." Longshore, 399 Md. at 502, 924 A.2d at 1138. In California v. Hodari D., 499 U.S. at 626, 111 S.Ct. at 1550, 113 L.Ed.2d. at 697, the Supreme Court of the United States held that "[a]n arrest requires ... physical force" by "laying on of hands or application of physical force to restrain movement." Although the display of force often involves placing the individual who is seized in handcuffs, application of handcuffs is not a necessary element of an arrest. See Grier v. State, 351 Md. 241, 252, 718 A.2d 211, 217 (1998) ("Once Petitioner was on the ground and in custody and control of the officers, he was certainly under arrest. Although [the officer] may have had the right to simply detain and question Petitioner before placing him in custody, he did not do so." (citations omitted)); Morton v. State, 284 Md. 526, 530, 397 A.2d 1385, 1388 (1979) (holding, where an officer removed the individual from a recreation center and placed him under guard in a patrol car, that "an arrest is the taking ... by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest.... [The officer's] manual seizure of the appellant and the subsequent restraint of his liberty plainly constituted an arrest."); Dixon v. State, 133 Md.App. 654, 673, 758 A.2d 1063, 1073 (2000) (officers exceeded the permissible scope of an investigative Terry stop and "arrested appellant at the time they blocked his car, removed him from his vehicle, and handcuffed him").^[8]

*86 As the Court of Special Appeals stated in Dixon, 133 Md.App. at 670, 672, 758 A.2d at 1071-72, before the Supreme Court's landmark decision in Terry, "`the Fourth Amendment's guarantee against unreasonable seizures of persons was analyzed in terms of arrest, [and] probable cause for arrest.' ... Terry constituted a limited departure from the requirement of probable cause to support a seizure." Id. (quoting Dunaway v. New York, 442 U.S. 200, 207-08, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979)).^[9] If a seizure and subsequent search is not justified by reasonable, articulable suspicion that the individual is armed pursuant to Terry, the seizure is a de facto arrest and must be supported by probable cause in order to be lawful.

In this case, Officer Lewis's conduct constituted an unambiguous show of force. He approached the petitioner while in uniform, physically restrained the petitioner, conducted a search of the petitioner's person, and ultimately took the petitioner into physical police custody. Belote, 411 Md. at 117, 981 A.2d at 1254, instructs us that, although Officer Lewis testified at the suppression hearing that he was checking the petitioner for weapons, this statement is given less weight than his objective conduct on the night in question.^[10] Officer Lewis's conduct demonstrates *87 that he intended to t