Sizer v. State

In the case before us, we are asked to consider the constitutionality of the stop and the subsequent search incident to the arrest of Petitioner, Jamal Sizer. On the evening of November 20, 2015, five or six officers of the Howard County Police Department Pathways Patrol Unit, a bicycle patrol unit, observed Mr. Sizer and others congregating in a public parking lot, drinking from what appeared to be an open alcohol container. The officers described the group as “loud and disorderly.” The officers observed a bottle being thrown and heard it hit the ground, but could not see who threw the bottle. The officers approached the group to investigate who in the group threw the bottle. Mr. Sizer fled upon the officers’ approach. A chase ensued and ended with the seizure of Mr. Sizer, which led to the discovery that he possessed a .38 caliber revolver in his backpack. Contemporaneously with the seizure of Mr. Sizer, an officer recognized Mr. Sizer as having an outstanding arrest warrant. Subsequently, pursuant to the discovery of the outstanding warrant, Mr. Sizer was arrested and taken to the local police precinct, where an officer searched Mr. Sizer incident to his arrest and recovered a baggie containing twenty-seven pills of oxycodone, a controlled dangerous substance, hidden in his sock.

Mr. Sizer filed a motion to suppress the firearm and the pills recovered from his person, and after a hearing, the Circuit Court for Howard County granted his motion. The State appealed, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(4) (1973, 2013 Repl. Vol., 2016 Supp.). In a reported opinion, the Court of Special Appeals reversed the judgment of the Circuit Court, holding that the stop was constitutional. State v. Sizer, 230 Md.App. 640, 668, 149 A.3d 706, 717 (2016). The intermediate appellate court held in the alternative that, assuming arguendo that the stop was unlawful, the evidence recovered would have been admissible under the independent source doctrine because Mr. Sizer was arrested on a valid pre-existing warrant that was independent of the illegal stop. Id. at 669, 149 A.3d at 723. A concurring member of the three-judge panel, Judge Kathryn Graeff, concluded that, assuming arguendo that the stop was illegal, the evidence that was recovered from Mr. Sizer would have been admissible under the attenuation doctrine, rather than the independent source doctrine, in light of this Court’s decisions in Myers v. State, 395 Md. 261, 909 A.2d 1048 (2006), Cox v. State, 397 Md. 200, 916 A.2d 311 (2007), and the United States Supreme Court’s decision in Utah v. Strieff, — U.S. -, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016). Id. at 680-81, 149 A.3d at 730.

We review the issue of whether the officers had reasonable suspicion to stop Mr. Sizer. We hold that the officers had reasonable suspicion to conduct a stop when they witnessed what appeared to be criminal activity occurring immediately before the investigatory stop. In the alternative, we hold that, even assuming the stop was unlawful, the evidence recovered from Mr. Sizer would be admissible in evidence because the attenuation doctrine would apply, pursuant to the Supreme Court’s reasoning in Strieff.

For reasons stated in this opinion, we shall affirm the judgment of the Court of Special Appeals to the extent that it held that the officers had reasonable suspicion to stop Mr. Sizer. We also, alternatively, affirm the judgment of the intermediate appellate court and adopt the reasoning of the concurring opinion, penned by Judge Graeff, with respect to the application of the attenuation doctrine.

I.

Initial Stop

The relevant undisputed facts are taken from testimony presented at the suppression hearing. On the evening of November 20, 2015, five or six officers, from the Howard County Police Department Pathway Patrol Unit (“Patrol Unit”), on routine patrol, hiked the footpaths that “lead all throughout Columbia, [Maryland].” While on the footpath, officers in the Patrol Unit observed a group of individuals “play fighting and passing around an alcoholic beverage back and forth.” The Patrol Unit suspected that the beverage was alcohol because it was in a brown paper bag and the group’s body language was “consistent with individuals drinking.” The officers, from 25-35 yards away from the group, observed a bottle being thrown and heard it hit the ground, but could not see who threw the bottle. At that point, the officers approached the group to investigate. When the officers were approximately five feet away, Mr. Sizer fled on foot, away from the officers.

Officer Andrew Schlossnagle, one of the officers in the Patrol Unit, gave immediate chase and “physically took [Mr. Sizer] to the ground.” As Mr. Sizer was being tackled to the ground, he revealed that he was carrying a handgun on his person. Within seconds of the takedown, another officer from the Patrol Unit recognized Mr. Sizer as the subject of an outstanding arrest warrant. At that point Mr. Sizer was arrested and taken to the police satellite station in the Village Center pursuant to the officers’ belief that he was the subject of a pre-existing warrant. At the satellite station, the officers confirmed the existence of the warrant and performed a search of Mr. Sizer incident to his arrest. The officers recovered a .38 caliber handgun from Mr. Sizer’s backpack and twenty-seven pills of oxycodone, a controlled dangerous substance, from Mr. Sizer’s sock. Additional facts will be discussed as needed.

Suppression Hearing

Mr. Sizer moved to suppress the weapon and the pills, arguing that the evidence was obtained pursuant to an unlawful stop. At the suppression hearing, members of the Patrol Unit testified that the Owen Brown Village Center was a “high” or “higher crime area,” compared to other parts of Columbia, Maryland. The State argued that Mr. Sizer’s flight in a high crime area was enough to give the officers reasonable suspicion to conduct a stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“Terry stop”); see also Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (“Terry stop in a high crime area”).

The three testifying officers similarly characterized the Owen Brown Village Center as a high crime area. Officer Schlossnagle testified that the Owen Brown, Long Reach, and Oakland Mills Village Centers “tend to [have] an increase in calls for service and just general issues. There tends to be more calls for service in that—in those congested areas.” When asked about what types of crimes he had investigated in the Owen Brown Village Center, the officer responded, “[W]e were tasked to Owen Brown because of the increased calls for service and on-going trends in the area.” The Circuit Court judge interjected:

[COURT]: Is “increased calls for service” a nice way of saying “high crime[ ]?”

[OFFICER SCHLOSSNAGLE]: Yes, Your Honor.

[COURT]: Thank you. I mean, just so I know what we’re talking about.

Officer Schlossnagle explained that at the time of the incident, there was “an ongoing robbery series” and that “business owners ... were complaining of quality of life issues, [such as controlled dangerous substance] violations, loitering, drinking, where the business centers requested an increased presence.” Officer Sehlossnagle also explained that “there was a report of a subject displaying a handgun the day before in the footpaths and fields that abut up to the village center.”1 He testified that “there is a network of footpaths that leads up to the back side of [the village center].” A second officer, Corporal James Zammillo, testified that the Owen Brown Village Center was a “high crime area” as compared to other parts of Columbia. Corporal Zammillo explained that his assignment as a member of the bike team patrol included “passively patrolling the ninety-plus miles of pathway that traverses through Columbia.” Corporal Zammillo confirmed Officer Sehlossnagle’s testimony that there was “an ongoing robbery series” in the area.

A third officer, Officer Ronald Baker, the only witness called by the defendant, testified that the patrol officers had been “traveling the pathways, and we came across the Owen Brown Village Center, but we stopped at the entrance to the Owen Brown Village Center via [the] pathway.” He explained that, at the time of observing the group of individuals, he recognized one individual whom he knew had been banned from the Owen Brown Village Center:

[STATE]: Is Mr. Davis banned from the—I believe it’s the Owen Brown Village Center?

[OFFICER BAKER]: Yes, he is.

[STATE]: And you indicated—did you indicate you were waiting for him, to see if he would enter where he was banned from?

[OFFICER BAKER]: Yes.

[STATE]: And where specifically was that?

[OFFICER BAKER]: That particular area we were at, to the best of my knowledge, that parking lot isn’t part of the village center. So, we was [sic] watching him and the group to see if they were going to enter the banned part of the village center.

Officer Baker also testified that when the officers were about five feet away, the group noticed the officers. Officer Baker testified that his uniform consisted of a badge and the word “Police” on the front of the jacket in neon lettering. Two other officers testified with a similar description of their uniform. Later, in Officer Baker’s testimony, he stated that it appeared that Mr. Sizer ran as soon as Mr. Sizer observed the officers:

[STATE]: How far away were you from this group of suspects—subjects when you believed they noticed you?

[OFFICER BAKER]: Well, as we approached, probably about five feet when they turned around to see us.

[STATE]: And as soon as they noticed you, did Mr.—did one of the suspects run?

[OFFICER BAKER]: Yes.

[STATE]: And did you write in your report that as soon as the suspect observed officers ... Is that correct?

[OFFICER BAKER]: Yes.

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[STATE]: You indicated in your report that the subject ran as soon as he recognized you were there.

[OFFICER BAKER]: It appeared that way; yes.

The officers testified that they were concerned with the group’s general disorderliness and possible open container violations. None of the officers testified that they believed the group was connected to the “ongoing robbery series,” or that they suspected any member of the group was the individual who had displayed a gun on the previous night.

After the three officers testified, the hearing judge first analyzed whether Mr. Sizer’s flight was legally sufficient to conduct a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The hearing judge found all three testifying officers “to be truthful and credible” and that they had “testified today without embellishment.” She found that “somebody [in] the group they cannot be sure whether it was Mr. Sizer or not—threw a bottle. The police were concerned, understandably, and approached the group.” The hearing judge found that “there had been a complaint made of someone brandishing or displaying a handgun in the parking lot of the Owen Brown Cradlerock Library, and there was, understandably, concern. In general, the area is considered a high or higher-crime area in Columbia.” Nevertheless, the hearing judge suppressed the evidence, and, in doing so, indicated that she questioned whether “all the rules [were] followed[.]” The hearing judge explained, “[T]he fact that Mr. Sizer ran, in and of itself, based on the particular scenario that’s being given here today, is not sufficient.” Further, the hearing judge concluded that the pre-existing arrest warrant did not attenuate the taint of the unconstitutional stop.

Procedural History

The State appealed the Circuit Court’s decision to suppress the evidence. The Court of Special Appeals reversed the suppression of the weapon and the pills, and held that given the totality of the circumstances, the stop was reasonably justified. Sizer, 230 Md.App. at 658, 149 A.3d at 717. The Court of Special Appeals alternatively held that had the stop not been constitutional, the evidence would not have been suppressed due to Mr. Sizer’s pre-existing arrest warrant, although the three-judge panel disagreed as to the reason for non-suppression of the evidence. Id. at 669, 149 A.3d at 723.

Mr. Sizer petitioned this Court for certiorari, which we granted. Sizer v. State, 452 Md. 3, 155 A.3d 890 (2017). In the interest of clarity, we have condensed Mr. Sizer’s questions for certiorari into two questions: Did the arresting officers have reasonable suspicion to stop Mr. Sizer, and if the arresting officers did not have reasonable suspicion to stop and detain Mr. Sizer, was the suppression of the evidence justified?2

II.

Standard of Review

When reviewing a hearing judge’s ruling on a motion to suppress evidence under the Fourth Amendment, we consider only the facts generated by the record of the suppression hearing. Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129, 1135 (2007). We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the party prevailing on the motion, in this case, Mr. Sizer. Id. We review the hearing judge’s findings for clear error. Id.

Finally, we review the hearing judge’s legal conclusions de novo, making our own independent constitutional evaluation as to whether the officer’s encounter with the defendant was lawful. Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999). In other words, our plenary review of the record for error requires application of the facts under a totality of the circumstances analysis.

III.

Parties’ Contentions

Mr. Sizer’s arguments generally focus on the officers’ consideration of Mr. Sizer’s flight in what the officers characterized as a high crime area. He asserts that the officers did not have a “particularized and objective basis” to support reasonable suspicion for the stop. Mr. Sizer correctly acknowledges that the United States Supreme Court has not imposed a bright-line rule that flight in a high crime area is always sufficient to generate reasonable suspicion of criminal activity. Mr. Sizer postulates, however, that if this Court affirms the suppression court’s decision, it will effectuate a bright-line rule that neither the Supreme Court nor this Court has endorsed. Mr. Sizer relies on the Supreme Court’s decision in Wardlow for his contention that flight is merely a display of a citizen’s constitutional “right to ignore the police and go about his business.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 678, 676, 145 L.Ed.2d 570, 577 (2000). Finally, Mr. Sizer urges us to hold that flight should be given minimal weight in a totality of the circumstances analysis.

The State contends that Mr. Sizer’s flight was merely one of many factors that the officers considered before attempting to conduct an investigatory stop. The State describes these factors as Mr. Sizer’s flight, his presence in a high crime area, the group’s general disorderliness, the suspected open container violation, and the improper disposal of a glass bottle. The State implicitly concedes that the officers did not have a particularized suspicion to stop Mr. Sizer at the moment they approached the group. Instead, the State argues that at the moment the officers approached the group, they had observed enough suspicious activity to warrant further investigation based on the suspected littering and the passing around of an apparent open alcoholic container.

Fourth Amendment Terry Stop

The Fourth Amendment prohibits “unreasonable searches and seizures.” Generally, when the government has violated a defendant’s Fourth Amendment rights, courts are required to suppress evidence obtained as a result of an unconstitutional search or seizure. Nardone v. United States, 308 U.S. 338, 340-41, 60 S.Ct. 266, 267, 84 L.Ed. 307, 311 (1939); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92, 40 S.Ct. 182, 182-83, 64 L.Ed. 319, 321 (1920); Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 346, 58 L.Ed. 652, 657 (1914). The exclusionary rule is “ordinarily ... the appropriate remedy for a violation of the Fourth Amendment.” Myers v. State, 395 Md. 261, 278, 909 A.2d 1048 (2006). Where there is a valid, pre-existing and untainted arrest warrant, however, an exception to the exclusionary rule applies and the evidence obtained in violation of the Fourth Amendment is admissible under the attenuation doctrine. Strieff, — U.S. -, 136 S.Ct. at 2063, 195 L.Ed.2d at 410.

Fourth Amendment jurisprudence, as it pertains to stops and seizures, operates along an escalating plane that begins with “unparticularized suspicion[s] or hunch[es]” and crescendos at probable cause. Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909 (internal quotation marks omitted). Reasonable suspicion exists somewhere between unparticular-ized suspicions and probable cause. See Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990). “And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909.

Reasonable suspicion “has been defined as nothing more than ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” Stokes v. State, 362 Md. 407, 415, 765 A.2d 612, 616 (2001) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 628-29 (1981)) (internal quotation marks omitted); see also Bost v. State, 406 Md. 341, 356, 958 A.2d 356, 365 (2008). Moreover, reasonable suspicion is a “common sense, nontechnical conception that considers factual and practical aspects of daily life and how reasonable and prudent people act.” Bost, 406 Md. at 356, 958 A.2d at 365, (quoting Stokes v. State, 362 Md. 407, 415, 765 A.2d 612, 616 (2001)). The reasonable suspicion standard “ ‘does not allow [a] law enforcement official to simply assert that innocent conduct was suspicious to him or her.’ ” Crosby v. State, 408 Md. 490, 508, 970 A.2d 894, 904 (2009) (citing Bost v. State, 406 Md. 341, 357, 958 A.2d 356, 365 (2008)). “Rather, the officer must explain how the observed conduct, when viewed in the context of all of the other circumstances known to the officer, was indicative of criminal activity.” Id.; see Derricott v. State, 327 Md. 582, 591, 611 A.2d 592, 597 (1992).

When explaining the degrees of suspicion necessary for reasonable suspicion, the Supreme Court has explained that it is a lesser degree of suspicion than probable cause. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990). Specifically:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

Id. (internal citations omitted).

There is no universal starting point when it comes to our analysis of a Fourth Amendment violation. We decide where along the plane to begin our analysis depending on the circumstances before us. Here, our analysis begins at reasonable suspicion. We recognize that it is “importan[t] ... not [to] focus[] on any set list of facts that must be present for reasonable suspicion to exist, but rather to examine the totality of the circumstances to determine whether an officer could reasonably suspect that criminal activity is afoot.” State v. Holt, 206 Md.App. 539, 558, 51 A.3d 1, 12 (2012), aff'd, 435 Md. 443, 78 A.3d 415 (2013).

Cartnail explains the two analytical techniques used in assessing the totality of the circumstances:

The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities.

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The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry v. Ohio ... said that, “[tjhis demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.”

Cartnail v. State, 359 Md. 272, 288, 753 A.2d 519, 527-28 (2000) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 698, 66 L.Ed.2d 621, 629 (1981)) (some internal quotations omitted).

The Totality of the Circumstances Analysis

Both parties agree that our totality of the circumstances analysis must focus on reasonable suspicion, but they dispute whether the factors rise to the level of reasonable suspicion. Petitioner contends that the totality of the circumstances do not rise to reasonable suspicion, even if flight is considered in the Court’s analysis. To the contrary, Respondent argues that even if flight is not considered the officers had reasonable suspicion to stop Mr. Sizer. Petitioner draws our focus to the unprovoked flight factor to refute the officers’ reasonable suspicion, whereas Respondent focuses our attention on the high crime area factor as a means of justifying the officers’ reasonable suspicion surrounding the stop. Because the totality of the circumstances analysis “does not deal with hard certainties,” we determine that an individual’s unprovoked flight or presence in a high crime area, or both, are individual factors that may contribute to the reasonable suspicion calculus. Id.

In Wardlow, which both parties rely on to advance their opposing views, the United States Supreme Court discussed the weight to be given unprovoked flight in a high crime area as one factor in the totality of the circumstances analysis. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). In Wardlow, a team of eight officers, in a four car caravan, travelled through a Chicago neighborhood known for “heavy narcotics trafficking.” Id. at 124, 120 S.Ct. at 676, 145 L.Ed.2d at 576. The defendant, Wardlow, held an opaque bag in his hand, and upon noticing the last car in the police caravan, fled on foot from the outside area where he stood. Id. at 122, 120 S.Ct. at 675, 145 L.Ed.2d at 575. Two officers chased him on foot, and when they finally caught him, they conducted a pat-down and search for weapons. Id. The opaque bag he held contained a .38 caliber handgun. Id. The suppression hearing judge denied Wardlow’s motion to suppress the handgun, the Illinois Appellate Court reversed, and the Illinois Supreme Court affirmed the intermediate appellate court’s conclusion that the evidence should be suppressed. Id.

The United States Supreme Court reversed the decision of Illinois’ highest court as to suppression of the evidence. Wardlow, 528 U.S. at 126, 120 S.Ct. at 677, 145 L.Ed.2d at 577. The Supreme Court held that flight in a high crime area was relevant in a totality of the circumstances analysis. It opined that:

An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among the relevant contextual considerations in a Terry analysis.

Id. at 124, 120 S.Ct. at 676, 146 L.Ed.2d at 576 (internal citations omitted) (emphasis added). Specifically, the Supreme Court explained:

In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.

Id. (internal citations omitted).

In Bost v. State, we had occasion to consider whether a defendant’s flight in a high crime area supplied officers with the necessary reasonable suspicion to stop him. 406 Md. 341, 348, 958 A.2d 356, 359 (2008). Officers observed Mr. Bost and a group of people drinking alcohol and loitering on a sidewalk in a drug-trafficking area, located in Washington, D.C., three blocks from the Maryland border. Id. at 346, 958 A.2d at 360. As the officers approached Mr. Bost, he began briskly walking away and took flight “while clutching his right waistband ....” Id. An officer pursued him on foot, under the suspicion that he was concealing a weapon and based on the officer’s experience that Mr. Bost’s clutching of his waistband was consistent with someone trying to conceal a weapon. Id. Officers tackled him to the ground and then found a gun tied around his neck. Id. Officers arrested him, and upon a search incident to the arrest, discovered $140 in cash and two, white, rock-like substances, later determined to be crack cocaine, on his person. Id. Mr. Bost moved to suppress the seized cocaine and weapon on the basis that the evidence was seized in violation of the Maryland Uniform Act on Fresh Pursuit.3 Id. at 347, 958 A.2d at 358.

Upon review, we held that officers had reasonable suspicion to stop Mr. Bost because he was seen in a high crime, drug-trafficking area, he took off in unprovoked flight, and he was clutching his side, in what appeared to be an attempt to conceal a weapon. Id. at 359-60, 958 A.2d at 360. In the case, we relied on Wardloiv for the generalized proposition that that case “had made clear that unprovoked flight is enough to support reasonable suspicion that a crime has been committed.” Id. at 348, 958 A.2d at 360 (emphasis added). Notwithstanding our focus on unprovoked flight, in Bost we applied a totality of the circumstances analysis, as the Wardlaw Court had done, and held that Mr. Bost’s unprovoked flight was properly considered in the totality of the circumstances analysis. Id. at 359, 958 A.2d at 360.

In Crosby, we emphasized the need for hearing courts to consider the totality of the circumstances when wholly innocent actions take place in a high crime area. Crosby v. State, 408 Md. 490, 508, 970 A.2d 894, 904 (2009). In that case, an arresting officer, at the suppression hearing, testified that he made the decision to approach a driver in a parked car because: the driver was in a high crime area, he pulled in and out of “parking pads,” he was in an area where a recent homicide had occurred, he switched his left turn signal to a right turn signal, and he drove in a “big loop.” Id. at 500, 970 A.2d at 899. We reversed the Circuit Court’s denial of Mr. Crosby’s motion to suppress the evidence and held that the factors the arresting officer relied on “[did] not constitute ingredients that [were] sufficiently potent enough in [that] case to enrich the porridge to the constitutionally required consistency of reasonable suspicion,” b