Peter Michael Ferris v. State, No. 127, September Term, 1997.

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1 Peter Michael Ferris v. State, No. 127, September Term, CRIMINAL LAW SEARCH AND SEIZURE AUTOMOBILE Because officer s initial purpose in stopping motorist, for speeding violation, was completed upon issuance and signing of speeding citation and return of driver s license and registration to motorist, officer s asking motorist immediately ereafter if he would mind stepping to e back of his vehicle for purposes of investigating oer possible criminal activity constituted a second stop or continued detention for purposes of Four Amendment if under totality of circumstances reasonable motorist would not feel free to leave. CRIMINAL LAW SEARCH AND SEIZURE AUTOMOBILE Once underlying basis for initial traffic stop has concluded, police-driver encounter which implicates Four Amendment is constitutionally permissible only if eier (1) driver consents to second or continuing intrusion or (2) officer has, at a minimum, reasonable, articulable suspicion at criminal activity is afoot. CRIMINAL LAW SEARCH AND SEIZURE AUTOMOBILE Continued encounter between officer and motorist was not merely consensual but raer constituted a seizure because reasonable person would have believed he was neier free to leave e scene nor to ignore and disobey officer s requests under given circumstances: prior existence of initial traffic seizure; officer s failure to inform motorist of freedom to leave; seamless transition from traffic stop to request at motorist exit vehicle; removal of motorist from automobile; separation of motorist from passenger; presence of two uniformed law enforcement officers; operation of police cruiser emergency flashers roughout encounter; early morning hour; and location on dark, rural interstate highway. CRIMINAL LAW SEARCH AND SEIZURE AUTOMOBILE Officer s continued detention of motorist after completing traffic stop for speeding infraction lacked requisite foundation of reasonable, articulable suspicion: motorist s extremely bloodshot eyes, nervousness and lack of alcohol odor, in addition to his and his passenger s frequent movements and backward glances, did not reasonably suggest at criminal activity was afoot.

2 Circuit Court for Washington County Criminal Case # IN THE COURT OF APPEALS OF MARYLAND No. 127 September Term, 1997 PETER MICHAEL FERRIS v. STATE OF MARYLAND Bell, C.J. Eldridge Rodowsky Chasanow* Raker Wilner Caell, JJ. Opinion by Raker, J. Rodowsky and Chasanow, JJ., dissent. Filed: August 18, 1999 * Chasanow, J. participated in e hearing of e case, in e conference in regard to its decision and in e adoption of e opinion, but he had retired from e Court prior to e filing of e opinion.

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4 Petitioner Peter Michael Ferris appeals e denial of his motion to suppress evidence seized by e police. Because e police officer in is case effected a seizure not premised upon e reasonable, articulable suspicion required under e Four Amendment, we shall hold at e Circuit Court for Washington County erred in denying Ferris s motion to suppress. I. In e early morning hours of May 7, 1996, Maryland State Trooper Andrew Smi was operating a laser speed gun on Interstate 70, just east of Route 66 in Washington County, Maryland. The posted speed limit was 65 miles per hour. At 1:06 a.m., Trooper Smi observed a westbound Toyota Camry traveling down a mountain at what appeared to be a high rate of speed. Engaging e laser device, e trooper clocked e vehicle s speed at 92 miles per hour. Trooper Smi activated his emergency lights and stopped e car wiout incident. The trooper parked his patrol car approximately twenty feet behind Petitioner s car. Trooper Smi approached e Camry and observed Ferris, e driver, and one passenger, Michael Discher, in e front seat. Smi asked Ferris to produce his driver s license and registration. At e hearing on Ferris s motion to suppress tangible evidence seized by e trooper, Trooper Smi testified at during is initial encounter he noticed at Ferris s eyes were bloodshot and he did appear a little nervous, a little fidgety.

5 -2- Trooper Smi returned to his patrol car and requested a driver s license and outstanding warrant check on Ferris. The trooper began to write e speeding citation. During is time, Trooper Smi glanced up several times and noticed at Ferris and Discher were moving around and looking back towards him quite frequently. Specifically, Smi testified at Ferris and e passenger looked back at e patrol car ree or four times. While Trooper Smi was writing e citation, Deputy John C. Martin of e Washington County Sheriff s Department arrived and parked ten feet behind Smi s patrol 1 car, activating his vehicle emergency flashers. Deputy Martin approached Trooper Smi s patrol car and spoke briefly wi e trooper. After witnessing Ferris and Discher moving around in e vehicle a lot and looking around, e deputy relayed at observation to Trooper Smi. Trooper Smi returned to e Camry wi Deputy Martin, who went to e rear of e passenger s side of e vehicle. Ferris signed e citation, and en e trooper returned Ferris s driver s license and registration along wi a copy of e citation. Alough Trooper Smi did not advise Ferris at he was free to depart or at he was not free to leave, e trooper testified: I just asked him if he would mind stepping to e back of his vehicle to answer a couple of questions. He stated he didn t mind. Ferris accompanied e trooper to e rear of e Camry. During is time, Deputy Martin remained between e Camry and 1 During cross-examination at e suppression hearing, Deputy Martin distinguished between full emergency lights and [w]hat we call our flashers. Only e latter were activated in is instance. Deputy Martin defined e flashers as comprising two blinking lights in e grill of e patrol car and two blinking lights on e top of e vehicle.

6 -3- Trooper Smi s patrol car and watched Discher, e passenger. At e suppression hearing, Trooper Smi testified at e reasons he asked Petitioner to step out of e car were at Petitioner s eyes were bloodshot, Petitioner and e passenger were acting very nervous, and ere was no detectable odor of alcohol on Petitioner s brea. 2 Behind e Camry, Trooper Smi first asked Ferris if he had smoked any drugs prior to e traffic stop. Trooper Smi testified at Ferris became more nervous in response to is question. Ferris answered by stating at he had not smoked anying. Trooper Smi again asked Ferris was he sure at he hadn t smoked any drugs because of e fact at his eyes were bloodshot, extremely bloodshot and he didn t have alcohol on his brea. During e encounter, e trooper remained wiin two or ree feet of Ferris. At is juncture, Ferris admitted at he and his passenger had smoked a joint in Philadelphia about ree hours earlier. Ferris stated at he and e passenger were traveling from Philadelphia to Morgantown, West Virginia. Trooper Smi en asked Ferris wheer e passenger was in possession of any controlled dangerous substances. Ferris acknowledged at Discher possessed a small amount of marijuana. Thereupon Trooper Smi approached Discher, still seated in e front passenger seat of Ferris s car. After Trooper Smi questioned Discher, e latter turned over a small baggie containing 2 When asked at e suppression hearing why he asked Ferris to step out of his car, Trooper Smi responded on direct examination at he suspected at ere may have been some drug use on e part of e driver. On cross examination, e trooper testified, The reason I wanted [Ferris] to exit his vehicle was so he could answer some questions.... I wanted to find out wheer... ere was a discrepancy between what he was telling me [and] what his passenger was telling me.

7 -4- marijuana. Trooper Smi en searched e Camry. On e rear seat, e trooper found a green L. L. Bean book bag. Trooper Smi uncovered a gallon-sized plastic baggie inside e book bag containing a compressed, green vegetable matter, a substance e trooper believed to be marijuana. As a result of is incident, e State s Attorney for Washington County charged Ferris by criminal information wi: operating a motor vehicle in excess of e posted speed limit, in violation of Maryland Code (1977, 1999 Repl. Vol.) of e Transportation Article; possession of marijuana, in violation of Maryland Code (1957, 1996 Repl. Vol., 1998 Supp.), Article 27, 287; and possession of marijuana in sufficient quantity to reasonably indicate an intent to distribute at substance, in violation of Article 27, 286(a)(1). Prior to trial, Ferris moved to suppress all evidence and statements illegally obtained. At e suppression hearing, e State and Ferris presented essentially e same primary arguments made before is Court. The circuit court rejected e analytical pa taken by e parties, instead reasoning: Well I don t want anybody to lose e forest for e trees. The citizen has a right not to be unreasonably seized nor to have property unreasonably searched and seized under e totality of e circumstances. You know I ve heard e State talk about Terry and articulable suspicions and e defense talking about e end of one stop and seizure and e beginning of anoer stop and seizure. Quite frankly I ink at neier argument is persuasive. What we have to do is look at e situation, e entire totality of e situation at e officer found himself in on

8 -5- is occasion to determine if he acted unreasonably in any stop, in any seizure, in any search and seizure. Now e officer has a vehicle at s going ninety-two miles an hour on a highway at even ough I don t ink ere was evidence of is fact but I ink we can take judicial notice of e fact at e speed limit was sixty-five or under at e time. So we have a situation where he has a driver of a motor vehicle at s going well over e speed limit. He stops at motor vehicle. He notes at e driver of e motor vehicle has extremely bloodshot eyes, not just bloodshot eyes, extremely bloodshot eyes and is exhibiting signs or symptoms of nervousness, fidgety. It s an out of state vehicle. He checks e registration, ownership, license, determines at e license and registration are appropriate. But en [e officer] goes back to e vehicle. And what s he going to do? What s expected of him? Is he to allow a person who is operating at ninety-two miles an hour wi bloodshot eyes to sign a citation and get back into e vehicle and drive it away? Or is he expected to proceed to furer investigate e condition of e driver? And at s what he was doing when he en asked e driver to step back and answer certain questions. It was, I ink, a very reasonable expected continuation of e encounter between e officer and e driver of is motor vehicle. The driver is operating in a dangerous way. And he s got bloodshot eyes. And I ink it would be expected at is officer would inquire furer and not just allow e driver wi bloodshot eyes who s been going ninety-two miles an hour to get back in at vehicle and drive it away. And at is what e officer did. He continued... ere was no, I do not feel at ere was any end of one stop and e beginning of anoer stop and seizure. It was a continuation. It s expected of is officer to have done what he did.

9 -6- So en e driver of e motor vehicle does in fact answer e questions wiout intimidation, voluntarily answers e questions. And as e questions are asked and answered, ere is an incriminating response which leads to e recovery of a controlled dangerous substance from an... individual who en gives e officer furer probable cause to believe at e vehicle itself contained contraband or does surely under any of our known doctrines enable it to be searched, and e contents of at vehicle. So under e totality of e circumstances I see noing... at e officer did wrong, no violation of any right against unreasonable stop, seizures, searches of is defendant. The trial court erefore denied Ferris s motion to suppress. Ferris was tried before a jury in e circuit court and convicted of speeding and possession of marijuana wi e intent to distribute. On e marijuana charge, e court sentenced Ferris to a term of incarceration of eighteen mons, wi all but five mons suspended. Ferris noted a timely appeal to e Court of Special Appeals. Before e Court of Special Appeals, Ferris challenged only e denial of his motion to suppress. A divided panel of e intermediate appellate court affirmed in an unreported opinion. As to e question of wheer Ferris had been seized under e Four Amendment during e encounter wi Trooper Smi, e court reasoned at e finding of e motions judge at e conversation between Ferris and e officer was consensual was not clearly 3 erroneous. Alternatively, e Court of Special Appeals held at Trooper Smi s detention 3 Ferris argues at e motions judge made no such finding at e encounter was consensual but found only at ere was a single continuous seizure, and at Ferris answered e trooper s questions voluntarily. We agree wi Ferris. Moreover, we interpret (continued...)

10 -7- of Ferris was lawful because e trooper had an articulable suspicion of suggested criminal activity based upon his observation of extremely bloodshot eyes, unusual nervousness and fidgeting inside e car, and e knowledge at e absence of an odor of alcohol may indicate drug use as well as sobriety. Judge Thieme dissented, writing at he would hold at Ferris was seized when e trooper requested at he exit his vehicle and proceed to e back of at vehicle. He noted at under certain circumstances, e request of an officer to exit e vehicle, as opposed to an order to leave e vehicle, may be indistinguishable from a command. Judge Thieme reasoned: The appellant had already been lawfully detained pursuant to a traffic infraction and, after a license check had been completed and a speeding violation had been issued, Officer Smi requested at e appellant exit and step to e rear of e vehicle. A reasonable person, on e return of his license and registration and e acceptance of a citation, would (most assuredly wi relief) have viewed e traffic stop as over. And, at at point, a reasonable person would have felt free to leave. For e officer en to request e driver to exit e vehicle, separating e driver not only from e vehicle but also from any occupants who may have been in at vehicle (as was e passenger in is case), wi no apparent justification for doing so, would clearly arouse a feeling at at person was not free to leave. Furermore, e presence of two officers (one a county and one a State police officer) would have only added to e already mounting apprehension on e part of e driver. 3 (...continued) e motion judge s ruling at e driver of e motor vehicle does in fact answer e questions wiout intimidation, voluntarily answers e questions to refer to e questioning at e rear of e Camry, and not to e earlier point in time when Ferris exited e Camry.

11 -8- The dissent also found lacking any reasonable, articulable suspicion sufficient to justify any furer detention of Ferris. This Court granted Ferris s petition for writ of certiorari to consider two questions: (1) wheer an operator of a motor vehicle is seized wiin e meaning of e Four Amendment when he is asked to get out of his car for questioning after a traffic stop is completed, and (2) wheer e Court of Special Appeals erred in finding at e seizure of Petitioner was justified by reasonable, articulable suspicion. II. A. Ferris argues at his encounter wi Trooper Smi following e issuance of e citation and e return of his license and registration card constituted an illegal seizure under e Four Amendment. He reasons at once e trooper had returned his documents and had issued e citation, e purpose of e original stop for speeding had been satisfied; us, for Four Amendment purposes, any continued detention was a second stop requiring independent reasonable, articulable suspicion. Ferris also contends at e Court of Special Appeals erred in finding at e officer had reasonable suspicion of criminal activity under e circumstances of is case. By contrast, e State argues at e police questioning in is case was a consensual encounter at did not implicate e Four Amendment. Alternatively, e State contends at, even assuming ere was a Four Amendment seizure, at intrusion was justified.

12 -9- Our review of e circuit court s denial of e motion to suppress under e Four Amendment is based solely upon e record of e suppression hearing. In re Tariq A-R-Y, 347 Md. 484, 488, 701 A.2d 691, 693 (1997). We review e trial court s factual findings in e light most favorable to e State, and review ese findings for clear error, but we view e legal conclusions de novo. Id. at , 701 A.2d at 693; Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990). The Four Amendment protects against unreasonable searches and seizures, including seizures at involve only a brief detention. United States v. Mendenhall, 446 U.S. 544, 551, 100 S. Ct. 1870, 1875, 64 L. Ed. 2d 497 (1980). The Supreme Court has made clear at a traffic stop involving a motorist is a detention which implicates e Four Amendment. See United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573, 84 L. Ed. 2d 605 (1985); Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317 (1984) (analogizing e degree of intrusiveness of e usual traffic stop to e degree of restraint imposed by e typical Terry stop). It is equally clear, however, at ordinarily such a stop does not initially violate e federal Constitution if e police have probable cause to believe at e driver has committed a traffic violation. Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996). Noneeless, e Supreme Court has also made it clear at e detention of a person must be temporary and last no longer an is necessary to effectuate e purpose of e stop. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983) (plurality opinion).

13 -10- It is wiout dispute at e stop of Ferris by Trooper Smi for exceeding e posted speed limit constituted a seizure for Four Amendment purposes, but at such a seizure was justified by e probable cause possessed by e trooper in having witnessed Ferris s traffic violation. Indeed, Ferris does not contest e initial stop. The real issue lies in e actions taken by e officer after he had issued e speeding citation to Petitioner and had returned his driver s license and registration to him. Contrary to e trial court s finding at ere was a single, continuous stop and no end of one stop and e beginning of anoer stop and seizure, Ferris argues at e initially valid stop evolved into an unreasonable detention. He argues at once e purpose of a traffic stop has been satisfied, any furer detention or questioning of e driver constitutes an unreasonable and erefore unlawful detention, unless such detention is supported by reasonable, articulable suspicion, probable cause, or consent. We have not had occasion to consider e question of e extent to which a law enforcement officer who has properly stopped a motor vehicle based on probable cause may detain and question e driver after e officer has concluded e purpose for e initial stop. The Court of Special Appeals, however, has addressed is issue on several occasions. In Snow v. State, 84 Md. App. 243, 578 A.2d 816 (1990), e Court of Special Appeals considered e question of wheer a police officer had a reasonable and articulable suspicion to justify detaining a driver after e officer had issued a written warning for a speeding violation. Id. at 246, 578 A.2d at 817. In Snow, as in e case at bar, e police had probable cause to stop e vehicle. The court noted at once e purpose of e initial stop

14 -11- had been fulfilled, i.e. when e officer had issued e warning, e proper focus was on e subsequent detention of Snow and his passenger in order to scan e vehicle for e presence of drugs. Id. at 248, 578 A.2d at 818. Judge Rosalyn Bell, writing for e court, reasoned at if Snow was seized for Four Amendment purposes, at seizure must be supported by at least a reasonable, articulable suspicion at a crime is being or is about to be committed. Id. at 265, 578 A.2d at 826. Quoting is Court s decision in State v. Lemmon, 318 Md. 365, 372, 568 A.2d 48, 52 (1990), e court observed at [t]he Court of Appeals... stated at Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565 (1988), declares at e test to be applied in determining wheer a person has been seized wiin e meaning of e Four Amendment is wheer in view of all e circumstances surrounding e incident, a reasonable person would have believed at he was not free to leave. Snow, 84 Md. App. at 249, 578 A.2d at 819. The intermediate court held at e purpose underlying e initial stop had been realized when e officer issued e warning, and ere was no reasonable, articulable suspicion to support e second act of detaining Snow for e scan of his vehicle. Id. at 267, 578 A.2d at 827. Therefore, e court reversed, holding at e evidence recovered should have been suppressed. Id. at 246, 578 A.2d at 817. In Munafo v. State, 105 Md. App. 662, 670, 660 A.2d 1068, 1072 (1995), e driver of a motor vehicle was stopped by e police based on probable cause at e driver had violated several motor vehicle laws. As in e case at bar, Munafo conceded at e initial traffic stop was legal, but he maintained at ere were two stops at night e initial stop supported by probable cause and e second stop which occurred immediately ereafter.

15 -12- Id. at 669, 660 A.2d at He argued at e officer should have issued a ticket or a warning promptly after receiving e results of e radio license and registration check, and at his continued detention was illegal because it was not supported by a reasonable suspicion. Id. at , 660 A.2d at Relying on Snow, e intermediate appellate court reasoned at e purpose of a traffic stop is to issue a citation or warning. Once at purpose has been satisfied, e continued detention of a vehicle and its occupant(s) constitutes a second stop, and must be independently justified by reasonable suspicion. Id. at 670, 660 A.2d at The court concluded at e brief delay after e officer learned at e license and registration were in order was entirely unjustified by e purpose of e original stop and hence constituted a separate stop which must be supported by at least reasonable, articulable suspicion. Id. at 673, 660 A.2d at Finding at e officer harbored no more an an hunch at Munafo was in possession of drugs, e intermediate court held at e trial court erred in denying e motion to suppress. Id. at 676, 660 A.2d at See also Pryor v. State, 122 Md. App. 671, 682, 716 A.2d 338, 344 (1998) (holding detention at extended beyond e period of time at it would reasonably have taken for a uniformed officer to go rough e procedure involved in issuing a citation to a motorist was unjustified and erefore unconstitutional). In sum, e officer s purpose in an ordinary traffic stop is to enforce e laws of e roadway, and ordinarily to investigate e manner of driving wi e intent to issue a citation or warning. Once e purpose of at stop has been fulfilled, e continued detention of e

16 -13- car and e occupants amounts to a second detention. See Royer, 460 U.S. at 500, 103 S. Ct. at Thus, once e underlying basis for e initial traffic stop has concluded, a police-driver encounter which implicates e Four Amendment is constitutionally permissible only if eier (1) e driver consents to e continuing intrusion or (2) e officer has, at a minimum, a reasonable, articulable suspicion at criminal activity is afoot. United States v. Sandoval, 29 F.3d 537, 540 (10 Cir. 1994). Many oer courts around e country, in addressing traffic stops under similar circumstances, have held at continued detention, absent independent justification, constitutes an illegal seizure under e Four Amendment. For example, e Supreme Court of Colorado observed: When, as here, e purpose for which e investigatory stop was instituted has been accomplished and no oer reasonable suspicion exists to support furer investigation, ere is no justification for continued detention and interrogation of citizens. People v. Redinger, 906 P.2d 81, (1995) (en banc) (footnote omitted). See United States v. Soto-Cervantes, 138 F.3d 1319, 1322 (10 Cir. 1998), cert. denied, U.S. ; 119 rd S. Ct. 131, 142 L. Ed. 2d 106 (1998); Karnes v. Skrutski, 62 F.3d 485, 491 (3 Cir. 1995); United States v. Ramos, 42 F.3d 1160, 1163 (8 Cir. 1994); United States v. Obasa, 15 F.3d 603, 607 (6 Cir. 1994); People v. Rodriguez, 945 P.2d 1351, 1360 (Colo. 1997) (en banc); Commonweal v. Torres, 674 N.E.2d 638, 642 (Mass. 1997). See also Berkemer, 468 U.S. at , 104 S. Ct. at 3150 ( [U]nless e detainee s answers provide e officer wi probable cause to arrest him, he must en be released ) (footnotes omitted)); Davis v. State,

17 S.W.2d 240, 243 (Tex. Crim. App. 1997) (en banc) ( [O]nce e reason for e stop has been satisfied, e stop may not be used as a fishing expedition for unrelated criminal activity. (quoting Ohio v. Robinette, U.S.,, 117 S. Ct. 417, 422, 136 L. Ed. 2d 347 (1996) (Robinette II) (Ginsburg, J., concurring))). Many of ese cases employing careful scrutiny if not skepticism over continued detentions in e context of traffic stops are consistent wi e admonition of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) and its progeny at a Terry stop must not only be justified at its inception, but its scope roughout must be reasonably related to e circumstances which justify e intrusion. nd United States v. Babwah, 972 F.2d 30, 33 (2 Cir. 1992). We conclude, after considering all e circumstances of e initial encounter between Trooper Smi and Petitioner, at e traffic stop essentially came to an end upon e trooper s delivery of e citation, and return of e driver s license and registration. Once Ferris signed and returned e citation in compliance wi Maryland traffic laws, Maryland Code (1977, 1999 Repl. Vol.), of e Transportation Article, he had completed all his duties pertaining to e traffic stop itself. Because e traffic stop had ended ere, Ferris was lawfully free to drive away, as Trooper Smi himself acknowledged in his own testimony. B. The more difficult question we must answer in is case is wheer Trooper Smi s questioning of Petitioner after he had issued e traffic citation and had returned e driver s

18 -15- license and registration documents constituted a detention, and hence raises any Four 4 Amendment concerns, or was merely a consensual encounter, us implicating no constitutional overview. 5 As we have indicated, e initial stop of Petitioner was a legal stop for speeding. The State postulates at Ferris was merely asked to step from e vehicle and asserts at e fact at Ferris was asked to exit e vehicle for questioning [does not] transform e encounter into a seizure. The State likewise describes e scenario immediately after Petitioner exited his car as one in which Trooper Smi was merely asking Ferris questions, which questions Ferris voluntarily answered. It is in is way at e State attempts to characterize e encounter as completely consensual and us not subject to Four 4 A consensual encounter has been defined as simply e voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement official. Because an individual is free to leave at any time during such an encounter, he is not seized wiin e meaning of e four amendment. United States v. Werking, 915 F.2d 1404, 1408 (10 Cir. 1990). See also United States v. Johnson, 910 F.2d 1506, 1508 (7 Cir. 1990). 5 The Supreme Court of Pennsylvania recently observed at Four Amendment jurisprudence sets out ree tiers of interaction between a citizen and e police. See Com. v. Sierra, 723 A.2d 644 (Pa. 1999). The first is a mere encounter, which need not be supported by any suspicion, and carries no official compulsion to stop or respond; e second, an investigative detention, which must be supported by reasonable suspicion and subjects a person to a stop and a period of detention not amounting to an arrest; and ird, an arrest, which must be supported by probable cause. Id. at 646 n. 3. See also United States v. Johnson, 910 F.2d 1506, 1508 (7 Cir. 1990); United States v. Espinosa-Guerra, 805 F.2d 1502, 1506 (11 Cir. 1986).

19 -16- Amendment scrutiny. Petitioner contends at e trooper s request at he move to e rear of e Camry and subsequent actions after e completion of e traffic stop constituted a seizure and was not a consensual encounter. We agree wi Petitioner. Mere police questioning does not constitute a seizure. Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991) (noting at a seizure does not occur simply because a police officer approaches an individual and asks a few questions); see also Royer, 460 U.S. at 498, 103 S. Ct. at 1324 (stating at [i]f ere is no detention no seizure wiin e meaning of e Four Amendment en no constitutional rights have been infringed ). This is so even if e police lack any suspicion, reasonable or oerwise, at an individual has committed a crime or is involved in criminal activity, because e Four Amendment simply does not apply. Bostick, 501 U.S. at , 111 S. Ct. at 2386; Immigration & Naturalization Service v. Delgado, 466 U.S. 210, , 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247 (1984); see also California v. Hodari D., 499 U.S. 621, 628, 111 S. Ct. 1547, 1552, 113 L. Ed. 2d 690 (1991) (No seizure occurs where a reasonable person would feel free to disregard e police and go about his business ). If e engagement between e Petitioner and e officer was merely a consensual encounter, no privacy interests were invaded and us e Four Amendment is not implicated. Even when e officers have no basis for suspecting criminal involvement, ey may generally ask questions of an individual so long as e police do not convey a message at compliance wi eir request is required. Bostick, 501 U.S. at , 111 S. Ct. at If e police, in some way, communicate to a reasonable person at he or she was not free to ignore e

20 -17- police presence and go about eir business, en e Four Amendment is implicated. Id. at 437, 111 S. Ct. at The test to determine wheer a particular encounter constitutes a seizure, or wheer e encounter was simply a consensual non-constitutional event is wheer a reasonable person would have felt free to leave. Mendenhall, 446 U.S. at 554, 100 S. Ct. at See also Delgado, 466 U.S. at 215, 104 S. Ct. at 1762; Royer, 460 U.S. at 502, 103 S. Ct. at A seizure can occur by means of physical force, or show of auority along wi submission to e assertion of auority. Hodari D., 499 U.S. at , 111 S. Ct. at 1550 (noting at police officers could affect a seizure of a person by eier physical force or by a show of auority along wi submission to e assertion of auority); see Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S. Ct. 1868, 1879 n. 16, 20 L. Ed. 2d 889 (1968) ( Only when e officer, by means of physical force or show of auority, has in some way restrained e liberty of a citizen may we conclude at a seizure has occurred. ). If a reasonable person would have felt free to leave, no seizure occurred. Conversely, if a reasonable person would have felt compelled to stay, a seizure took place. The focus, en, is wheer a reasonable person would feel free to decline e officers requests or oerwise terminate e encounter. Bostick, 501 U.S. at 436, 111 S. Ct. at The key inquiry has also been characterized as wheer e police conduct would have communicated to a reasonable person at he was not at liberty to ignore e police presence and go about his business. Id. at 437, 111 S. Ct. at 2387 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S. Ct. 1975, 1977, 100 L. Ed. 2d 565 (1988)).

21 -18- In making is determination, a court must apply e totality-of-e circumstances approach, wi no single factor dictating wheer a seizure has occurred. Bostick, 501 U.S. at 437, 111 S. Ct. at 2387; Mendenhall, 446 U.S. at 554, 100 S. Ct. at In e context of a traffic stop, where e purpose for e stop has been completed, e question becomes: Does e individual have an objective reason to believe at he or she was free to end e conversation or encounter wi e officer and to proceed on his or her business? The first question we must answer is wheer e circumstances surrounding Ferris s questioning following e conclusion of his traffic stop communicated to a reasonable person at he was not free to disregard e police presence and go about his business. Chesternut, 486 U.S. at 578, 108 S. Ct. at As e Supreme Court has acknowledged, ere is no litmus-paper test for distinguishing a consensual encounter from a seizure.... Royer, 460 U.S. at 506, 103 S. Ct. at The Supreme Court has also observed: The test is necessarily imprecise, because it is designed to assess e coercive effect of police conduct, taken as a whole, raer an to focus on particular details of at conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude at he is not free to leave will vary, not only wi e particular police conduct at issue, but also wi e setting in which e conduct occurs. Chesternut, 486 U.S. at 574, 108 S. Ct. at Furermore, e Supreme Court has explained at e test for e existence of a show of auority is an objective one: not wheer e citizen perceived at he was being ordered to restrict his movement[s] but wheer e officer s words and actions would have conveyed at to a reasonable person. Hodari D., 499 U.S. at 628, 111 S. Ct. at 1551.

22 -19- Alough e inquiry is a highly fact-specific one, courts have identified certain factors as probative of wheer a reasonable person would have felt free to leave. See, e.g, United States v. McCarur, 6 F.3d 1270, (7 Cir. 1993); United States v. Gray, 883 F.2d 320, 322 (4 Cir. 1989). These factors include: e time and place of e encounter, e number of officers present and wheer ey were uniformed, wheer e police removed e person to a different location or isolated him or her from oers, wheer e person was informed at he or she was free to leave, wheer e police indicated at e person was suspected of a crime, wheer e police retained e person s documents, and wheer e police exhibited reatening behavior or physical contact at would suggest to a reasonable person at he or she was not free to leave. Based on e totality of e circumstances in is case, we hold at a reasonable person in Ferris s position would not have believed at he was free to terminate e encounter wi Trooper Smi when e trooper asked him if he would mind stepping to e back of his vehicle. In order to determine wheer a reasonable person would have felt free to disregard e police and go about his business, see Chesternut, 486 U.S. at 578, 108 S. Ct. at 1981, it is necessary to focus on what e person s immediate business was; only en may we determine if e police questioning and conduct at issue would likely have impeded at person s freedom to proceed wi such business. See Bostick, 501 U.S. 434, 111 S. Ct. at 2386; Delgado, 466 U.S. at 218, 104 S. Ct. at Ferris s immediate business was to be on his way and to continue his journey along Interstate 70. For e reasons we shall explain, we find e totality of e circumstances present in is case, at e

23 -20- moment Trooper Smi prolonged e encounter beyond e scope of e initial traffic stop, to be more coercive an consensual. We us conclude at a reasonable person in Ferris s circumstances would have reasonably believed he was neier free to leave e scene nor to ignore and disobey e police officer s requests. A host of factors gives rise to our determination at Trooper Smi s prolonged encounter wi Ferris was a seizure under e Four Amendment. First and foremost is e prior existence of e initial traffic seizure of Ferris. This pre-existing seizure enhanced e coercive nature of e situation and e efficacy of e oer factors in pointing toward e restriction of Ferris s liberty. See George M. Dery III, When Will This Traffic Stop End? : The United States Supreme Court s Dodge of Every Detained Motorist s Central Concern Ohio v. Robinette, 25 FLA. ST. U. L. REV. 519, 555 (1998). The situation faced by Ferris was markedly different from at of a person passing by or approached by law enforcement officers on e street, in a public place, or inside e terminal of a common carrier. We find significant e following circumstances: e trooper never told Ferris he 6 was free to leave, e trooper s request of Ferris to exit e vehicle seamlessly followed 6 Trooper Smi was asked on cross-examination, And what was e next ing at you did after e citation was issued? He responded: I asked him if he would mind stepping to e back of his vehicle to answer some questions. The Supreme Court of Ohio, on remand, in State v. Robinette, 685 N.E.2d 762 (Ohio 1997) (Robinette III), reiterated e observation of e majority in State v. Robinette, 653 N.E.2d 695 (Ohio 1995) (Robinette I), rev d, U.S., 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) (Robinette II): The transition between detention and a consensual exchange can be so seamless at e untrained eye may not notice at it (continued...)

24 -21- e pre-existing lawful detention, e trooper removed Ferris from his automobile, e trooper separated Ferris from e passenger, ere were two uniformed law enforcement officers present, e police cruiser emergency flashers remained operative roughout e entire encounter, and it was 1:30 a.m. on a dark, rural interstate highway. Given e cumulative effect of ese circumstances, a reasonable person would not have felt free to terminate e encounter. The pre-existing detention of Ferris, properly sustained by e probable cause for e speeding violation, combined wi e oer factors we have identified, leads to e conclusion at a reasonable person in Ferris s position would believe at continued submission to Trooper Smi was required. Alough in is case Trooper Smi returned Ferris s driver s license and registration, at fact alone is not dispositive of wheer e trooper s conduct was coercive. The moment at which a traffic stop concludes is often a difficult legal question, not readily discernible by a layperson. It is not sound to categorically impute to all drivers e constructive knowledge as to e precise moment at which, objectively, an initially lawful traffic stop terminates, i.e., e time at which e driver may depart. The trooper s immediate transition into e inquiry was so seamless at a 6 (...continued) has occurred. The undetectability of at transition may be used by police officers to coerce citizens into answering questions at ey need not answer, or to allow a search of a vehicle at ey are not legally obligated to allow. Robinette III, 685 N.E.2d at (quoting Robinette I, 653 N.E.2d at 698 (emphases added)).

25 -22- reasonable motorist would not have believed at e initial, valid seizure had concluded. See State v. Robinette, 685 N.E.2d 762, 770 (Ohio 1997) (Robinette III); Royer, 460 U.S. at , 103 S Ct. at 1327; Christo Lassiter, Eliminating Consent from e Lexicon of Traffic Stop Interrogations, 27 CAP. U. L. REV. 79, 90, 102 (1998). Second, following e conclusion of e underlying traffic stop, Trooper Smi never informed Ferris at he was free to depart. We recognize at e police are not required to inform citizens at ey are free to leave before getting consent to search a motor vehicle. In Ohio v. Robinette, U.S., 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) (Robinette II), e Supreme Court rejected a per se constitutional requirement at a lawfully seized defendant must be advised at he is free to go before his consent to search will be recognized as voluntary. Id. at, 117 S. Ct. at 419. Noneeless, e Court reiterated at knowledge of e right to refuse consent is one factor to be taken into account in determining e voluntariness, and us constitutional validity of a defendant s purported consent. Id. at, 117 S. Ct. at 421 (quoting Schnecklo v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854 (1973)). Consequently, an officer s failure to advise a motorist at 7 he or she could refuse, or was free to leave, remains a factor to be considered. See id. at, 117 S. Ct. at 421. As Justice Stewart s opinion for e majority in Mendenhall recognized: 7 We emphasize at under e totality of e circumstances analysis, e failure to advise motorists at ey are free to leave does not by itself determine wheer a seizure has occurred.

26 -23- [I]t is especially significant at [Mendenhall] was twice expressly told at she was free to decline to consent to e search, and only ereafter explicitly consented to it. Alough e Constitution does not require proof of knowledge of a right to refuse as e sine qua non of an effective consent to a search, such knowledge was highly relevant to e determination at ere had been consent. And, perhaps more important for present purposes, e fact at e officers emselves informed [Mendenhall] at she was free to wihold her consent substantially lessened e probability at eir conduct could reasonably have appeared to her to be coercive. Id. at , 100 S. Ct. at 1879 (internal quotation marks and citation omitted) (emphasis added). Oer Courts similarly have recognized at e failure by law enforcement to inform a citizen at he or she is free to terminate e encounter is a significant factor suggesting a continued seizure under e Four Amendment. See, e.g., United States v. Washington, 151 F.3d 1354, 1357 (11 Cir. 1998) ( Absent some positive indication at ey were free not to cooperate, it is doubtful a passenger would ink he or she had e choice to ignore e nd police presence. ); United States v. Glover, 957 F.2d 1004, 1009 (2 Cir. 1992); Buffkins v. City of Omaha, 922 F.2d 465, 469 (8 Cir. 1990); United States v. Hill, 626 F.2d 429, (5 Cir. 1980); Guadalupe v. United States, 585 A.2d 1348, 1359 & n. 22 (D.C. 1991); State v. Dezso, 512 N.W.2d 877, 881 (Minn. 1994). Hence, while under Robinette II, U.S., 117 S. Ct. 417, Trooper Smi was not obligated by e United States

27 -24- Constitution to advise Ferris at he was free to go, noneeless he ran e risk at his not doing so might imperil e constitutional validity of any furer investigation. 8 8 In State v. Robinette, 685 N.E.2d 762 (Ohio 1997) (Robinette III), e Ohio Supreme Court made clear at alough a police officer is not required to inform a citizen at he or she is free to leave following e completion of an ordinary traffic stop, [i]f police wish to pursue a policy of searching vehicles wiout probable cause or reasonably articulable facts, e police should ensure at e detainee knows at he or she is free to refuse consent despite e officer s request to search or risk at any fruits of any such search might be suppressed. While we are not mandating any bright-line test or magic words, when a police officer informs a detainee at he or she does not have to answer furer questions and is free to leave, at action would weigh persuasively in favor of e voluntariness of e consent to search. As noted in e amicus brief of Americans for Effective Law Enforcement filed wi e United States Supreme Court: Such a warning may be good police practice, and indeed amicus knows at many law enforcement agencies among our constituents have routinely incorporated a warning into eir Four Amendment consent forms at ey use in e field, but [it] is precisely at--a practice and not a constitutional imperative. An officer who includes such a warning in his request for consent undoubtedly presents a stronger case for a finding of voluntariness in a suppression hearing, and we would suggest at such agencies and officers do oerwise. We know, too, at instructors in many police training programs of leading universities and management institutes routinely recommend such warnings as a sound practice, likely to bolster e voluntariness of a consent to search. [We ourselves] conduct [ ] law enforcement training programs at e national level and many of our own speakers have made is very point. Id. at 771 n. 6.

28 -25- Many courts and commentators have expressed notions similar to e Supreme Court s acknowledgment at few motorists would feel free... to leave e scene of a traffic stop wiout being told ey might do so. Berkemer, 468 U.S. at 436, 104 S. Ct. at For instance, e Supreme Court of Colorado has observed: Since most of ose factors [differentiating an investigatory stop from a consensual encounter] are generally present during a traffic stop, e driver of a stopped vehicle erefore is not likely to feel free to terminate e police encounter. [I]t strains credulity to imagine at any citizen, directly on e heels of having been pulled over to e side of e road by armed and uniformed police officers in marked patrol cars, would ever feel free to leave or at liberty to ignore e police presence and go about his business[.] State v. Reerford, 93 Ohio App.3d 586, 639 N.E.2d 498, 507 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389 (1991)). People v. In Interest of H. J., 931 P.2d 1177, 1181 (1997) (en banc) (alterations in original). Professor LaFave similarly emphasized is point: Given e fact at [e driver] quite clearly had been seized when his car was pulled over, e return of [his] credentials hardly manifests a change in status when it was immediately followed by interrogation concerning oer criminal activity. 3 W. R. LAFAVE, SEARCH AND SEIZURE, A TREATISE ON THE FOURTH AMENDMENT, 9.3(a) at 112 (2d ed.1987) (footnote omitted) (emphasis added). Accord People v. Valenzuela, 33 Cal. Rptr. 2d 802, (Cal. Ct. App. 1994); Commonweal v. Torres, 674 N.E.2d 638, 642 (Mass. 1997).

29 -26- Third, Trooper Smi affirmatively sought to move Ferris from e relative comfort of his vehicle to a more coercive atmosphere between e Camry and e two patrol cars. 9 See Dery, supra, at 556 (Having e driver exit his vehicle... shifts control away from e driver to e officer. No longer could [e driver] simply turn e ignition key and drive away. Instead, in order to leave, he had to affirmatively reverse an action previously requested by e officer he had to get back into his car. ) (footnotes omitted). As e United States Court of Appeals for e Fif Circuit reasoned, a request at an individual move in some manner has been consistently regarded by is Court as persuasive evidence at a four amendment seizure has occurred. United States v. Gonzales, 842 F.2d 748, 752 (5 Cir. 1988), overruled on oer grounds, United States v. Hurtado, 905 F.2d 74 (5 Cir. 1990) (en banc). Cf. United States v. Bloomfield, 40 F.3d 910, 917 (8 Cir. 1994) (noting at transporting a suspect to anoer location... can create an arrest. ). The record does not support a finding at any legitimate law enforcement purpose which justified e initial detention was furered by e removal of Ferris from his automobile. See Royer, 460 U.S. at 505, 103 S. Ct. at 1328 ( The record does not reflect any facts which would support a finding at e legitimate law enforcement purposes which justified e 9 We note at ordinarily a police officer may order someone out of a car when incident to a traffic stop. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). The State does not attempt to justify e removal of Ferris from his auto on e basis of Mimms and instead relies on eier reasonable, articulable suspicion or consent. Indeed, in e instant case, e purpose of e stop had been completed and e rationale of Mimms is inapplicable.

30 -27- detention in e first instance were furered by removing Royer to e police room prior to e officer s attempt to gain his consent to a search of his luggage. ). Four, e presence of two uniformed law enforcement officers increased e coerciveness of e encounter. Not only had e second officer, Deputy Martin, been present for several minutes before Trooper Smi ended e traffic stop but e record also indicates at e deputy had positioned himself at e passenger side of e car when Trooper Smi asked Ferris to exit e Camry. Moreover, e flashers of e deputy s patrol car were activated as, it is fair to infer, were e emergency lights of Trooper Smi s police cruiser. Finally, we note e geographic and temporal environment of e encounter: late at night on e side of a presumably desolate, rural interstate highway. The time and location of e encounter would have been unsettling to a reasonable person in Ferris s position. Consequently, e physical environment of e encounter between Trooper Smi and Ferris heightened e coerciveness of e encounter. We emphasize at, alough, standing alone, no single circumstance would have transformed e encounter into a Four Amendment seizure, e collective coerciveness of e totality of ose circumstances rose to e level of a show of auority such at a reasonable person in Ferris s position would not have felt free to terminate e encounter wi Trooper Smi at e moment e trooper asked him if he would mind stepping to e back of his vehicle. Accordingly, we hold at Trooper Smi, having lawfully detained Ferris pursuant to a valid traffic stop, seized him wiin e meaning of e Four Amendment when, immediately after completing e traffic stop, he asked Ferris to get out

31 -28- of his car and began to question him about possible criminal activity unrelated to at which gave rise to e initial, completed traffic stop. In short, e Petitioner was seized, for a second time, when he was asked to exit his car. III. Because Trooper Smi s furer detention of Ferris exceeded e scope of e traffic stop s underlying justification and constituted a second seizure, in order to be lawful, e continued detention or second stop must be supported by reasonable, articulable suspicion. The United States Constitution requires at e police officer must be able to point to specific and articulable facts which, taken togeer wi rational inferences from ose facts, reasonably warrant at intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968) (footnote omitted). Once Ferris was seized, e reasonableness of any intrusion is measured against an objective standard: wheer a reasonably prudent person in e officer s position would have been warranted in believing at Ferris was involved in criminal activity at was afoot. Derricott v. State, 327 Md. 582, 588, 611 A.2d 592, 595 (1992); see Graham v. State, 325 Md. 398, 407, 601 A.2d 131, 135 (1992); State v. Lemmon, 318 Md. 365, 376, 568 A.2d 48, 52 (1990). Due weight must be given not to [an officer s] inchoate and unparticularized suspicion or hunch, but to e specific reasonable inferences which he is entitled to draw from e facts in light of his