Court says police must halt frisking when search for weapons is fruitless

April 16, 1997|By Dennis O'Brien | Dennis O'Brien,SUN STAFF

Police may frisk a suspect for weapons but may go no further if they come up empty-handed, Maryland's highest court ruled yesterday.

By a 4-3 vote, the Court of Appeals ruled that Baltimore police Officer Sean White went too far when he lifted a suspect's shirt out of his waistband after frisking him for weapons and that the cocaine that fell to the ground could not be used as evidence.

"When Officer White failed to detect a weapon-like object, his frisk should have ceased," Judge Howard S. Chasanow wrote in a 13-page ruling.

The decision, which reversed the 1994 conviction of William L. Smith for possession with intent to distribute cocaine, was described as a blow to police and to public safety.

"I just think it'll tie our hands somewhat and make our job a little harder," said Officer Gary McLhinney, president of the Baltimore chapter of the Fraternal Order of Police.

Assistant Public Defender Bradford C. Peabody, Smith's lawyer, said the ruling is consistent with a series of decisions that go back to 1968, when the Supreme Court gave police the authority to stop and frisk those suspected of being armed.

But Assistant Attorney General Gary E. Bair, chief of the criminal appeals division, said his office is considering asking the Supreme Court to review the case.

"It goes back to the whole issue of officer safety and how careful police officers have to be to make sure the person they're dealing with isn't armed," Bair said. "It's an issue that the Supreme Court hasn't really spoken on very much in recent years."

White, who was assigned to the Western District, was called to Mount and Presstman streets about 11 p.m. May 22, 1994, because of reports of shots being fired and drug activity.

White testified at Smith's trial that he thought he saw Smith stick a handgun into his waistband as he fled. But White admitted that he found no "weapon-like objects" when he caught Smith and frisked him.

The ruling yesterday affirmed a 1995 decision by the Court of Special Appeals, which held that once White patted down Smith and determined he had no weapons, the search should have ended.

"In verifying the results of the pat-down by a more intrusive search, Officer White exceeded the lawful bounds," the majority said.

Judge Irma S. Raker, however, wrote that the officer's actions were reasonable, given that he was investigating a report of shots being fired and drug activity.

Pub Date: 4/16/97

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