May 15, 1997|By MICHAEL OLESKER
Those wondering about the self-conscious and sometimes lunatic agonizing that goes on in the various courts of Maryland, while the criminal class takes over entire neighborhoods, may go back to May 22, 1994, in West Baltimore, to a routine case that, three years later, has not yet fully played itself out.
On a police radio broadcast that day, Officer Sean White hears of drug dealers gathered at the corner of Mount and Presstman streets, and hears a dispatcher's description of a young man in a striped shirt who has fired a gun.
White, arriving in his police car, sees five men. None wears a striped shirt, but one man slips an object into the back waistband of his pants. To White, it looks like a gun. The man spots White and runs into nearby Mountmor Court, where White catches up to him.
The man's name is William L. Smith. He's already a three-time loser on robbery charges, plus a nasty juvenile record, though White knows none of this at the time.
White frisks Smith. The frisk includes a pat-down of White's waistband area. He feels nothing. Then, not wishing to walk away and risk the consequences of naivete, White pulls Smith's shirt out to see the waistband.
Some time later, in Baltimore Circuit Court, White will tell Judge John N. Prevas, "I approached him from the front for my safety. I asked him to place his hands up where I could see them. I I did a stop-and-frisk pat-down for my safety in the back of his waist area where I had seen him place an object. At that time I pulled out his shirt to check under it, at which time the object fell to the ground."
The object that fell to the ground was a plastic bag, and in the bag was cocaine.
Unfair, the defendant Smith told Judge Prevas. He claimed White had no reasonable cause to detain and frisk him. Prevas said, lame argument. He declared Smith guilty of possession with intent to distribute cocaine.
But the legal agonizing has now only begun. Smith takes his case to a higher court. He tells the Maryland Court of Special Appeals that Judge Prevas erred, that Officer White had no right to stop him on the street and frisk him.
And here, in a week in which we bury a veteran cop named Owen Sweeney Jr., we begin to see the splitting of hairs sometimes conducted by our great legal minds, which fails to connect with actual life.
"White," the Court of Special Appeals decides, "was within the bounds of a proper I frisk when he patted down the outer portion of the clothing that covered [Smith's] waist area. But White went one step further. He pulled back [Smith's] shirt. The state produced no evidence to show that, at the moment in time when White took this additional step, he continued to have reason to believe that [Smith] had a handgun in his waistband."
The court, sitting in the security of a brick building where reality fails to intrude, thus reverses Smith's conviction. Reverses it, citing the Fourth Amendment's guarantee against "unreasonable" search and seizure. Reverses it, citing Terry vs. Ohio, in which the U.S. Supreme Court confronted that tension between an individual's right to privacy and a police officer's need for self-protection. Reverses it, declaring White had no "reasonable, articulable suspicion that the individual is armed and dangerous."
This, despite the police radio dispatch that May morning reporting that a gun has been fired. This, despite White's belief that he's seen his man stick a gun into his waistband. This, despite the veteran officer's knowledge of Mount and Presstman as a rough area, and the reasonable belief that he shouldn't turn carelessly from a suspect.
The case goes to the Maryland Court of Appeals - to determine how far a cop can go when frisking for concealed weapons during the "noncustodial detention of an individual suspected of being armed and dangerous."
Judge Howard Chasanow writes: "If a pat-down reveals no weaponlike objects I the risk of harm to the officer is no longer of sufficient magnitude to outweigh the individual's competing interest in personal security, and the police officer may not further intrude upon the suspect. I When Officer White failed to detect a weaponlike object, his frisk of Smith should have ceased."
To this, Judge Irma Raker responded: "The authority of the police officer to protect himself from harm from an individual that he reasonably believes is armed is not so limited. Simply because the officer did not detect a weapon during a 'cursory' pat-down does not inevitably lead to the conclusion that the officer had no further reason to suspect that the appellant was armed."
If such an explanation of real life sounds pretty obvious, it was not. In a ruling filed last month, the Court of Appeals voted 4-3 that Officer White had overstepped his bounds. Unreality rules the day.
Yesterday, Maryland's attorney general filed a motion for reconsideration. Depending on the Court of Appeals' reaction, said Mary Ellen Barbera, deputy chief of the attorney general's criminal appeals division, her office might ask the U.S. Supreme Court to review the case.
And, three years after the fact, this tiny piece of business out of West Baltimore has not yet fully played itself out.
Pub Date: 5/15/97
