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Aug. 29 — Police who stopped a car for a busted tail light and issued a written warning violated a passenger's rights when they ordered him out of the car and frisked him for weapons after the driver consented to a search of the vehicle, a divided Maryland Court of Appeals ruled Aug. 24 ( Sellman v. State, 2016 BL 274588, Md., No. 84, 8/24/16 ).
The decision clarifies that a Terry frisk must always be tethered to a legitimate concern for officer safety and can't be justified by a department policy authorizing pat-downs of all passengers every time a motorist consents to a search.
The court said it didn't dispute that it might be reasonable to order everyone out of a vehicle if the driver consents to a search of the vehicle.
“However, where reasonable suspicion that the occupant(s) is armed and dangerous is absent, the frisk of an occupant is an unreasonable intrusion on Fourth Amendment protections,” Judge Clayton Greene Jr. wrote.
The state argued that the police had good reason to frisk Donzel Sellman because the car was stopped late at night exiting an apartment complex in a high crime area where there had been thefts from parked vehicles and because the passengers were nervous and gave inconsistent statements about who lived in the complex.
But the court said these generalized concerns didn't add up to reasonable suspicion.
“The officers did not observe furtive gestures, evasive maneuvers, bulges, bags or containers, or any instruments associated with the suspected crime of theft, i.e., theft of property from cars,” the court said.
Chief Judge Mary Ellen Barbera and Judges Sally D. Adkins, Robert N. McDonald and Alan M. Wilner also sat on the case.
Judge Shirley Marie Watts wrote a dissent, joined by Judge Lynne A. Battaglia, arguing that there was enough suspicion of criminal activity to defer to the lower court's ruling that the frisk was justified.
The Maryland Office of the Public Defender represented Sellman. The Maryland Attorney General's Office represented the state.
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