REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 0784

September Term, 2016

STATE OF MARYLAND

v. 

JAMAL RASHEED SIZER

Graeff,

Leahy,

Moylan, Charles E., Jr.

 (Senior Judge, Specially Assigned),

JJ.

Opinion by Moylan, J.

Concurring Opinion by Graeff, J.

Filed: November 29, 2016
1

The wisdom undergirding this State appeal emanates from the twenty-eighth chapter 

of the Book of Proverbs, Verse 1: 

“The wicked flee when no man pursueth;

but the righteous are bold as a lion.”

And the Book of Proverbs begat Terry v. Ohio. And Terry v. Ohio begat the 

indictment of the appellee, Jamal Rasheed Sizer, by the Grand Jury for Howard County. 

When the appellee fled, Officer Andrew Schlossnagle pursued, leading to the appellee’s 

being charged with the unlawful possession of a firearm with a nexus to drug trafficking. 

On December 4, 2015, the appellee filed a pre-trial motion to suppress evidence taken from 

his person, alleging a Fourth Amendment violation. A hearing was held on that motion on 

May 26, 2016, at the close of which the motion was granted. 

The State Appeal

The State filed a timely appeal on June 3, 2016. The appeal is authorized by 

Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(4). Pertinent are

subsections (c)(4)(iii) and (iv): 

“(iii) Before taking the appeal, the State shall certify to the court that 

the appeal is not taken for purposes of delay and that the evidence excluded 

or the property required to be returned is substantial proof of a material fact 

in the proceeding. The appeal shall be heard and the decision rendered within 

120 days of the time that the record on appeal is filed in the appellate court. 

Otherwise, the decision of the trial court shall be final. 

“(iv) Except in a homicide case, if the State appeals on the basis of 

this paragraph, and if on final appeal the decision of the trial court is affirmed, 

the charges against the defendant shall be dismissed in the case from which 

the appeal was taken. In that case, the State may not prosecute the defendant 

on those specific charges or on any other related charges arising out of the 

same incident.” 
2

(Emphasis supplied). 

The record was filed with this Court on August 3, 2016. Accordingly, our decision 

must be rendered no later than December 1, 2016. We heard oral argument on November 

2, 2016. 

Standard of Appellate Review

In Longshore v. State, 399 Md. 486, 498-99, 924 A.2d 1129 (2007), the Court of 

Appeals summarized definitively the standards governing the appellate review of a 

decision to suppress evidence. That standard first delineates the evidence and argument 

subject to review: 

“When an appellate court reviews a trial court’s grant or denial of a 

motion to suppress evidence under the Fourth Amendment, it will consider 

only the facts and information contained in the record of the suppression 

hearing.” 

399 Md. at 498. (Emphasis supplied). That limitation is easy to adhere to in the present 

case, because there is nothing else to consider. 

The standard then makes clear the deference the appellate court will extend to the 

fact-finding of the hearing judge: 

“Moreover, when there is a conflict in the evidence, an appellate court will 

give great deference to a hearing judge’s determination and weighing of firstlevel findings of fact. It will not disturb either the determinations or the 

weight given to them, unless they are shown to be clearly erroneous.” 

Id. (Emphasis supplied). In this case, the hearing judge made extensive findings of fact, 

which we will recount in full detail. 
3

The standard also states that when there is a conflict between the respective versions 

of the evidence presented by the State and by the defense, the tilt on appellate review will 

go decisively in favor of the prevailing party: 

“An appellate court further will view the evidence and all reasonable 

inferences drawn from that evidence in the light most favorable to the party 

prevailing on the motion[.]”

Id.

In this case, the prevailing party was the appellee. In any conflict between 

competing versions of the evidence, therefore, it would be the appellee’s version that we 

will accept as historic fact. In this particular case, however, that potentially favorable tilt is 

for the appellee an essentially empty victory. He has offered no significant1alternative 

version of the evidence toward which we might tilt. He did not testify. He essentially 

presented no evidence on his own behalf. His counsel, before the hearing judge, did not 

even argue any contrary interpretation of the evidence. The State’s evidence was 

effectively unchallenged.

Once the evidence has been presented, however, and once the hearing judge has 

made possible findings of fact, there remains the ultimate issue of determining the legal 

significance of the accepted facts. On this legal issue, the appellate court will make its own 

de novo determination: 

 

1 On a peripheral issue not critical to the State’s case, there was a slight ambiguity in the 

testimony of Officer Schlossnagle. Did the appellee’s declaration, “I have a pistol” occur 

an instant before the officer touched the appellee or was it contemporaneous with the 

touching? We will resolve that ambiguity in favor of the appellee, who was the prevailing 

party at the suppression hearing.
4

“An appellate court, however, under an independent de novo review 

standard, must consider the application of the law to those facts in 

determining whether the evidence at issue was obtained in violation of the 

law, and, accordingly, should be suppressed.” 

399 Md. at 499. See also, State v. Nieves, 383 Md. 573, 581-82, 861 A.2d 62 (2004); Laney 

v. State, 379 Md. 522, 533-34, 842 A.2d 773 (2004); Dashiell v. State, 374 Md. 85, 93-94, 

821 A.2d 372 (2003); Stokeling v. State, 189 Md. App. 653, 661-62, 985 A.2d 175, cert. 

denied, 414 Md. 332, 995 A.2d 297 (2010).2 We will announce our de novo determination 

infra. 

The Initial Encounter

Officer Andrew Schlossnagel and Corporal James Zammillo testified for the State. 

Officer Ronald Baker was briefly called by the appellee, but his testimony coincided 100% 

with that of the other officers. There were no other witnesses. With respect to their

testimony, the hearing judge made the following assessment of their credibility:

“The police testified today without embellishment. The Court found them to 

be truthful and credible.”

(Emphasis supplied). 

On the afternoon of November 20, 2015, at approximately 5:30 p.m., the three 

testifying officers, along with two other officers, were on bike patrol near the Owen Brown 

Village Center. They were all members of the Pathway Patrol Unit, informally known as 

the Bike Unit. The officers described the general character and reputation of the area. They 

 

2 For a final fine-tuning of the standard, see Morris v. State, 153 Md. App. 480, 487-90, 

837 A.2d 248, cert. denied, 380 Md. 618, 846 A.2d 402 (2004); Charity v. State, 132 Md. 

App. 598, 606, 753 A.2d 556, cert. denied, 360 Md. 487, 759 A.2d 231 (2000).
5

referred to the Owen Brown Village Center and its surrounding footpaths as a “high crime 

area.” Corporal Zammillo, the supervisor of the Pathway Patrol Unit, testified that the 

Owen Brown Village area is such a high crime area that a police satellite office was 

established nearby to keep close control of it. The witnesses recounted how, on the night 

before November 20, there had been reports of a person brandishing a handgun on the 

footpaths around the Village Center. Because of such criminal activity, the officers had 

been asked by local business owners to increase their presence in the area. With respect to 

the responsibilities of the bike patrol and with respect to the characterization of the 

neighborhood as a “high crime area,” the hearing judge made the following specific 

findings of fact.

“[T]heir duty is to patrol the pathways of Columbia to ensure safety of the 

public. That the night before, 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. There had been 

a number of robberies, and the police had certainly this mind-set and were 

certainly doing what they were supposed to be doing, that is, patrolling the 

area.” 

(Emphasis supplied). 

At 5:30 p.m. in November, the parking lot area was largely dark. The approaching 

officers observed between five and seven persons standing around a mini-van in the 

parking lot. The group was loud and appeared to be “passing an alcoholic beverage back 

and forth.” One unidentified member of the group threw a glass bottle on the ground. 

Officer Baker, moreover, recognized one member of the group, a Joseph Davis, as a “repeat 

offender” who was banned from the Village Center. The hearing judge made specific 
6

factfindings with respect to the police observations of the group milling about the minivan. 

“They’re in a darker, less lit area. They see this group of individuals which 

includes the Defendant, Mr. Sizer. That the group appears to be loitering; that 

the group appears to be drinking alcohol, open containers, and that somebody 

of 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. They were in uniform. On their bright-blue jackets are their respective 

names and the word “Police,” and they verbally identified themselves as 

police. While they themselves had been in a darker area, the testimony was 

that there was sufficient lighting in the parking lot area to see the group.” 

(Emphasis supplied). 

Unprovoked Flight

As the group of officers approached the group of civilians, they announced their 

official presence by saying, “Police. Stop. Don’t run.” They were in uniform, bright-blue 

jackets with the word “Police” in prominent letters. At that point, the appellee “turned and 

immediately began sprinting away.” Officer Schlossnagle along with Officer Burris took 

off in immediate pursuit, repeatedly giving “multiple commands to stop running.” Because 

Officers Schlossnagel and Burris were on bikes and the appellee was on foot, the pursuit 

was brief. As the two officers caught up with the appellee and were about to “take him 

down,” the appellee threw up his hands and yelled, “Okay, I have a pistol. I have a pistol.” 

The officers wrestled the appellee to the ground and started to place him in handcuffs. 

The Arrest as a Superseding Rationale

It was at that point, seconds after Officer Schlossnagle first caught the appellee and 

while Officer Schlossnagle and Officer Burris were still attempting to handcuff him, that 

Corporal Zammillo arrived on the scene. As the supervisor of the unit, Corporal Zammillo 
7

had seen the two officers begin the chase and he, on bike, set off only seconds behind them. 

Corporal Zammillo immediately recognized the appellee as someone with whom he had 

had multiple prior interactions. Of critical importance, Corporal Zammillo also knew, from 

his check of the Police Department’s Records Management System, that the appellee had 

an active arrest warrant issued by the Howard County Sheriff’s Department. Corporal 

Zammillo knew the appellee by face and name. Knowing well many of the characters in a 

particular high crime area, Corporal Zammillo explained that, each day just before setting 

out with his unit to patrol a particular area, he would look over the list for those with 

outstanding warrants for their arrest. The appellee had outstanding arrest warrants for both 

the distribution of marijuana and for the violation of probation. 

Corporal Zammillo arrived on the “take down” scene just as Officers Schlossnagle 

and Burris were wrestling the appellee to the ground and were in the process of handcuffing 

him. Corporal Zammillo informed the appellee that there was an outstanding warrant for 

his arrest and arrested him. As of the moment of that arrest, a fresh and superseding Fourth 

Amendment rationale took control of the case, and the propriety vel non of the preceding 

Terry stop became immaterial with respect to events that followed. As he was being 

arrested, the appellee announced to the officers, “I have a piece and pills on me.”

The Frisk and the Search Incident

During his brief flight, the appellee had been wearing a backpack. As he fell to the 

ground, the backpack fell with him. As soon as the handcuffs were on the appellee, the 

officers looked in the backpack and immediately observed a .38 caliber revolver, along 
8

with the appellee’s I.D. Because a potentially hostile crowd was gathering, the officers 

immediately took the appellee and his backpack and adjourned to the nearby police satellite 

office. 

At the satellite office, the officers removed from the backpack the .38 caliber 

revolver, loaded with five rounds of ammunition. Also recovered were four additional 

rounds of ammunition. A further search at the satellite office produced from the appellee’s 

sock a baggie containing 27 pills. At that point, it but remained to draw a proper legal 

conclusion from this unchallenged evidentiary predicate.

The Suppression Ruling

Although the hearing judge’s factfinding was unvaryingly supportive of the 

reasonableness of the police behavior through every step of the confrontation, the court’s 

legal ruling turned abruptly in an opposite direction. As we examine de novo where the 

legal analysis that lead to the suppression of the evidence went, in our de novo judgment,

astray, that analysis seemed to insist that a Terry stop must be based on nothing short of 

the per se illegality of the suspect’s behavior. The hearing court’s analysis began: 

“The issue before the Court is, when Mr. Sizer ran, was it reasonable 

for the police to run after him? One could argue that it was, because why is 

this guy running? But [Defense Counsel] points out, and he’s right, that 

flight, in and of itself, or not sticking around for the police to investigate you 

in and of itself is not illegal.” 

(Emphasis supplied). 

Reliance on the fact that flight is not, in and of itself, illegal sets an unduly high bar 

for a Terry stop to clear. A reasonable articulable suspicion that a crime has occurred, is 
9

then occurring, or is about to occur does not demand evidence legally sufficient to sustain 

a criminal conviction. Nor does it demand so much as probable cause. In Butler v. State, 

214 Md. App. 635, 651, 78 A.3d 887 (2013), this Court succinctly set out the appropriate 

quantitative measure: 

“[R]easonable suspicion requires ‘more than a mere hunch but is “a less 

demanding standard than probable cause and requires a showing 

considerably less than preponderance of the evidence.”’”

(Emphasis supplied; citation omitted). See also Holt v. State, 435 Md. 443, 459-60, 78 

A.3d 415 (2013); Crosby v. State, 408 Md. 490, 506, 970 A.2d 894 (2009); Nathan v. State, 

370 Md. 648, 660, 805 A.2d 1086 (2002); Cartnail v. State, 359 Md. 272, 285, 753 A.2d 

519 (2000). 

In United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 

(2002), the Supreme Court commented on the same easily satisfied quantitative standard 

for a constitutional Terry stop:

“Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a 

stop, the likelihood of criminal activity need not rise to the level required for 

probable cause, and it falls considerably short of satisfying a preponderance 

of the evidence standard[.]”

(Emphasis supplied; citations omitted). See also Adams v. Williams, 407 U.S. 143, 145, 

92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (“The Fourth Amendment does not require a 

policeman who lacks the precise level of information necessary for probable cause to arrest 

to simply shrug his shoulders and allow a crime to occur or a criminal to escape.”); 

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); United 
10

States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d. 1 (1989); United States v. 

Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). 

As we shall point out infra, flight in and of itself may not be illegal per se, but it 

may well be a constitutional justification for an investigative detention, to wit, a Terry stop, 

pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 

As the court’s analysis then went on to invalidate what could have been a Terry frisk 

for weapons, it suggested that a police officer’s fear that a suspect might be armed and 

dangerous would be rendered unreasonable if there were an unrebutted possibility that the 

suspect might have a license for the gun he was carrying.

“So, the police take Mr. Sizer down, and Mr. Sizer says, in the process 

of Officer Schlossnagle taking him down – says, I have basically a weapon. 

And there’s no per se illegality of having a weapon. I’m assuming that the 

Defendant didn’t have a permit, but I don’t know that, to carry. And so it’s 

not per se illegal to have a weapon.”

(Emphasis supplied). 

The hearing court’s analysis there goes astray because it fails to appreciate that a 

Terry frisk is not predicated on the illegality of the suspect’s behavior in possessing a 

handgun but on the very different predicate of an officer’s fear for his own safety when 

confronting a suspect who the officer reasonably believes may be armed or dangerous. A 

suspect with a licensed handgun is just as dangerously armed as is a suspect with an 

unlicensed handgun. Licensed handguns shoot bullets that are just as deadly as are those 

from unlicensed handguns. A permit to carry a handgun would no more vitiate the need for 

a frisk than would the suspect’s promise not to shoot anybody with it. Even if the stopee 
11

had his permit to carry a handgun pinned to the front of his shirt and even if the officer 

read it before conducting the frisk, that would in no way eliminate or even diminish the 

need for the frisk. Indeed, it would enhance the need. Per se illegality is simply not a 

requirement for the reasonable articulable suspicion to support a Terry frisk.

As the hearing court’s analysis concluded, it seemed to reaffirm the quintessential 

reasonableness of Officer Schlossnagle’s conduct even as it grudgingly held that “the rules 

were not followed.” 

“Officer Schlossnagle most likely, probably did – in addition to 

Officer Baker and Corporal Zammillo – probably saved the public potentially 

from additional crimes that evening; one could argue that. Probably did....

Do I have any doubt that the Defendant ran because he didn’t want to be 

arrested, because he had, probably, an illegal weapon on his person; that he 

was on probation, and that in and of itself most likely precluded him from 

having any weapons on his person? Am I reasonably sure that he had illegal 

drugs on his person? Of course I am. I wasn’t born yesterday. But that’s not 

the issue. The issue is, were all the rules followed? And although I can 

understand the heat of the moment, I can understand the high-crime area, the 

fact that Mr. Sizer ran, in and of itself, based on the particular scenario that’s 

being given here today, is not sufficient.” 

(Emphasis supplied). 

The hearing court referred to “Officer Schlossnagle’s act of physically putting his 

hands on the Defendant and, in the officer’s words, taking him down.” Lest there be any 

suggestion there that a “hard take down” might render an otherwise good Terry stop 

unreasonable, see In re David S., 367 Md. 523, 539, 789 A.2d 607 (2002): 

“Several police officers conducted a ‘hard take down’ of respondent. 

The officers, with their weapons drawn, forced respondent to the ground and 

placed him in handcuffs. This conduct was not unreasonable because the 

officers reasonably could have suspected that that respondent posed a threat 

to their safety. Considering the totality of the circumstances, as they appeared 
12

to the officers at the time, in order to maintain their safety, handcuffing 

respondent and placing him on the ground for a brief time was reasonable

and did not convert the investigatory stop into an arrest under the Fourth 

Amendment. Although this is a severe form of intrusion, we conclude that 

under the circumstances, it was reasonable.” 

(Emphasis supplied). See also, Lee v. State, 311 Md. 642, 661-66, 537 A.2d 235 (1988); 

Elliot v. State, 417 Md. 413, 429-30, 10 A.3d 761 (2010); Bailey v. State, 412 Md. 349, 

371-72 n. 8, 987 A.2d 72 (2010); Chase v. State, 224 Md. App. 631, 646-47, 121 A.3d 257, 

aff’d, 449 Md. 283, 144 A.3d 360 (2015). 

Unprovoked Flight as a Dispositive Terry Factor

Our de novo determination is that the constitutional protocols were scrupulously 

observed. The Fourth Amendment was not offended, and the evidence should not have 

been suppressed. The reasonable articulable suspicion for the Terry stop, moreover, was

by no means based merely on flight. It was far more multi-factored than that. It was based 

on unprovoked flight upon the approach of the police in a high crime area. This case was

a paradigmatic replay of Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 

570 (2000) itself. 

In Wardlow, even as in in the present case, a team of eight officers converged on a 

Chicago neighborhood known for being a high crime area, specifically “an area known for 

heavy narcotics trafficking.” Wardlow, theretofore unknown to the police, was standing 

next to a building, holding an opaque bag. Wardlow, as did the appellee here, looked in the 

direction of the officers, then turned, and inexplicably fled. Two officers, as in this case, 

took off in pursuit. A short distance away, Officer Nolan stopped Wardlow and 
13

immediately conducted a pat-down search for weapons. As part of the frisk, Officer Nolan 

squeezed the opaque bag Wardlow was carrying and felt a heavy, hard object similar in 

shape to a gun. He opened the bag and recovered a loaded .38 caliber handgun. Wardlow 

was then arrested. 582 U.S. at 121-22. 

The issue in Wardlow, as in the case now before us, was whether, pursuant to Terry 

v. Ohio, the police had reasonable suspicion to justify the initial detention of the suspect 

based on his flight. The trial court denied Wardlow’s motion to suppress the evidence. The 

Illinois Appellate Court, however, reversed the conviction, holding that Officer Nolan did 

not have reasonable suspicion to justify a Terry stop. 287 Ill. App. 3d. 367, 678 N.E.2d 65 

(1997). The Illinois Supreme Court affirmed. 183 Ill. 2d 306, 701 N.E.2d 484 (1998). On 

certiorari, the United States Supreme Court reversed the Illinois courts and held that the 

Terry stop was, indeed, constitutional. 

Prominent among the factors that the Supreme Court found to be strongly supportive 

of the reasonableness of the Terry stop was the character of the neighborhood as a high 

crime area. 

“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. Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 

61 L.Ed.2d 357 (1979). 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. Adams v. 

Williams, 407 U.S. 143, 144, 147–148, 92 S. Ct. 1921, 32 L.Ed.2d 612 

(1972).”
14

528 U.S. at 124. (Emphasis supplied). See also, Stokes v. State, 362 Md. 407, 415-16, 765 

A.2d 612 (2001); Anderson v. State, 282 Md. 701, 707 n. 5, 387 A.2d 281 (1978). 

When the character of the high crime area is then combined with unprovoked flight 

upon noticing the arrival of the police, critical mass has been reached: 

“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. (Emphasis supplied; internal citations omitted).

Defense counsel doggedly insisted at the suppression hearing in this case that a 

citizen has a right to refuse to cooperate and is entitled “to go about one’s business.” The 

Supreme Court articulately responded to just such an argument. 

“[U]nprovoked flight is simply not a mere refusal to cooperate. Flight, by its 

very nature, is not ‘going about one’s business’; in fact, it is just the opposite. 

Allowing officers confronted with such flight to stop the fugitive and 

investigate further is quite consistent with the individual’s right to go about 

his business or to stay put and remain silent in the fact of police questioning.” 

528 U.S. at 125. (Emphasis supplied).

Wardlow himself argued, just as the hearing judge ruled in this case, that there may 

be an innocent explanation for flight. The Supreme Court explained that even innocent 

behavior may nonetheless be suspicious and, under Terry, may be cognizably suspicious:

“Respondent and amici also argue that there are innocent reasons for 

flight from police and that, therefore, flight is not necessarily indicative of 

ongoing criminal activity. This fact is undoubtedly true, but does not 

establish a violation of the Fourth Amendment. Even in Terry, the conduct 
15

justifying the stop was ambiguous and susceptible of an innocent 

explanation. The officer observed two individuals pacing back and forth in 

front of a store, peering into the window and periodically conferring. 392 

U.S., at 5–6, 88 S. Ct. 1868. All of this conduct was by itself lawful, but it 

also suggested that the individuals were casing the store for a planned 

robbery. Terry recognized that the officers could detain the individuals to 

resolve the ambiguity. Id., at 30, 88 S. Ct. 1868.

“In allowing such detentions, Terry accepts the risk that officers may 

stop innocent people. Indeed, the Fourth Amendment accepts that risk in 

connection with more drastic police action; persons arrested and detained on 

probable cause to believe they have committed a crime may turn out to be 

innocent.”

528 U.S. at 125-26. (Emphasis supplied).

In Bost v. State, 406 Md. 341, 358, 958 A.2d 356 (2008), the Court of Appeals, 

albeit dealing primarily with the Uniform Act on Fresh Pursuit, cited Illinois v. Wardlow

(“The United States Supreme Court has made clear that unprovoked flight is enough to 

support reasonable suspicion that a crime has been committed.”) and quoted at great length 

from it. In affirming the police in stopping a suspect in that case, the Court of Appeals set 

out precisely the same factors that justify the Terry stop in the present case. 

“Appellant was seen by the police in a high crime, drug trafficking 

area. Appellant fled from the police and the flight was unprovoked. The 

nature of the area is a factor in assessing reasonable suspicion.” 

406 Md. at 359-60. (Emphasis supplied). See also, Collins v. State, 376 Md. 359, 373, 829 

A.2d 992 (2003); Price v. State, 227 Md. 28, 33, 175 A.2d 11 (1961).

“A High Crime Area” Diminuendo

In an effort to deflect the impact of Illinois v. Wardlow, the appellee interposes an 

interesting, if not ultimately persuasive, interpretation of “a high crime area.” He posits
16

that when the police described “a high crime area in Columbia,” they were not describing 

“a high crime area per se,” as in the case of Illinois v. Wardlow’s south Chicago.3In a burst 

of relativism run rampant, the suggestion seems to be that even a relatively “high crime 

area” in a generally law-abiding community might actually be less dangerous than would 

be a relatively “lower crime area” of a more pervasively criminal community. The 

argument would seem to be that if the police describe “the most dangerous corner in 

Guilford” or “the meanest block in Homeland,” those descriptions should rack up Terry

reasonable-suspicion points far less rapidly than would those same descriptions on the 

Barbary Court of San Francisco or in Hell’s Kitchen, New York. 

Such parochial fine-tuning, of course, would drain the salutary rule of Illinois v. 

Wardlow of virtually any precedential potency beyond the streets of south Chicago. 

Supreme Court opinions, however, do not work that way. They propound general rules 

capable of national application. They speak, of necessity, in broad and simple language 

that can be readily understood and readily applied by the average American police officer,

be it in south Chicago or in Happy Valley, Minnesota. In describing the circumstances that 

help to give unprovoked flight its investigative significance, Illinois v. Wardlow is an 

invaluable contribution to Fourth Amendment law. We will not join in attempting to 

trivialize it into inconsequentiality. 

 

3 Confining our inquiry to the four corners of the suppression hearing, the record does not 

demonstrate whether, as a seedbed of crime, Columbia is more or less notorious than south 

Chicago. 
17

Particularized and Individualized Suspicion

The appellee, however, seems to be in a state of denial about Illinois v. Wardlow. 

With respect to the antecedent police observations that occurred before the appellee’s 

unprovoked flight, the appellee suggests that there was “no testimony from the officers 

providing individualized, objective reasonable suspicion that [the appellee] was involved 

in those incidents.” The appellee may well be right but that is hardly the point. Under such 

circumstances, the prudent thing for the appellee to have done would have been to stand 

pat and allow the police suspicion to remain unparticularized and unindividualized. Had he 

simply stood quietly by, as did his companions, he would have been immune from any 

police restraint, but a guilty conscience leads to flawed judgment. It was only when the 

appellee, unwisely, turned and began to flee that he turned the focus onto himself and 

elevated what had only been non-particularized suspicion into highly particularized and 

highly individualized suspicion. The very fact of flight evidenced consciousness of guilt. 

This is the dispositive lesson of Illinois v. Wardlow.

As we seek to apply the rule of Illinois v. Wardlow to the case at hand, the critical 

focus is on the flight scenario itself, not on the pre-flight circumstances. In terms of the 

flight scenario, no one other than the appellant tried to run away. The appellee’s solo flight, 

therefore, was by definition both “particularized” and “individualized.” In the words of 

Wardlow, “headlong flight” was “not necessarily indicative of wrongdoing, but it [was] 

certainly suggestive of such.” 528 U.S. at 124. Behavior that is certainly suggestive of 

wrongdoing is ample justification for a reasonable Terry stop.
18

Both the Frisk and the Search Incident Were Reasonable

On the basis of Illinois v. Wardlow, we hold that the unprovoked flight of the 

appellee from a high crime area upon the arrival of the police constituted reasonable 

articulable suspicion to support a Terry stop for further investigation. The ensuing search 

of the backpack for weapons would also qualify as a reasonable Terry frisk, if a superseding 

justification had not rendered that justification redundant. 

The discovery of the .38 caliber revolver as the officers looked into the appellant’s 

backpack was constitutionally unassailable under either of two overlapping Fourth 

Amendment theories. As the appellee was being stopped, he twice announced, “I have a 

pistol.” That alone would have constituted reasonable articulable suspicion that the 

appellee was armed. Accordingly, the immediate opening of the backpack would have been 

constitutionally proper as a Terry frisk. The backpack itself was clearly within the reach, 

lunge or grasp, to wit, the Chimel perimeter, of the stoppee. Michigan v. Long, 463 U.S. 

1032, 1048-49, 103 S. Ct. 3469, 77 L.Ed.2d 1201 (1983). See, Williams v. State, 19 Md. 

App 204, 213-14, 310 A.2d 593 (1973).

In the seconds before the backpack was opened, however, the Terry frisk rationale 

was superseded by the search incident to lawful arrest rationale of Chimel v. California, 

395 U.S. 752, 763, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969). Once again, the backpack itself 

was clearly within the reach, lunge or grasp, to wit, the Chimel perimeter, of the arrestee. 

Feaster v. State, 206 Md. App. 202, 230-31, 47 A.3d 1051 (2012). The very purpose of the 

Terry frisk and one of the two purposes of the search incident to arrest, of course, are one 
19

and the same, the protection of the officer. The search-incident perimeter and the frisk 

perimeter are accordingly conterminous. The search that produced the .38 caliber revolver 

was, like Portia’s quality of mercy, twice-blest. The search that produced the baggy of pills 

from the appellee’s sock, however, must rely for its justification on the search-incident 

theory alone. That, however, was all that was necessary.

A Chase is Not a Fourth Amendment Seizure

In a situation such as this, the constitutional measurement of Fourth Amendment 

justification for a Terry stop takes place only at the end of a chase, when the police lay 

hands on a suspect and subject him to actual detention, to wit, a Terry stop. The antecedent 

chase, until it achieves its purpose, is not yet subject to Fourth Amendment analysis for it 

is neither a “search” nor a “seizure.” It is a case of Fourth Amendment inapplicability and 

until the Fourth Amendment is applicable, it cannot be violated. California v. Hodari D., 

499 U.S. 621, 626, 111 S.Ct. 1547, 113 l.Ed.2d 690 (1991) held squarely: 

“The narrow question before us is whether, with respect to a show of 

authority as with respect to application of physical force, a seizure occurs 

even though the subject does not yield. We hold that it does not. 

“The language of the Fourth Amendment, of course, cannot sustain 

respondent’s contention. The word ‘seizure’ readily bears the meaning of a 

laying on of hands or application of physical force to restrain movement, 

even when it is ultimately unsuccessful. (‘She seized the purse-snatcher, but 

he broke out of her grasp.’) It does not remotely apply, however, to the 

prospect of a policeman yelling, ‘Stop, in the name of the law!’ at a fleeing 

form that continues to flee. That is no seizure.”

(Emphasis supplied).
20

Michigan v. Chesternut, 486 U.S. 567, 575, 108 S.Ct. 1975, 100 L.Ed.2d 565 

(1988), spoke to the same effect. 

“Applying the Court’s test to the facts of this case, we conclude that 

respondent was not seized by the police before he discarded the packets

containing the controlled substance. Although Officer Peltier referred to the 

police conduct as a ‘chase,’ and the Magistrate who originally dismissed the 

complaint was impressed by this description, the characterization is not 

enough, standing alone, to implicate Fourth Amendment protections.”

(Emphasis supplied; footnote omitted). 

County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 

(1998), was a case in which a high-speed police chase of a motorcycle resulted in the 

fleeing motorcyclist spinning off the road and being killed. Although the police may have 

been liable for civil damages, no Fourth Amendment analysis was called for because the 

Fourth Amendment was simply not involved. 

“The Fourth Amendment covers only ‘searches and seizures,’ neither 

of which took place here. No one suggests that there was a search, and our 

cases foreclose finding a seizure.”

523 U.S. at 843. (Emphasis supplied). And see, Brower v. County of Inyo, 489 U.S. 593, 

109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). It may be a stingy Fourth Amendment, but it does 

not proscribe unreasonable chases. 

Terry Stops and Police Use of Force

Because Officer Schlossnagle’s physical “take down” of the appellee seems as if it 

may have been the pivot for the hearing court’s decision to suppress the evidence, a brief 

comment is in order about the police use of force in the course of a Terry stop. A Terry

stop, of course, is not a mere accosting between equals. Swift v. State, 393 Md. 139, 149-
21

52, 899 A.2d 867 (2006). Once suspicion has risen above the level of an “inchoate hunch” 

and ripened into a reasonable, articulable suspicion, the police are constitutionally 

authorized to detain a suspect and to question him. The suspect, in turn, is lawfully 

required, within certain limitations as to time and place, to stand still and submit to the 

questioning. A Terry stop is a lawful exercise of governmental authority, not a mere request 

that may be disregarded. A suspect who physically resists being detained can be physically 

restrained. That includes being tackled and/or being handcuffed. For a vivid description of 

the restraining process of a fleeing suspect, see the Supreme Court’s recounting of the 

process in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L.Ed.2d 690 (1991). 

And see, In re David S., 367 Md. 523, 539-40, 789 A.2d 607 (2002); Lee v. State, 311 Md. 

642, 667, 537 A.2d 235 (1988). There was no improper use of force in this case. As of the 

moment the appellee was wrestled to the ground, he was not free to continue running. The 

officers had the lawful prerogative to “take him down.” The evidence should not have been 

suppressed. 

Independent Source as an Antidote

To The “Fruit of the Poisonous Tree” Doctrine

The State, moreover, enjoys the benefit of an alternative rationale. Even if, purely 

arguendo, the Terry stop in this case had been unconstitutional, the .38 caliber revolver 

taken from the appellee’s backpack and the plastic baggie of 27 narcotic pills taken from 

the appellee’s sock should still not have been suppressed. The theory of exclusion urged 

by the appellee is that those two items of evidence were only procured as a result of the 

unconstitutional Terry stop, to wit, that they were the “fruit of the poisonous tree.”
22

The “Fruit of the Poisonous Tree” Doctrine traces back to Silverthorne Lumber Co. 

v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L.Ed. 319 (1920). It deals with the second 

generation exclusion of indirect or derivative evidence. It was explained by Justice Holmes: 

“The essence of a provision forbidding the acquisition of evidence in a 

certain way is that not merely evidence so acquired shall not be used before 

the Court but that it shall not be used at all. Of course this does not mean that 

the facts thus obtained become sacred and inaccessible.” 

251 U.S. at 392.

In Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L.Ed. 307 (1939), it 

was Justice Frankfurter who first employed the term “derivative evidence” and who coined 

the felicitous label “fruit of the poisonous tree” doctrine. It was also Justice Frankfurter 

who first recognized a limitation on the doctrine’s reach, as he pointed out that between 

the original illegality and the ultimate derivative evidence, the “connection may have 

become so attenuated as to dissipate the taint.” 308 U.S. at 341. 

Over the course of the next 45 years, the Supreme Court hammered out what are 

now universally recognized to be three limitations on, or exemptions from, the exclusion 

of evidence based on the “Fruit of the Poisonous Tree” Doctrine. They are 1) the 

Attenuation of Taint, 2) Independent Source, and 3) Inevitable Discovery. They each have 

a different analytic rationale. They each have separate rules of application. Although they

all are directed toward the same end, the non-exclusion of evidence, they should not be 

confused with one another. In Gibson v. State, 138 Md. App. 399, 403, 771 A.3d 536 

(2001), this Court looked to the three modes of determining that exclusion was not 

mandated:
23

“It has come to be recognized that there are three ways of what has 

colorfully been described as ‘unpoisoning the fruit.’ Less colorfully but more 

accurately, these are actually three ways of determining that the fruit was not 

poisoned in the first instance.” 

(Emphasis supplied).

Gibson first turned its focus on attenuation of taint. That is a theory of non-exclusion 

based not on the fact that the “fruit” was not poisoned but on the idea that the poison has, 

through time and circumstances, become so strained and diluted that it is no longer lethal. 

Gibson explained, 138 Md. App. at 403: 

“The first, presaged by Justice Frankfurter in Nardone, is the 

attenuation of taint. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 

407, 9 L.Ed.2d 441 (1963), rejected a ‘but for’ rule in applying the doctrine 

and explained that the proper question to be answered with respect to 

derivative evidence is

‘whether, granting establishment of the primary illegality, the 

evidence to which instant objection is made has been come at 

by exploitation of that illegality or instead by means 

sufficiently distinguishable to be purged of the primary taint.’

“Tony Amsterdam, Search, Seizure, and Section 2255: A Comment, 

112 U. Pa. L.Rev. 378, 390 (1964), pointed out that the underlying purpose 

of the attenuation test is to mark ‘the point of diminishing returns of the 

deterrence principle.’”

(Emphasis supplied).

Of the three distinct modes of determining that the exclusion of evidence is not 

called for, let us jump forward to the third and last of those modalities, inevitable discovery, 

before zeroing in on the one that could, arguendo, be applicable to the case now before us. 

With respect to inevitable discovery, Gibson observed, 138 Md. App. at 404:
24

“A third way of determining that derivative evidence is not excludable 

is a finding of ‘inevitable discovery.’ The lead case on that exemption is Nix 

v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984):

“‘It is clear that the cases implementing the 

exclusionary rule “begin with the premise that the challenged 

evidence is in some sense the product of illegal governmental 

activity.” Of course, this does not end the inquiry. If the 

prosecution can establish by a preponderance of the evidence 

that the information ultimately or inevitably would have been 

discovered by lawful means then the deterrence rationale has 

so little basis that the evidence should be received. Anything 

less would reject logic, experience, and common sense.’”

(Emphasis supplied). There but remains to be examined the second species of exemption 

from exclusion, the Independent Source Doctrine.

A Pre-Existing Arrest Warrant

However constitutional or unconstitutional the antecedent Terry stop of the appellee 

in this case may have been, the prior existence of two warrants for the appellee’s arrest 

constituted an independent source for the discovery of the .38 caliber revolver and the 

plastic baggie of 27 pills taken from the appellee. Corporal Zammillo was aware of the 

existence of the arrest warrants and he placed the appellee under arrest prior to the police 

opening of the appellee’s backpack. As Gibson surveyed the field, it said with respect to 

independent source: 

“A second way of determining that evidence is not poisoned fruit, 

notwithstanding a suspicious “post hoc – propter hoc” time sequence, is 

when the evidence has proceeded from an independent source. Murray v. 

United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), 

explained that the ‘independent source’ exception applies not 

‘only to evidence obtained for the first time during an 

independent lawful search,’ but ‘also to evidence initially 
25

discovered during, or as a consequence of, an unlawful search, 

but later obtained independently from activities untainted by 

the initial illegality.’”

138 Md. App. at 403-404. (Emphasis supplied). 

In Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), 

the police effected an unlawful entry into the defendants’ apartment. Once inside, however, 

they did not search the apartment but merely secured it while other members of the police 

team, without the benefit of anything observed in the unlawful entry of the apartment 

proceeded to get a search warrant. Notwithstanding the fact that 19 hours went by before 

the search warrant was obtained, it was only when the search warrant was executed at the 

apartment that incriminating evidence was discovered in the course of the search 

authorized by the warrant. The holding of the Supreme Court was very clear: 

“The illegality of the initial entry, as we will show, has no bearing on 

the second question. The resolution of this second question requires that we 

determine whether the initial entry tainted the discovery of the evidence now 

challenged. On this issue, we hold that the evidence discovered during the 

subsequent search of the apartment the following day pursuant to the valid 

search warrant issued wholly on information known to the officers before the

entry into the apartment need not have been suppressed as ‘fruit’ of the illegal 

entry because the warrant and the information on which it was based were 

unrelated to the entry and therefore constituted an independent source for the 

evidence[.]”

(Emphasis supplied). The search was pursuant to the search warrant, which had never been 

tainted. There was no taint to attenuate. 

Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), 

followed Segura four years later and was completely compatible with it in terms of result. 

The opinion by Justice Scalia, however, presented a far more cogent conceptualization of 
26

independent source than had the Segura opinion. Unlike Segura, the Murray opinion did

not wander into random and unnecessary uses of the verb “attenuate.” Murray spoke only 

of “independent source” as a distinct and specific exemption from exclusion and did not 

use language borrowed from a very different species of exemption, to wit, the attenuation 

of taint. Justice Scalia denominated independent source as a self-standing doctrine in its 

own right. 

“Almost simultaneously with our development of the exclusionary 

rule, in the first quarter of this century, we also announced what has come to 

be known as the ‘independent source’ doctrine.” 

487 U.S. at 537. (Emphasis supplied). The Murray opinion, 487 U.S. at 538, attributes the 

“original use of the term” independent source to Justice Holmes in Silverthorne, 257 U.S. 

at 392: 

“[T]his does not mean that all the facts thus obtained become sacred and 

inaccessible. If knowledge of them is gained from an independent source 

they may be proved like any others.”

(Emphasis supplied).

Murray, 487 U.S. at 542, goes on to explain: 

“So long as a later, lawful seizure is genuinely independent of an earlier, 

tainted one ... there is no reason why the independent source doctrine should 

not apply.”
27

The Murray opinion’s conceptualization of how the pieces of this body of law fit 

together dovetails completely with this Court’s conceptualization of that same

phenomenon in Gibson v. State, supra.

4

5 Wayne R. LaFave, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH 

AMENDMENT §11.4(a) 236-37 (3d ed. 1996), contrasts the Independent Source Doctrine 

with the Attenuation of Taint Doctrine: 

“The ‘independent source’ test is a paragon of simplicity compared to 

the ‘attenuated connection’ formula. As ordinarily applied, it means that if 

not even the ‘but for’ test can be met, then clearly the evidence is not a fruit 

of the prior Fourth Amendment violation. So stated, the ‘independent source’ 

limitation upon the taint doctrine is unquestionably sound.”

In Williams v. State, 372 Md. 386, 813 A.2d 231 (2002), the Court of Appeals wrote 

to the same effect: 

“The Silverthorne [Lumber Co. v. United States, 251 U.S. 385, 392, 40 S. 

Ct. 182, 183, 64 L.Ed. 319 (1920)] Court noted, in dicta, that even if the 

government obtains knowledge of certain facts in an unlawful manner, as 

long as knowledge of those facts was derived from a lawful, independent 

source untainted by the initial illegality, they may be admissible.... The 

exclusionary rule does not apply when the State learns of the challenged 

evidence from an independent source.”

 

4

In Robert F. Maguire, How to Unpoison the Fruit – The Fourth Amendment and the 

Exclusionary Rule, 55 JOURNAL OF CRIMINAL LAW, CRIMINOLOGY, AND POLICE SCIENCE

307, 310 (September 1964), the author notes:

“One obvious means of eliminating the unlawful search or seizure as 

a tainting influence is to establish that the proffered evidence was, in fact, 

discovered as the result not of the unlawful act but rather of information 

lawfully known to the authorities completely independently of that act. In 

such a situation one can simply say that the proffered evidence is not the 

produce of the unlawful act and, hence, is untainted.”
28

372 Md. at 411. Nothing that occurred even in the course of a presumptively tainted Terry

stop contributed in any way to the preexisting probable cause that justified the issuance of 

the warrant for the appellee’s arrest. The search incident was the result of that untainted 

arrest. 

In Myers v. State, 165 Md. App. 502, 885 A.2d 920 (2005), the suspect was 

subjected to a traffic stop on a Pennsylvania highway that was ultimately held to have been 

an unconstitutional stop. The stopping officer, however, was aware of outstanding warrants 

for the suspect’s arrest and arrested him on the basis of those warrants. The evidence 

subsequently recovered from the suspect’s car was held to be not the suppressible product 

of the unlawful stop but the legitimate product of a search incident to lawful arrest. The 

holding of this Court was clear that the arrest on an outstanding warrant was an independent 

source for the search that followed: 

“In this case before us, there was an illegal stop, but there was a 

preexisting arrest warrant. The officer did not make the stop for the purpose 

of enforcing the warrant, and in fact, did not know that the then-unidentified 

person in the vehicle was subject to an outstanding warrant. ... The 

exclusionary rule does not require suppression of the evidence obtained as a 

result of the search incident to a valid arrest on an outstanding warrant.” 

165 Md. App. at 527-28. (Emphasis supplied). There had been strong intimations for such 

a ruling in Torres v. State, 95 Md. App. 126, 129-33, 619 A.2d 566 (1993) (“The reason 

for not applying the ‘fruit of the poisonous tree’ doctrine is that there is a clear break in the 

chain of cause and effect.”); Brown v. State, 124 Md. App. 183, 197-202, 720 A.2d 1270 

(1998). 
29

On certiorari, the Court of Appeals in its Myers v. State, 395 Md. 251, 909 A.2d 

1048 (2006), affirmed the decision of this Court. It held that, notwithstanding the 

antecedent unconstitutional stop of the suspect, the discovery of an outstanding arrest 

warrant provided the police with “an independent and intervening reason to arrest and 

search” the suspect. 

“Once Officer Weikert learned Myers’s identity and discovered an 

outstanding warrant for his arrest, the officer gained an independent and 

intervening reason to arrest and search Myers. Thus, the subsequent search

of Myers and his vehicle was separate and apart from the initial stop. We 

agree with the Court in [U.S. v.] Green, [111 F.3d 515 (7th Cir. 1997),] that 

a chance discovery of an outstanding arrest warrant makes a more compelling 

intervening circumstance than others.”

395 Md. at 293. (Emphasis supplied; footnote omitted).

The Court of Appeals reached a similar decision in Cox v. State, 397 Md. 200, 916 

A.2d 311 (2007). It did not even have to decide whether the initial stop of the defendant 

had been illegal; it simply assumed so, arguendo. 

“Assuming, arguendo, that the police encounter constituted an illegal stop, 

we deem it more appropriate to determine the ultimate question: whether it 

was proper for the trial court to grant Petitioner’s motion to suppress the 

evidence.”

397 Md. at 203-04. The Court’s holding was equally straightforward: 

“We shall hold that the police officer’s discovery of an outstanding warrant 

for Petitioner’s arrest and Petitioner’s arrest pursuant thereto represents an 

intervening circumstance sufficient to attenuate the taint of what appears to 

be an illegal stop.”

Id. at 204. (Emphasis supplied).
30

In Utah v. Strieff, — U.S. —, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016), the defendant 

Strieff was initially subjected to a presumptively unconstitutional Terry stop. The State of 

Utah conceded that there was no reasonable suspicion to justify the Terry stop and the 

Supreme Court analysis proceeded on that assumption. At the outset of the stop, Strieff 

was asked for and he furnished identification. The stopping officer called that information 

in to a police dispatcher, who reported back that there was an outstanding warrant for 

Strieff’s arrest for a traffic violation. Strieff was arrested and then searched as an incident 

of that arrest. The search revealed a baggie of methamphetamine and drug paraphernalia. 

The trial court refused to suppress the evidence but the Utah Supreme Court ultimately 

held that the evidence had been unconstitutionally seized. 357 P.3d 532 (2015). 

The Supreme Court of the United States reversed the Utah Supreme Court. After 

making reference to Segura v. United States and the Independent Source Doctrine, the 

Court held: 

“In this case, the warrant was valid, it predated Officer Fackrell’s 

investigation, and it was entirely unconnected with the stop. And once 

Officer Fackrell discovered the warrant, he had an obligation to arrest Strieff. 

‘A warrant is a judicial mandate to an officer to conduct a search or make an 

arrest, and the officer has a sworn duty to carry out its provision.’ Officer 

Fackrell’s arrest of Strieff thus was a ministerial act that was independently 

compelled by the pre-existing warrant. And once Officer Fackrell was 

authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an 

incident of his arrest to protect Officer Fackrell’s safety.”

136 S.Ct. at 2062-63. (Emphasis supplied).

That analysis would apply four-square to the preexisting arrest warrant for the 

appellee in this case and to the search incident to that lawful arrest that produced the 
31

physical evidence. The arrest warrant and arrest pursuant to that warrant was the 

independent source for the search incident.

The “But For” Test Is Almost Universally Discredited

The independent source of a pre-existing arrest warrant renders the arguendo

assumption of a tainted Terry stop totally irrelevant as the originating cause of the search 

incident of the backpack that followed the superseding arrest. We no longer need care 

whether the antecedent Terry stop was tainted or untainted. If, arguendo, tainted, we no 

longer need care whether that taint was attenuated or unattenuated, because even an 

unattenuated taint would be irrelevant. 

In an effort to stave off that dispositive irrelevance, the appellee interposes a classic 

“but for” argument. “But for the hypothetically unreasonable Terry stop,” the argument 

goes, “the police would never have been in a position to arrest the appellant and conduct 

the ensuing search incident at that particular time and at that particular place.” “But for the 

tainted stop, the independent superseding cause could not have superseded at that precise 

moment.” 

“But for” arguments, however, have been traditionally and universally rejected by 

the Supreme Court, by the Court of Appeals, and by this Court. In Hudson v. Michigan, 

547 U.S. 586, 592, 126 S. Ct 2159, 165 L.Ed.2d 56 (2006), the Supreme Court was very 

clear: 

“[E]xclusion may not be premised on the mere fact that a constitutional 

violation was a ‘but-for’ cause of obtaining evidence. Our cases show that 

but-for causality is only a necessary, not a sufficient, condition for 

suppression.” 
32

(Emphasis supplied).

Segura v. United States, supra, was the prototypical case for the Independent Source 

Doctrine. Its rejection of a “but-for” test was emphatic. 

“The Court has never held that evidence is ‘fruit of the poisonous tree’ 

simply because ‘it would not have come to light but for the illegal actions of 

the police.’ ... The illegal entry into petitioners’ apartment did not contribute 

in any way to discovery of the evidence seized under the warrant; it is clear, 

therefore, that not even the threshold ‘but for’ requirement was met in this 

case.” 

(Emphasis supplied; internal citations omitted). 

As early as Wong Sun v. United States, 371 U.S. at 487-8, the Supreme Court noted 

that even in the early days of the exclusionary rule, it had declined to 

“hold that all evidence is ‘fruit of the poisonous tree’ simply because it would 

not have come to light but for the illegal actions of police.”

See also, United States v. Ceccolini, 435 U.S. 268, 276, 98 S. Ct. 1054, 55 L.Ed.2d 268 

(1978). 

In Myers v. State, 395 Md. at 294, the Court of Appeals looked beyond an 

unreasonable investigative stop and relied upon a superseding lawful arrest. 

“The search based upon that warrant was justified as a search incident 

to a lawful arrest. Accordingly, to hold otherwise would not further the goal 

of deterring unlawful police activity, but would result in the application of 

an unreasonable ‘but for’ test that was rejected by the Supreme Court in 

Wong Sun, supra.” 

(Emphasis supplied).
33

In rejecting a “but for” rationale, this Court has consistently followed suit. In Cox 

v. State, 194 Md. App. 629, 5 A.3d 730 (2010), the defendant claimed that but for an illegal 

detention and search, his subsequent incriminating statement would never have been made. 

“He argues that this statement was the ‘fruit’ of illegal police conduct, 

asserting that his arrest was based on the gun found pursuant to the illegal 

detention and search, and absent his ‘unlawful arrest, he would never have 

been in a position to talk to [a fellow detainee].”

194 Md. App. at 653. Writing for this Court, Judge Graeff roundly rejected reliance on a 

“but for” rationale. 

“For evidence to be excluded under the ‘fruit of the poisonous tree’ 

doctrine, ‘there must be a “cause-and-effect” relationship or nexus between 

the poisonous tree and it’s alleged fruit.’ Evidence is not considered to be 

‘fruit of the poisonous tree,’ however, merely because it would not have been 

discovered ‘but for the illegal actions of the police. Wong Sun, 371 U.S. at 

488, 83 S. Ct. 407. ... Accord United States v. Ceccolini, 435 U.S. 268, 276, 

98 S. Ct. 1054, 55 L.Ed.2d 268 (1978) (‘we have declined to adopt a “per se 

or ‘but for’ rule” that would make inadmissible any evidence, whether 

tangible or live-witness testimony, which somehow came to light through a 

chain of causation that began with an illegal arrest.”’). 

194 Md. App. at 655-56. (Emphasis supplied; some internal citations and quotations 

omitted).

As early as Baker v. State, 39 Md. App. 133, 383 A.2d 696 (1975), this Court has 

rejected a “but for” test. In Baker, 39 Md. App. at 136-37, the defendant relied upon his 

admittedly illegal arrest to urge a “but for” rejection of everything that followed from it. 

“Appellant, however, contends that his illegal arrest precludes any 

identification of him, so that he should in no way be connected with the 

offense and must be freed. The argument advanced by appellant may be 

styled as the ‘but for’ approach. ‘But for’ the illegal arrest he would not have 

been caught and, ergo, could not have been identified as the culprit.” 
34

(Emphasis supplied).

Quoting with approval from Commonwealth v. Garvin, 448 Pa. 258, 264, 293 A.2d 

33 (1972), this Court rejected “but for” analysis. 

“No law abiding society could tolerate a presumption that but for the 

illegal arrest the suspect would never have been required to face his accusors. 

Thus, we conclude that the only effect of the illegal arrest was to hasten the 

inevitable confrontation and not to influence its outcome.” 

39 Md. App. at 142. (Emphasis supplied).

In Gibson v. State, 138 Md. App. at 410-11, this Court pointed out how sweepingly 

destructive a blight a “but for” exclusionary approach would inflict. 

“At oral argument, however, and somewhat tentatively, the appellant 

championed a more virulent strain of the ‘fruit of the poisonous tree’ doctrine 

that, if ever loosed upon the law, would not contaminate a piece of fruit or 

two in a single orchard but would blight and level entire forests. He argues 

that BUT FOR their stopping of him on November 11, the police would 

never have learned 1) his identity, 2) his lengthy history of burglary and his 

parole status in New York, and 3) the fact that he lived a few blocks away 

from the scene of the January 27 crime. He argues further that BUT FOR

that information, they would have had no occasion to be parked across the 

street from his home during the early morning hours of February 12 and 

February 14 in a position to make the observations they did after he left his 

house. He argues finally that those observations are excludable ‘fruits of the 

poisonous tree.’”

(Emphasis supplied).

We pointed out how the derivative evidence might be admissible under the 

Attenuation of Taint Doctrine or might be admissible under the Independent Source 

Doctrine, but would in no event be suppressible under a “but for” rationale. 

“Even assuming, arguendo, that the stop on November 11 was bad 

(we are not remotely suggesting that it was), that would not operate to bar 
35

from evidence or from other uses the police observations of February 12 and 

February 14. 

“The admissibility of the observations would be clear whether 

considered as an instance of the attenuation of the initial taint, Wong Sun v. 

United States; United States v. Ceccolini, or as the product of an independent 

source, Segura v. United States; Murray v. United States.” 

138 Md. App. at 412. (Emphasis supplied).5

A Cautionary Analytic Note6

Although the bottom line decision of Utah v. Strieff, to wit, that the evidence 

produced by the search incident to Strieff’s lawful arrest would not be suppressed, is 

unquestionably correct, the Strieff analysis is at times uncomfortably shaky. There seems 

to be a growing trend in the more recent caselaw generally to utilize the same analytic

approach that Streiff at times seems to employ. As the concurring opinion confirms, there 

is a growing trend to utilize this analytic approach and that is the reason for this cautionary 

note. The bottom-line result of non-suppression is not threatened by this trend because the 

shaky analysis and a more solid analysis both push in the same direction, toward nonexclusion. What is threatened, however, is a cogent overview and understanding of this 

entire body of law. The result is fine, but the analysis is muddled. It is in a muddle, 

moreover, that seems to be rapidly metastasizing. 

 

5 The case of Missouri v. Grayson, 336 S.W.3d 138, 147 (2011), cited by the concurring 

opinion is a classic example of the application of a “but for” rationale.

6 With respect to this final section of the opinion, “A Cautionary Analytic Note” and 

“Conclusion,” Judge Moylan is writing for himself alone and not for the panel. 
36

The culprit is a promiscuous overuse and misuse of the verb “to attenuate” and an 

almost robotic misapplication of criteria from the “Attenuation of Taint Doctrine” to other 

doctrines, such as “Independent Source” and “Inevitable Discovery,” where those criteria

are not at all pertinent. The word “attenuate” is being misused to refer to any reason not to 

suppress evidence whereas it should properly be used to refer to only one of three possible 

reasons not to suppress. The body of law that we need to conceptualize is the “Fruit of the 

Poisonous Tree Doctrine.” Beginning with Silverthorne Lumber Company in 1920, that 

doctrine explained why, following unconstitutional investigative behavior by the police, 

the exclusion of secondary derivative evidence is a necessary deterrent to police 

misbehavior, just as surely as is the exclusion of primary or direct evidence. 

Beginning with Wong Sun v. United States in 1963 and Brown v. Illinois in 1975, 

the law recognized a set of circumstances calling for exemption from such exclusion of 

evidence. The first such exemption to be recognized was what has come to be called the 

Attenuation of Taint Doctrine. In determining whether the exclusion of evidence is 

appropriate or not, that doctrine examines the chain of cause-and-effect between the cause 

(the tainted police behavior) and the effect (the recovery of evidence). Brown v. Illinois

itself, 422 U.S. at 602, speaks of “the causal chain between the illegal arrest and the 

statements made subsequent thereto.” Where the causation is close and certain, exclusion 

is appropriate. Where, on the other hand, the chain of causation is, by time or other 

circumstances, long drawn out or attenuated, exclusion may not be appropriate. This is why 

the criteria for measuring what has happened along that chain of cause-and-effect includes 
37

such Brown v. Illinois considerations as 1) temporal proximity, 2) intervening 

circumstances, and 3) purpose and flagrancy of the official misconduct. Those criteria are 

measures of attenuation between the original taint and the ultimate evidence. After a certain 

point, the original causation loses its potency, so that the exclusion of evidence is a case of 

overkill. To get a proper conceptualization of what the Attenuation of Taint Doctrine is all 

about, one should carefully follow, step by step, the protracted and oft-interrupted chain of 

causation that was before the Supreme Court in Wong Sun v. United States. It is a prime 

example of what attenuation means. 

To picture the field as it has developed, it may be helpful to think of a genus and its 

relationship to its constituent species. The broad genus we are dealing with is Exemption 

from Exclusion. That genus now embraces three distinct species: 1) the Attenuation of 

Taint Doctrine, 2) the Independent Source Doctrine, and 3) the Inevitable Discovery 

Doctrine. When Brown v. Illinois was written in 1975, however, attenuation of taint was 

the only exemption from exclusion that had been recognized. The species and the genus, 

therefore, were one and the same. There was no difference between speaking specifically 

about attenuation and speaking generically about the whole field of exemption. That, of 

course, is why present day reliance on language from Brown v. Illinois can be treacherous. 

It may describe a specific problem in inappropriately generic terms. Brown describes one 

species of exemption, but it does not describe the entire genus of exemption. As of 1975, 

however, Brown v. Illinois had yet no way of knowing that, because only one species 

existed. The other two had not yet been recognized.
38

With Segura v. United States in 1984 and Murray v. United States in 1988, a second 

species was added to the genus, the Independent Source Doctrine. With Nix v. Williams in 

1984, a third species was added to the genus, the Inevitable Discovery Doctrine. These two 

doctrines, however, do not involve attenuation, and attenuation criteria have no pertinence 

in the examination of these doctrines. When dealing with them, therefore, one cannot rely 

on Brown v. Illinois.

In actual attenuation analysis, the original tainted police activity remains the “cause” 

in the still pertinent chain of cause and effect. We measure the extent to which time or 

intervening circumstances have diluted or diminished the poisonous taint. LaFave, supra,

§11.4(a) at 235, points out, “attenuation refers to ‘diminution of thickness’ or of ‘density’ 

or of ‘force of intensity.’” In the other two doctrines, by contrast, we are not concerned 

with diluting or attenuating taint because the originally tainted police activity is no longer 

the cause in our new chain of causation. It has been displaced or superseded by a new and 

different cause: the issuance of the arrest warrant in the independent source cases and by a 

logically compelling supposition in the inevitable discovery cases. 

Attenuation criteria are immaterial because in the new and superseding chains of 

causation, there is no longer any taint to be attenuated. The tainted cause of a discarded 

causative chain has been replaced by a new cause of a new and different causative chain, a 

cause that is untainted. Two chains of causation do not intertwine; they remain distinct. 

One chain of causation may have lead to a Terry frisk, but a completely different chain of 

causation lead to the search incident. They need not rise and fall together and they should 
39

not be conflated. To conflate the two would mean that the search incident could not be 

deemed valid unless the frisk could also be deemed valid. We should only talk about 

attenuating taint, therefore, when we are literally dealing with the Attenuation of Taint 

Doctrine and not when we are dealing with the Independent Source Doctrine or the 

Inevitable Discovery Doctrine.

A superseding cause or an independent source, moreover, is by no means the same

thing as “an intervening circumstance” that is a familiar factor in attenuation analysis. An 

intervening circumstance is something that happens within or along the original chain of 

causation. Webster’s Third New International Dictionary (4th ed. 1976), at p. 1183, gives 

as definition 3 for “intervene”: “to come in or between by way of modification.” It is 

internal. “A (the bad Terry stop) leads to B which leads to C which leads to D (the recovery 

of evidence).” B and C are intervening circumstances that tend to interrupt movement along

the cause-and-effect chain and thereby to dilute or weaken the force of the original taint. 

With the Independent Source Doctrine, by contrast, we look to a different and untainted 

cause as the starting point of an independent and distinct chain of causation. Webster’s 

Third New International Dictionary (4th ed. 1976), at p. 2295, gives as definition 4 for 

“supersede”: “to take the place of.” Wong Sun, 371 U.S. at 487, explained that “the 

exclusionary rule has no application because the Government learned of the evidence from 

an independent source.” Why then do we even speak of attenuating taint when there is no 

taint to attenuate?
40

Why, it might be asked, did these three very different species of exemptions from 

exclusion ever get grouped together in the first place? It was obviously because of the 

seductive power or siren song of the irresistible logical fallacy of “Post hoc, ergo propter 

hoc” – “After this; therefore, because of this.” “The recovery of the evidence occurred after 

the chase; therefore, it must have occurred because of the chase!” It is a beguiling time 

sequence, but it is fallacious. The Attenuation of Taint Doctrine, indeed, calls for analysis 

under such a “post hoc” framework. The Independent Source Doctrine and the Inevitable 

Discovery Doctrine, on the other hand, do not. A preexisting arrest warrant is an 

independent source, and there is nothing that needs to be attenuated.

Although the two phenomena might occur at roughly the same moment in real time 

in a given investigative narrative, an “intervening circumstance,” on the one hand, and an 

“independent source” or “superseding cause,” on the other hand, are critically different and 

must not be confused with each other. An “intervening circumstance” is an event within a 

tainted chain of causation and is a factor in measuring the extent to which the taint has been 

diluted or attenuated. An “independent source” or “superseding cause,” by contrast, is not

an event within that tainted chain of causation. It is an overriding event that renders the 

tainted chain of causation immaterial. That chain of causation no longer matters. It has 

been displaced by an entirely different chain of causation that was never tainted in the first 

place and, therefore, needs no attenuation. An “independent source” is not an “intervening 

circumstance.” 
41

Conclusion

The word “attenuate” is being casually misused to cover every variety of exemption 

from the exclusion of evidence under the Fruit of the Poisonous Tree Doctrine, whereas it 

is properly pertinent to only one of the three distinct modes of exemption. If, therefore, the 

caselaw robotically picks up attenuating-taint criteria from one species of exemption from 

exclusion and illogically imposes those criteria on a very different species of exemption, 

HANDLE WITH EXTREME CAUTION. The practical result may not be at risk, but the 

cogency of our analysis is.

ORDER OF SUPPRESSION 

REVERSED AND CASE 

REMANDED FOR TRIAL;

COSTS TO BE PAID BY 

APPELLEE.
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 784

September Term, 2016

______________________________________

STATE OF MARYLAND

v.

JAMAL RASHEED SIZER

______________________________________

Graeff,

Leahy,

Moylan, Charles E., Jr.

(Senior Judge, Specially Assigned),

JJ.

______________________________________

Concurring Opinion by Graeff, J.

______________________________________

Filed: November 29, 2016
I concur in the judgment only. I agree with much of the Majority Opinion, i.e., that 

the police had reasonable suspicion to detain appellant, and even if they did not and the 

initial detention was unlawful, suppression of the evidence obtained was not warranted 

because the discovery of the arrest warrant purged the taint of any illegal detention. I write

separately because, although I agree that the judgment should be reversed, I respectfully 

do not agree with the conclusion that the independent source doctrine applies in this case. 

As the Majority notes, there are three methods of “purging the taint” of unlawful 

police conduct that provide exceptions to the exclusionary rule: 

First, the independent source doctrine allows trial courts to admit evidence 

obtained in an unlawful search if officers independently acquired it from a 

separate, independent source. See Murray v. United States, 487 U.S. 533, 537 

(1988). Second, the inevitable discovery doctrine allows for the admission of 

evidence that would have been discovered even without the unconstitutional 

source. See Nix v. Williams, 467 U.S. 431, 443-444 (1984). Third, . . . is the 

attenuation doctrine: Evidence is admissible when the connection between 

unconstitutional police conduct and the evidence is remote or has been 

interrupted by some intervening circumstance, so that “the interest protected 

by the constitutional guarantee that has been violated would not be served by 

suppression of the evidence obtained.” Hudson[ v. Michigan, 547 U.S. 586, 

593 (2006)].

Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (parallel citations omitted). Accord Cox v. 

State, 421 Md. 630, 652 (2011); Williams v. State, 372 Md. 386, 409 (2002). “These 

exceptions aim to balance the interests of society in deterring unlawful police conduct with 

the interest of ensuring juries receive all probative evidence of a crime.” Williams, 372 

Md. at 410.

I am not persuaded that the independent source doctrine applies to the circumstances 

of this case. That doctrine applies when the evidence seized is independent of the initial 
2

illegality. See Segura v. United States, 468 U.S. 796, 814 (1984) (although police 

unlawfully entered apartment, evidence seized in subsequent search pursuant to a warrant 

was admissible because “[n]one of the information on which the warrant was secured was 

derived from or related in any way to the initial entry”). Here, without the initial stop, the 

police would not have been in a position to arrest appellant pursuant to the warrant.

The Supreme Court of Missouri addressed a similar scenario in State v. Grayson, 

336 S.W.3d 138 (Mo. 2011). In that case, Grayson was illegally stopped and detained. Id. 

at 146, 148. The court rejected the State’s argument that drug evidence nevertheless was 

properly admitted pursuant to the independent source doctrine: 

As the United States Supreme Court noted in Nix [v. Williams, 467 

U.S. 431 (1984)], the purpose of the exclusionary rule is to ensure that “the 

prosecution is not to be put in a better position than it would have been if no 

illegality had transpired.” Id. at 443. Conversely, the reason for the 

exceptions is to ensure that “the prosecution is not put in a worse position 

simply because of some earlier police error or misconduct.” Id.

Here, Officer Lambert obtained the bag of methamphetamine by 

taking advantage of the direct chain of events arising from the initial 

illegality perpetrated on Mr. Grayson. Had Mr. Grayson not been detained 

while driving innocently and further detained after Officer Lambert 

ascertained that he was not Terry Reed, then Officer Lambert never would 

have been in a position to arrest Mr. Grayson and later discover the bag of 

methamphetamine while inspecting the patrol car’s backseat after 

transporting Mr. Grayson to jail. While the state may have properly arrested 

Mr. Grayson on the outstanding warrant at some point, it is not the arrest on 

the warrant but the conviction of possession of methamphetamine found in 

the patrol car some time after the arrest that is objected to here. Here, the 

“prosecution was put in a better position than it would have been if no 

illegality had transpired.” Nix, 467 U.S. at 443.

Grayson, 336 S.W.3d at 150-151 (footnote and parallel citations omitted).
3

I agree with that analysis. I disagree with the conclusion of the Majority that, if the 

initial stop was illegal, the independent source doctrine would apply to prevent exclusion 

of the evidence.

I would apply the attenuation doctrine in this case. That is the rationale followed 

by the United States Supreme Court and the Maryland Court of Appeals in circumstances 

similar to the facts of this case. See Strieff, 136 S. Ct. at 2061-63 (applying the attenuation 

doctrine and holding that “the evidence discovered on [defendant’s] person was admissible 

because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant”); 

Cox v. State, 397 Md. 200, 212-22 (2007) (same); Myers v. State, 395 Md. 261, 285, 294 

(2006) (same). 

Pursuant to the attenuation doctrine, the following facts must be considered: 

First, we look to the “temporal proximity” between the unconstitutional 

conduct and the discovery of evidence to determine how closely the 

discovery of evidence followed the unconstitutional search. Second, we 

consider “the presence of intervening circumstances.” Third, and 

“particularly” significant, we examine “the purpose and flagrancy of the 

official misconduct.”

Strieff, 136 S. Ct. at 2062 (citations omitted).

In the present case, although the temporal proximity weighed in favor of 

suppression, the intervening circumstance of the valid arrest warrant and the lack of 

evidence of flagrant police misconduct weighs against suppression of the evidence seized. 

I would conclude, as did the Court of Appeals in Cox, 397 Md. at 220, that “the arrest 

pursuant to the outstanding warrant sufficiently attenuate[d] any taint caused by the 
4

arguably illegal stop.” Accordingly, the gun and drug evidence discovered on appellant’s 

person should not have been suppressed.