Campbell, Laura

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 21Number 1 Fall, 1990 Article 171990Recent Developments: Jones v. State: The FourthAmendment Is Violated When Police Stop aBicyclist without Reasonable Articulable SuspicionLaura CampbellFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationCampbell, Laura (1990) "Recent Developments: Jones v. State: The Fourth Amendment Is Violated When Police Stop a Bicyclistwithout Reasonable Articulable Suspicion," University of Baltimore Law Forum: Vol. 21 : No. 1 , Article 17.Available at: http://scholarworks.law.ubalt.edu/lf/vol21/iss1/17at 618 (citing City of Los Angeles v. Taxpayers for Vincent, 466 US. 789, 796-98 ( 1.984)). A statute should not be struck down for being overbroad, "un-less there is a realistic danger that the statute itself will significantly compro-mise recognized First Amendment pro-tections of parties not before the Court." [d. at 465, 569 A2d at 618 (quoting Taxpayers for Vincent, 466 us. at 801). Section 121 contains applicable en-forcement standards, and does not reach beyond conduct which can be regulated consistent with the first amendment. The court concluded, therefore, that Section 121 was not overbroad. [d. Judge Eldridge argued vehemently against state restrictions on the volume level of protected speech in his dissent. Judge Eldridge was of the opinion that Diehl stood for the proposition that the phrase "loud and unseemly" could only serve to limit speech which "presented a clear and present danger of violence, or [speech] not intended as communi-cations but merely as a guise to disturb other persons." [d at 470, 569 A2d at 620 (Eldridge,]., dissenting). He found Section 121 unconstitutional as applied because the limitations on speech made the delivery of speech a crime.[d at 473, 569 A.2d at 622 (Eldridge,]., dissent-ing). Judge Eldridge went on to note that" [a )nnoyance at ideas can be cloaked in annoyance at sound" [d. at 475,569 A.2d at 623 (quoting Saia v. New York, 334 us. 558,562 (1948)) (Eldridge,]., dissenting). He then criticized the majority which found that "[s]ound is one of the most intrusive means of communication," and pointed out that "sound, in the form of the spoken word, is the most basic thing protected by the First Amendment." [d. at 476, 569 A.2d at 624 (Eldridge,]., dissenting). Judge Eldridge found the court's re-quirement of prior warning an illusory, ineffective protection as any time government authorities desire to sup-press first amendment activity, they could easily find complainants to give prior warnings. [d. at 490, 569 A2d at 630 (Eldridge, ]., dissenting). He be-lieved that Eanes' speech was within his constitutional guarantees and concluded his dissent expressing his fear for those persons who speak on controversial topics. [d. at 500, 569 A.2d at 635-36. The Court of Appeals of Maryland "balanc[ed] one's right to express him-self and other's right to be free from disruption." [d. at 467,569 A.2d at 619. The Court concluded that Section 121 is content-neutral, narrowly tailored to serve a substantial governmental inter-est and leaves open ample alternative channels of communication. Eanes was given fair notice that the volume level of his speech would be subject to prosecu-tion ifit was not lowered. Therefore, the statute did not violate Eanes' right to free speech. - Kimberly A. Doyle Jones v. State: THE FOURTH AMENDMENT IS VIOLATED WHEN POliCE STOP A BICYCliST WITHOUT REASONABLE ARTICULABLE SUSPICION In Jones v. State, 319 Md. 279,572 A2d 169 (1990), the Court of Appeals of Maryland, held that a police stop of a bicyclist for investigatory purposes based on a hunch, without a reasonable articu-lable suspicion justifying the stop, vio-lated the fourth amendment. The court reasoned that a seizure occurred when the officer commanded the bicyclist to stop, thus affording fourth amendment protection. Carl Lee J ones was riding his bicycle at 3:20 a.m. carrying a grocery bag hang-ing from the handlebars and, apparently, drycleaning bags across his shoulders and travelled from the general direction of a drycleaning store. The area where J ones was riding had been the scene of several recent burglaries. Officer Brown spotted Jones and in language to the effect of "hey, could you come here," commanded him to stop. Once stopped, the officer noticed a bulge in Jones' jacket pocket that appeared to be a handgun. A pat down search yielded a .25 caliber pistol. A subsequent search of the grocery bag yielded various quan-tities of cocaine, marijuana, and other p_araphemalia Jones was arrested and charged with possession and intent to distribute cocaine, possession of mari-juana, and unlawful wearing and trans-porting of a handgun. Prior to trial, Jones made a motion to suppress the evidence on the ground that the search and seizure was illegal because of the illegal stop. Jones, 319 Md. at 280, 572 A.2d at 170. The trial court denied his motion based on its finding that the initial encounter was not a seizure. Jones was convicted. [d The court of special appeals affirmed the conviction, finding the initial en-counter was a "mere accosting", and not a seizure under the fourth amendment. [d. at 282, 572 A.2d at 171. The court determined that the stop was a "mere accosting" because there was no show of force or weapons used to effectuate the stop; and, therefore, the trial court properly denied the motion to suppress. [d. The court of appeals granted certiorari. The issue on appeal was whether the stop was a legal seizure under the fourth amendment. Jones argued that an illegal stop and seizure occurred when the police ordered the stop of his bicycle without reasonable articulable suspicion. [d. The state posited two competing arguments. Either there was no error by the trial judge and therefore, the stop was consensual rather than custodial in nature and was not a seizure. Alterna-tively, if the stop was a seizure, there was sufficient articulable suspicion to justify the stop. [d. The court began its analysis by stating the general rule that a police stop is a seizure when a reasonable person would feel that his freedom to walk away was restrained. [d. at 282, (citing Terry v. Ohio, 392 US. 1 (1968)). Additionally, the court, in distinguishing a seizure from a "mere accosting" held that a seizure occurs when an individual to whom questions are posed does not feel free to disregard the questions and walk away. [d. at 283, 572 A.2d 171 (citing U.S. v. Mendenhall, 446 us. 544 ( 1980)). Adopting a totality of the cir-cumstances approach to determine what constitutes a seizure, the court stated that one or all of the following factors may persuade a trial court that a seizure occurred: (1) threatening presence of several officers; (2) show or use of a weapon; (3) physical contact by the officer; or ( 4) authoritative tone or lan-guage by the officer indicating an order rather than a request. [d. Applying the Mendenhall factors, the court noted in Florida v. Royer, 460 u.s. 491 (1983), that merely approaching an individual and asking questions consti-tuted a voluntary stop and was not a seizure unless the person approached was detained. Rejecting the use of a bright line test, the court instead posited __________________________________ 21.1/TheLawForum-45 additional factors to consider when deter-mining whether a seizure occurred: ( 1) police use of sirens or flashers; (2) use of a command to stop or halt, or show or use of a weapon; or (3) operat-ing a road block or otherwise control-ling the flow of traffic.]ones, 319 Md at 285, 572A.2dat 172 (citingMichiganv. Chesternut, 486 u.s. 567 ( 1988) ). In applying both the Mendenhall and Chesternut factors, the court of appeals found that the officer seized Jones when he commanded him to stop because the situation was such that a reasonable per-son would not feel free to walk away. jones, 319 Md. at 285, 572 A.2d at 172. First, the officer was uniformed and driv-ing a marked police car, and the hail trans-lated into a command to compel Jones to stop. Further, the court stated, that it was reasonable for the defendant to feel constrained to stop, since to disobey or ignore an officer would be an offense. [d. (citing Md. Transp. Code Ann. section 21-103(a)( 1987)). Thus, the court con-duded that" given these circumstances, the average citizen, not being able to distinguish a mere accosting from a seizure, would have viewed the actions of the police officer's intimidating enough to have complied." jones, 319 Md. at 286,572 A.2d at 172-73. The court analogized the level of physical control over Jones by the police with the level of control it held suffi-cient to constitute a seizure in State v. Lemmon, 318 Md. 365, 568 A.2d 48 ( 1990). In Lemmon, an officer identi-fied himself to a suspect and stated "come here" as a command to the sus-pect to stop. When the suspect ran, the police chased him on foot and also tried to block his escape with a police car. The court held that the suspect was seized by the police at the initial en-counter when they commanded him to stop. The jones court conduded that Jones, like the suspect in Lemmon, was seized when the police commanded him to stop, because at that point, he did not feel free to walk away. jones, 319 Md. at 287, 572 A.2d at 173. Finding the initial encounter a seiz-ure, the Court considered the state's alternative argument regarding the rea-sonableness of the stop. [d. The court noted that the officer admitted having no knowledge of any crime committed either at that approximate time or in that approximate location. [d. The court further noted that Jones was riding a bicyde in an area where recent burglar-ies occurred, carring what appeared to be drydeaning bags across his shoulders, and travelling from the general direc-tion of a drydeaning store, and that these facts alone were not sufficient for the officer to have formed a reasonable and articulable suspicion to justify the stop. [d. The court conduded that the officer acted on a hunch that Jones was involved in or fleeing from a crime when he commanded him to stop; and, there-fore, the stop was illegal. [d. at 288, 572 A.2d at 174. The court of appeals has expanded the holding in Lemmon to the factually different case of a bicyclist, by finding that Jones was seized at the point when the officer commanded him to stop. Thus, a police officer must have a reaso-nable articulable suspicion to stop a bicyclist, like a motorist or pedestrian, or the stop will violate the fourth amendment. - Laura Campbell PLACEMENT SERVICE IF YOU NEED LAW CLERKS LEGAL RESEARCH ASSISTANTS ATIORNEYS CALL: GENA GUCKMAN DIRECfOR OF LAW PLACEMENT LAW CENTER 1420 N. CHARLES STREET 46-The Law Forum/21.1 THE LAW FORUM IS NOW SEEKING PROFESSIONAL ARTICLES AND LEGAL ADVERTISEMENTS FOR INFORMATION REGARDING SUBMISSION CONTACf Law Forum Room 200 Law Center 1420 N. Charles Street Baltimore, Maryland 21201 576-2303 This space contributed as a public service. A defense against cancer can be cooked up in your kitchen. There is evidence that diet and cancer are related. Some foods may promote cancer, while others may protect you from it. Foods related to lower-ing the risk of cancer of the larynx and esophagus all have high amounts of carotene, a form of Vitamin A which is in cantaloupes, peaches, broccoli, spinach, all dark green leafy vegetables, sweet potatoes, carrots, pumpkin, winter squash and tomatoes, citrus fruits and brussels sprouts. Foods that may help reduce the risk of gastrointestinal and respiratory tract cancer are cabbage, broccoli, brussels sprouts, kohlrabi, cauliflower. Fruits, vegetables, and whole-grain cereals such as oatmeal, bran and wheat may help lower the risk of colorectal cancer. Foods high in fats, salt- or nitrite-cured foods like ham, and fish and types of sausages smoked by tradi-tional methods should be eaten in moderation. Be moderate in consumption of alco-hol also. A good rule of thumb is cut down on fat and don't be fat. Weight reduction may lower cancer risk. Our 12- year study of nearly a million Americans uncovered high cancer risks particularly among people 40% or more overweight. Now, more than ever, we know you can cook up your own defense against cancer. So eat healthy and be healthy. cancer alone. AMERICAN No one faces t CANCER SOClE1Y@ mEIAWFORUM IS NOW SOUCITING ARTICLES ON CURRENT LEGAL ISSUES BY JUDGES PROFESSORS AITORNEYS LAW STUDENTS TALK TO YOUR FRIENDS UNIVERSI1Y OF BALTIMORE LAW FORUM CONTACT LESLEY A. DAVIS • ARTICLES EDITOR OR MICHAEL MALONE • ASSISTANT ARTICLES EDITOR LAW FORUM OFFICE 576-2303 

Recent Developments: Jones v. State: The Fourth Amendment Is Violated When Police Stop a Bicyclist without Reasonable Articulable Suspicion

https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1591&context=lf

Recent Developments: Jones v. State: The Fourth Amendment Is Violated When Police Stop a Bicyclist without Reasonable Articulable Suspicion

Abstract

Similar works

Full text

Available Versions

University of Baltimore School of Law