Panel Splits on Stops for “Security Checks”

By: Chris Mincher

Police officers on the lookout for crime know that people with illegal things usually try to conceal them. If the object is big and bulky enough, sometimes that isn’t so easy. People who carry illicit items under their clothes might have to take some extra measures to make sure they stay there.

On the other hand, while concealing a firearm is typically a crime, generally shoving things into one’s pants is not. As such, Maryland courts have decided that mere adjustments and manipulations of the waistline don’t create a reasonable suspicion of illegal activity without some other indication that a gun is involved. But what if the police officer describes those adjustments and manipulations as specific “security checks” consistent with a potential concealed firearm? Does that pass muster for Fourth Amendment purposes?

Two out of three Appellate Court judges in last summer’s case of Williams v. State didn’t think so. There, a police officer was watching a video feed on a surveillance camera from a control room and saw the defendant, Philip Williams — on an intersection known for drug-dealing and homicides — making hand gestures near his waist, which the officer believed may have indicated he was concealing a handgun there in violation of § 4-203(a)(1)(i) of the Criminal Law Article of the Maryland Code. A team of officers went to the scene, seized Williams, and recovered a handgun from his body. He was prosecuted with various charges for illegal possession of a firearm and ammunition.

At the hearing on a motion to suppress, the officer who had observed the video feed pointed out in the footage where Williams tapped his hand to his front midsection near the beltline, in the “dip area,” and then attempted to pull his jacket over it. The officer also noted that, later, as Williams was bending over, he pushed an object near his crotch back up to the waist. The officer labeled these movements “security checks,” consistent with concealment of a gun. Based on this testimony, the court found there was a “reasonable, articulable suspicion” that Williams possessed a weapon, “and it was for the officers’ safety that they grabbed him and patted him down.” Williams was found guilty.

On appeal, the Appellate Court analyzed whether the officers’ stop of Williams was, pursuant to Terry v. Ohio, 392 U.S. 1, 24 (1968), supported by “reasonable suspicion that a person has committed or is about to commit a crime.” That standard requires that a police officer have “a particularized and objective basis” for suspecting criminal activity before detaining a person. Once a person is detained, an officer may search for weapons only with an additional reasonable suspicion that the person is “armed and presently dangerous.” The purpose is only as protection from harm, not discovery of evidence.

The panel’s focus was on three pieces of precedent. First, the case of Ransome v. State, 373 Md. 99 (2003), in which a man was stopped by police in a high-crime area who believed a large bulge in his pocket may have been a gun. A pat down revealed the bulge was actually a roll of money, but the officers also uncovered a bunch of drugs. The Court of Appeals held that the bulge in the pocket was not, by itself, reasonable suspicion that the person was concealing a firearm.

Next up was Jeremy P., 197 Md. App. 1 (2011). The stop in a high-crime area there was based on the suspect’s “firm movements” and “playing around” with his “waistband area,” which the officer said indicated he may have had a gun. The Appellate Court held that adjustments around a waistband, by themselves, were not enough for a Terry stop — there would have to be specific facts indicating that what is being concealed in the waistband is a weapon.

Lastly, the Appellate Court reviewed Thornton v. State, 465 Md. 122 (2019), in which the defendant, who was already stopped for illegal parking, was patted down after officers saw him adjusting and manipulating an object in a waistband. That was held to be legally insufficient because officers — even when operating in a high-crime area — could only have an “unparticularized hunch” about what is being concealed. Thornton also thoroughly assessed the circumstances to determine whether officers reasonably thought they were actually in any real danger, as the defendant was outnumbered three-to-one, had a “laid back” demeanor, complied with the officers’ requests, and wasn’t treated by the officers as if they regarded him as a threat.

Applying these to Williams, the majority didn’t see how the stop was any different — the defendant was standing in a high-crime area making hand movements near his waist. It didn’t matter whether the testifying officers called those gestures “security checks” or not; they still didn’t objectively indicate that a weapon was being concealed rather than something else. Given that Williams’ gestures were viewed on video and he was approached by officers because they thought he may be committing a crime, the majority also believed the frisk was primarily (and impermissibly) meant to uncover evidence rather than for physical safety. The majority reversed the denial of the motion to suppress. (On appeal, there was also a Second Amendment issue that the Court deemed waived and isn’t necessary to discuss here.)

Judge Graeff, however, would have upheld the trial court’s decision. To her, the security checks that Williams made where guns are typically concealed, his pulling of his jacket over that same area, and the adjustments he made while bending over were all, collectively, factual details explaining the officer’s suspicion that were stronger and more precise evidence than in Jeremy P., Ransome, and Thornton.

As I see it, the details provided by the officer certainly describe something being concealed. For the reasons Judge Graeff lays out, the officer articulated a reasonable suspicion that Williams had a hidden item in his beltline. It is not clear, however, that he articulated a reasonable suspicion of what the item was, much less that it was a weapon. Using the term “security check” seems to presuppose that the object is a firearm, but there are other legal objects a person may want to conceal in a high-crime area: for example — as turned out to be the case in Ransome — a roll of money.

Given the high-crime area where this all occurred, police might assume that a lot of objects concealed at the waist are going to implicate some unlawful conduct. But greenlighting Terry stops on that alone would mean that a person’s placing anything into the beltline in a high-crime area would operate as an automatic Fourth Amendment off-switch. Jeremy P. — which both sides seem to concede is the closest fit of the three precedents — says that’s not so; rather, the specific facts must suggest that the suspect is concealing a weapon. The officer in Williams didn’t provide any testimony demonstrating a likelihood that the thing in the defendant’s pants was a weapon as opposed to anything else.

As the majority noted, this wasn’t primarily a matter of officer safety. The suspicion that Williams may have had a firearm was the reason for the stop in the first place — an officer was sitting somewhere remotely, saw the gestures, and sent in a team to detain him for investigatory purposes. Whether or not a reasonably prudent police officer would have perceived enough risk of danger to subsequently frisk Williams for weapons may or may not get the same result, but that analysis bypasses the initial question of whether the stop itself was reasonable.

The takeaway from Williams is that, even if an officer can thoroughly describe why a defendant’s movements indicate a concealed object, and even if the officer believes those qualify as “security checks,” a valid Terry investigatory stop still requires a reason to believe the object is illegal. This may seem like a high bar — if an object is concealed, it is obviously hard to know what it is — but the alternative is essentially a rule that anything tucked into the beltline is presumed to be unlawful. That is where Jeremy P. drew the line, and where the divided Williams panel intended to hold it.