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Maryland Court of Appeals: MTA’s Fare Sweep Constitutes Suspicionless Seizure in Violation of Fourth Amendment

Carter was on a light rail train that stopped at the Mount Royal station when MTA Corporal Latoya Russell boarded the train and announced to all passengers that they had to show their tickets. Carter approached Russell and told her he did not have a ticket. Russell told Carter to get off the train and report to MTA Officer Zachary Tobin who was waiting on the station’s platform. Tobin ran a check of Carter’s identification and discovered an outstanding warrant. In the process of arresting Carter on the warrant, a firearm was discovered in Carter’s waistband. He was indicted on several charges, including two firearm offenses.

Carter moved to suppress the evidence. He argued that Russell conducted a stop without reasonable suspicion in violation of Terry v. Ohio, 392 U.S. 1 (1968); consequently, Carter’s subsequent admission that he did not have a ticket was the fruit of an illegal stop and the circuit court should suppress all evidence that flowed from the Terry stop. At a hearing on the motion, Russell agreed with defense counsel’s statement that the purpose of a fare sweep was to “see if someone has committed a crime by riding the train without paying” and agreed with counsel’s statement that “the fare checking also works as an apparatus to be able to check people for warrants as well.”

The circuit court denied the motion, reasoning that Russell didn’t seize Carter prior to his admission that he did not have a ticket. And once Carter made that admission, MTA officers had probable cause to believe he had committed the offense of fare evasion and were permitted to detain him to write a citation, as well as run the warrant check that led to his arrest and subsequent discovery of the evidence he sought to suppress. Alternatively, the circuit court reasoned that the discovery of the arrest warrant attenuated any taint from an unlawful stop.

After Carter was convicted and sentenced, he appealed. In a published opinion, the COSA reversed. Carter v. State, 243 Md. App. 212 (2019). The COSA, relying on United States v. Mendenhall, 446 U.S. 544 (1980), concluded Carter was “seized” prior to his admission because Russell’s announcement, her presence on the train, and the presence of other officers on the station’s platform constituted a show of authority that implied to a reasonable person that individuals were not free to leave prior to providing proof of fare payment. The COSA rejected the State’s arguments that the warrantless seizure was constitutional based on the “special needs” exception or based on implied consent. The COSA also rejected the argument that the outstanding warrant attenuated the evidence from the illegal seizure.

Upon grant of certiorari to the Maryland Court of Appeals, the State conceded that Carter was seized for Fourth Amendment purposes but continued with its arguments of implied consent and the special needs exception as well as the attenuation argument. The Court affirmed the COSA’s holding that Carter was seized. And under the Fourth Amendment, warrantless seizures are presumed unconstitutional unless the State can demonstrate the applicability of one of the few exceptions to the warrant requirement to overcome the presumption. Katz v. United States, 389 U.S. 347 (1967).

Two exceptions to the warrant requirement are consent and special needs. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). Consent to a search may be express or implied. Farkas v. Williams, 823 F.3d 1212 (9th Cir. 2016). The Farkas Court ruled that consent was implied where individuals entered military bases surrounded by barbed-wire fencing, security guards were at the gate, and signs were posted warning those who entered may be searched. These circumstances “combine[d] to puncture any reasonable expectations of privacy for a civilian who voluntarily enter[ed].” Id.

In contrast, persons such as Carter who used the light rail trains were not confronted with fencing, guards, or signs warning they may be searched. By merely riding on the train, the passengers did not imply that they consented to being seized by police to determine if they had paid the fare, according to the Court.

The “special needs” doctrine permits seizure of persons without individualized suspicion where the seizure occurs as part of a program that is designed to serve “special governmental needs, beyond the normal need for law enforcement.” Sitz. In Sitz, the U.S. Supreme Court held that the use of warrantless sobriety checkpoints is constitutional because the specific program at issue was designed to prevent accidents caused by drunk drivers. However, if the primary purpose of a program is to “uncover evidence of ordinary criminal wrongdoing,” then the program is presumptively unconstitutional under the Fourth Amendment. Illinois v. Lidster, 540 U.S. 419 (2004). Even when the primary purpose of a program is not general crime control, courts must still determine its constitutionality by balancing three factors: (1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the primary purpose, and (3) the severity of interference with individual liberty. Id.

Because the record in the instant case did not reveal the primary purpose of the fare sweeps, the Court could not agree with the COSA’s conclusion that the special needs doctrine did not apply. Russell’s answers to defense counsel’s leading questions did not provide conclusive evidence of MTA’s primary purpose in conducting the sweeps. Without knowing MTA’s primary purpose, the Court could not balance the three Lidster factors. However, because the State failed to meet its burden to establish that the special needs exception applies, the COSA’s holding would be affirmed unless the State could prevail on its attenuation argument.

Ordinarily, evidence obtained in violation of the Fourth Amendment is inadmissible under the exclusionary rule. Thornton v. State, 214 A.3d 34 (Md. 2019). But because the purpose of the exclusionary rule is deterrence, the U.S. Supreme Court has explained it is applicable only where its deterrence benefits outweigh its substantial social costs. Utah v. Strieff, 136 S. Ct. 2056 (2016). One exception to the exclusionary rule is the attenuation doctrine. Id. That is, an intervening circumstance attenuates the evidence from the taint of law enforcement’s unlawful conduct. Id.

Applicability of the attenuation doctrine is determined by balancing three factors: (1) the temporal proximity between the unlawful conduct and the discovery of the evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. Strieff. In the instant case, factor (1) favors suppression because the discovery of the gun came within minutes of the fare sweep. Factor (2) favors admission of the gun because discovery of the outstanding warrant was an intervening circumstance. The Court determined that factor (3) favors suppression because the MTA’s sweeps involved a “dragnet” seizure of multiple individuals without reasonable suspicion and exclusion of the evidence reinforced that all state and local agencies should proceed with caution when implementing a program of warrantless, suspicionless seizures. The Court agreed with the COSA that the arrest warrant did not attenuate the evidence from the unlawful seizure.

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State v. Carter



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