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Snow v. Maryland9/4/1990
uilty of some criminal activity is disturbing. A citizen's exercise of the Fourth Amendment right to be free from unwarranted searches does not trigger a reasonable suspicion that he or she is carrying narcotics.
An analogous situation occurs where innocent and guilty persons alike may assert their right to remain silent when arrested or during custodial interrogation; guilt cannot be inferred from that silence. United States v. Hale, 422 U.S. 171, 177, 95 S.Ct. 2133, 2137, 45 L.Ed.2d 99 (1975). Moreover, the United States Supreme Court held that California's comment rule, which permitted a judge to instruct a jury that a criminal defendant who fails to testify or testified without denying or explaining evidence within his knowledge, tends to indicate the truth of such evidence, violates the Fifth Amendment. Griffin v. California, 380 U.S. 609, 613-15, 85 S.Ct. 1229, 1232-33, 14 L.Ed.2d 106 (1965). See also Attorney Grievance Comm'n of Maryland v. Unnamed Attorney, 298 Md. 36, 467 A.2d 517 (1983) (Constitution of Maryland, Declaration of Rights, Art. 22). In addition, at least one Court has held that a judge's failure to instruct the jury that the defendant's refusal to consent to a warrantless search could not be used as evidence of guilt was reversible error. United States v. Prescott, 581 F.2d 1343, 1350-53 (9th Cir.1978). The same rationale applies to a defendant's desire to avail himself or herself of the Fourth Amendment right to be free from warrantless searches. Accord, People v. Redmond, 29 Cal.3d 904, 176 Cal.Rptr. 780, 633 P.2d 976, 985 (1981) (Bird, C.J., dissenting).
Further, we agree with Snow that the facts of this case demonstrate the ease with which any circumstance could be construed as "suspicious." For example, had Snow not appeared nervous and made direct eye contact with Officer Paros that could have indicated familiarity in dealing with police. Or, had Snow been driving on a "back road" instead of the most direct route, his actions could appear to be directed at avoiding law enforcement agents. The so-called
"facts" observed in this case are not distinct from those in Reid which describe a large segment of the population. Thus, Office Paros lacked a reasonable suspicion which is required by Terry.
Mosley Criteria
Applying the Mosley criteria listed above to the case at bar, also leads us to conclude that Paros did not have a reasonable suspicion that Snow was committing or was about to commit a crime other than the speeding violation for which he was stopped. As in Mosley, the suspect's appearance and criminal record do not apply. But Snow's conduct was not, as it was in Mosley, inherently suspicious. He was not "casing" a store; he merely failed to make eye contact with the officer. The fourth Mosley criteria, the environment or place of the stop was not, in and of itself, suspicious. Traveling on a major highway at noontime is not disreputable in any way, especially given the fact that I-95 is the quickest route from Philadelphia to Washington, D.C.
The purpose of the stop, the fifth criteria mentioned in Mosley, was to enforce the highway speed limits, whereas the purpose of the "dog sniff" was to detect drugs. These two purposes are not related to one another. Although possessing drugs or intending to distribute drugs is clearly a crime which may be associated with violence, it is not inherently violent like robbery which was at issue in Mosley. Thus, the type of intrusion which occurred here did not involve a "severe" crime which required only minimal articulable suspicion; the search here required more justification than did the stop in Mosley .
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