Maryland Court of Special Appeals says officer need not be expert to

A police officer does not have to be an expert to explain his reasonable articulable suspicion for conducting a pat-down search, the Court of Special Appeals has held.

The opinion, which distinguishes a March decision by the state's highest court, affirms the gun-possession conviction of Kobie Matoumba in Baltimore City Circuit Court.

Matoumba was frisked after the car in which he was riding was stopped for speeding. The officer testified that he conducted a Terry frisk because Matoumba acted nervous and was trying to conceal something behind his back.

On appeal, Matoumba claimed the officer was giving expert testimony without being qualified as an expert under Maryland Rule 5- 702.

We find nothing in Rule 5-702, Maryland case law, or Terry that could be remotely construed to mandate that a police officer be qualified as an expert in order to render an opinion on his or her basis for reasonable articulable suspicion to conduct a pat-down, Judge J. Frederick Sharer wrote for the intermediate appeals court.

The court also found the frisk itself to be reasonable under the circumstances.

Matoumba was sitting in the back seat of a Chevy Lumina stopped for speeding in a high-crime area by Baltimore City police in July 2002.

The occupants were ordered out of the car and the officers conducted a protective pat-down of Matoumba's outer clothing, which revealed a .25 caliber Browning handgun in his back pants pocket.

At the suppression hearing, the officers testified as to the basis of their reasonable articulable suspicion of wrongdoing, required by the Supreme Court's 1968 decision in Terry v. Ohio to justify a warrantless, investigatory stop-and-frisk.

Matoumba (1) repeatedly looked back at the police cruiser-(2) appeared to dip his right shoulder down toward the floor-(3) placed his right hand behind his back-(4) maintained constant eye contact with [the officers]-and (5) demonstrated visibly shaking hands, Sharer wrote last week.

In addition, the stop was in a high-crime area and was for a legitimate law-enforcement purpose, the court noted.

Considering the totality of the circumstances, the trial court found these factors more than sufficient to justify a reasonably prudent person in believing Matoumba may have been armed, and the intermediate appellate court agreed.

Indeed, these facts would surely warrant a prophylactic frisk to assure public and police officer safety, Sharer wrote last week for the unanimous three-judge panel.

Limiting 'Ragland'

The question remained, however, as to whether the officers were permitted to explain the basis for their suspicion without first being qualified as expert witnesses.

That question, Matoumba argued, was raised the Court of Appeals' March 18 decision in Ragland v. State.

In Ragland, police officers were permitted to testify at trial that what they had witnessed was a drug transaction between the defendant and another individual. The trial court admitted the testimony, over objections, as lay opinion testimony.

The Court of Appeals disagreed, characterizing the testimony as expert opinions by witnesses who had not been identified in discovery as experts, and had not been qualified at trial as experts, Sharer noted.

In so holding, the top court interpreted Maryland Rule 5-701, on lay opinions, and 5-702, on expert testimony. It construed 5-701 narrowly, finding that a failure to do so would permit parties to avoid notice and discovery requirements of our rules and blur the distinction between the two rules.

Matoumba contended that Ragland requires police officers to be qualified as expert witnesses prior to giving opinion testimony as to the basis of a Terry frisk.

The Court of Special Appeals, however, found the testimony in this case qualified as lay opinion testimony.

The officers' testimony related to their own perception of events and their rational inferences drawn from that perception, not on scientific, technical, or specialized knowledge, Sharer wrote. They reacted based upon their observations, not upon a visceral reaction to events, the factual basis of which were not known to them with specificity.

The court affirmed Matoumba's conviction for possession of a handgun by a person previously convicted of a crime of violence, which carries a mandatory sentence of five years without parole.

WHAT THE COURT HELD

Case:

Matoumba v. State, CSA No. 562, Sept. Term 2003. Reported. Opinion by Sharer, J. Filed April 28, 2005.

Issue:

Did the lower court err in allowing police officers to give lay opinion testimony as to the basis for a pat-down search following a traffic stop?

Holding:

No; affirmed. Nothing in Rule 5-702, Maryland case law, or Terry v. Ohio could be remotely construed to mandate that a police officer be qualified as an expert in order to render an opinion on his or her basis for reasonable, articulable suspicion to conduct a pat- down; the case is factually dissimilar to Court of Appeals' March 18 decision in Ragland v. State.

Counsel:

Francis A. Pommett III for appellant; Asst. AG Kathryn Grill Graeff for appellee.

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