Herring v. State

In Herring v. State, 198 Md. App. 60, 16 A.3d 246 (2011), the Court considered whether Whren v. United States, 517 U.S. 806 (1996)applies in the context of a parking violation. In Herring, a police officer observed a Chevrolet Monte Carlo parked "approximately two feet away from the curb with its hazard lights on." Id. at 66. Purportedly, out of concern that the Monte Carlo was disabled, the officer, and two other officers who had been in an unmarked police vehicle with him, approached the passenger's side of the vehicle. Id. All of the Monte Carlo's windows except for the windshield were tinted so that the officers could not see inside, but, by looking through the windshield, the officers observed four occupants. Id. One of the officers asked the occupants to put the windows down, and, when the driver's side and passenger's side windows were lowered, at least two of the officers saw a handgun in the center console. Id. After backup officers arrived, the occupants were removed from the Monte Carlo and the vehicle was searched. Id. at 66-67. Officers recovered the handgun, which was loaded, and $200 in U.S. currency. Id. at 67. On appeal from the denial of his motion to suppress, Herring argued (a) that he was seized when one of the officers tapped on the window of the Monte Carlo and told the occupants to roll down the windows, and (b) that the seizure was not supported by reasonable and articulable information because the officers lacked objective, specific, and articulable facts to show that, at that point, "any of the car's occupants appeared to be sick, in distress, or in need of emergency assistance or that the car appeared to be functioning improperly." Id. at 71. In addition, Herring argued that "the alleged parking violation was simply a pretext for investigating the occupants and contents of the car." Id. Although the Court held that the record supported the trial court's conclusion that "the caretaking function applied and that reasonable articulable suspicion was present," in our independent application of the law to the facts of the case, we concluded that the conduct of the officers could "just as easily be justified as a Whren stop." Id. at 74. In reaching that conclusion, we recognized that, although no Maryland case had theretofore "applied Whren in the context of a parking violation," "other jurisdictions have done so." Id. The Court also pointed to the fact that the Supreme Court declined to hold that only certain types of traffic violations could justify a stop while others might not. Id. at 75. In Whren, the Supreme Court stated: Petitioners urge as an extraordinary factor in this case that the "multitude of applicable traffic and equipment regulations" is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as petitioners would have us do, which particular provisions are sufficiently important to merit enforcement. For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure. (517 U.S. at 818-19.)