EPPS v. STATE

ntiffs to recover "in tort to correct construction defects [that] created a serious risk of injury." (Paper 14, at 7 (quoting A.J. Decoster v. Westinghouse Elec. Corp., 333 Md. 245, 251 (1994))).

Plaintiff responds with three main arguments. (Papers 15 16). First, Plaintiff argues that the invocation of the economic loss rule is misplaced because there is "no question of privity between Hillier and the College." ( Id.). Plaintiff observes that "when the failure to exercise due care creates a risk of economic loss only, and not the risk of personal injury," Maryland courts "have required an `intimate nexus' between the parties as a condition to the imposition of tort liability." (Paper 15, at 5 (quoting Swinson v. Lords Landing Condominium, 360 Md. 462, 477 (2000))). Second, Plaintiff argues that the complaint alleges more than economic damages; it also alleges that Hillier's design created hazardous conditions that posed threats to life and safety and required correction. (Paper 15, at 5; Paper 16, at 6-8). Plaintiff cites in support a number of deficiencies, errors, and omissions in documents that Hillier and Tolk prepared that led local safety inspection authorities to reject completed work. ( Id.). Finally, Plaintiff argues that the Agreement imposes tort liability on Hillier in addition to contractual liability.

To prove negligence under Maryland law, a plaintiff must prove that: (1) the defendant was under a duty to protect the plaintiff from injury; (2) the defendant breached that duty; (3) the plaintiff suffered actual injury or loss; and (4) the loss or injury proximately resulted from the defendant's breach of the duty. Valentine v. On Target, Inc., 353 Md. 544, 549 (1999).

In Maryland, the existence of a legal duty is a question of law to be decided by the court. Doe v. Pharmacia Upjohn Co., Inc., 388 Md. 407, 414 (2005). In the absence of a duty of care, there can be no liability in negligence. Walpert, Smullian Blumenthal, P.A. v. Katz, et al., 361 Md. 645, 655 (1998). "[I]f the risk created by negligent conduct is no greater than one of economic loss, generally no tort duty will be found absent a showing of privity or its equivalent." Jacques v. First Nat'l Bank, 307 Md. 527, 537 (1986).

The parties have focused narrowly on the economic loss rule and the discussion of privity in that context. What they overlook is that "[a] contractual obligation, by itself, does not create a tort duty. Instead, the duty giving rise to a tort action must have some independent basis." Mesmer v. Md. Auto. Ins. Fund, 353 Md. 241, 253 (1999). Thus, the real question here is whether Hiller was bound by any duty independent of the contract. The complaint alleges that Hillier had a duty to meet the ordinary standard of care required of architects and engineers, but does not cite to any source of that duty outside of the contract. On the other hand, Plaintiff does allege that it engaged Hillier to perform professional services, normally giving rise to the duty. In any event, Defendant's argument that the economic loss rule bars this claim is misplaced. See City of Richmond v. Madison Mgmt. Group, Inc., 918 F.2d 438, 446 (4^th Cir. 1990) ("[I]f, when the surface is scratched, it appears that the defendant has breached a duty imposed by law, not by contract, the economic loss rule should not apply."). The motion to dismiss the negligence count will be denied at this

time. This claim, as noted, appears to duplicate the portion of the breach of contract claim in count III that Hillier does not challenge.

B. Contractual Indemnity

In count III, Plaintiff alleges, among other things, that Hillier breached Article 12.2, which defines Hillier's indemnity obligations. (Paper 1 ¶ 70). Hillier argues that Plaintiff has failed to allege facts that would trigger the indemnity provisions. Accordingly, Hillier maintains that the costs and expenses paid by Plaintiff in connection with certain underlying contractor claims are not recoverable under Article 12.2. (Paper 14, at 14).

Under Maryland law, an express indemnity agreement "must be construed in accordance with the traditional rules of contract interpretation." Thomas v. Capital Med. Mgmt. Assocs., LLC 189 Md.App. 439, 468 (2009) (quoting Ulico Cas. Co. v. Atl. Contracting Material Co., Inc., 150 Md.App. 676, 692 (2003)). Courts determine the meaning of contract language by "adhering to the principle of the objective interpretation of contracts." Ace Am. Ins. Co. v. Ascend One Corp., 50 F.Supp.2d 789, 794 (D.Md. 2008) (citing ABC Imaging of Wash., Inc. v. The Travelers Indem. Co. of Am., 150 Md.App. 390, 396 (2003)). Under the objective theory of contracts,

a court is to determine from the language of the agreement, what a reasonable person in the position of the parties would have understood the contract to mean at the time the contract was entered into; when the language of the contract is plain and unambiguous, there is no room for construction as the courts will presume that the parties meant what they expressed.

Mathis v. Hargrove, 166 Md.App. 286, 318-19 (2005). A court "construing an agreement under [the objective theory] must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated." Dennis v. Fire Police Employees' Ret. Sys., 390 Md. 639, 656 (2006) ( quoting Gen. Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261 (1985)).

Hillier argues that the Agreement includes express terms, namely sections 12.2(b) and 12.2(c), that govern when Plaintiff is entitled to recover from Hillier its costs and expenses of defending a claim brought by a third party. Hillier states that no court has imposed liability upon Plaintiff and, thus, Plaintiff cannot take advantage of 12.2(b). In addition, Hillier maintains that Plaintiff has not alleged any personal injury or property damage and, as such, 12.2(c) does not apply.

Article 12.2 of the Agreement lays out the indemnification requirements in the relationship between Defendant Hillier and Plaintiff. (Paragraph 12.2(a) discusses the types of insurance coverage that Defendant Hillier will purchase and is not relevant in this matter.)

Plaintiff disagrees with Hillier's interpretation of the provisions of the Agreement, and argues that there has been extensive litigation to date regarding claims that arose due to Hillier's negligence. (Paper 15, at 14). It also argues that Defendant overlooks the fact that 12.2(c) applies when a loss of use has been alleged, as is the case here, and that 12.2(c) does not refer to indemnification being triggered by a "liability imposed by a court."

Paragraph 12.2(b) discusses the implications of any court-imposed liabilities on Plaintiff. It says that:

In the event that Owner defends itself against a claim and liability imposed by a court upon the Owner with respect to such a claim as a result of any negligent act or omission of the Architect or any consultant . . . then the Owner shall be entitled to recover from the Architect and from such consultant, as one element of the Owner's damages, the costs of defending such claim. . . . [I]f any liability is imposed by a court upon the Owner only in part . . . then the Architect . . . shall pay its pro rata share of the cost of defending such suit. . . . Notwithstanding the foregoing obligations of the Architect's consultants, the Architect shall be primary liability for any such claims and costs attributable to the fault of the Architect's consultants.

A reasonable person would understand this paragraph to mean that Plaintiff may recover the costs of defending a claim if Hillier commits a negligent act or omission and a court imposes a liability upon Plaintiff because of that negligence. See, e.g., State-Planters' Bank Trust Co. v. First Nat'l Bank, 76 F.2d 527, 532 (4^th Cir. 1935) ("Where the contract is not a mere contract to indemnify and save harmless, but a contract to save from a legal liability or claim, the legal liability incurred and not the actual damage sustained is the measure of damage."). Here, there has been no final judgment imposed against Plaintiff relating to the project at issue, although there has been extensive litigation. Therefore, there is no valid claim for indemnity under Article 12.2(b).

Plaintiff's opposition lists, for the first time, certain mechanic's lien claims brought by the general contractor and certain subcontractors. (Paper 15, at 14). These factual allegations are not properly considered, as a memorandum of law opposing a motion to dismiss is not the proper means to supplement the complaint. Even if Plaintiff had properly alleged these facts, however, they would not save Plaintiff's claims, as even Plaintiff concedes that all of the underlying cases were eventually settled. ( Id. at 14). Despite the fact that courts generally encourage parties to settle, this Article by its terms applies only when a court has imposed a liability. Therefore, Plaintiff cannot take advantage of its promises. See Pulte Home Corp. v. Parex, Inc., 403 Md. 367, 382 (2008) ("The nature of the indemnity will determine . . . when a right of action accrues.").

Paragraph 12.2(c) provides Plaintiff with a broader form of indemnification with respect to any claims for personal injury, property damages, or loss of use of property. The relevant language in that section reads:

[T]he Architect shall and hereby does indemnify and save the Owner and its' [sic] agents, consultants, representatives, and employees . . . harmless from all claims of liability and loss because of injury (including death) to any person, or damage to or loss of property or use thereof that may occur as a result, directly or indirectly or any negligent action, or omission of the Architect.

Properly read, this provision is triggered if two conditions are met: (1) Hillier's negligence causes something within the aforementioned categories of harm to occur ( i.e., personal injury and property damage); and (2) a third party brings a claim against Plaintiff. If both of these conditions were met, Hillier would be required to defend against the claim "at its sole expense."

Hillier notes that Plaintiff did not ask it to defend any suit and did not give notice of any third-party claims until November 2008. (Paper 20, at 10). Unless an express term requires it, notice is not required for indemnity. See Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 580 F.2d 1222, 1230 (4^th Cir. 1978).

Plaintiff argues that it has defended claims brought by general contractors and subcontractors concerning delays and other damages resulting from Hillier's negligent acts and omissions, and that these costs — including attorney's fees — fall within the indemnification provisions of 12.2(c). The complaint generally explains that Plaintiff was forced to "defend various contractor and subcontractor claims." (Paper 1, at 10). It also references a lawsuit filed by Grunley Walsh that it alleges triggered the indemnity provisions. ( Id. at 15). Yet Plaintiff fails to plead the nature of these underlying lawsuits, and contrary to Plaintiff's contentions, Article 12.2(c) does not apply to all forms of liability. That approach is overbroad in that it ignores the subsequent qualifying clause beginning with "because of." As the court is unable to discern from the face of the complaint whether the lawsuits pertain to any types of recoverable injury, these lawsuits do not implicate Article 12.2(c).

Plaintiff also cannot rely on its own loss of use to invoke Article 12.2(c). The provision applies to third party, not first party, claims. Cf. Levin v. Steptodont, Inc., 34 F.App'x. 65, 76 (4^th Cir. 2002) (observing, under Maryland law, that "garden variety indemnification clause" could not be reasonably read to cover expenses of first party litigation). Thus, the motion to dismiss Plaintiff's contractual indemnity claims must be granted.

C. Common Law Indemnity

Plaintiff alleges that the Agreement expressly states that Hillier will be liable for its own negligence or willful misconduct or the negligence or willful misconduct of its consultants. Plaintiff therefore argues that Hillier has a common law duty to indemnify and hold it harmless for any damages, claims, liabilities, costs and expenses, including attorney's fees, arising out of Hillier's work on the project.

Hillier responds that the express indemnity provisions in the Agreement preempt Plaintiff's claim for common law indemnity (count V). Hillier argues that "under Maryland law [], resort to implied indemnity principles is improper when an express indemnification contract exists." (Paper 14, at 10). Because the Agreement contains many sections delineating when Hillier must indemnify Plaintiff, Plaintiff cannot bring a claim for common-law indemnity. Hillier cites cases from this circuit and around the country to support its contention that express indemnity terms of a written contract supersede any common law right to indemnity. (Paper 14, at 12).

Plaintiff argues that the Agreement does not preempt its common law indemnity claim and that the claim is permissible as an alternative ground of relief the Agreement preserves it. (Paper 15, at 16). Specifically, Plaintiff contends that the Agreement "makes very plain" that the indemnity clauses of 12.2(b) and (c) are "in addition to the common law indemnity afforded to" Plaintiff. In particular, Plaintiff cites Article 12.5, which states:

Notwithstanding anything to the contrary contained in this Agreement, the Architect shall be liable for its own negligence or willful misconduct and for the negligence or willful misconduct of its principles, employees, agents and consultants.

As the court has already observed, traditional rules of contract interpretation apply in this context. Ulico, 150 Md.App. at 692. Among these rules is the notion that "implied terms of a contract are utilized only in order to supply the place of a missing express term; therefore, where an express term exits, it negatives an implied inconsistent term relating to the same aspect of the contract." Myers v. Kayhoe, 391 Md. 188, 199 (2006); see also Ulico, 150 Md.App. at 691 ("When the surety and the principal have entered into an express indemnity agreement governing their rights, however, courts should not resort to implied indemnity principles to determine those rights."). Similarly, quasi-contractual remedies such as implied indemnification are generally unavailable when a contract exists covering the same subject matter. See Cnty. Comm'rs of Caroline Cnty. v. J. Roland Dashiell Sons, Inc., 358 Md. 83, 96-98 n. 8 (2000) (discussing rule that quasicontractual remedies are unavailable in the face of an express contract); Franklin v. Morrison, 350 Md. 144, 154 (1998) (stating that implied indemnification is a quasi-contractual remedy). Defendant has a clear contractual duty to indemnify Plaintiff for specifically enumerated circumstances in the contract. Any implied common law indemnification scheme would either contradict or add to these clearly defined circumstances in the contract. Therefore, because a claim for common law indemnity would be incongruent with the express provisions, the court must dismiss this claim.

Neither the last sentence of Article 12.2(c) nor Article 12.5 affects the court's analysis. Indeed, it is unclear what relevance these provisions have in this context. For example, the sentence from Article 12.2(c) that Plaintiff cites serves only to preserve the substance of Article 12.2 to the extent possible, should one part of it be determined unenforceable. Likewise, Article 12.5 does not speak to indemnity, but only clarifies that the contract does not affect Hiller's potential liability for negligence. In short, Plaintiff cannot refashion irrelevant contractual provisions to avoid clearly established common law principles related to implied terms and quasi-contractual remedies.

IV. Tolk's Motion to Dismiss

A. Negligence

Plaintiff also brings a claim for negligence against Tolk. It alleges that Tolk produced design documents that contained numerous errors and omissions, failed to satisfy code requirements, and were inadequate for securing approval by permitting agencies. (Paper 1 ¶ 60). According to Plaintiff, the deficiencies included failures to design plumbing in accordance with code requirements, coordinate the MEP drawings with other portions of the work, coordinate security elements and electrical requirements, and thoroughly review shop drawings for accuracy. Plaintiff maintains that it has been damaged and has incurred additional costs associated with addressing ongoing design problems related to the HVAC system.

Tolk echoes Hillier's argument that the economic loss rule precludes Plaintiff from recovering on a tort claim. (Paper 13, at 1 7). Tolk argues that no claim exists because there is no privity between itself and Plaintiff.

Economic damages, in contrast to damages for personal injury or physical harm to tangible things, are "`intangible economic loss[es] resulting from the inferior quality or unfitness of the product to serve adequately the purpose for which it was purchased.'" Lloyd v. General Motors Corp., 397 Md. 108, 122 (2007) (quoting A.J. Decoster Co. v. Westinghouse, 333 Md. 245, 249-50 (1994)).

Such [economic] loss occurs when a purchaser suffers loss of value or use of the product, and has absorbed, or will absorb, the cost to repair or replace the product, or has lost or will lose profits resulting from the loss of use of the product. Id., citing WILLIAM L. PROSSER, THE LAW OF TORTS §§ 101, at 665 (4th ed. 1971); Comment, Manufacturer's Liability to Remote Purchasers for "Economic Loss" Damages — Tort or Contract?, 114 U. Pa. L. Rev. 539 (1966). Ordinarily, such damages are not allowed in tort actions. Id.

Lloyd, 397 Md. at 122. Under the economic loss rule, courts generally will not permit negligence claims that allege only economic loss. This court has previously explained the reasoning behind the economic loss rule as follows:

"[T]he economic loss rule is intended to preserve the bedrock principle that contract damages be limited to those `within the contemplation and control of the parties in framing their agreement.'" City of Richmond v. Madison Mgmt. Group, Inc., 918 F.2d 438, 446 (4 ^th Cir. 1990). The rule prevents a plaintiff from "pasting an ill-suited tort label on a set of facts that supports nothing more than a breach of contract claim." Id. However, the rule is not intended to bar claims that are genuinely based in tort.

The rule's purpose is therefore not implicated where close inspection of the plaintiff's case reveals a genuine foundation for a tort claim. In such situations, there is no risk that a plaintiff will be pursuing a tort remedy when in fact he should be confined to a contract remedy. Thus if, when the surface is scratched, it appears that the defendant has breached a duty imposed by law, not by contract, the economic loss rule should not apply.

Id.

Americas Premiere Corp. v. Schwarz, No. DKC 2008-3304, 2009 WL 2477521, at *4 (D.Md. Aug. 11, 2009).

When analyzing whether a plaintiff's tort claim can advance, the relationship between a plaintiff and a defendant matters. Indeed, the relationship between a plaintiff and a defendant can sometimes define whether and what type of duty the parties owed to one another. The Fourth Circuit has stated that:

Under the relevant Maryland precedents, two alternative principles appear to govern whether a party to a contract owes to a non-party a duty to exercise due care in the discharge of his contractual undertakings; and, accordingly, whether the non-party injured by the negligent performance of a party's promise or undertaking may sue the party in tort. Where the party's failure to exercise due care creates a risk of personal injury, the principal determinant of duty is foreseeability. By contrast, where the risk created is one of economic loss only, as in the instant case, Maryland courts generally require an "intimate nexus" between the party and the non-party as a condition to the imposition of tort liability.

Merrick v. Mercantile-Safe Deposit Trust Co., 855 F.2d 1095, 1099-1100 (4^th Cir. 1988) (authored by Justice Powell, sitting by designation) (citations omitted). The Court of Appeals of Maryland has likewise stated that:

In determining whether a tort duty should be recognized in a particular context, two major considerations are: the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties. Where the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the parties as a condition to the imposition of tort liability. This intimate nexus is satisfied by contractual privity or its equivalent. By contrast, where the risk created is one of personal injury, no such direct relationship need be shown, and the principal determinant of duty becomes foreseeability.

Jacques v. First Nat'l Bank of Md., 307 Md. 527, 534 (1986).

Tolk argues correctly that no privity exists between it and Plaintiff. Therefore, Plaintiff must satisfy the test delineated in Council of Co-Owners of Atlantis Condo., Inc. v. Whiting-Turner Contracting Co., 308 Md. 18 (1986), wherein the Court of Appeals of Maryland created a limited exception to the economic loss rule. That case concerned builders and architects who had no contractual privity with the suing party. The court held that:

privity is not an absolute prerequisite to the existence of a tort duty in this type of case, and that the duty of builders and architects to use due care in the design, inspection, and construction of a building extends to those persons foreseeably subjected to the risk of personal injury because of a latent and unreasonably dangerous condition resulting from that negligence. . . . [W]here the dangerous condition is discovered before it results in injury, an action in negligence will lie for the recovery of the reasonable cost of correcting the condition.

308 Md. at 22. To determine whether a party meets the test for a dangerous condition, a court should look to "both the nature of the damage threatened and the probability of damage occurring to determine whether the two, viewed together, exhibit a clear, serious, and unreasonable risk of death or personal injury." Lloyd, 397 Md. at 128.

In this case, Plaintiff's complaint does not allege facts demonstrating any unreasonable risk. In Whiting-Turner, the developer "negligently obtained an occupancy permit" and people resided in the building when the danger was discovered. 308 Md. at 22-23. In other cases applying the Whiting-Turner exception, identifiable classes of individuals were similarly subjected to an actual risk of harm. See, e.g., Lloyd, 397 Md. at 130-31 (allowing tort claim to proceed against car manufacturers, where car drivers had already suffered injuries and deaths); U.S. Gypsum v. Mayor City Council of Baltimore, 336 Md. 145, 157-58 (Md. 1994) (permitting a tort claim for the cost of asbestos removal to end risk of harm to building occupants); Milton Co. v. Council of Unit Owners of Bentley Place Condo., 121 Md.App. 100, 115-16 n. 3 (1998) (allowing tort claims where building defects, discovered after residents moved in, subjected residents to risk harm). In contrast, the building in the present case was unoccupied while it was in its allegedly dangerous condition. Although Plaintiff alleges that the authorities found the completed work to be "unsafe as designed," no danger existed that occupants or users would be harmed because Plaintiff remedied the problems before opening the building. (Paper 1 ¶¶ 32, 35). There was therefore no real probability that damage or harm would occur. Because of this lack of probability, the situation does not fit into the exception created by the Court of Appeals. See, e.g., Morris v. Osmose Wood Preserving, 340 Md. 519, 536 (1995) (holding that "mere possibilities are legally insufficient to allege the existence of a clear danger of death or serious personal injury" and dismissing tort claims premised on threat of injury). Thus,

the economic loss rule applies to preclude Plaintiff's tort/negligence cause of action against Tolk.

B. Breach of Contract

In count IV, Plaintiff asserts a breach of contract claim based on a third party beneficiary theory. It alleges that Defendants entered into the Tolk Contract ("Tolk Contract") for the direct benefit of Plaintiff, and that Tolk was aware and intended that Plaintiff would be the direct beneficiary of Tolk's design services. (Paper 1 ¶ 76).

Because of its position as a sub-contractor, Tolk's arguments to dismiss are based on its claimed lack of privity. (Paper 13, at 10-12). It argues that Plaintiff's claim that Plaintiff is a third-party beneficiary fails as a matter of law. Tolk states that for Plaintiff to have standing, as a noncontractual party, the agreement between Hillier and Tolk must be clearly and definitely intended to confer a direct benefit upon Plaintiff, which in this case it does not do. (Paper 13, at 11). Rather, Tolk argues, the contract shows Hillier as the true intended beneficiary.

Tolk claims, and Plaintiff does not contest, that Virginia law applies to its claim because Tolk and Hillier agreed that their contract would be interpreted under the law of Virginia, and Maryland has adopted the general rule that parties to a contract may choose which law will govern. (Paper 13, at 6).

Plaintiff argues that the Tolk Contract was definitely intended to confer a direct benefit on the college, and it must be analyzed as a whole. ( Id. at 13). It argues that the entire contract is not yet before the court, although a portion of it has been attached to Tolk's motion to dismiss. Plaintiff also notes that a Tolk official signed several drawings that were presented to government permitting authorities on behalf of Plaintiff. ( Id. at 16).

Virginia law governs the right to sue as a third party beneficiary at Section 55-22 of its state code:

An immediate estate or interest in or the benefit of a condition respecting any estate may be taken by a person under an instrument, although he be not a party thereto; and if a covenant or promise be made for the benefit, in whole or in part, of a person with whom it is not made, or with whom it is made jointly with others, such person, whether named in the instrument or not, may maintain in his own name any action thereon which he might maintain in case it had been made with him only and the consideration had moved from him to the party making such covenant or promise. In such action the covenantor or promisor shall be permitted to make all defenses he may have, not only against the covenantee or promisee, but against such beneficiary as well.

Va. Code Ann. § 55-22. Under Virginia law, third-party beneficiaries must be intended beneficiaries of a contract; mere incidental beneficiaries have no right to enforce a contract. Food Lion, Inc. v. S.L. Nusbaum Ins. Agency, Inc., 202 F.3d 223, 229 (4^th Cir. 2000). "The third party beneficiary doctrine is subject to the limitation that the third party must show that the parties to the contract clearly and definitely intended it to confer a benefit upon him." Id. (citing Professional Realty Corp. v. Bender, 216 Va. 737 (1976)).

The question in the instant action is whether Plaintiff was an incidental or intended beneficiary, as only the latter has standing to sue. The contract in question in this case is not the Agreemeent between Hillier and Plaintiff, but the contract between Hillier and Tolk. Tolk has appended a document to its motion to dismiss that it claims is the entire contract ("Tolk Proposal"). (Paper 13, Attach. 2). This document consists of a proposal to Hillier regarding the "Lane Kirkland Center Project" and contains a "Basic Scope of Work" description, as well as many "Terms and Conditions." (Paper 13, Attach. 2). Tolk says that this Proposal constitutes the entire contract between the two Defendants. On the other hand, Plaintiff claims that the "TOLK-Hillier contract, as a whole, is not before the court." (Paper 16, at 13).

Both parties cite to Valley Landscape Co. v. Rolland, 218 Va. 257 (1977), to support their opposing views. In that case, a university ("ODU") sued a landscaping contractor ("Valley") to recover for breach of contract. Id. at 258. After Valley terminated its contract, ODU sued to recover damages. Valley then sued Rolland, the landscape architect, as a third-party defendant, based on the theory that it was a third-party beneficiary of the contract between Rolland and ODU. Id.

The Supreme Court of Virginia held that a "clear intent to benefit the third person must appear to enable him to sue on the contract; incidental beneficiaries cannot maintain an action thereon" and that under the test Valley did not qualify as a third party beneficiary. Id. at 260. The Court found that it was "not sufficient that Valley would be incidentally benefited by a proper performance of duties on the part of [Rolland]." Id. at 262. The facts of the instant case are clearly distinguishable from Valley. Valley presented a case where a contractor sought to make itself a party to the contract between the owner and the architect. In this case, the owner (Plaintiff) is seeking to prove that it is an intended beneficiary to a contract between a contractor and subcontractor. The case is instructive, however, regarding the high bar that Virginia courts impose on parties to prove their status as third party beneficiaries.

Plaintiff points mainly to behavior outside of the contract to show that it was the intended beneficiary. For instance, it notes that Tolk was designated as a designer on MEP drawings that were issued to bidders. (Paper 16, at 16; Paper 16, Attach. 1). Virginia courts have, however, indicated that the "four corners of a contract evidence whether contracting parties clearly and definitely intended to directly benefit a third party." Radosevic v. Va. Intermont Coll., 651 F.Supp. 1037, 1039 (W.D.Va. 1987).

As Plaintiff points out, the Tolk Proposal explicitly mentions the "Owner" and that it will coordinate with the Owner's other consultants. ( Id. at 5(g)(1)). This reference, however, is only in regard to noting that Tolk will be working with other contractors on the project ("Owner's specialty consultants such as lighting, acoustical," etc.). Other than the above example, the "Owner" (Plaintiff) is not mentioned in the Tolk Proposal. The Tolk Proposal also contains a provision limiting the liability of Tolk "in the aggregate of the amount of fees paid by Client to TOLK." (Paper 13, Attach. 2 ¶ 7(i)). And, whenever the Contract references the "Client," it clearly means Hillier.

Given the lack of reference to Plaintiff in the Tolk Proposal, it appears that Plaintiff was only an incidental beneficiary of Tolk's work, and that Tolk's client was Hillier. Such an outcome is expected, given that standard contractor-subcontractor

contracts like the one seen here traditionally create incidental third-party beneficiaries. See, e.g., Restatement (Second) of Contracts § 302(1) (1981), cmt. e, illus. 19 ("A contracts to erect a building for C. B then contracts with A to supply lumber needed for the building. C is an incidental beneficiary of B's promise, and B is an incidental beneficiary of C's promise to pay A for the building."); see also BIS Computer Solutions, Inc. v. City of Richmond, Va., 122 F.App'x. 608, 611 (4^th Cir. 2005) (noting that Section 55-22 and "the relevant Virginia common law" are consistent with the Restatement view of third-party beneficiaries). Therefore, count IV will be dismissed.

V. Conclusion

For the foregoing reasons, Defendant Hillier's motion to dismiss will be granted in part and denied in part and Defendant Tolk's motion will be granted. A separate Order will follow.

read their legs, put their hands on the roof or hood of the car and be subjected to a body pat down. Here, the area of concern was identified and an instruction to lift the shirt was less than intrusive than a body pat down. In Terry a pat down was used and on the facts of the case that was reasonable. Here, there was no need for a full pat down because the area of concern was identified based on the observations of the officers.

(Emphasis supplied).

We will defer for the moment any discussion, on the merits, of the scope of that Terry frisk, as we consider first the threshold question of the shift itself in the theory on which suppression was to be decided.

Protesting the Switch of Constitutional Contexts

Aggrieved at the unannounced shift in constitutional context, the appellant, not unexpectedly, cries, "Foul!" He protests that he was declared, the loser of a game he was, in net effect, never invited to play. The first suppression hearing, the first appeal to this Court, and then the suppression hearing on remand had all focused on establishing the evidentiary predicate for and arguing the controlling caselaw on the issue of voluntary consent, initially in an apparent accosting situation beyond the pale of the Fourth Amendment and then, in the wake of Brendlin v. California, within the context of Fourth Amendment restraint. In no event, the appellant insists, was he ever asked, expressly or implicitly, to argue the law of Terry v. Ohio. There was no occasion to argue, for instance, 1) that there was no adequate justification for a Terry frisk or 2) that the order to lift his shirt exceeded the permitted scope of a Terry frisk. The appellant, in effect, protests that the rules were changed after the game had been fully played and all that remained to be done was the posting of the final result on the scoreboard.

Arguing for more than is necessary for him to prevail on this appeal, however, the appellant further insists that the deadline for introducing a new Fourth Amendment theory into the deliberations was by the end of the first suppression hearing of May 3, 2006. He would tightly limit, by legal fiat, the second suppression hearing to a reargument of what would have been appropriate argument at the end of the first suppression hearing, save only for the addition of Brendlin v. California to the discussional mix. We do not agree that the second suppression hearing was so rigidly circumscribed, for that would be rank gamesmanship.

On remand, the issue was still the broad question of whether the search of the appellant was reasonable within the contemplation of the Fourth Amendment. The only limitation on considering a new Fourth Amendment theory of justification was that of fairness to the parties, making certain that they had full opportunity to present testimony bearing on the new theory and then to argue the merits of that theory. The State could properly have indicated that it intended to argue stop-and-frisk law at the hearing on remand. It did not, however, do so. The court, before or during the hearing, could have asked the parties to address Terry v. Ohio. It did not, however, do so. Even at the eleventh hour, after the second hearing had adjourned but before the ruling was announced, we do not believe that the court would have been precluded from reconvening the hearing and requesting the parties to argue (and perhaps to present additional testimony with respect to) an additional Fourth Amendment theory. It did not, however, do so. Doctrinal flexibility is to be desired, so long as it does not work unfairness on the parties to the debate. In net effect, the second suppression hearing was as tightly limited as the appellant wished it to be, but only because that was the way that events played out and not because of any preordained procedural dictate.

Controlling the Agenda

At the other end of the continuum, the State insists that the appellant was free to raise and argue any Fourth Amendment theory he wished and that it was he himself who failed, at his peril, to go beyond the consent issue. That, however, is not true. The State ignores the allocation of the burden of proof. In this case, it was the State that dictated the agenda and the appellant's only duty was to respond to the propositions actually advanced by the State.

As the proponent of the motion to suppress the physical evidence, it was, of course, the appellant who bore the initial burdens of both production and persuasion. It was the appellant who, per his motion, chose the Fourth Amendment as the field on which to do battle. It was the appellant, moreover, who had then to show that he enjoyed a Fourth Amendment coverage in the first instance and that a search and/or seizure occurred in ostensible violation of that protection.

In Herbert v. State, 136 Md.App. 458, 481-82, 766 A.2d 190 (2001), this Court clearly laid out this allocation of the initial burden.

As a general rule, the moving party on any proposition, civil or criminal, has both the burden of production and the burden of persuasion. It is the moving party who attempts to persuade a judge somehow to alter the status quo.

In a criminal trial, the status quo — the norm — is that evidence of a defendant's guilt that is relevant, material, and competent will be admitted. It is the defendant who seeks to alter that status quo — who seeks a departure from that norm — when he seeks to exclude relevant, material, and competent evidence of guilt in order to serve some extrinsic purpose, such as deferring the police from future unreasonable searches and seizures. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). To the moving party is allocated the burden of making the case for such an alteration of the status quo — for such a departure from the norm.

(Emphasis supplied). See also Duncan and Smith v. State, 27 Md.App. 302, 304-05, 340 A.2d 722 (1975); Graham v. State, 146 Md.App. 327, 346-47, 807 A.2d 75 (2002).

At that initial stage of a suppression hearing, it is the State that enjoys the luxury of not having to do anything. It may respond to the defense if it chooses to do so, but it is under no such obligation. Herbert v. State, 136 Md.App. at 484, 766 A.2d 190, went on to explain:

The State, though it may choose to react to such an effort, is not required to do anything. It does not automatically assume any risk of non-production or of non-persuasion. It is entitled to be an interested but completely passive party to such a proceeding. It is the defendant who must make a case for the suppression of evidence. The State is not required to make a case for the non-suppression of evidence. If a judge should convene a suppression hearing and if both parties should rest without saying a word, the State would win that nothing-to-nothing tie. More precisely stated, the defendant would lose the nothing-to-nothing tie. Duncan and Smith v. State, 27 Md.App. at 317, 340 A.2d 722.

(Emphasis supplied).

Once the hearing on such a motion progresses into the merits of the Fourth Amendment, however, there is a possibility that the allocation of the burdens may shift. Should it develop that the search in issue was pursuant to a judicially issued warrant, on the one hand, the burdens will remain firmly fixed on the defendant to show that the search was unreasonable. Duncan and Smith v. State, 27 Md.App. at 304-05, 340 A.2d 722, made the point:

When the police execute a search under authority of a facially adequate warrant, it is presumptively good and the burden is upon the defendant to establish its invalidity. Where the evidence is inconclusive in this regard, the State wins. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Alderman v. United States, supra [ 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)]; Hignut v. State, 17 Md.App. 399, 408-410, 303 A.2d 173.

(Emphasis supplied).

The Burden Shifted to the State

Once it is established, however, as it was in this case, that the search in issue was warrantless, a tectonic shift occurs in the allocation of the burdens. The respective roles of the State and of the defense are procedurally and dramatically reversed. Herbert v. State, 136 Md.App. at 485, 766 A2d 190, discussed the shifting of allocation.

Although the initial burden of production (of going forward) is always on the defendant, there are circumstances with respect to the Fourth Amendment merits which, if established, may trigger an evidentiary presumption that operates to shift the burdens of both production and persuasion. The very possibility of such a shift is a direct consequence of the Supreme Court's strong preference for searches and seizures pursuant to judicially approved warrants over warrantless searches and seizures.

(Emphasis supplied).

Where, as in this case, the search in issue was warrantless, the burden of justifying such a warrantless search shifts to the State. Duncan and Smith explained:

Where, . . . the defendant establishes initially that the police proceeded warrantlessly, the burden shifts to the State to establish that strong justification existed for proceeding under one of the "jealously and carefully drawn" exceptions to the warrant requirement. Where the evidence is inconclusive in this regard, the defendant wins.

27 Md.App. at 305, 340 A.2d 722 (emphasis supplied). Graham v. State, 146 Md.App. at 349, 807 A.2d 75, was emphatic in this regard:

When the State's investigation, for whatever reason, follows the disfavored warrantless route, on the other hand, the procedural ball ends up in the State's court. The State assumes the burden of overcoming the presumption of invalidity by demonstrating, by however many steps are necessary, that the warrantless search satisfied one of the firmly established exceptions to the warrant requirement. In such a posture, it is the State that loses the tie.

(Emphasis supplied).

If at the suppression hearing in this case neither the State nor the appellant had said a word, the State would have lost because it would have failed to satisfy its allocated burden of overcoming the presumptive invalidity of the warrantless search of the appellant. The evidence would have been suppressed. There was no burden on the appellant to say or to

do anything. The State sought, however, in the words of Graham v. State, to show that "the warrantless search satisfied one of the firmly established exceptions to the warrant requirement." It is not enough that some of the evidence might arguably have alluded to a variety of Fourth Amendment theories. In justifying a presumptively invalid warrantless search, it is for the State to "call the suit." It could have advanced, in the alternative, more than one theory, but did not. The State chose to go with voluntary consent alone. The appellant responded in kind, arguing that the ostensible consent was not voluntary. Under no circumstance would it have been appropriate, and certainly not necessary, for the appellant to raise in a vacuum and then attempt to refute any or all of a wide variety of other possible theories of justification that were not raised either by the State or by the trial judge. The appellant's obligation was only a responsive one. He responded to the only issue that was raised. He did not respond to other issues, stealth issues, that were not raised. When we use the past participle "raised," let it be clear, we do not mean "allusively suggested or adumbrated." It was not the appellant who dictated the agenda.

Framing the Contention

Our result on this appeal is certain; it is just a matter of how to state the issue. The appellant frames his contention as the non-preservation by the State of the Terry stop-and-frisk theory, and that is, we suppose, a feasible if somewhat indirect phraseology for what is actually before us. Although the appellant brands the State with the attempted untimely resort to a non-preserved issue, it was actually, of course, the suppression hearing court and not the prosecution that injected the Terry issue into the contest late in the game and perhaps after the final whistle had blown. In such phrasing, however, the appellant may, of course, be using "the State" in its broadest sense, to embrace the court as well as the prosecutor. In any event, it is now, on appeal, the State that necessarily serves as the proponent for whatever was done at the trial level. From the appellant's point of view, it matters little whom he casts as the procedural villain.

In terms of assessing the timeliness of raising an issue, moreover, it is worth noting that all parties play by the same rules. Judge Hollander well expressed the parity in State v. Jones, 138 Md.App. 178, 234, 771 A.2d 407 (2001), affd., 379 Md. 704, 843 A.2d 778 (2004):

The State has not referred us to any legal authority to support its contention that the rules and practices that generally apply with respect to waiver, or that govern the content of reply briefs, do not apply to the State in the circumstances of this case. Our effort to uncover relevant cases that might shed light on this issue leads us to conclude that the State is, indeed, held to the same rules of practice and procedure as other litigants. Even in the face of an appellate reversal of a conviction, the State can be found to have waived or abandoned an argument that might have led to the affirmance of that conviction if the appropriate argument had been timely made.

(Emphasis supplied).

The cases relied on by the appellant all deal, to be sure, with the phenomenon of injecting a new issue into the case for the first time at the appellate level. In the unusual chronology of this case, by contrast, the new issue was injected into the case for the first time in the rendering of a ruling on a suppression motion but after the suppression hearing had been concluded. Because the generative concern undergirding the caselaw, however, is one of fairness to a defendant in terms of notice and opportunity to respond, we are dealing with a chronological distinction without a doctrinal difference. The caselaw is, therefore, apposite to the issue before us.

New Issues and the Chance to Respond

In McCray v. State, 122 Md.App. 598, 716 A.2d 302 (1998), the State at trial expressly offered several hearsay statements as recognized exceptions to the Hearsay Rule under Maryland Rule 5-802.1(b). On appeal the statements were held to be inadmissible under that theory. The State then sought, for the first time on appeal, to show that the admissibility ruling was correct but for a different reason, to wit, pursuant to Maryland Rule 5-616(c). Speaking through Judge Sonner, this Court rejected the effort to introduce a new theory of admissibility for the first time on appeal.

Although, under Holmes [v. State, 350 Md. 412, 712 A.2d 554 (1998)], the State "is not required to assert the purpose for which it is seeking admission" of the statements, here, the trial judge asked the State for its basis for offering the statements and specifically asked if the basis was Md. Rule 5-802.1(b). The State told the court that it was offering the statements under that rule. As such, it does not and cannot, cm appeal claim that the statements should be admitted under Md. Rule 5-616(c).

122 Md.App. at 610, 716 A.2d 302 (emphasis supplied).

In Bell v. State, 96 Md.App. 46, 56, 623 A.2d 690 (1993), this Court recognized that the State might have had a very strong argument if it had challenged the defendant's Fourth Amendment standing in a timely fashion. Such an issue, however, could not be injected into the case for the first time at the appellate level.

Under the circumstances, the State might have had a very viable challenge to the standing of the appellant to question their entry into the automobile. Such challenge, however, was never made. It is too late at the appellate stage to raise an issue not timely raised at the suppression hearing. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

(Emphasis supplied).

In Bell v. State, the State also attempted to raise for the first time on appeal a second new argument, in effect arguing for a new or extended Carroll Doctrine justification for a further search predicated on something found in an earlier Carroll Doctrine search that had been terminated. We again declined to consider a new and untimely raised issue.

"Although an argument might someday be made for extending a search such as this based upon some almost Newtonian proposition that the discovery of some contraband suggests the likely presence of more contraband yet to be discovered, it is enough to note that no such argument was made by the State in this case, either at the suppression hearing or before us."

96 Md.App. at 54, 623 A.2d 690 (emphasis supplied).

On certiorari review by the Court of Appeals in State v. Bell, 334 Md. 178, 184, 638 A.2d 107 (1994), Judge Karwacki's opinion affirmed the decision of this Court not to consider the untimely raised theory of Fourth Amendment justification.

[T]he State argues that the Court of Special Appeals erred in failing to address that argument as it pertains to the second search. Because we find that the intermediate court did not err . . . in declining to consider the State's Carroll doctrine argument as it pertains to the search and seizure of the Fila bag and its contents, we need not address the validity of the second search.

(Emphasis supplied). The Court of Appeals further explained: Had the State initially argued in the trial court that the police had probable cause for more than one vial, or that the officers' actions constituted one extended search for an undetermined quantity of narcotics, this argument would perhaps stand on stronger ground. It was the State, however, which initially framed its case in terms of two separate searches and argued probable cause for the first search only. The trial court and the intermediate appellate court merely accepted the State's presentation of the case, and we will do the same.

Id. (emphasis supplied).

In State v. Bell, the State strenuously pressed the notion that an appellate court has the discretion to take notice of an unpreserved argument. The Court of Appeals responded that it is a discretion only rarely exercised and only when the parties will not be prejudiced by the late injection of the unpreserved issue.

The State concedes that it did not argue the applicability of the Carroll doctrine at the suppression hearing, but it deems this fact irrelevant in light of an appellate court's discretion to affirm a decision of a trial court on grounds that had not been relied upon by either the trial court or the parties. In support of its argument, the State cites Robeson v. State, 285 Md. 498, 403 A.2d 1221 (1979). . . . Robeson is couched in discretionary language, e.g., "this Court will not ordinarily consider an issue which was not raised in the petition," and "an appellate court will normally affirm a trial court on a ground adequately shown by the record." . . . Clearly, Robeson stands not for the proposition that an appellate court must examine new, alternative grounds for upholding a trial court's decision, but only for the proposition that it may do so if it deems such review appropriate. Moreover, the language of Robeson refers to an alternative ground "adequately supported by the record." If a party's presentation of his or her case was prejudiced by an opponent's failure to raise an issue at the trial stage (i.e., the party did not adduce the requisite evidence), then the record is necessarily lacking and will not be "adequate" to support the alternative ground raised on appeal.

334 Md. at 187-88, 638 A.2d 107 (emphasis supplied).

Judge Karwacki's opinion emphasized that the primary factor in the decision to consider an unpreserved issue is that of fairness to the parties.

The interests of fairness are furthered by "requir[ing] counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings." Although it is clear that an appellate court does have the discretion to affirm, a decision on a ground not raised below, this discretion should be exercised only when it is clear that it will not work an unfair prejudice to the parties or to the court. A criminal defendant could suffer unfair prejudice if for example, the defendant's response to a new argument posited by the State on appeal depends on evidence which was not offered in the trial court.

334 Md. at 189-90, 638 A.2d 107 (emphasis supplied).

When a new theory is belatedly injected into an adjudication, a party, such as the appellant in this case, may not have been alerted to the need for more fully developing what might be pertinent evidence with respect to the new theory. Such party, moreover, certainly has had no occasion to argue with respect to the new theory.

In the case sub judice, all of the facts necessary to assert the Carroll doctrine as a justification for the warrantless search at issue were known to the State at the time of trial and the State could have argued the Carroll doctrine in their alternative without diluting its primary emphasis on the inventory justification. . . . By structuring its argument in such a way, the State dissuaded Bell from offering evidence on the matters of probable cause for the second search and exigency of the circumstances. Here, as in Giordenello, Bell had no reason to cross-examine the police on these matters. Moreover, because warrantless searches are presumptively unreasonable, and the burden of proving the applicability of an exception to the warrant requirement rests on the State, Bell cannot be expected to rebut possible justifications for the search on his own initiative. The State may not lead the defendant and the trial court down a primrose path, only to leave them stranded when, on appeal, the State deems it advantageous to change its strategy.

334 Md. at 191, 638 A.2d 107 (emphasis supplied).

In Jones v. State, 379 Md. 704, 843 A2d 778 (2004), the Court of Appeals again emphasized fairness to the parties as the prime consideration in whether to permit a new issue to enter the contest at the last minute.

The primary purpose of Rule 8-131(a) is to ensure fairness for all parties and to promote the orderly administration of law. Although the interests of fairness generally are furthered by requiring the issues to be brought first to the attention of the trial court so that the trial court may pass upon it in the first instance, the appellate court has the discretion to excuse the default and consider the issue. This discretion should be exercised only when it is clear that it will not work an unfair prejudice to the parties or to the court. While the authority to review unpreserved issues is discretionary, it should not be exercised when it will work an unfair prejudice to the parties. Therefore, the animating policy behind Rule 8-131(a) is to ensure fairness for the parties involved and to promote orderly judicial administration.

Id. at 713-14, 843 A.2d 778 (emphasis supplied). Judge Raker's opinion went on to explain precisely how the late introduction of an unexpected issue, regardless of by whom, could leave a defendant languishing in the lurch.

First, the appellate court should consider whether the exercise of its discretion will work unfair prejudice to either of the parties. For example, with respect to the parties, a new argument presented by the State would work unfair prejudice to a criminal defendant if its validity depended upon evidence not adduced at the trial level. In such a case, an appellate court's consideration of the argument would most likely be an abuse of its discretion under Rule 8-131(a) because it would be manifestly unfair to the defendant who had no opportunity to respond to the argument with his own evidence to the contrary.

Id. at 714, 843 A.2d 778 (emphasis supplied).

Although all of this caselaw, as we earlier noted, involves the untimely introduction of a new issue or a new theory into the case by the State at the appellate level rather than the introduction of a new theory or new issue by the suppression hearing judge as he announces his ruling, the unfair or adverse impact on the defendant is precisely the same in either event. The appellant here was never on notice that his lifting of his shirt was to be assessed pursuant to the frisk requirements of Terry v. Ohio. His cross-examination of the two deputy sheriffs might well have focused more closely on whether one or both were fearful that the appellant may have had a weapon and on precisely what he had done to generate such a fear. He might well have more closely explored why they chose not to conduct a routine Terry pat-down for weapons. Were they hoping to discover evidence of crime as well as a weapon? Of critical importance, defense counsel would have had the opportunity to argue those issues before the suppression hearing judge. Most significantly, attention could have been focused on the permissible scope of a Terry frisk. He was denied that opportunity. The words of the Supreme Court in Giordenello v. United States, 357 U.S. 480, 488, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), are poignantly apposite.

To permit the Government to inject its new theory into the case at this stage would unfairly deprive petitioner of an adequate opportunity to respond. This is so because in the District Court petitioner, being entitled to assume that the warrant constituted the only purported justification for the arrest, had no reason to cross-examine Finley or to adduce evidence of his own to rebut the contentions that the Government makes here for the first time.

(Emphasis supplied). See also Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

We hold that the suppression hearing ruling, based on an unraised, undeveloped, and unargued Fourth Amendment theory, was in error and that the physical evidence should, therefore, have been suppressed.

An Alternative Holding: The Permitted Scope of a Frisk

Were, arguendo, the merits of the Terry frisk properly before us, we would hold that directing the appellant to lift his shirt exceeded in scope the tightly limited intrusion permitted by Terry v. Ohio. In terms of the initial justification for a frisk, to wit, articulable suspicion that the appellant may have had a weapon, this case would present a close call were we to address the merits. Rather than presume to try to resolve this close question without the guidance of argument from counsel on both sides, we will assume, purely arguendo, that there was articulable suspicion for a frisk and go on to the follow-up question of the permitted scope of such a frisk.

Before doing so, however, we note the very interesting argument now made by the appellant that only knowledge possessed by Deputy Moro, the frisking officer, should have had a bearing on the justification for the frisk, and not other knowledge, possessed perhaps by Deputy Gerres if not communicated to Deputy Moro. The appellant quotes from State v. Blackman, 94 Md.App. 284, 298-99, 617 A.2d 619 (1992), in this regard.

As we assess the reasonableness of the fear that the appellee might be armed, we note that it was Officer Matthews, not Officer Stephens, who attempted to execute the frisk. We note that it was Officer Matthews, not Officer Stephens, who articulated reasons for believing that a frisk for weapons was necessary. It is only those facts known to the articulating officer that may be included in the articulable suspicion computation. Thus, we will eschew reliance on Officer Stephens' knowledge that the appellee was a drug dealer and the virtually "automatic" right to frisk for weapons that would flow from that knowledge. . . . Officer Matthews did not know that. We will also eschew reliance on the knowledge available to the more extended police team that the recent arrest of the appellee was for the carrying of a deadly weapon. Officer Matthews did not know that. What an officer does not know cannot be the basis for any suspicion on his part. We will, therefore, confine ourselves to scrupulously to what was known or reasonably believed by the frisking officer.

(Emphasis supplied). At the very least, this is an argument that the appellant should have had an opportunity to make before the suppression hearing judge. We are, however, for the moment assuming that there was justification for a frisk.

We turn to the question of scope. The permitted scope of any search is whatever is necessary to serve the purpose of that search — but not one little bit more. The purpose — the only purpose — of a Terry frisk is to discover the presence of suspected offensive weapons that could be used to harm the stopping officer. It is most emphatically not to discover the presence of evidence. The Supreme Court has accordingly scrupulously limited the scope of a Terry frisk to a patting down of the exterior of the clothing surface. The reasoning is that such a pat-down is enough to detect the presence of most weapons — guns, knives, black jacks, brass knuckles — and that that is sufficient, therefore, to serve the limited purpose. A frisk is not a permitted procedure to discover the presence of evidence of crime. That requires additional justification.

Directing the appellant to lift his shirt went beyond the limited scope of a frisk. It revealed "a small, clear plastic baggie . . . protruding from the top of his pants." A pat-down of the appellant would not have permitted the recovery of that baggie. It was not a hard metallic object that could have been mistaken for a weapon. Although, to the touch through clothing, it might have aroused suspicion, it by no means communicated probable cause as per the "plain feel doctrine" of Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). A properly limited frisk of the appellant would not have produced the cocaine, for the possession of which the appellant is now facing 25 years of imprisonment without the possibility of parole.

The suppression hearing judge reasoned, sua sponte, that the lifting of the shirt was reasonable because it was less intrusive than a pat-down would have been. The degree of intrusiveness, however, is not the controlling criterion. Nor is the duration of the intrusion. Nor is the degree of embarrassment that the intrusion might cause. The critical limitation is that the intrusion must be only that which is necessary to detect the presence of a weapon — and nothing more. In this case, the alternative intrusion self-evidently detected something other than the presence of a weapon and the appellant is paying a heavy price for that incremental revelation.

Would lifting her shirt, for instance, also have been less intrusive to a female stoppee? Is that, moreover, a question for the judge or for the frisking officer to decide on behalf of the stoppee? If a female stoppee were directed to empty her pockets on the assumption that that would be less intrusive (embarrassing to her) than to be closely patted down by a male stopping officer, and out of her pockets came pouring narcotics, would the narcotics be admissible as the product of a properly limited Terry frisk? What price gallantry? She was saved embarrassment, but she's now doing 25 years. Should the stoppee have an option in such matters? These are all questions that might have been argued before the suppression court, had the issue of a properly limited Terry frisk been on the agenda. It was not.

State v. Smith, 345 Md. 460, 693 A.2d 749 (1997), is very much in point. The issue was close to the one now before us, even if not precisely identical.

The specific question before the Court is whether a police officer, after patting down a suspect's outer clothing and detecting no weapons, may further verify that a suspect is unarmed by lifting the suspect's shirt to reveal the waistband of his pants. For the reasons set forth below, we hold that the police officer acted improperly in engaging in this secondary, more intrusive search.

345 Md. at 463, 693 A.2d 749 (emphasis supplied). Judge Chasanow set out the principles that control the scope of a Terry frisk.

The purpose of a Terry frisk is not to discover evidence, but rather to protect the police officer and bystanders from harm. In accordance with this narrow purpose, the scope must be "confined . . . to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Furthermore, the objective is to discover weapons readily available to a suspect that may be used against the officer, not to ferret out carefully concealed items that could not be accessed without some difficulty. General exploratory searches are not permitted, and police officers must distinguish between the need to protect themselves and the desire to uncover incriminating evidence.

345 Md. at 465, 693 A.2d 749 (emphasis supplied).

Whereas lifting the appellant's shirt here was the initial check, lifting the appellant's shirt in State v. Smith was a "double check." In either event, it was more than was necessary to discover weapons.

Applying these principles to the facts of the instant case, we conclude that when Officer White failed to detect a weaponlike object, his frisk of Smith should have ceased. Instead, Officer White stated that he decided to "double check" the pat-down. He testified, "I pulled [Smith's] shirt back to make sure I didn't miss anything." He further explained, "I pulled the shirt out just so I could see the waistband to make sure nothing was sticking out even though I patted him, like to double check. . . ." The trial judge also found that upon completing the initial pat-down, "the officer did one more thing, which was to tug at the shirt. . . ." In verifying the results of the pat-down by a more intrusive search, Officer White exceeded the lawful bounds of a Terry frisk.

345 Md. at 470-71, 693 A.2d 749 (emphasis supplied). In that case, as in this, a plastic baggie containing cocaine was revealed in the defendant's waistband. It was there held that the evidence should have been suppressed as the product of an intrusion that went beyond the limited scope of a Terry frisk.

In McDowell v. State, 407 Md. 327, 965 A.2d 877 (2009), there was reason to stop and frisk a passenger in a pickup truck that had been subjected to a traffic stop. Within the reach, lunge, or grasp of the passenger was a gym bag large enough to hold a weapon. The gym bag as well as the passenger was properly subject to a frisk. The issue before the Court of Appeals was the scope of the frisk. The passenger was ordered to open the bag and it was found to contain heroin. Judge Wilner's opinion held that the opening of the bag exceeded the scope of a permitted Terry frisk and that a pat-down of the bag would have been sufficient to detect the presence of a weapon.

What Terry allows are "necessary measures" to determine whether a person is carrying a weapon. As we have observed, because the search is solely a protective one and not one to discover evidence, "it must be confined in scope to an intrusion reasonably designed to discover guns, knives, or other hidden instruments for the assault of the police officer." In the search of a person, it ordinarily must be confined, at least initially, to a pat-down of the outer clothing.

407 Md. at 340, 965 A.2d 877 (emphasis supplied).

In Bailey v. State, 412 Md. 349, 368-69, 987 A.2d 72 (2010), Judge Greene wrote for the Court of Appeals:

Even if Officer Lewis had reasonably believed that the petitioner was armed and dangerous, therefore providing the basis for a proper Terry frisk, the search in the present case exceeded the scope of a proper protective frisk. A proper Terry frisk is limited to a pat-down of the outer clothing "not to discover evidence of a crime, but rather to protect the police officer and bystanders from harm" by checking for weapons. . . . Generally, "a pat down is . . . a proper, minimally intrusive means of determining whether a suspect is armed."

The officer may not exceed the limited scope of a patdown for weapons to search for contraband.

(Emphasis supplied).

In In re David S., 367 Md. 523, 544, 789 A.2d 607 (2002), Judge Raker had similarly observed:

The Supreme Court has made it clear that "if the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed."

(Emphasis supplied)

An unorthodox police procedure, even if not particularly intrusive, is not an acceptable functional equivalent of a true frisk or pat-down if it could reveal more than the presence of a weapon. As an alternative holding, the evidence in this case should have been suppressed as the product of a Terry frisk that was unconstitutional because it was excessive in scope.

ORDER DENYING SUPPRESSION REVERSED. CASE REMANDED FOR A VACATING OF THE APPELLANT'S CONVICTIONS. COSTS TO BE PAID BY HARFORD COUNTY.