Alston v. State

DEBORAH S. EYLER, J. A jury in the Circuit Court for Baltimore City convicted Kevin C. Alston, the appellant, of unlawful possession of a regulated firearm by a person previously convicted of a felony; unlawful possession of a regulated firearm by a person previously convicted of a misdemeanor carrying a statutory penalty of more than two years; and wearing and carrying a handgun. The court imposed a sentence of five years in prison without the possibility of parole for the felon-in-possession conviction; a consecutive two-year prison term for the misdemeanor-based possession conviction; and a concurrent two-year prison sentence for the wearing and carrying a handgun conviction. On appeal, the appellant presents the following three questions, which we have reordered and rephrased: I. Did the motion court err in denying the appellant’s motion to suppress the handgun from evidence?

II

Must the appellant’s sentence of five years in prison without the possibility of parole, under Article 27, section 449(e), be vacated because when he committed the offense and was sentenced Md.Code (2002), section 5-622 of the Criminal Law Article (“CL”) proscribed the same conduct but carried only a maximum penalty of five years in prison with the possibility of parole?

III

Should the appellant’s misdemeanor-based possession conviction and sentence be vacated in light of his felon-in-possession conviction and sentence? For the following reasons, we answer “No” to Questions I and II and “Yes” to Question III. Accordingly, we shall vacate ²⁵⁸ the appellant’s conviction and sentence for unlawful possession of a regulated firearm by a person previously convicted of a misdemeanor carrying a statutory penalty of more than two years, and otherwise affirm the judgments of the circuit court. PACTS AND PROCEEDINGS The events in this case took place on October 10, 2002.

Prior to that date, the appellant had been convicted of distribution of a controlled dangerous substance (“CDS”), in violation of Md.Code (1957, 1996 Repl. Vol.) Article 27, section 286, which is a felony. 1 He also previously had been convicted of a misdemeanor carrying a statutory penalty of more than two years. At about 11:15 p.m. on October 10, 2002, Baltimore City Police Sergeant Stanley Noland and three other “plainclothes” officers were on duty in an unmarked police car in the unit block of West Talbot Street in Baltimore City. Sergeant Noland was driving.

The officers were familiar with the area and knew it as one in which illegal drugs are sold on the street. The officers saw several people standing and walking around on the sidewalk in front of 54 West Talbot Street. Two of the people waved for the officers’ vehicle to pull over to the curb. Based on prior experience, Sergeant Noland believed that the people were going to offer to sell drugs to the officers.

Sergeant Noland stopped the vehicle at the curb and he and the other officers got out of the car. When they donned police identification badges, the two people who had signaled to them fled. A third person, later identified as the appellant, remained standing on the sidewalk in front of 54 West Talbot Street. As the officers watched, the appellant reached into his waistband and pulled out a semi-automatic handgun.

Still ²⁵⁹ holding the handgun, he turned and ran inside 54 West Talbot Street, through the open front door. Sergeant Noland and Officers James Jones and Chris Kazmarek ran into the building after the appellant. (Officer Wayne Weaver ran around the side of the building to the backyard.) Officer Jones went upstairs to the second floor apartment and Officer Kazmarek entered the first floor apartment. Sergeant Noland, still in the first floor entryway, heard someone running down another flight of stairs, in a common area of the house, from the second floor to the basement.

After the footsteps reached the basement, it was quiet for 35 to 40 seconds. The footsteps resumed, and were heard again, running up the stairs. Sergeant Noland opened a door to the common area stairway and intercepted the appellant, who no longer was holding the handgun. The appellant was placed under arrest and searched.

The handgun was not on his person. Sergeant Noland and Officer Kazmarek went downstairs into the basement of the house and performed a “cursory search” for the handgun, using flashlights. After a few minutes, they found, stashed on an open ceiling rafter, a handgun identical to the one they had seen the appellant holding. The officers seized the handgun and determined that it was fully loaded.

The officers also discovered a woman, later identified as Christy Dean, asleep on a makeshift bed. The appellant was charged criminally, in the Circuit Court for Baltimore City. He filed a motion to suppress the handgun from evidence, arguing that it had been seized in violation of his Fourth Amendment rights. The court denied the motion.

The case proceeded to trial the next day. At the outset, the parties stipulated that the appellant “ha[d] been previously convicted of crimes that would prohibit his possession of a regulated firearm.” Sergeant Noland testified for the State about the events of October 10, 2002, as we have recited them. The State also called Officers Jones and Kazmarek, who corroborated Ser ²⁶⁰ geant Noland’s testimony. The defense rested without presenting any evidence.

In light of the parties’ stipulation about the appellant’s prior convictions, with respect to the two counts of possession, the jurors merely were asked to decide whether the appellant did or did not possess the firearm on the date in question. They found that he did. The jurors also found the appellant guilty of wearing and carrying a handgun. We shall discuss sentencing in depth in addressing Question II.

DISCUSSION I. As noted, the appellant moved to suppress the handgun from evidence on Fourth Amendment grounds. At the suppression hearing, the State asserted that the appellant lacked standing to contest the police entry into 54 West Talbot Street and their search of the basement of the premises and seizure of the handgun. The appellant testified on his own behalf on the standing issue. According to the appellant, on the day in question, a man named “Jerry,” whose last name he did not know, was living in the second floor apartment of 54 West Talbot Street, and “a guy” whose name he did not know at all was living in the first floor apartment.

Christy Dean was renting the basement of the dwelling from “Jerry.” The appellant had known Dean “for a pretty long time.” They had an “intimate” relationship. The appellant did not know how long Dean had been renting the basement of 54 West Talbot Street, but he had been going there to see her for a “couple of months.” The appellant “spent the night” at Dean’s apartment “from time to time.” He “sometimes” stayed there for the whole night. He did not keep any of his belongings there. He did not have a key.

Dean would lend him her key sometimes “[i]f [he] went to the store or something.” He did not receive mail or have a telephone at 54 West Talbot Street. His “permanent address” was on Furnace Branch Road in Glen Burnie, where he had lived for about 16 years. ²⁶¹ The State called Sergeant Noland. His suppression hearing testimony was as we have summarized his trial testimony above. At the close of the hearing, the court denied the appellant’s suppression motion on two grounds.

First, it concluded that the appellant did not have standing to raise a Fourth Amendment violation. The court found that the appellant was merely an occasional overnight visitor of Dean and that he did not have a legitimate expectation of privacy in the premises. Second, the court concluded that, even if the appellant had standing, there was no Fourth Amendment violation because the warrantless entry into 54 West Talbot Street and search of the basement and seizure of the handgun were justified by exigent circumstances. On appeal, the appellant contends the motion court’s rulings were in error.

He also contends that the search of the basement could not be justified as a search incident to valid arrest—an argument the State raised below but was not addressed by the motion court. The State responds that the motion court correctly concluded that the appellant did not have Fourth Amendment standing and, alternatively, that exigent circumstances justified the entry, search, and seizure; and that the search of the basement also properly could be upheld as incident to a valid arrest. For the reasons we shall explain, we conclude that the suppression motion properly was denied on the ground of lack of standing. Therefore, we need not address the appellant’s Fourth Amendment violation contention.

Our review of the trial court’s decision on a motion to suppress evidence under the Fourth Amendment is based solely on the record of the suppression hearing. State v. Green, 375 Md. 595, 607 , 826 A.2d 486 (2003); Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000). We view the evidence in the light most favorable to the party who prevailed on the suppression motion. State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439 (2003); Williams v. State, 372 Md. 386, 401 , 813 A.2d 231 (2002).

In considering the evidence on which a ²⁶² suppression motion is based, we extend great deference to the judge’s fact-finding, determinations about witness credibility, and weighing of the evidence. In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691 (1997); Farewell v. State, 150 Md.App. 540 , 562 n. 5, 822 A.2d 513 (2003). When facts are in dispute, we accept the factual findings of the motion judge unless they are clearly erroneous. Oken v. State, 327 Md. 628, 650 , 612 A.2d 258 (1992).

With respect to the ultimate determination whether there has been a constitutional violation, we make our own independent appraisal by reviewing the law and applying it to facts presented in a particular case. Carter v. State, 367 Md. 447, 457 , 788 A.2d 646 (2002); Simpson v. State, 121 Md.App. 263, 276 , 708 A.2d 1126 (1998). The Fourth Amendment proscribes unreasonable searches and seizures by government agents. U.S. Const. amend.

IV; see United States v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002). Fourth Amendment coverage only applies, and hence a violation only may be asserted, when the person asserting the violation had a reasonable expectation of privacy in the area invaded at the time of the search. Katz v. United States, 389 U.S. 347, 361 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). A reasonable expectation of privacy is one society is prepared to recognize as reasonable.

Id. See also Bond v. United States, 529 U.S. 334, 338 , 120 S.Ct. 1462 , 146 L.Ed.2d 365 (2000); Rakas v. Illinois, 439 U.S. 128, 143-44 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978). This requires “more than a subjective expectation of not being discovered.” Rakas, supra, 439 U.S. at 143 n. 12, 99 S.Ct. 421 ; Simpson, supra, 121 Md.App. at 277 , 708 A.2d 1126 . Whether a defendant has a legitimate expectation of privacy in the area invaded at the time of the search is determined by considering the “totality of the circumstances.” Joyner v. State, 87 Md.App. 444, 450 , 589 A.2d 1330 (1991).

The burden is on the proponent of a motion to suppress evidence on Fourth amendment grounds to prove what is sometimes called “standing”—that he had a reasonable ²⁶³ expectation of privacy in the premises or the property. Rawlings v. Kentucky, 448 U.S. 98, 104 , 100 S.Ct. 2556 , 65 L.Ed.2d 633 (1980); Laney v. State, 379 Md. 522, 545 , 842 A.2d 773 (2004). As explained above, the motion court in this case found that the appellant did not show that he had standing to assert a Fourth Amendment violation. On appeal, the appellant contends that he had a reasonable expectation of privacy in Dean’s basement apartment at 54 West Talbot Street because he had the status of an overnight guest of Dean.

He relies on Minnesota v. Olson, 495 U.S. 91 , 110 S.Ct. 1684 , 109 L.Ed.2d 85 (1990), for support. In Olson , the defendant had been staying in a duplex apartment rented by a friend, who was away. The police obtained information that the defendant had been the getaway driver in an armed robbery and murder. Without obtaining a warrant, they went to the duplex, entered it, and arrested the defendant, who was hiding in a closet.

Soon after his arrest, the defendant made inculpatory statements. After he was charged, the defendant moved to suppress his statement, on the ground that it was obtained as a consequence of his illegal arrest. The trial court held that the defendant did not have a reasonable expectation of privacy in the duplex apartment and therefore did not have standing to raise a Fourth Amendment violation. On appeal after conviction, the state supreme court reversed and remanded, holding that the defendant had a sufficient interest in the premises to assert a Fourth Amendment violation, and that the warrantless arrest in fact violated the Fourth Amendment.

The Supreme Court affirmed. On the issue of standing, the Court held that the defendant’s “status as an overnight guest [was] alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.” 495 U.S. at 96-97 , 110 S.Ct. 1684 . The Court explained that an overnight guest’s legitimate expectation of privacy in the premises in which he is staying does not depend upon whether he has a legal interest in the premises that gives him the right to exclude others or determine who may ²⁶⁴ enter; a key with which to come and go; receives mail at the location; or stays there regularly. His status as an overnight houseguest itself gives him a legitimate expectation of privacy in his host’s home.

In Olson , the defendant’s status at the time of the search as an overnight guest of the duplex renters was established factually; the decisional issue was the legal significance of that status for purposes of Fourth Amendment coverage. 495 U.S. at 93, 96 , 110 S.Ct. 1684 . As explained, the Court adopted a per se rule that a person who is an overnight guest in the premises at the time of the search has a reasonable expectation of privacy in the premises. In this case, by contrast, there was no factual finding that the appellant was an overnight guest of Dean at the time of the search. The appellant did not testify that he was an overnight guest of Dean that night.

His testimony was that “from time to time” he was ah overnight guest of Dean: that is, sometimes he stayed overnight with her; more often he visited her without spending the night; and for periods he did not visit her at all. Certainly, that testimony did not compel a factual finding that the appellant occupied the status of an overnight guest of Dean on October 10, 2002. We read the motion court’s ruling as including an implicit factual finding that the appellant did not occupy the status of an overnight guest under Olson ; and we cannot say that finding was clearly erroneous. The appellant’s testimony did not offer any factual detail about his connection to 54 West Talbot Street on the night in question.

He did not testify that he had been inside the apartment visiting Dean at any time on the day or evening in question or that he was planning to go inside the apartment or to stay with Dean that night. As discussed above, it was the appellant’s burden to adduce evidence showing his status vis-a-vis the premises. Joyner v. State, supra, 87 Md.App. at 450 , 589 A.2d 1330 . It is telling that the appellant did not testify that he even visited Dean or was inside her apartment on October 10, 2002, giving only general information about his visiting habits. ²⁶⁵ The question then is whether an occasional overnight guest of an apartment renter who has no belongings in the apartment, no key to the apartment, enters the apartment while in flight from the police, is not visiting the renter at the time of the search, but has an intimate relationship with the renter, has a legitimate expectation of privacy in the renter’s apartment.

We agree with the State that Simpson v. State, 121 Md. App. 263 , 708 A.2d 1126 (1998), is helpful authority on this question. In that case, a woman had been living in a room on North Longwood Street in Baltimore City for several months. According to the defendant, he had been to the room two or three times previously. On the day in question, he went there to have sex with the woman.

She had agreed to have sex with him in exchange for money. Another occupant of the house let him in and he went to the woman’s room, entered, and waited for her to wake up. While he was waiting, the police entered the home and recovered illegal drugs from the room. This Court held that the defendant did not have standing to raise a Fourth Amendment violation, because he did not have a reasonable expectation of privacy in the woman’s room, notwithstanding that he was visiting her for the purpose of having sexual relations.

We noted that the defendant had visited the premises only a few times previously; was in the room only a short time before the date of the search; did not store any personal belongings there; did not have a key to the premises; had no right to be there without the woman or other occupant present; and had no right to exclude others from the room. The appellant’s status at the time of the arrest was akin to that of the defendant in Simpson . Again, although at times he spent the night with Dean in her apartment, there was no evidence that he was doing so that night. He was not inside Dean’s apartment when the police encountered him; he had no key;