Baith v. State

MOYLAN, Judge. In law, the difficulty is frequently not one of finding the right answer but one of asking the right question. We are here called upon to answer whether a police intrusion into a private building, possibly an office or possibly a home, was justified. For sake of argument, we will assume it to have been a home.

It is impossible to provide an answer until a properly focused question pinpoints for us precisely what the intrusion was and when the intrusion occurred that calls for the justification. The core value served by the Fourth Amendment, of course, is the protection of the “sacred threshold” of the home. Michigan v. Clifford, 464 U.S. 287, 296-297 , 104 S.Ct. 641, 648-649 , 78 L.Ed.2d 477, 486 (1984); Welsh v. Wisconsin, 466 U.S. 740, 748-749 , 104 S.Ct. 2091, 2096-2097 , 80 L.Ed.2d 732, 742 (1984). When a citizen withdraws into the sanctuary of the home, a governmental intrusion into that sanctuary, either to search for evidence or to arrest the homeowner, requires a high level of justification.

Coolidge v. New Hampshire, 403 U.S. 443, 454-455 , 91 ³⁸⁸ S.Ct. 2022, 2031-2032, 29 L.Ed.2d 564, 576 (1971); Payton v. New York, 445 U.S. 573, 583-590 , 100 S.Ct. 1371, 1378-1382 , 63 L.Ed.2d 639, 649-653 (1980). Where, on the other hand, the home has been debased by the homeowner himself into some sort of criminal emporium, its status as sanctum sanctorum is rudely diminished. The compromising agency in such a case is not the investigative opportunism of the police but the commercial trafficking of the occupant. The doctrinal backdrop for our consideration of the primary contention in this case is Lewis v. United States, 385 U.S. 206, 211 , 87 S.Ct. 424, 427-428 , 17 L.Ed.2d 312, 316 (1986): “Without question, the home is accorded the full range of Fourth Amendment protections____ But when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street.

A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant.” (citations omitted). The appellant, Najee Abdul Baith, also known as Tommy Lee Carter, was no mere possessor or even small-time distributor of cocaine. He was a major player. For a four-month period in late 1989, the United States Drug Enforcement Agency expended significant effort to uncover and to amass proof of his criminality.

That effort culminated in the appellant’s conviction by a Prince George’s County jury, presided over by Judge William D. Missouri, of possession of cocaine with intent to distribute and related charges. The appellant’s primary contention is that his pretrial motion to suppress evidence warrantlessly seized from his building and from his person was erroneously denied. The key government operative in this case was Barbara Walters, a confidential source who had been working with the DEA for at least five years. Ms. Walters worked the case in cooperation with and under the direction of DEA ³⁸⁹ Agent Judith Young.

On at least fifteen prior occasions, Ms. Walters had provided the DEA with information leading to seizures of narcotics and to convictions. She had never provided erroneous information. She was always paid in cash immediately after any arrest that was made on the basis of her undercover operations. On one occasion, her compensation had been as high as $10,000.

Following the appellant’s arrest on December 15, 1989, Ms. Walters received payment in the amount of $1,500. Barbara Walters had been a casual acquaintance of the appellant for approximately ten years before the beginning of this investigation. The appellant had once provided cocaine for a party hosted by her. In August of 1989, the appellant called Barbara Walters to tell her that he had access to cocaine in kilo lots that a friend needed to get rid of.

She responded that she would get back to him if she could develop an interested purchaser. On December 12, Barbara Walters finally got back to the appellant and the two of them discussed her purchasing of a kilo of cocaine from him for a price of $27,000. During those negotiations, she was working closely with her DEA contacts and, at their direction, recorded her telephone conversations with the appellant. Approximately ten conversations were recorded on December 13, 14, and 15.

The appellant and Barbara Walters arranged a “meet” on December 14. The transfer of cash for cocaine was to take place at the Fisherman’s Catch Restaurant, which was owned and had been operated by the appellant and Loomis Taylor but which was closed for business at that time. The “meet” that day aborted when Ms. Walters and DEA Agent Ingram, posing as her nephew, arrived late for the meeting. Barbara Walters paged the appellant later that day and they arranged for another meeting at the same place for noon on December 15.

The Fourth Amendment issue before us revolves about the happenings of December 15. Barbara Walters was again driven to the meeting site by Agent Ingram, who remained parked across the street as Ms. Walters went into ³⁹⁰ the Fisherman’s Catch Restaurant. Between ten and fifteen DEA Agents and Prince George’s County police officers were deployed throughout the general area. As Ms. Walters approached the restaurant, she saw Loomis Taylor, the appellant’s partner, arriving simultaneously.

The two greeted each other and went upstairs to the office to wait for the appellant. A few minutes later, Taylor went downstairs to call the appellant, presumably to tell him that the “meet” was on and that he could bring the cocaine to the rendezvous. Ms. Walters, ostensibly checking with her own backup, walked over to the parked car to report to Agent Ingram. Walters and Taylor both then reentered the building.

From the various surveillance points, a number of agents observed the appellant arrive ten minutes later carrying an attache case. He carried this to the upstairs office. He told Ms. Walters that he had the “coke” and showed her a brick of cocaine in the attache case. She stuck her hand in to taste the cocaine and pronounced it “OK.” She indicated to the appellant that she had the money in the car.

She and the appellant then walked downstairs together and he waited just inside the door as she went to the car and received an empty bag from Agent Ingram. She passed the word to Ingram that the deal was in progress and that the cocaine was sitting in the attache case on the desk upstairs. Ms. Walters, now accompanied by Agent Young and Agent Ronald Kahn, went back to the door of the building and rapped on it. As the appellant opened the door to lét her in, the agents rushed the building.

The appellant himself was arrested as he stood, half in and half out of the doorway. He immediately began shaking and fell to the ground in some sort of seizure. Paramedics were soon upon the scene. In the meantime, a small plastic bag containing white powder was seen protruding from out of the appellant’s pants leg as he lay upon the ground.

It contained three packages of cocaine, weighing 15.2 grams, 23.3 grams, and 19.3 grams, respectively. At the suppression hearing, there was a great deal of ³⁹¹ “fuss” as to whether the appellant was arrested inside the building or outside the building and what significance the answer to that question might have in terms of Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980). (Even King Solomon might have been perplexed by this one, for the facts permitted the conclusion that the lower half of his body was in but the upper half was out. Where, according to the philosophers, does the quintessence of a person reside?) Meanwhile, other DEA agents had raced upstairs.

Agent Young knew that the appellant owned a gun. Agents Young and Kevin Tamez both testified that they knew that Loomis Taylor was still at large somewhere in the building and that they were concerned for their safety. Agent Tamez also testified that it would have been easy for Taylor or another to flush the drugs down a toilet. Agent Tamez found the large quantity of cocaine sitting on the desk in the upstairs room.

He went to an adjoining room, where he located and arrested Taylor. The appellant in the meantime had recovered from his seizure and was asked to consent to a search of the premises. He ostensibly consented. The cocaine found in the building was seized.

It weighed 1,041 grams and had a purity of 51%. The suppression hearing and the appeal thus far, both on brief and in argument, have produced a mind-boggling tangle of intertwining and overlapping Fourth Amendment questions and theories. Was the police search of the building pursuant to the appellant’s voluntary consent? Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973).

Was the voluntariness of the consent, in turn, contingent upon the constitutionality of the antecedent police seizure of the appellant’s person? Florida v. Bostick, 500 U.S. -, 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991). Is an arrest inside a building for a crime then in progress an exemption from the arrest warrant requirement of Payton v. New York? Was the seizure from the ³⁹² appellant’s pants leg an incident to lawful arrest?

Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969) . Was the warrantless rush into the building justified by exigent or emergency circumstances? Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967); Michigan v, Tyler, 436 U.S. 499 , 98 S.Ct. 1942 , 56 L.Ed.2d 486 (1978); Mincey v. Arizona, 437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978). May the imminent loss of evidence constitute such an exigent circumstance?

Welsh v. Wisconsin, 466 U.S. 740, 753-754 , 104 S.Ct. 2091, 2099-2100 , 80 L.Ed.2d 732, 745-746 (1984); Vale v. Louisiana, 399 U.S. 30, 35 , 90 S.Ct. 1969, 1972-1973 , 26 L.Ed.2d 409, 413-414 (1970); Ker v. California, 374 U.S. 23, 37-41 , 83 S.Ct. 1623, 1631-1634 , 10 L.Ed.2d 726, 740-742 (1963); cf Schmerber v. California, 384 U.S. 757, 770-771 , 86 S.Ct. 1826,1835-1836 , 16 L.Ed.2d 908, 919-920 (1966). Was the evidence seized under the Plain View Doctrine? Horton v. California, 496 U.S. 128 , 110 S.Ct. 2301 , 110 L.Ed.2d 112 (1990). For purposes of the Plain View Doctrine, was the necessary prior valid intrusion the protective sweep of the building for the appellant’s potentially armed accomplice?

Maryland v. Buie, 494 U.S. 325 , 110 S.Ct. 1093 , 108 L.Ed.2d 276 (1990). May a protective sweep ever be predicated upon a warrantless arrest as opposed to Maryland v. Buie’s arrest with a warrant? May a protective sweep ever be predicated upon an arrest just outside the building as opposed to Maryland v. Buie’s arrest inside a building? May a protective sweep ever be predicated upon an arrest that straddles the threshold of the building?

How about an arrest outside a building but within its curtilage? Does a building other than a home even have a curtilage? United States v. Dunn, 480 U.S. 294 , 107 S.Ct. 1134 , 94 L.Ed.2d 326 (1987). What effect might a curtilage have on the applicability of Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980)?

Upon Maryland v. Buie? The legal tangle was truly a Gordian knot. The Gordian knot, however, resulted from an attempt to ³⁹³ answer the wrong question. It was a question that inquired about the wrong entry at the wrong time.

The critical police intrusion into the appellant’s constitutionally protected zone of privacy occurred when the police agent, Barbara Walters, by prior arrangement with the appellant and with the immediate consent of Loomis Taylor, first entered the building. That was the significant moment when the appellant’s privacy was breached. In full view of the police agent whom he had incautiously invited in, the appellant spread out a kilo of cocaine before her, asked her to taste it to confirm its genuineness, and then demanded his asking price of $27,000. With the full acquiescence of the appellant and Loomis Taylor, Barbara Walters twice left the building to make brief trips to her automobile and her companion with the full expectation that she would immediately reenter.

The invitation or consent for Barbara Walters to enter extended as well to her reentries. Each reentry was not an independent constitutional phenomenon calling for independent justification but was simply a continuation of the initial entry. Michigan v. Tyler, 436 U.S. 499, 510-511 , 98 S.Ct. 1942, 1950-1951 , 56 L.Ed.2d 486, 499 (1978) (“[T]he morning entries were no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.”) When a police agent, by artful deception, insinuates herself into the criminal inner sanctum, that is the entry that calls for constitutional analysis, not the eleventh-hour arrival of the reinforcements once the undercover agent manages to send the signal that the crime is in progress. That Barbara Walters, under the guise of retrieving the purchase money from the car, was able to slip out momentarily to give the signal presents a situation no different than if she had given the same signal from the upstairs room by going to the window and raising and lowering the blind.

Would the appellant maintain that the rest of the police team could not then have rushed to her support? Once a ³⁹⁴ police agent observes a crime being committed in her presence, 1 the timely arrival of the backup units is simply an incident of that primary investigative phenomenon and does not call for separate and incremental justification. As to the justification for the entry of Barbara Walters herself into the constitutionally protected area, Lewis v. United States, 385 U.S. 206, 210 , 87 S.Ct. 424, 427 , 17 L.Ed.2d 312, 315-316 (1966) is dispositive: “In the instant case, ... the petitioner invited the undercover agent to his home for the specific purpose of executing a felonious sale of narcotics. Petitioner’s only concern was whether the agent was a willing purchaser who could pay the agreed price____ During neither of his visits to petitioner’s home did the agent see, hear, or take anything that was not contemplated, and in fact intended, by petitioner as a necessary part of his illegal business.

Were we to hold the deceptions of the agent in this case constitutionally prohibited, we would come near to a rule that the use of undercover agents in any manner is virtually unconstitutional per se. Such a rule would, for example, severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest. A prime example is provided by the narcotics traffic.” (footnote omitted). ³⁹⁵ Especially in dealing with crimes like narcotics trafficking, the use of undercover agents and deception is fully countenanced: “Particularly, in the enforcement of vice, liquor or narcotics laws, it is all but impossible to obtain evidence for prosecution save by the use of decoys. There are rarely complaining witnesses.

The participants in the crime enjoy themselves. Misrepresentation by a police officer or agent concerning the identity of the purchaser of illegal narcotics is a practical necessity.” 385 U.S. at 210 n. 6, 17 L.Ed.2d at 316 n. 6. With respect to the breach of the appellant’s privacy accomplished by the ruse in this case, we conclude, as did the Supreme Court in Lewis : “In short, this