Barnes v. State

³⁸¹ BARBERA, C.J. The present appeal has its genesis in the commission of a double murder. Petitioner Delford Mitchell Barnes was indicted in connection with those crimes, tried before a jury in the Circuit Court for Prince George’s County, and found guilty of two counts of first-degree murder and related offenses. Among the evidence the State used against Petitioner at trial was a candle the police found in a storage locker belonging to him. The candle was inscribed with death threats, apparently against one of the two murder victims.

Petitioner filed a pre-trial motion seeking suppression of the contents of the storage locker, including the candle, as the tainted fruit of the consent he had given the police to search the locker. He argued that the police had obtained his consent to conduct the search while he was unlawfully detained at the police station. The suppression court denied the motion, evidently reasoning that the police had obtained Petitioner’s consent during their lawful detention of him. The Court of Special Appeals agreed with that ruling and affirmed the judgments of conviction.

We too agree with the decision of the suppression court and therefore affirm the judgment of the Court of Special Appeals. I. The murders generating this criminal case came to light on January 14, 2009, when the Prince George’s County Police Department received a 911 phone call from a friend of Seth Aidoo reporting his concern that he had not seen Mr. Aidoo or his girlfriend, Eunice Baah, in a few days. The police responded to Mr. Aidoo’s home, which was located within a gated community in Upper Marlboro, Prince George’s County. Upon entering the home, the police discovered the bodies of Mr. Aidoo and Ms. Baah in the basement and, shortly thereafter, pronounced both victims dead.

Later autopsies revealed that Mr. Aidoo died from multiple stab wounds and Ms. Baah died from a gunshot to her head. The doctor who performed the autopsies ruled both deaths homicides. ³⁸² At some point on the night of the 911 call, the Police Department’s Homicide and Forensic Services Units responded to the crime scene. The police processed the home for evidence and a murder investigation ensued. It was determined that Mr. Aidoo and Ms. Baah likely had been killed on the evening of January 12, 2009.

Detectives Anthony Schartner and William Watts and Corporal Benjamin Brown were assigned to investigate the murders. They learned during their investigation that Mr. Aidoo at one time lived at the Upper Marlboro residence with his wife, Sheila Aidoo, and her brother, Samuel Culley, Jr. 1 Ms. Aidoo moved from the home when the Aidoos separated and, shortly thereafter, Mr. Aidoo forced Culley to leave the home because of several confrontations between the two men. At the time of the murders, Ms. Aidoo, Culley, and Petitioner lived together in Ms. Aidoo’s home in Springdale, Prince George’s County. The access gates to Mr. Aidoo’s community were controlled by transponders.

The police learned that Culley had obtained a transponder in March 2008, evidently while residing with his sister and Mr. Aidoo. Video surveillance of the entrance to the community revealed that, approximately two weeks before the murders, a Mercedes Benz registered to Petitioner entered the community using the transponder issued to Culley. On the evening of the murders, a mini-van entered the community at 6:00 p.m. using the same transponder. 2 Detectives learned that Petitioner’s cell phone had been powered off that evening from 5:00 p.m. until 2:15 a.m., which was inconsistent with Petitioner’s “normal” cell phone usage. On February 18, 2009, Detective Schartner applied for and obtained warrants to collect Petitioner’s DNA and fingerprints ³⁸³ and to search Ms. Aidoo’s Springdale residence and Petitioner’s Mercedes.

Shortly after 6:00 p.m. on February 19, Corporal Brown, along with two other officers, conducted surveillance outside Ms. Aidoo’s Springdale residence in preparing to execute the warrants. At approximately 6:40 p.m., Petitioner and two other individuals left the Springdale residence in Petitioner’s Mercedes. The police stopped the vehicle one block from the residence. Corporal Brown identified himself as a detective with the Prince George’s County Police Department, explained that he was investigating the murders of Mr. Aidoo and Ms. Baah, and advised Petitioner of the warrant to collect his DNA and fingerprints.

Petitioner was asked, and he agreed, to go to the police station for the purpose of executing that warrant. 3 Detective John Piazza transported Petitioner to the police station. Petitioner sat in the front passenger seat of the detective’s vehicle and was handcuffed during the ride to the station. At the station, the police removed the handcuffs and placed Petitioner in a five-by-five-foot interview room. Petitioner was not restrained while in the room and the door to the room remained unlocked while he was inside.

At some point, Petitioner asked to leave the interview room to use the restroom and was permitted to do so. During the next several hours, Petitioner made no other request to leave the room. Meanwhile, other aspects of the investigation were ongoing. About the same time as Detective Piazza transported Petitioner to the police station, Detective Watts transported to the station the two passengers who had been riding with Petitioner when he was stopped.

Other officers, including Detective Schartner and Corporal Brown, entered the Springdale residence to execute the search warrant. Corporal Brown left at 7:25 p.m., before the search concluded, in order to transport ³⁸⁴ Ms. Aidoo to the police station for questioning. Upon arrival shortly before 8:00 p.m., Corporal Brown questioned Ms. Aidoo for approximately four hours. During the course of the interview, Corporal Brown left the interview room several times in order to check on Petitioner.

Sometime between 9:00 and 9:30 p.m., Detective Schartner and the other officers concluded the search of the Springdale residence. Detective Schartner drove from the residence directly to the police station. Corporal Brown testified at the suppression hearing that “there was no one available” to recover Petitioner’s DNA and fingerprints until after the police had completed the search of the Springdale residence. At approximately 10:15 p.m., Detectives Schartner and Watts entered the interview room in which Petitioner was waiting, took a DNA swab from his mouth, then left.

The detectives returned at 10:47 p.m., took Petitioner’s fingerprints, then escorted him to the restroom so he could wash his hands. At 10:53 p.m., Detectives Schartner and Watts returned Petitioner to the interview room, where they immediately questioned him about a storage locker, a rent-payment receipt for which the police discovered during the search of the Springdale residence. 4 After Petitioner confirmed that the storage locker belonged to him, the detectives asked for his consent to search it, and Petitioner said “yes.” At 11:00 p.m., he signed a form consenting to the search of the locker. 5 ³⁸⁵ During the search of the storage locker, the police recovered a candle containing a hand-etched message, apparently about Mr. Aidoo. The message included several references to “Seth’s” suffering injury or death, such as “I wish you would burn in a house fíre,” “I wish you will drown in water,” “I want you to take a knife & kill yourself,” “Seth please die,” and “I just want you to die die die die die die die die die.” The message also included what evidently was intended to be Mr. Aidoo’s home address. 6 The State ultimately charged Petitioner with the premeditated murders of Mr. Aidoo and Ms. Baah, conspiracy to commit murder, use of a handgun in commission of a felony, and burglary. Suppression Hearing and Trial Petitioner argued at the suppression hearing that the evidence found in the storage locker, including the candle, was the tainted fruit of his consent obtained during an unlawful detention.

In making that argument, Petitioner focused primarily upon the several hours he spent at the police station before giving consent to the search of the locker. 7 Petitioner’s argument had two parts: First, at some point during the three hours it took the police to execute the warrant to collect his DNA and fingerprints, he was under de facto arrest without the requisite probable cause, and he remained unlawfully under arrest when, upon being returned to the interview room following the trip to the restroom, the police obtained his consent to search the locker. Second, even if the several-hour delay in executing the warrant to collect his DNA and fingerprints did not constitute an unlawful de facto arrest, his ³⁸⁶ continued detention upon returning to the interview room was itself an unlawful arrest. The court denied the motion to suppress the candle, evidently reasoning that Petitioner was not under de facto arrest at any time before consenting to the search. 8 At trial, the candle recovered from Petitioner’s storage locker was admitted into evidence over his objection. The jury found Petitioner guilty of two counts of first-degree, premeditated murder, use of a handgun in the commission of a felony, and conspiracy to commit murder.

The Appeal On appeal to the Court of Special Appeals, Petitioner argued that the candle should have been suppressed as the product of an unlawful detention. The Court rejected the argument, reasoning that Petitioner’s “detention up until the time that he was fingerprinted was a reasonable amount of time to comply with the warrant,” and his subsequent brief detention was based on reasonable suspicion that he had committed the murders. We granted Petitioner’s petition for a writ of certiorari to consider the following questions posed by Petitioner: 1. When police have detained and transported a suspect to a police station in an on-going criminal investigation for the limited purpose of executing [a] search and seizure warrant ] for his DNA and fingerprints, and the objective of the warrant[ ] has been completed, does continued detention of the person, absent probable cause to arrest, amount to an unlawful detention in violation of the Fourth Amendment, or may the continued detention be justified by reasonable ³⁸⁷ suspicion that the person committed the crime under investigation? 2.

Was the detention justified under the applicable standard? 3. When police have seized and transported an individual to a police station in order to execute a search of the person, is it reasonable for police to prolong the detention by withholding execution of the search warrant pending a search of the person’s residence? 4. Was [Petitioner’s] detention prior to the execution of the DNA and fingerprint warrant[ ] reasonable under the applicable standard? We also granted the State’s conditional cross-petition, which asks: Did [Petitioner] fail to raise the Fourth Amendment unlawful detention claim in his initial brief before the Court of Special Appeals where the only argument raised was that the continued detention rendered the subsequent consent to search involuntary?

II

We first consider the State’s claim that Petitioner has not preserved for our consideration all the questions on which we granted the writ. The State’s argument relies on Maryland Rules 8-504 and 8-303. The State argues that Petitioner is foreclosed from having this Court consider certain of his arguments because, in the Court of Special Appeals, he failed to comply with Rule 8-504(a). Under that Rule, “[a]n appellant is required to articulate and adequately argue all issues the appellant desires the appellate court to consider in the appellant’s initial brief.” See Md. Rule 8 — 504(a)(6); Oak Crest Vill., Inc. v. Murphy, 379 Md. 229, 241 , 841 A.2d 816 (2004).

In cases of noncompliance with the Rule, the appellate court has the authority to “dismiss the appeal or make any other appropriate order with respect to the case,” see Md. Rule 8-504(c), although the ³⁸⁸ appellate court may exercise its discretion to consider an argument not specifically raised in the appellant’s brief. Moosavi v. State, 355 Md. 651, 661 , 736 A.2d 285 (1999). The State asserts that, in his opening brief to the Court of Special Appeals, Petitioner did not argue sufficiently that his consent to search the storage locker was the product of an unlawful detention, thereby tainting the fruits of the search, including the candle. According to the State, the “Court of Special Appeals erred in finding the argument fairly presented” to that Court.

We disagree. We have reviewed Petitioner’s “Brief of Appellant” filed in the Court of Special Appeals and are satisfied that it contains factual allegations, legal argument, and citations to authority in support of the claim that his detention was unlawful. We take all of that to include, as necessarily following therefrom, that the consent Petitioner gave during his detention was unlawfully obtained. The arguments laid out in the brief, though scant, were not merely “implicit,” which, even so, would have been sufficient for the intermediate appellate court to consider.

See Grant v. State, 414 Md. 483 , 489 n. 2, 995 A.2d 975 (2010) (explaining that the petitioner’s claim was properly before the Court of Appeals because the claim was “implicit in the arguments set forth by [the petitioner] in his briefs in the intermediate appellate court”). Moreover, to the extent the State was prejudiced by the organization of Petitioner’s brief and his apparent conflation of the “unlawful detention” argument with other Fourth Amendment issues, the Court of Special Appeals cured any such prejudice when it granted the State’s request, made after oral argument, to submit a supplemental brief in order to address that issue. See Murphy, 379 Md. at 242 , 841 A.2d 816 (‘We shall address the substantive conflict issue, notwithstanding [Petitioner’s] failure to properly present it ... mostly because it does not appear that [Respondent] was prejudiced.”). Petitioner’s claim that he was under de facto arrest when he consented to the search of the storage locker is properly before us for consideration. ³⁸⁹ The State separately argues, relying upon Maryland Rule 8 — 303(b)(1), that Petitioner did not argue adequately in his petition for writ of certiorari that the detectives failed to execute timely the search warrant for his DNA and fingerprints.

Again, we disagree. Maryland Rule 8 — 303(b)(1), which governs the contents of petitions for writ of certiorari, provides: “The petition shall present accurately, briefly, and clearly whatever is essential to a ready and adequate understanding of the points requiring consideration,” including a “concise argument in support of the petition.” Two of the four questions presented in the petition relate to whether the police unreasonably “prolong[ed]” Petitioner’s initial detention at the police station and he explained in the petition his argument on that claim. We therefore consider that claim, as well.

III

Petitioner’s questions implicate the correctness of the suppression court’s ruling denying the motion to suppress the candle seized during the search of the storage locker. In answering those questions, “we must rely solely upon the record developed at the suppression hearing.” See Briscoe v. State, 422 Md. 384, 396 , 30 A.3d 870 (2011). “We view the evidence and inferences that may be drawn therefrom in the light most favorable to the party who prevails on the motion,” id., here, the State. We defer to the suppression court’s factual findings and uphold them unless they are shown to be clearly erroneous. State v. Luckett, 413 Md. 360 , 375 n. 3, 993 A.2d 25 (2010).

The credibility of the witnesses and the weight to be given to the evidence fall within the province of the suppression court. Gonzalez v. State, 429 Md. 632, 647-48 , 57 A.3d 484 (2012). “We, however, make our own independent constitutional appraisal, by reviewing the relevant law and applying it to the facts and circumstances of this case.” Lee v. State, 418 Md. 136, 148-49 , 12 A.3d 1238 (2011) (citation omitted). ³⁹⁰ None of the evidence pertinent to the issues raised in this appeal was in dispute. Moreover, the suppression court’s ruling reflects the court’s having credited the testimony of Corporal Brown and Detectives Schartner and Watts concerning their actions prior to obtaining Petitioner’s consent to search the storage locker. We therefore accept the officers’ version of events as we analyze the parties’ legal arguments.

IV

The Fourth Amendment to the United States Constitution, which is applied to the states through the Due Process Clause of the Fourteenth Amendment, protects against unreasonable searches and seizures. Any non-consensual detention is a “seizure” of the person within the meaning of the Fourth Amendment. Such seizures fall into either of two categories: (1) an arrest — whether formal or de facto— requiring the police to have probable cause to believe that the ' arrestee has been involved in criminal activity, see Maryland v. Pringle, 540 U.S. 366, 370 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003); or (2) a more limited restraint of the person based on the officer’s reasonable suspicion that criminal activity is afoot, Terry v. Ohio, 392 U.S. 1, 30-31 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). The latter, temporary detention of the person typically, though not necessarily, occurs on the street and is commonly referred to as a “stop.” An officer who possesses the requisite suspicion for a stop is authorized to detain the person for a reasonable period of time, measured by the particular facts and circumstances at hand, in order to investigate the suspected criminal behavior.

See id. If, during that time, the officer’s suspicion ripens into probable cause to believe the individual has committed or is committing a crime, then an arrest lawfully may ensue. But if the officer does not develop either probable cause for an arrest or reasonable suspicion for a “superseding stop,” then the officer must immediately release the detainee. Any continued detention, unsupported by the requisite suspicion, is unreasonable and, consequently, in violation of the ³⁹¹ Fourth Amendment.

See Michigan v. Summers, 452 U.S. 692, 700 , 101 S.Ct. 2587 , 69 L.Ed.2d 340 (1981). Generally speaking, evidence obtained directly or derived from an unlawful seizure must be suppressed as the tainted “fruit” of the seizure. See Wong Sun v. United States, 371 U.S. 471, 484-85 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963). “In determining whether an investigatory stop is in actuality an arrest requiring probable cause, courts consider the ‘totality of the circumstances.’” In re David S., 367 Md. 523, 535 , 789 A.2d 607 (2002). Not every seizure of a person is “elevated automatically into an arrest,” id., simply because the police used “measures ... more traditionally associated with arrest than with investigatory detention,” such as handcuffing a suspect or placing him or her in a police cruiser.

See id. at 534 , 789 A.2d 607 (quoting United States v. Tilmon, 19 F.3d 1221,