Brewer v. State

ZARNOCH, J. The facts of this case invite us to revisit the doctrines of “plain view” and “open view” in the context of a warrantless seizure of drugs in the vestibule of a Baltimore City rowhouse. ⁹⁴ Appellant Joshua P. Brewer, Jr. was charged in the Circuit Court for Baltimore City with possession of cocaine with intent to distribute and possession of heroin with intent to distribute. On May 14, 2013, the trial court denied appellant’s pre-trial motion to suppress, and two days later the jury convicted him of both distribution offenses. After denying appellant’s motion for new trial, the court, on July 31, 2013, imposed two concurrent 20-year sentences. In this Court, appellant presents the following questions: 1.

Did the trial court err in denying the motion to suppress? 2. Did the trial court err in denying Appellant’s motion in limine to exclude his prior convictions and/or in denying Appellant’s motion for new trial because of the admission of his prior convictions? 3. Did the trial court err in denying the motion for a new trial due to the prosecutor’s improper closing argument? For reasons discussed below, we answer each of these questions in the negative and affirm.

BACKGROUND Detective Vincent Lash, narcotics investigator for the Baltimore City Police Department, testified that during the early evening of November 5, 2011, he was on plain clothes duty with two other officers in the vicinity of 14 North Gilmor Street in Baltimore City. Upon receipt of a confidential report regarding suspected drug activity by a certain individual, he covertly observed appellant engaged in suspected drug sales. With binoculars, Detective Lash observed appellant running back and forth from and in and out of the residence at 14 North Gilmor and out across the street where individuals were waiting. Appellant handed small items in exchange for cash to a total of at least 14 people.

Based on Detective Lash’s expertise as a drug investigator, after observing these acts he believed that narcotic sales were taking place. ⁹⁵ Detective Lash and two colleagues entered the block to arrest appellant, who looked up as he saw them approaching. Appellant then dropped some small objects to the ground and proceeded to stomp upon them. However, his feet missed a red-topped vial of cocaine. The officers arrested appellant and recovered the red-topped vial, but could not recover the gel caps that appellant had stepped upon.

Detective Lash testified that he then walked over to 14 North Gilmor Street, where the clear storm door was unlocked, open and ajar. He approached the door of the property by walking up a stoop of four steps. Looking through the glass storm door from outside, Detective Lash could see a large amount of drugs on top of a ledge above the interior door. By going through the unlocked, open storm door, he entered this part of the building and recovered the drugs.

At the time he entered this area, Detective Lash was unaware of whether it was part of an apartment building or a single family residence. However, he believed it to be open to the public because the exterior door was “just an open storm door,” and there was no working doorbell, so anyone who wished to knock on the main front door would have to pass through the storm door and enter the area where the front door was located. Detective Lash testified: I went to the location I saw him come out of. At that point, I didn’t know if it was a — an apartment building, because it’s a three story.

I didn’t know if the drugs — if we were going to have to seize the location and get a warrant. But from walking up to the location, I could see that it was an exterior door in a vestibule area.[ 1 ] And that’s why— and when I saw ... the drugs, thatf’s] when I received the drugs — obtained the drugs. ⁹⁶ Detective Lash then knocked on the main front door, spoke with appellant’s father, Joshua Brewer, Sr., who confirmed that appellant lived there. Detective Lash informed the father that his son was being arrested. 2 During his testimony, appellant’s father confirmed that anyone wishing to knock on “the main door, the only door” would have to pass through the open storm door into the vestibule area to do so. There was no working doorbell, and mail deliveries were simply tossed into the vestibule area.

The solid main door was the one that he “locked at night ... that was the real door.” Anyone could enter or toss deliveries into the vestibule area without knocking on the screen door. Photographs of the vestibule introduced as exhibits at the suppression hearing displayed a short, narrow, uncarpeted corridor with no objects on the floor or walls. The corridor led to a door with double locks topped by a palladian window. The interior door sat on a raised step.

Appellant also testified that the storm door was not locked. When asked whether unexpected visitors would simply open the storm door and enter the vestibule, appellant answered: “If they wanted to, of course they could. It’s not locked.” At the suppression hearing, the appellant contended that the vestibule was part of the curtilage, a protected area. The prosecution argued that it was not curtilage.

The trial judge denied appellant’s motion to suppress the recovered drugs ruling as follows: I have listened to the testimony of all the parties involved. And I find the testimony of Detective Lash to be credible about what happened, specifically that he had gotten information from a Cl that a person matching the defendant’s ⁹⁷ description was selling drugs like crazy in the area of 14 North Gilmor Street, right where we’re talking about. The officers were able, with their binoculars, to observe similar activity to that, someone, what Detective Lash referred to as “serving customers” approaching people and taking money and giving small objects sufficient that they felt they had corroborated the Cl sufficient that they rolled quickly up to the scene with the intention of arresting the defendant. Even before they got out of the car, the defendant dropped whatever was in his hand and danced upon those items, missing only one of them, a redtop vial.

The Detective Lash saw that and then went to the place where he had seen the defendant come. Now, there are three different areas here. We have the stoop, as this is Baltimore City. We have what is referred to as the “vestibule.” And I think it is truly a vestibule.

And we have the interior of the house. No one contends that the police did not have the legal right to go up on the stoop. Everybody who comes, even the defendant said that Jehovah’s Witnesses go up on the stoop and bang on the door. Everybody has that right.

What is the legal significance of the vestibule. And I think that it is acceptable to include that in the — in the concept of curtilage. And then the interior door, which is the defendant’s father said was open a little bit, the detective said was closed, is the demarcation of the private area of the home. Those are our three spots; stoop, public area, vestibule, curtilage.

The area beyond the interior door is private area. The Fourth Amendment looks at all of those areas quite differently. As to the stoop, if anyone can go there, so can a police officer. As to the curtilage, that is an area protected by the Fourth Amendment unless what is in the curtilage is observable from the public area. ⁹⁸ Just as if I happen to have a marijuana plant growing on my patio, my patio is protected area, but looking at my marijuana plant growing on my patio might be something that could be seen from the front street or the alley behind my home, an area where the police have a right to be.

So this entire analysis comes down to whether Detective Lash, upon going up to the steps, could in fact see a bag atop the door in what used to be a transom area above the front door. It is his testimony he saw it from that distance which he would be looking through a glass panel or crack in the door — I think there is no significance between either looking through the glass panel or any crack in the door — seems to be maybe five or six feet away by the pictures. He looked in. He saw it, he recognized it as the same thing that the Cl had been talking about that he had seen on the street dropped by the defendant and missed in his stomping; that when he sees it, he recognizes it as evidence.

I think here we are clearly in the Plain View Doctrine. The police officer has a right to be where he is, sees something he recognizes as evidence, and we should also point out that this is a — an exigent circumstance to this extent. If a warrant is needed for the vestibule, then the items in the vestibule could be moved or disposed of by anyone inside the house. If the vestibule is not covered by the Fourth Amendment protections in need of a search warrant, the officer can go in and take it.

When he sees it, given the exigency, I believe he is allowed to go in and pick it up and seize it only. They did not proceed further with a warrant to search the rest of the house. Rather they arrested the defendant and recovered the drug on the street, the bag from the transom. And I find that to be in plain view and within the rights of the police to seize upon seeing it....

The motion to suppress the drugs is denied. ⁹⁹ DISCUSSION I. Trial court’s denial of motion to suppress A. Introduction — Standard of Review Appellant’s first argument is based upon the Fourth Amendment’s protection against unreasonable searches and seizures. He contends that the circuit court erred by failing to grant his motion to suppress the seized drugs because Detective Lash lacked permission, failed to obtain a warrant, and no exigency existed for him to search the curtilage area of his home. Appellant contends that, under established constitutional law, it cannot reasonably be disputed that by opening the storm door, entering the vestibule and seizing a bag from its interior, Detective Lash conducted “an unreasonable search.” Maintaining that the circuit court properly denied the motion to suppress, the State argues that even if the search area is considered curtilage, it is afforded limited Fourth Amendment protection, and the officer had an implied invitation to enter the vestibule. In reviewing a trial court’s denial of a motion to suppress evidence, we base our decision solely upon the “facts and information contained in the record of the suppression hearing.” Longshore v. State, 399 Md. 486, 498 , 924 A.2d 1129 (2007).

We then extend great deference to the suppression judge with respect to the determination and weighing of first-level findings of facts, which we will not disturb unless clearly erroneous, and we view all facts in the light most favorable to the State as the prevailing party. Williamson v. State, 413 Md. 521, 531-32 , 993 A.2d 626 (2010). We also apply a de 'novo standard of review, making our “own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.” Bailey v. State, 412 Md. 349, 362 , 987 A.2d 72 (2010) (Citations omitted), Grymes v. State, 202 Md.App. 70, 80 , 30 A.3d 1032 (2011). A defendant “invoking Fourth Amendment protection bears the burden of demonstrating his or her legitimate expectation of privacy in the place search or items seized.” ¹⁰⁰ Williamson, 413 Md. at 534 , 993 A.2d 626 .

Also relevant under more recent Supreme Court rulings is whether the government has physically intruded on a constitutionally protected area. Florida v. Jardines, — U.S. -, 133 S.Ct. 1409,1414 , 185 L.Ed.2d 495 (2013). B. Plain view v. Open view At the outset, we note that the circuit court’s suppression decision appears to have blurred two very different 4th Amendment doctrines: plain view and open view. In Brown v. State, 15 Md.App. 584 , 292 A.2d 762 (1972), Judge Moylan wisely drew critical distinctions between these concepts.

Police may seize evidence in plain view without a warrant if “there has been a prior valid intrusion.” Id. at 604 , 292 A.2d 762 . However, the open view doctrine often contemplates a “pre-intrusion visual observation” of evidence located inside a constitutionally protected area from a “vantage point outside” the constitutionally protected area. Id. at 605 , 292 A.2d 762 . “[T]he valid visual observation simply furnishes probable cause for 1) the issuance of a warrant; or 2) the warrantless entry of the [premises], provided exigent circumstances are also present; or 3) the warrantless entry to effect an arrest for a crime being committed in the officer’s presence.” Id. (Citations omitted). “As a non-search, the visual observation itself is legitimate; but it may never, standing alone, justify an intrusion.” Id.

If the vestibule was curtilage and a constitutionally protected area, as the circuit judge indicated, and the detective observed the drugs in a pre-intrusion setting from outside that protected area, he would have seen the drugs in open view, not in plain view after a prior valid intrusion. Under these circumstances, a warrantless entry into the vestibule would have to be justified by exigent circumstances. C. Open View/Exigent Circumstances Under the open view doctrine, there was nothing impermissible about Detective Lash’s observation of the drugs through the glass door while standing on the stoop of appellant’s ¹⁰¹ residence; and the suppression court specifically found that Detective Lash’s seizure of the drugs was justified by exigent circumstances. The circuit judge noted that “[i]f a warrant is needed for the vestibule, then the items in the vestibule could be moved or disposed of by anyone inside the house” and “[wjhen he sees it, given the exigency, I believe he is allowed to go in and pick it up and seize it.... ” We agree with the circuit court.

This Court has said that “drugs are peculiarly susceptible to quick destruction.” Archie v. State, 161 Md.App. 226, 243 , 867 A.2d 1120 (2005). No greater illustration of that fact occurred when appellant, right in front of the officers, stomped drugs he was selling on the street. Although appellant was arrested and cuffed and could not destroy drugs inside the house, Detective Lash had no assurance that any person inside the house might not move or, like appellant, destroy the drugs if he stopped to obtain a warrant. Moreover, an open glass door was the only protection that evidence would receive from the drug purchasers and others outside, who undoubtedly knew that appellant was obtaining the drugs from inside the home. 3 This is not a case like Dunnuck v. State, 367 Md. 198 , 786 A.2d 695 (2001), where the police through their own delay created the exigency needed to justify a warrantless entry of a residence.

Here, the police had witnessed a drug offense, the destruction of some of the evidence in their very presence and the obvious use of the residence to store the drugs being sold. Under these circumstances, it would have been astonishing if the detective did not knock on the door of the premises and seize the drugs that were before him. In our view, the State met its burden of showing exigent circumstances for seizing the drugs in the vestibule even if it is considered part of the curtilage. In his reply brief, appellant for the first time relies on Jardines to argue that Detective Lash intruded upon a “con ¹⁰² stitutionally protected area” by “opening the door and entering the vestibule and seizing a bag from the interior.” Jar-dines involved police use of a drug-sniffing dog on the front porch of a residence to investigate an unverified tip that marijuana was being grown on the premises.

It did not involve an ordinary visual observation of drugs, in open view, made from a place where anyone had a right to be, and a seizure based on exigent circumstances. On the basis of Jardines, appellant contends that Detective Lash did not have an implied license to enter the vestibule to knock on the internal door of the residence. See Brown v. State, 75 Md.App. 22, 23 , 540 A.2d 143 (1988). Jardines could be seen as modifying an “implied license” for a police officer to invade the curtilage to conduct a dog-sniffing search.

There, the majority observed generally that “the background social norms that invite a visitor to the front door do not invite him there to conduct a search,” 133 S.Ct. at 1416 , and more specifically, that “[a]n invitation to engage in canine forensic investigation assuredly does not inhere in the very fact of hanging a knocker.” Id. Nevertheless, the majority still noted that “a police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen may do.” Id. In short, we believe Jardines does not require the forfeiture of Detective Lash’s license to enter the vestibule to knock on the internal door. See State of Idaho v. Howard, 155 Idaho 666 , 315 P.3d 854, 859 (2013).

D. Curtilage Because of our conclusion that the observation of the drugs was not a search and any seizure was justified by exigent circumstances, we need not definitively determine the correctness of the circuit court’s suggestion that the vestibule was curtilage. We do note however, that terming a particular area curtilage “expresses a conclusion; it does not advance Fourth Amendment analysis.” U.S. v. Arboleda, 633 F.2d 985, 992 (2d Cir.1980). The circuit court here did not employ the four analytical tools approved by the U.S. Supreme Court in U.S. v. Dunn, 480 U.S. 294 , 107 S.Ct. 1134 , 94 L.Ed.2d 326 ¹⁰³ (1987) to determine whether the vestibule harbors the intimate activity associated with the sanctity of a person’s home and the privacies of life. Id. at 300 , 107 S.Ct. 1134 .

Those factors are: 1) the proximity of the area claimed to be curtilage to the house; 2) whether the area is included within an enclosure surrounding the house; 3) the nature of the uses to which the area is put; and 4) the steps taken by the resident to protect the area from observation by people passing by. Id. at 301 , 107 S.Ct. 1134 . In U.S. v. Cooke, 674 F.3d 491 (5th Cir.2012), cert. denied, -U.S.-, 133 S.Ct. 756 , 184 L.Ed.2d 498 (2012), the U.S. Court of Appeals for the Fifth Circuit applied these factors to the area between the exterior and interior doors of the defendant’s barn-like residence and concluded that the area was not within the curtilage of the home, noting that “any member of the public would reasonably think that they would have to enter and knock on the interior doors when visiting.” Id. at 495. As in Cooke, the first two Dunn factors favor appellant.

The vestibule was physically attached to and shared the same roof as the residence. However, focusing on the latter factors, we note that the area between the glass storm door and the interior door was a narrow, non-descript, unadorned corridor devoid of the intimate activity associated with the sanctity of a person’s home and the privacies of life. The external door with no doorbell was ajar, a see-through, deliberately open to the world at large, and leading to what the public would readily believe is the real door — double-locked, on a step with a palladian window. Arguably, there would be no reasonable expectation of privacy in such an area.

And the testimony in the case confirmed this description. If the area beyond the storm door was not curtilage, but an extension of the stoop, it would not be a constitutionally protected area. As a result, police entry would be a non-search and taking the drugs into custody would not raise a Fourth Amendment issue. See Fitzgerald v. State, 384 Md. 484, 503-04 , 864 A.2d 1006 (2004); Brown, 15 Md.App. at 605 , 292 A.2d 762 .

Nevertheless, this is an issue we need not decide today. ¹⁰⁴