Brown v. State

EYLER, Judge. Appellant, Baron Keith Brown, was convicted by a jury sitting in the Circuit Court for Prince George’s County of second degree murder and use of a handgun in the commission of a felony. Appellant was sentenced to 30 years imprisonment for murder and 20 years consecutive for use of a handgun in the commission of a felony. On appeal, appellant inquires (1) whether the trial court erred in denying his motion to suppress, (2) whether the trial court erred in admitting the testimony of a non-sequestered witness for the State whose name had not been included in voir dire, and (3) whether the trial court erred in its instructions to the jury.

Finding no error, we affirm the judgments of the trial court. Facts The relevant basic facts are as follows. On September 16, 1996, a police officer found the body of Ivan Hamilton, who had died as a result of a gunshot wound. Detective Bernard Nelson interviewed appellant after his arrest for the homicide.

Detective Nelson testified that appellant gave him a written ¹⁸⁷ statement, in which appellant said that the victim was unknown to him prior to the shooting, that the victim had approached appellant and demanded money, and that during the ensuing struggle, the victim reached for his waistband, and, fearing for his life, appellant shot him. The victim’s sister, Marlene Johnson, and the mother of the victim’s child, Cassandra Bennett, testified that they had seen the victim and appellant together on one occasion each prior to the shooting. The victim’s mother, Mildred Hamilton, testified that, after appellant had been charged with the murder, Detective Nelson came to her house and brought photographs of appellant. Ms. Johnson noticed the photographs on a table in Mrs. Hamilton’s house and recognized appellant in the photographs.

Mrs. Hamilton mailed the photographs to Ms. Bennett, who then lived in North Carolina. Subsequently, Ms. Bennett called and stated that she recognized appellant in the photographs. Charles Berry testified that on September 16, 1996, he was in a “drug area” near where the victim’s body was found. Appellant approached him and said that he was in the mood to shoot somebody and pulled a gun “halfway” out of his jacket.

Shortly afterward, Mr. Berry heard gunshots. Discussion I. Appellant moved to suppress the statement he gave to the police. The motion was denied by the trial court. In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing, extend deference to the fact finding of the suppression judge, and accept those findings as to disputed issues of fact unless clearly erroneous.

See Jones v. State, 343 Md. 448, 457-58 , 682 A.2d 248 (1996); Pryor v. State, 122 Md.App. 671 , 677 n. 4, 716 A.2d 338 (1998); Partee v. State, 121 Md.App. 237, 244 , 708 A.2d 1113 (1998). We also consider those facts that are most favorable to the State as the prevailing party on the motion. Janes, 343 Md. at 458 , 682 A.2d 248 ; Partee, 121 ¹⁸⁸ Md.App. at 244, 708 A.2d 1113 . We make our own independent constitutional appraisal based on a review of the law as it applies to the facts of the case.

Jones, 343 Md. at 457 , 682 A.2d 248 . Detective Nelson testified that he obtained an arrest warrant for appellant on March 11, 1997. On March 20, 1997, at approximately 5:50 p.m., Officer Eldrick Creamer was on patrol in the District of Columbia with his partner, Officer Joseph Trainor, in an area known to have high drug activity. Officer Creamer testified that he saw appellant make “a motion with his hand to conceal something, went from his hand to his waist, area and turned away, walked the other way.” He stated that the actions led him “to believe that [appellant] might have been concealing a possible weapon, possible narcotics.” He did not see appellant involved in a drug transaction.

Officer Creamer approached appellant, asked him to step over to the marked police car, placed appellant’s hands on the car, and conducted a protective pat-down search of appellant’s outer clothing. Officer Creamer did not discover any weapons or contraband. During the pat-down, Officer Creamer obtained appellant’s name, social security number, and date of birth. Immediately after the pat-down, Officer Creamer radioed his dispatcher and requested a check for outstanding warrants.

Approximately five minutes after making the request, he learned that there was an outstanding warrant with respect to the homicide. He placed appellant under arrest and took him to the police station. Officer Creamer testified at the suppression hearing that, during both the pat-down of appellant’s outer clothing and the check for open warrants, appellant was not free to leave. Detective Nelson arrived at the station at approximately 9:45 p.m. and, during his interview, obtained a statement regarding the homicide.

Appellant acknowledges that the initial stop was justified pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). Appellant argues, however, that his subsequent detention was illegal because once the purpose of the stop had been fulfilled, i.e., to determine if he had illegal ¹⁸⁹ drugs or weapons, there was no justification to detain him pending a cheek for open warrants. Appellant concludes that the arrest flowed from the illegal detention, that his statement was a fruit of the arrest and, consequently, should have been suppressed. Appellee argues that there was (1) a single stop for a reasonable period of time, or (2) that appellant’s statement was too attenuated to be the fruit of an illegal act.

We disagree with the State’s first point, but agree that there is no legal connection between appellant’s initial detention and his statement. A. Justification for Detention Appellant was subjected to an extended detention, or “second stop,” that was not justified by the articulated reasons for his initial detention or by any other reason. The extended portion of the detention was therefore unreasonable under the Fourth Amendment to the Constitution, which is made applicable to the states through the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961).

The legality of Officer Creamer’s actions in stopping appellant and conducting the pat-down search for evidence of concealed weapons or contraband is not at issue. With respect to the justification and scope of an officer’s actions pursuant to a “Terry stop,” we note that the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21 , 88 S.Ct. 1868 . While the Court’s opinion in Terry did not explore in detail the permissible length of such a stop, the Court discussed the subject in greater detail in Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983) (plurality). 1 Drawing on the ¹⁹⁰ jurisprudence of searches pursuant to lawful Terry stops, the plurality wrote: “The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” [Terry,] 392 U.S., at 19 [ 88 S.Ct. 1868 ], quoting Warden v. Hayden, 387 U.S. 294, 310 [ 87 S.Ct. 1642 , 18 L.Ed.2d 782 ] (1967) (Fortas, J., concurring). The reasonableness requirement of the Fourth Amendment requires no less when the police action is a seizure permitted on less than probable cause because of legitimate law enforcement interests.

The scope of the detention must be carefully tailored to its underlying justification. ... The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Royer, 460 U.S. at 500 , 103 S.Ct. 1319 .

In ascertaining the permissible length of investigative stops under Terry , we have reasoned that once the purpose of an initial stop has been satisfied, the stop is ended; a continued detention beyond that point comprises a “second stop” that requires additional justification. See Pryor, 122 Md.App. at 682 , 716 A.2d 338 ; Munafo v. State, 105 Md.App. 662, 669-70 , 660 A.2d 1068 (1995); Snow v. State, 84 Md.App. 243, 267 , 578 A.2d 816 (1990). Of course, during a valid Terry stop, law enforcement officers may take contemporaneous investigative steps that would not independently justify the detention of the suspect, so long as those steps do not add additional time to the stop, i.e., are completed within the period of time defined ¹⁹¹ by the legitimate purposes for the stop. See In re Montrail M., 87 Md.App. 420, 436-37 , 589 A.2d 1318 (1991), aff'd, 325 Md. 527 , 601 A.2d 1102 (1992).

But whether courts perceive distinct “stops” or simply test the entire period of detention for underlying constitutional justification, it is clear that the full extent of any seizure under Terry must be justified by “a reasonable, articulable suspicion that a crime is being or is about to be committed.” 2 Snow, 84 Md.App. at 265 , 578 A.2d 816 . See also Royer, 460 U.S. at 498 , 103 S.Ct. 1319 ; Terry, 392 U.S. at 21-22 , 88 S.Ct. 1868 ; Munafo, 105 Md.App. at 673 , 660 A.2d 1068 . Snow and Munafo both involved valid stops for suspected traffic violations. The drivers were detained slightly longer than the period justified by the articulated purposes for the stops, based on each officer’s “hunch” that other illegal activity might be going on, and this Court in each case concluded that the evidence discovered during the extended period of detention should have been suppressed.

See Munafo, 105 Md.App. at 673, 676 , 660 A.2d 1068 ; Snow, 84 Md.App. at 247-48, 267 , 578 A.2d 816 . Similarly, in Pryor, 122 Md.App. at 680-81 , 716 A.2d 338 , a driver was detained both for suspected drug possession and for speeding. The driver was detained for 20 to 25 minutes so that a drug sniffing dog could be brought to the scene. Id. at 677 , 716 A.2d 338 .

We noted that a detention for 20 to 25 minutes could not be justified by the normal procedure for issuing a traffic citation and a concurrent “plain view” inspection for drugs from the vehicle’s exterior. Id. at 682 , 716 A.2d 338 . As a consequence, we concluded that the drugs located by the drug dog and seized by police during the extended detention of the driver should have been suppressed. Id. ¹⁹² The reasoning of the Court of Appeals in Gadson v. State, 341 Md. 1 , 668 A.2d 22 (1995), is also pertinent here.

In that case, the defendant, a visitor to the House of Correction in Jessup, entered State grounds in a vehicle and was stopped at a guard booth about a quarter of a mile away from the prison. 341 Md. at 6 , 668 A.2d 22 . The initial stop was routine, and justified under the “checkpoint” exception to Terry. See id. at 10-11, 668 A.2d 22 . The purpose of the guard booth was to prevent illegal drugs from being smuggled into the prison.

Id. at 7 , 686 A.2d 22 . The defendant was told that a drug sniffing dog would be used to test for the presence of drugs in his vehicle. Id. He objected to the procedure, and asked for permission to leave the grounds, which was denied.

Id. The dog alerted its handler to the presence of drugs in the vehicle, the suspect was arrested, and his subsequent motion to suppress the evidence seized was denied. Id. The Court of Appeals determined that the prolonged seizure that had occurred when the suspect was denied permission to leave the area did not serve the articulated interest in keeping drugs out of the prison.

Id. at 11, 686 A.2d 22 . The Court said the State’s goal was actually accomplished by the suspect’s request to turn around. Id. at 12, 686 A.2d 22 . The Court therefore concluded that “a limited seizure of the kind at issue here may not be extended beyond the point where its purpose has been accomplished unless there is reasonable, articulable suspicion of criminal activity to justify further detention.” Id. at 13-14, 686 A.2d 22 .

Thus, although the initial justification for the stop was different from the initial justification in the “second stop” cases, supra, the further detention of the defendant was measured by the same standard. The Court concluded that the State’s interest in the prolonged seizure was actually a broader interest in “the detection and seizure of illegal narcotics generally,” which the Court rejected as beyond the scope of the articulated purpose of the guard booth. Id. at 12, 686 A.2d 22 . In the case at bar, Officer Creamer stopped appellant on suspicion of “concealing a possible weapon, possible narcotics.” This suspicion apparently was satisfied by the brief pat-down of appellant’s outer garments because no further search was ¹⁹³ conducted.

Appellant complied with the search; his actions did not raise suspicion of other crimes. The continued detention of appellant for five minutes was therefore unreasonable. Officer Creamer did not articulate a suspicion of criminal activity other than as noted above. A suspicion that appellant was involved in general criminal activity on the night in question would be far too broad in any event and could not be confirmed or alleviated by a check for open warrants.

The State argues that “the warrant check here was conducted contemporaneously to the pat-down search.” Officer Creamer testified at the suppression hearing that he conducted the pat-down search of appellant and subsequently contacted his dispatcher to request the warrant check. The two events were therefore consecutive. This Court has noted in the past that a brief check for open warrants on a suspect is a recognized investigatory technique in the course of a Terry stop. Recently, in Flores v. State, 120 Md.App. 171 , 706 A.2d 628 (1998), we considered a challenge to the denial of a motion to suppress a photograph of the defendant taken during a lawful Terry stop.

We noted that the police in that case had probable cause to arrest the defendant based on a sale of drugs to an undercover detective, but to facilitate an ongoing undercover operation, decided merely to stop the suspect and take a picture of him. Flores, 120 Md.App. at 179-80 , 706 A.2d 628 . The defendant was later arrested in a mass police raid and charged with conducting the previous drug transaction. Id. at 180 , 706 A.2d 628 .

We concluded that, although the purpose of the brief detention of the defendant was not purely investigatory, the Supreme Court in Terry had recognized the need for the development of flexibility in the detection and prevention of crime. We quoted Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 9.2(f) at 51-58 (1996) (footnotes omitted), for a list of the many accepted investigatory techniques available to police conducting a Terry stop. Among these, LaFave listed communication with others “to confirm ¹⁹⁴ the identification or determine whether a person of that identity is otherwise wanted.” We reaffirm the principle that law enforcement officers must not be deterred from employing flexible investigative techniques. The technique of holding a defendant pending a brief check for open warrants may be appropriate in some situations and inappropriate in others, depending upon the articulated purposes for the initial stop and the developments during the stop itself.

As LaFave also notes in Search and Seizure, supra, quoting State v. Watson, 165 Conn. 577 , 345 A.2d 532, 537 (Conn.1973): The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances. Thus, if the suspect’s explanation needs to be checked out, and in particular if his explanation is known to be false in some respects, there is reason to continue the detention somewhat longer while the investigation continues.

On the • other hand, if a person is stopped on suspicion that he has just engaged in criminal activity, but the suspect identifies himself satisfactorily and investigation establishes that no offense has occurred, there is no basis for further detention, and the suspect must be released. This latter point has sometimes but not always been interpreted to mean that if a person is lawfully stopped for some minor (most likely traffic) violation which does not result in arrest, the detention may not be extended to facilitate a warrant check for possible outstanding charges absent reasonable suspicion that such charges exist. Search and Seizure, § 9.2(f) at 60-65. Other jurisdictions faced with a prolonged detention to check for outstanding warrants beyond that which can be supported by the articulated purposes for the stop, or devel ¹⁹⁵ oped during the stop itself, have adjudged the detention unreasonable under the Constitution.

See United States v. Luckett, 484 F.2d 89, 90-91 (9th Cir.1973) (per curiam) (concluding that action of police in stopping jaywalker, issuing a citation, and thereafter holding jaywalker for a warrant check, without reason to suspect that there may be an outstanding warrant, was unreasonable); People v. McGaughran, 25 Cal.3d 577 , 159 Cal.Rptr. 191 , 601 P.2d 207, 212-13 (Cal.1979) (in bank) (second period of detention to run check for open warrants “exceeded constitutional limitations,” where extended detention was not reasonably necessary to the purpose for the stop, and lasted approximately ten minutes beyond the time needed to discharge the articulated purpose for initial stop); People v. Cobb, 690 P.2d 848, 853 (Colo.1984) (en banc) (remanding for determination as to “whether the defendants were detained only for that amount of time necessary to obtain identification and an explanation of their behavior — the purpose of the stop — or whether they were actually detained for an excessive additional time to await the results of the warrant check”); Wilson v. State, 874 P.2d 215, 222-26 (Wyo.1994) (seizure of a pedestrian for the purpose of conducting an open warrants check is not permitted where the seizure is not supported by reasonable suspicion of criminal activity). Cf. United States v. Finke, 85 F.3d 1275, 1280 (7th Cir.1996) (concluding that although court is “reluctant” to hold that noncontemporaneous criminal background checks during routine traffic stops are always reasonable, additional developments during stop in this case supported prolonged detention for warrants check); People v. H.J., 931 P.2d 1177, 1182 (Colo.1997) (en banc) (insufficient proof of registration of vehicle provided reasonable suspicion that vehicle might be stolen, and authorized investigatory detention of occupants for suspected involvement in car theft; occupants were therefore reasonably detained pending check for outstanding arrest warrants); State v. Bell, 382 So.2d 119, 119-20 (Fla.App.1980) (conduct of defendant in peering into first floor window of an apartment in a high crime area at 4:30 a.m., and in attempting ¹⁹⁶ to flee from police, justified the detention of defendant and a check for outstanding warrants). Some courts, however, have stated that a check for outstanding warrants is permissible as part of a lawful Terry stop although most, but not all, of the decisions can be explained by the fact that the check was done before the purpose of the stop had been fulfilled.

See United States v. McRae, 81 F.3d 1528 , 1535 n. 6 (10th Cir.1996) (criminal record check authorized as part of a routine traffic stop); Riggers v. State, 162 Ga.App. 163 , 290 S.E.2d 159, 160 (Ga.App.1982) (information that two men sitting in a parked car may have been armed, coupled with officer’s discovery that license tag had expired, created “reason to suspect that appellant ... may have been present for illicit purposes,” thus justifying detention for reasonable time to check for open warrants); People v. Ellis, 113 Ill.App.3d 314 , 68 Ill.Dec. 885 , 446 N.E.2d 1282, 1286 (Ill.App.1983) (after a valid Terry stop, a check for outstanding arrest warrants is justified, so long as there is no evidence that check took “an unusually long time or was otherwise overly intrusive”); State v. Pleas, 329 N.W.2d 329, 333-34 (Minn.1983) (extended length of detention of occupants of automobile, to in part, conduct a warrant check, was reasonable given facts that rear license plate was upside down, front plate was missing, and car had been seen leaving store which had frequently been the victim of “petty thievery”); State v. Holman, 221 Neb. 730 , 380 N.W.2d 304, 307 (Neb.1986) (check for outstanding warrants part of normal procedure for traffic offense stop); State v. McFarland, 4 Ohio App.3d 158 , 446 N.E.2d 1168, 1171-72 (Ohio App.1982) (detention and check for outstanding warrants was reasonable in light of actions of defendant in high crime area in apparently placing something inside crotch of trousers and walking away, and officer’s suspicion that unusual first name of defendant was associated with prior drug investigation); State v. DeMasi, 448 A.2d 1210, 1213 (R.I.1982) (additional five minutes of detention of occupants of vehicle for the purpose of running outstanding warrants check on all of them was justified in light of driver’s suspected attempts to evade police cruiser by turning fre ¹⁹⁷ quently, passenger’s actions in turning around several times to view police vehicle, and vehicle’s heavily laden appearance); State v. Chapman, 921 P.2d 446, 452-53 (Utah 1996) (defendant properly detained for loitering can be held pending check for outstanding warrants so long as length of check does not significantly extend the period of detention); State v. Madrigal, 65 Wash.App. 279 , 827 P.2d 1105, 1107 (Wash.App.1992) (“Outstanding warrant checks during valid criminal investigatory stops are reasonable routine police procedures.”). Aside from cases involving the long-recognized checkpoint exception to Terry , we find little support for a detention on less than reasonable, articulable suspicion or for longer than necessary to fulfill the purpose of the stop, in analogous prior cases of the Supreme Court or of this State. A seizure that extends beyond the purposes for the stop, regardless of the length of time, must at a minimum be justified under the Terry line of cases. B. “Fruit of the Poisonous Tree” Doctrine Appellant argues that the inculpatory statement he gave to Officer Nelson approximately four hours after he was detained flowed directly from his arrest on the open murder warrant; that the initial detention of appellant while Officer Creamer checked for open warrants was