Brown v. State

PROCEEDINGS KENNEY, J. Appellant, Antwaun Brown, was arrested on February 28, 1997, and charged with first degree murder and related offenses arising out of the shooting death of an off-duty Washington, D.C. police officer. A hearing on appellant’s motion to suppress evidence seized from his vehicle was held on August 21 and 22, 1997, in the Circuit Court for Prince George’s County. The trial court denied the motion. Appellant’s first jury trial, in March 1998, resulted in a mistrial.

A second jury trial was held on September 28 through October 5, 1998. Appellant was convicted of first degree murder, robbery with a deadly weapon, robbery, unlawful use of a handgun, and two counts of conspiracy to commit robbery. He received a life sentence, without the possibility of parole, for the first-degree murder count. 1 The trial court also imposed a consecutive twenty-year sentence for robbery with a deadly weapon, a consecutive twenty-year sentence for the unlawful use of a handgun, and a third consecutive twenty-year sentence for conspiracy to commit robbery. Appellant filed a timely notice of appeal and presents two questions, which we have reworded as follows: ²⁵⁵ I. Did the trial court err in denying appellant’s motion to suppress the evidence seized from appellant’s 1981 Cadillac automobile?

II

Did the trial court err in denying appellant’s motion for a mistrial based on the presence of police spectators at his trial? FACTUAL BACKGROUND In the early morning hours of February 26, 1997, appellant, Donovan Strickland, and Anthony Crawley were at a gas station when they first saw Oliver Smith, an off-duty District of Columbia police officer, arrive in a red car. They proceeded to follow him to a parking lot in his apartment complex located on Rena Road in Forestville, Maryland. Strickland and Crawley exited the vehicle with Strickland carrying a handgun.

Appellant remained in the car. Strickland approached Officer Smith and ordered him to lie on the ground. Officer Smith complied. Crawley then searched Officer Smith, removing a gun, and taking approximately one hundred dollars cash.

Upon discovering that Smith was a police officer, Strickland exclaimed “... it’s the police.” Appellant then exited the car and walked toward the men. Strickland handed appellant the gun, and appellant shot Officer Smith in the head three times. Officer Smith died of his wounds. Appellant was arrested on February 28, 1997 in Fairfax, Virginia, pursuant to an outstanding warrant.

At the time of his arrest, appellant was driving a burgundy Oldsmobile registered in his name. The Oldsmobile was brought back to the Prince George’s County police evidence bay where it was searched pursuant to a valid search warrant. After appellant’s arrest, the police discovered that appellant owned a second vehicle, a 1981 “silver gray” Cadillac with the license plate 565 BAH. Prince George’s County Police Detective John Piazza went to appellant’s home in Landover, Maryland and discovered the Cadillac parked in front of the resi ²⁵⁶ dence.

He then secured search warrants to search both appellant’s home and the Cadillac. 2 When the police arrived at appellant’s home to conduct the searches, they discovered the Cadillac was no longer there. They then began to search appellant’s home. During their search, appellant’s mother informed them that the Cadillac had been driven to the 800 block of Barnaby Place, in southeast Washington, D.C. Detective Thomas Lancaster, at the direction of Detective Jeffrey Reichert, located the Cadillac in the District of Columbia and had it towed to the Prince George’s County police headquarters evidence bay, where it was searched pursuant to the search warrant. Recovered from the Cadillac’s trunk was a blue nylon bag that contained a box of .32 caliber ammunition and a .32 caliber handgun, which was identified later as the murder weapon.

After appellant’s arrest, he was questioned by various Prince George’s County police officers. Although initially he denied any involvement in the shooting, he later admitted that he shot Officer Smith, asserting it was accidental and that he was intoxicated at the time. Appellant moved to suppress the evidence seized from the Cadillac, arguing that the police went outside the scope of their authority in retrieving the Cadillac from Washington, D.C. At the August 22, 1997 suppression hearing, defense counsel questioned Detective Reichert as follows concerning the seizure of the Cadillac: Q. The vehicle was not — the vehicle was seized in the District of Columbia? A. Yes. ²⁵⁷ Q. Did Mr. Brown give you permission to take his vehicle from D.C. to Maryland?

A. No. Q. Upon what authority did you take the vehicle from D.C. to Maryland? A. Under what authority? I don’t know what authority I had. I mean, it was my — I believed I had the authority to take the vehicle from the District, to bring it to Maryland to our i.d. bay.

Q. Now, you would agree with me, would you not, that you did not contact the District of Columbia authorities— A. No. No. Q. —to assist you or whatever assistance they may be able to render in seizing the car and transporting it to Maryland, did you? A. That’s correct. The trial court denied appellant’s motion to suppress the evidence, stating: The next question I think is the more important question. That is how do the police go into a foreign jurisdiction, pick up the property without the help of the local government.

I think [appellant] hit it on the head. Self help. They’re not acting as Prince George’s County police officers at the time they’re able to as private citizens. Perhaps the better way to do it is to get the District of Columbia involved.

I don’t think at this particular time having the search warrant in your hand, that you need the permission of the defendant to bring the vehicle back. I think it would be a bad search if they opened up the trunk when they’re in D.C. Southeast and searched, because they’re outside the jurisdiction Judge Sothoron’s warrant doesn’t apply. I think once they got into the car, the car was not towed until they had the search warrant in their hand, since this all occurred in the early morning hours of March 1, 1997. Then they serve it. ²⁵⁸ I think it is perfectly permissible.

Perhaps not the better course of action to take, but not something that will invalidate the search warrant. Therefore, the motion to suppress for the reasons I gave in the factual findings that I made is denied. During his trial on October 1, 1998, appellant also made a motion to “exclude a sizable portion” of the uniformed police officers present in the courtroom, stating, “our concern is their presence may unfairly influence this jury to convict our client.” The trial court denied appellant’s motion, stating, “The Court would observe that there are a number of spectators in the courtroom. ... But I think this is a public forum and everybody has a right to be here.” Again, at the sentencing hearing on October 8, 1998, appellant moved for a mistrial based on the number of uniformed police officers present in the courtroom, stating: Secondly, at this juncture, I’m once again compelled to move for a mistrial due to the imposing presence of the police, uniformed police, in the courtroom.

I would suggest that their presence — the impact of their presence — is unduly unfavorable, would be unfavorable to the defendant. He can’t gauge what impact. Actually, I can’t gauge what impact, the risk of the impact on them, on the deliberations of the jurors. Again, the trial court stated that this is a “public forum and anybody has a right to be here.” Appellant’s counsel then, for the record, estimated that thirty or forty police officers were present in the courtroom.

The trial court, in response, noted that “over ten” uniformed police officers were present. DISCUSSION I. Seizure of the Cadillac In reviewing the trial court’s denial of a motion to suppress evidence, this Court looks only at the record of the suppression hearing, and does not consider the record of the trial. Pappaconstantinou v. State, 352 Md. 167 , 721 A.2d 241 ²⁵⁹ (1998). “In considering the evidence presented at the suppression hearing, we extend great deference to the fact finding of the suppression hearing judge with respect to determining the credibility of witnesses and to weighing and determining first-level facts.” Dedo v. State, 105 Md.App. 438, 445 , 660 A.2d 959 (1995), rev’d on other grounds, 343 Md. 2 , 680 A.2d 464 (1996). “When the facts are in dispute, deference is paid to the trial court, that is, its findings of fact are accepted unless they are clearly erroneous.” Jones v. State, 343 Md. 448, 457 , 682 A.2d 248 (1996). The ultimate, conclusory fact of whether a search was valid, however, is based on our own “independent constitutional appraisal” of the applicable law and the facts of the case.

Jones, 343 Md. at 457 , 682 A.2d 248 . Appellant argues that in denying his motion to suppress the evidence, the trial court erred in finding that the “Prince George’s County police ‘became’ private citizens once they crossed state lines.” Appellant further argues that the “mere existence of the Maryland search and seizure warrant did not provide the Prince George’s County police with the authority to execute it within the territory of Washington, D.C.” The concept that police officers may act as private citizens when outside of their territorial jurisdiction is recognized in Maryland. In the leading case of Stevenson v. State, 287 Md. 504, 510 , 413 A.2d 1340 (1980), the Court of Appeals stated: Generally, a peace officer’s authority to make an arrest is limited, in the absence of statutory authority expanding it, to the confínes of the geographical unit of which he is an officer. At common law, a limited exception to this rule developed which permits an officer who is in “fresh pursuit” of a suspected felon to make a legally binding arrest in a territorial jurisdiction other than the one in which he has been appointed to act, and this ancient doctrine has, to some extent, been codified in this State.

In all other situations, however, a peace officer who makes an arrest while in another jurisdiction does so as a private person, and, may only act beyond his bailiwick to the extent that the law of ²⁶⁰ the place of arrest authorizes such individuals to do so. [Emphasis added.] Stevenson, 287 Md. at 509 , 413 A.2d 1340 . In Stevenson , two District of Columbia officers were in plain clothes and an unmarked car when they observed two men running from a bank carrying a bag, in a cloud of gas and red smoke. Familiar with banks’ practices of marking stolen money with tear gas and dye, the District of Columbia officers pulled their vehicle alongside the suspects and identified themselves as police officers, without displaying any badge of authority, and directed the suspects to stop. When the suspects failed to stop running, the officers exited their car, and apprehended the suspects on foot.

In ruling that the officers were not acting as officials, but were private citizens making a valid citizens’ arrest, the court concluded that “the Washington officers did not see the cloud of red smoke or the flight of the petitioners because of their status as officers; they merely observed what every private citizen, close enough to do so, could have perceived.” Stevenson, 287 Md. at 511 , 413 A.2d 1340 . See also Boston v. Baltimore County Police Department, 357 Md. 393 , 744 A.2d 1062 (2000). The suspects in Stevenson argued that the officers were not acting as private citizens but that they were acting under the “color of the [ ] office,” citing Florida case law. The Court discredited that argument, stating, “Even if this Court were inclined to accept the legal principle announced by the Florida intermediate appellate court, we do not believe the activity challenged here would fall within it.” The Court stated “that the phrase ‘color of office’ applies not to the modus operandi of the arrest, but to whether their official authority was used to gain access to the information which led to the belief that an arrest should be made.” Stevenson, 287 Md. at 511 , 413 A.2d 1340 .

Although it is true that officers may, in some instances, act as private citizens in making an arrest outside of their jurisdiction, we agree with appellant that the Prince George’s County officers were not acting as private citizens when they towed his Cadillac from the District of Columbia to ²⁶¹ Maryland and that the protections of the Fourth Amendment apply to this case. “The Fourth Amendment does not protect citizens against all searches and seizures by government actors; it affords protection only against those that are unreasonable.” Partee v. State, 121 Md.App. 237, 249-50 , 708 A.2d 1113 (1998). As this Court stated in Hardy v. State, 121 Md.App. 345, 354 , 709 A.2d 168, 172 , cert. denied, 351 Md. 5 , 715 A.2d 964 (1998): The linchpin of the Fourth Amendment is reasonableness. “Reasonableness is determined by balancing ‘the intrusion on the individual’s Fourth Amendment interests against [the] promotion of legitimate governmental interests.’ ” [Internal citations omitted.] One of the core protections of the Fourth Amendment is the warrant requirement. There is, however, a lesser expectation of privacy associated with automobiles and, because they are inherently mobile, a warrantless search of a vehicle is permitted under certain circumstances. Malcolm v. State, 314 Md. 221, 227 , 550 A.2d 670 (1988). “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.” Maryland v. Dyson, 527 U.S. 465 , 119 S.Ct. 2013, 2014 , 144 L.Ed.2d 442 (1999). 3 This exception was derived from Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925), and has since been referred to as the “Carroll doctrine.” In the present case, we need not decide whether a warrantless search of the Cadillac would have been authorized under the Carroll doctrine.

Compare Humphrey v. State, 39 Md.App. 484, 492 , 386 A.2d 1238 , 386 A.2d 1238 , cert. denied, ²⁶² 283 Md. 733 (1978). 4 The officers gave deference to appellant’s Fourth Amendment rights, and secured a warrant to search the Cadillac. Upon returning to appellant’s home with the search warrant, they found the car gone. The officers, armed with a warrant reflecting probable cause to believe that the Cadillac contained evidence of the crime, quickly located the car and made arrangements to tow it to the evidence bay. Although the trial court found that the events occurred in the “early morning hours,” it did not make an express finding regarding the exigency of the circumstances presented.

Exigency, however, is a question that we review de novo and about which we may make our own independent appraisal. U.S. v. Grogins, 163 F.3d 795 (4 th Cir.1998) (whether there was an exigency to justify police entry without knocking is reviewed de novo), U.S. v. Anderson, 154 F.3d 1225 (10 th Cir.1998), cert denied, 526 U.S. 1159 , 119 S.Ct. 2048 , 144 L.Ed.2d 215 (1999); Tamez v. City of San Marcos, Texas, 118 F.3d 1085 (5 th Cir.1997), cert. denied, 522 U.S. 1125 , 118 S.Ct. 1073 , 140 L.Ed.2d 132 (1998); U.S. v. Howard, 961 F.2d 1265 (7 th Cir.1992), cert. denied, 506 U.S. 882 , 113 S.Ct. 236 , 121 L.Ed.2d 171 (1992). In the present case, the facts surrounding appellant’s arrest and the events leading to the search of his Cadillac are not disputed. 5 A review of the circumstances surrounding appellant’s arrest emphasizes the urgency presented. Pursuant to an outstanding arrest warrant, appellant was arrested in Fairfax ²⁶³ County, Virginia, while driving his Oldsmobile, at approximately 2:45 p.m. on Friday, February 28.

He was then transported to the Mount Vernon Police Station in Alexandria, Virginia, to wait for Prince George’s County officers to arrive. By 3:45 p.m., both appellant and his Oldsmobile were being transported back to Maryland, where the police immediately applied for a search warrant for the Oldsmobile. Later that evening, the officers discovered, through computer records, that appellant had a second car, a 1981 Cadillac, registered in his name. Around 9 or 10 p.m., the officers confirmed that appellant’s Cadillac was parked outside his residence and typed an affidavit and search warrant application for both the Cadillac and his residence.

The warrants were then taken to the judge’s house to be signed. Once signed, the officers attempted to execute the warrants at approximately 11:15 p.m. At that time, the officers discovered that the Cadillac, which had been parked in front of appellant’s residence only two hours before, was gone. Later that night, appellant’s mother informed them that the Cadillac had been relocated to the District of Columbia By 4:10 a.m., the officers located the Cadillac and had the car towed to Maryland to be searched pursuant to the warrant.

In light of the circumstances, we do not believe that it was unreasonable for the officers to tow the car to Maryland before searching it pursuant to the warrant. The fact that the car was no longer in Maryland did not negate probable cause and the officers’ belief that the Cadillac contained evidence of the crime that supported the issuance of the warrant. Moreover, the exigency of the circumstances was greatly heightened. While appellant was in custody, the car had been relocated to another jurisdiction by someone other than appellant during the early morning hours.

Contrary to Humphrey, it would be reasonable to conclude that appellant had someone move the