Buie v. State

BLOOM, Judge. A jury in the Circuit Court for Prince George’s County, presided over by Judge Jacob S. Levin, convicted appellant, ⁵⁶⁵ Jerome Edward Buie, of robbery with a deadly weapon and the use of a handgun in the commission of a felony. Judge Levin sentenced appellant to consecutive sentences of twenty years for the robbery with a deadly weapon and fifteen years for the use of a handgun. In this appeal from those judgments, appellant asserts that the trial court erred when it denied his motion to suppress evidence seized at the time of his arrest.

He also contends that the trial court erred when it called his cousin, Antonio Buie, as its witness. We disagree with appellant’s assertions of error and will affirm the judgments. I Motion to Suppress Evidence produced at the pre-trial hearing on appellant’s motion to suppress disclosed that on 5 February 1980 seven police officers arrived at appellant’s home with a valid warrant for his arrest. The police also had a warrant for the arrest of Lloyd Allan.

Based on eyewitness identifications, both suspects were charged with the robbery of a pizza shop, which had taken place two days earlier. While two of the officers remained outside to secure the exits, the other five entered appellant’s home. Corporal Rozar, one of those five, stood at the entrance to a flight of stairs leading down to a basement. Corporal Rozar called down the stairs several times, identifying himself and commanding everyone in the basement to come out with hands raised.

Eventually appellant emerged from the basement and was promptly arrested, handcuffed, and searched. After appellant’s arrest, Detective Frolich went into the basement where he saw, in plain view, a red jogging suit. He seized the jogging suit because it matched a description of the clothing worn by the armed robber at the scene of the crime for which appellant was arrested. Cross-examining Detective Frolich at the suppression hearing, defense counsel elicited the following with respect to the officer’s entry into the basement: Q. You observed the officer search [appellant]?

A. Yes, sir. ⁵⁶⁶ Q. And did he find anything on him? A. I don’t recall. Q. And you observed the officer handcuff [appellant]? A. Yes, sir.

Q. And then place him under arrest? A. Yes, sir. Q. What did the officer do with [appellant] at that point? A. I don’t know.

Q. Took him out, whatever. At this point, you decided to go into the basement? A. Yes, sir. Q. Did you know what you were looking for?

A. I just went down there in case there was someone around. Q. Did you have any reason to believe that anyone else was in the house besides Mr. Buie? A. I had no idea who lived there Q. But, was there any particular knowledge that allowed you to know that [appellant] was at home at that time? A. Yes, sir.

Q. What was that? A. I had a secretary in my office call his residence and ask to speak to him. Q. And who answered the phone? A. I don’t know who answered the phone.

But, I think it was female and then she had a conversation with Mr. Buie. Q. So you knew there was a girl and a man in the house? A. Yes, sir. At the close of the suppression hearing, Judge Levin overruled appellant's motion to suppress, stating that Detective Frolich’s search of the basement was reasonable to insure ⁵⁶⁷ the officers’ safety because appellant was charged with a serious offense involving a handgun and because the police did not know who else was in the basement following appellant’s arrest.

During the course of trial, before offering the jogging suit in evidence, the State’s Attorney asked the trial judge to reopen the suppression hearing in order to clarify the facts and circumstances surrounding the basement search. The trial judge reopened the suppression hearing over appellant’s objection. The jury left the courtroom and Detective Frolich once again took the stand. Detective Frolich reiterated that warrants were sworn out for both appellant and his suspected accomplice and stated, for the first time, that the officers who arrived at appellant’s home on 5 February 1986 were armed with both warrants.

Further questioning of Detective Frolich produced the following: Q. Now, at the time you arrested [appellant], had an arrest of [appellant’s accomplice] been made? A. No, sir. Q. And did you have any knowledge or information concerning how [appellant] and [the accomplice] were related as far as—in any fashion? A. They had been arrested prior, in November, for an armed robbery.

Q. Did you know whether they knew each other any way? A. I had information, or the information from the other robbery, that they were running together. Q. Okay. And at the time you went down to the basement, why did you go there?

A. To see if [appellant’s accomplice] may be in the basement. A. Okay. At that point, you didn’t know whether [appellant’s accomplice] would be there or not? ⁵⁶⁸ A. No, sir. Judge Levin found no cause to change his previous ruling based on the second hearing, and again overruled the motion to suppress.

Appellant challenges Judge Levin’s reopening of the hearing as well as the denial of the motion to suppress. We note, initially, that the State bears the burden of proving circumstances which justify a warrantless search. Stackhouse v. State, 298 Md. 203, 220 , 468 A.2d 333 (1983) (citing Coolidge v. New Hampshire, 403 U.S. 443, 455 , 91 S.Ct. 2022, 2032 , 29 L.Ed.2d 564, 576 (1971); United States v. Jeffers, 342 U.S. 48, 51 , 72 S.Ct. 93, 95 , 96 L.Ed. 59 , 64 (1951); McDonald v. United States, 335 U.S. 451, 456 , 69 S.Ct. 191, 193 , 93 L.Ed. 153 , 158 (1948). Furthermore, “in determining the lawfulness of the search we may concern ourselves only with what the police officers believed at the time.” Stackhouse, supra, 298 Md. at 220 , 468 A.2d 333 (citing Ker v. California, 374 U.S. 23 at 40 n. 12, 83 S.Ct. 1623 at 1633 n. 12, 10 L.Ed.2d 726 at 742 n. 12 (1963); Johnson v. United States, 333 U.S. 10, 17 , 68 S.Ct. 367, 370 , 92 L.Ed. 436, 442 (1948) [footnote omitted]).

The decision at a pre-trial suppression hearing is binding at the trial unless the trial judge, in his discretion, grants a hearing de novo on the motion, Hall v. State, 15 Md.App. 363, 370 , 290 A.2d 803 (1972); Md.Rule 4-252(g)(2), in which event our review is limited to the de novo ruling. Bartram v. State, 33 Md.App. 115, 140 , 364 A.2d 1119 (1976). We agree with appellant’s contention that the trial judge had no authority to reopen the suppression hearing at the State’s request. Maryland Rule 4-252(g)(2) states that “[i]f the court denies a motion to suppress evidence, the ruling is binding at the trial unless the court, in its discretion, grants a de novo hearing on a renewal of the motion.” Here, there was no renewal of the motion, and the trial judge did not grant a de novo hearing.

He merely reopened the suppression hearing to allow the State to rein ⁵⁶⁹ force the testimony of one witness. That is not within the contemplation of the Rule. With regard to violations of the Maryland Rules of criminal procedure, the Court of Appeals stated in Noble v. State, 293 Md. 549, 557-58 , 446 A.2d 844 (1982): This Court has firmly adhered to the principle that the rules of [criminal] procedure are precise rubrics to be strictly followed, and we shall continue to do so. A violation of one of these rules constitutes error, normally requiring such curative action or sanction as may be appropriate.

It does not follow, however, that the harmless error doctrine has no application to the Maryland Rules and that a violation of a procedural rule can never be harmless____ If the standard for harmless error is met, a violation of a procedural rule will not ordinarily result in a reversal of a conviction. The test for harmless error in criminal cases was set forth in Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976), as follows: [W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated. The error in reopening the suppression hearing had no influence on the trial proceedings and certainly not on the jury’s verdict. The trial judge did not alter the earlier ruling on admissibility of the seized evidence as a result of the later testimony.

The motion to suppress was denied on the basis of the pre-trial hearing. We believe that the court’s initial ruling was correct; therefore the later testi ⁵⁷⁰ mony had no significance and any error in receiving it was harmless beyond a reasonable doubt. In Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), the United States Supreme Court held that, incident to a lawful arrest, police officers may search the arrestee’s person and areas “ ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id. at 763 , 89 S.Ct. at 2040 , 23 L.Ed.2d at 694 . The Court held that all other searches conducted contemporaneous to an arrest must be made pursuant to a warrant or must fall within one of the “well-recognized exceptions” to the warrant requirements.

Id. at 763 , 89 S.Ct. at 2040 , 23 L.Ed.2d at 694 . Following Chimel , the Court of Appeals of Maryland, in Stackhouse, supra, held that incident to a lawful arrest any contemporaneous search beyond the arrestee’s “wingspan” must be made pursuant to a warrant or to an exception to the warrant requirement. There is some similarity between the facts of Stackhouse and the facts of this case. In each case police officers entered appellant’s home to execute an arrest warrant and, after making the arrest, “searched” the arrestee’s hiding place.

The similarities between these two cases end when the reasons for the post arrest searches are compared. In Stackhouse , policemen searched the arrestee’s hiding place for evidence that might be destroyed but were unaware of any facts to indicate that the destruction of evidence was imminent or even likely. In this case, a police officer who had knowledge that a warrant had been sworn out for the arrest of an accomplice went into the basement of appellant’s house where appellant had been hiding, to see if there was anyone else hiding there. In its analysis of the legality of the search in Stackhouse , the Court noted that “[i]n holding that the police may search the area within the arrestee’s reach incident to a ⁵⁷¹ lawful arrest, the Supreme Court in Chimel acknowledged in dicta that exigent circumstances provided a second recognized justification for a warrantless search or seizure incident to arrest. 395 U.S. at 763 , 89 S.Ct. at 2040 , 23 L.Ed.2d at 694 .” Id. 468 A.2d at 338 .

The Stackhouse Court, however, defined “exigency” narrowly: “The meaning of exigent circumstances is that the police are confronted with an emergency—circumstances so imminent that they present an urgent and compelling need for police action.” Id. 468 A.2d at 342 . The Court stated: “upholding warrant-less searches based upon exigent circumstances involves two principal categories of cases: ‘hot pursuit,’ and destruction or removal of evidence.” Id. 468 A.2d at 338 . The Court concluded in Stackhouse that the post-arrest search of Stackhouse’s hiding place violated the Fourth Amendment guarantee against unreasonable searches and seizures because the State failed to demonstrate exigent circumstances justifying the search. The Court stated: “Where a warrantless search is based upon the destruction or removal of evidence surrounding circumstances must present a specific threat to known evidence.” Id. 468 A.2d at 339 .

The facts in Stackhouse failed to present such a threat. In the case sub judice, the State does not argue that Detective Frolich’s post-arrest search of appellant’s basement took place under exigent circumstances. Detective Frolich was not in a “hot pursuit” situation; he had no reason to fear the imminent destruction of evidence. Nevertheless, the absence of those two circumstances does not mean that the invasion of the basement was unreasonable.

Although Detective Frolich did not expressly so state, it is certainly inferable from his testimony at the