Carroll v. State

RAYMOND G. THIEME, JR. (Judge, Retired, Specially Assigned). In Wynn v. State, 117 Md.App. 138 , 699 A.2d 512 (1997), rev’d on other grounds, 351 Md. 307 , 718 A.2d 588 (1998); Lee ⁶⁰¹ v. State, 139 Md.App. 79 , 774 A.2d 1183 , cert. granted, 366 Md. 246 , 783 A.2d 221 (2001); Davis v. State, 144 Md.App. 144 , 797 A.2d 84 , cert. granted, 370 Md. 268 , 805 A.2d 265 (2002); and State v. Riley, 147 Md.App. 113 , 807 A.2d 797 (2002), we considered the environs of Maryland law with regard to no-knock entries. Not indifferent to the rough-and-ready world in which Fourth Amendment principles are tested, we artlessly assumed these cases might begin, ever so slightly, to close the doors with regard to no-knock entries.

Unfortunately, this case again shows that the doors of Fourth Amendment issues, like wisdom, are never shut, even temporarily. In the Circuit Court for Howard County, Kevin Powers Carroll, appellant, was charged by indictment with possession of a regulated firearm after a conviction of a “felony crime of violence,” possession of marijuana, and possession of drug paraphernalia. On November 9, 2001, a hearing was held on appellant’s motion to suppress evidence. 1 Appellant’s motion was denied by way of a written memorandum and order, on November 30, 2001. On March 20, 2002, appellant was convicted of the firearm count after a not guilty plea on an agreed statement of facts. 2 On April 24, 2002, appellant was sentenced to five years in prison without the possibility of parole on the firearm conviction.

On that same day, appellant filed a timely notice of appeal. Appellant now presents the following question for our review: DID THE TRIAL COURT ERR IN UPHOLDING A “NO-KNOCK” ENTRY WHEN THE POLICE PURPOSELY DID NOT SEEK A “NO-KNOCK” WARRANT BUT, INSTEAD, LATER DECIDED ON THEIR OWN TO FORCIBLY ENTER WITHOUT KNOCKING AND ANNOUNCING? ⁶⁰² For the reasons that follow, we shall answer “yes” and reverse the judgment of the circuit court. Factual Background Appellant, a 22-year old resident of Columbia, in Howard County, lived with his parents in a single-family home at 5738 Margrave Mews. During the month of March, 2001, the Howard County Police Department received information from an undisclosed source that there were five handguns and some marijuana in appellant’s house.

Appellant was not permitted to possess those firearms because of a prior conviction for third degree burglary. Acting on that information, the police sought, and were granted, a search and seizure warrant for the premises of 5738 Margrave Mews. The warrant specifically authorized the seizure of marijuana and firearms. The police did not seek, and were not granted, permission to dispense with the “knock and announce” requirement when executing that warrant.

On March 6, 2001, the police executed the warrant without knocking and announcing their presence. The police assembled a team of “tactical” officers who “staged” near the house in a “tactical vehicle.” These officers—a total of 12—had just come from a “barricade” situation and were dressed in blue “BDU’s” or “Battle Dress Uniforms.” These uniforms are similar to what people wear in the armed services, only they are all blue. The uniforms said “Police” on the front and back; and the officers wore police badges. Each officer also wore a ballistic vest, a Kevlar helmet, and a black “balaclava” or fire resistant hood.

This equipment almost completely obscured the faces of the officers. Three of the officers carried “ballistic shields” which were three feet tall and two feet wide. The officers were also armed with either handguns or rifles. The police gained entry through the side door with the use of a two-man battering ram.

Once the door was open, the battering ram team “peeled to the side of the door” to allow the entrance of the “point teams.” Once inside, each of the three “point teams,” led by the shield-bearing “point officer,” ⁶⁰³ ran to a different floor so that it would take just “12 to 15 seconds to have the whole residence cleared and everyone secured.” While running through the house, the “point officers” were “yelling” as “loud as they can, ‘Police search warrant, Police search warrant.’ ” Appellant’s father was the only person in the residence. He was found sitting in a chair at a computer terminal. The police “put down [the father] on the ground and secured [him]” at gunpoint. After a thorough search, one firearm was found in the house in what was later established as appellant’s room.

Hearing on the Motion to Suppress 3 During the suppression hearing, Sergeant Merritt Bender testified that: [The State]: Now, drawing your attention back to March 6th, of 2001, Sergeant, can you tell us what information you were provided with, by fellow members of the Police Department, and what investigation you did, regarding the execution of the warrant at 5738 Margrave Mews. [Sergeant Bender]: That’s correct. I was contacted—we were—we had actually been called up by patrol to handle a barricade situation or a quasi-barricade situation they were having up on Montgomery Road, when I was first contacted. I was contacted about 4:20 in the afternoon by Corporal Verderaime. He advised me that he had a search warrant for the residence you named, 5738 Margrave Mews.

He advised that the suspect in the—in the—in the case was Mr. Kevin Powers Carroll, the Defendant seated to my right, in the green shirt, and that he had—he had past arrests ⁶⁰⁴ for felony burglary, possession of marijuana and robbery. [Emphasis added.] He advised that the search warrant was for five handguns, which had been stolen in a B & E, and marijuana. He said that—he advised, me that Mr. Powers [Carroll] lived in the residence with his parents. His father is outside in the hall— * * * [Sergeant Bender]:—and that Mr. Carroll had associates— or associated with a defendant who I—not a defendant, but a person who I know as Gregory Daniel Price, who I was familiar with from my time in narcotics, as well as my time working on other assignments with the Department, who had prior arrests for first degree assault, several robberies, CDS offenses, and is—was currently believed at that time of carrying a handgun. And that Mr. Carroll also associated with George Johnson, who had—who had multiple prior arrests for CDS, and that these subjects may or may not be in the search warrant—I mean may or may not be in the residence at the time that the search warrant was executed—and, that he was requesting we execute the search—execute the search warrant as soon as possible. [The State]: Now, did you, in fact, have occasion to look at the search warrant and review that, sir? [Sergeant Bender]: Yes.

Yes, I did. [The State]: If I may, Your Honor, approach and review— State’s Exhibit A, and do you recognize this sir? [Sergeant Bender]: Yes, this is the—this is the search warrant that I was provided with and viewed prior to executing the search warrant. [The State]: And, did you note, not only the address, but also the probable cause that was set forth by the affiant, Detective Verderaime? [Sergeant Bender]: That’s right. ⁶⁰⁵ [The State]: So, in addition to the information provided by Detective Verderaime, to you, over the telephone, you had occasion to read through the affidavit and search warrant itself? [Sergeant Bender]: That’s right. [The State]: And the subject matter of the search warrant was what, sir, in terms of what was being sought in the residence? [Sergeant Bender]: Handguns and marijuana. [The State]: And the particular suspect that was suspected to be residing and tied to those pieces of evidence? [Sergeant Bender]: Mr. Kevin Powers Carroll, the Defendant to my right. [The State]: Now, when you learned the information from Detective Verderaime, regarding the subject matter of the warrant, the five guns, and the possible—possibility of recovery of marijuana, you then conducted the further investigation to determine who may have associated with Mr. Carroll? [Sergeant Bender]: Actually, Corporal Verderaime gave me all this information while we were there, talking to him on the phone, initially. [The State]: Once you gathered that all—that information, Sergeant, what steps did you then take to determine what method of entry would be conducted by the Howard County Police Department Tactical Section? [Sergeant Bender]: I contacted—actually, again, we were at an operation—barricade thing—we were actually stationed at Rockburn Park off of Montgomery Road. I verified or I asked if there was a—if it was—if there was a—if there was a no-knock exclusion in the search warrant. Corporal Verderaime said there was not. I asked if he had applied for it, and he said, no, he had not applied.

I then verified—I spoke with my Captain about it, and you know, basically Mr. Carroll’s past, his associates past for crimes of violence, the fact that we were going after ⁶⁰⁶ handguns. I spoke with—I spoke [to] my Captain in reference [to] it—and said, if we are going into a residence after handguns, the guy has a past record for one robbery, and his associates have a past for several, it’s not safe for us to—to go up and do a knock entry. I contacted Corporal Verderaime’s Lieutenant—Lieutenant Craig Marshall. I spoke with him about it, and— and, if—if, in fact—you know—they thought that there was a problem, or any problem with us going in on a no knock basis, based on the fact that we were going after guns.

I also contacted the State’s Attorney here in—here, at Circuit Court. I contacted the State’s Attorney and ran it by him, saying—explained everything that I have already explained to Your Honor, that was given to us on the background and the— On cross-examination, Sergeant Bender acknowledged that, although he was told that appellant had once been charged with the crime of robbery as a juvenile, he was unaware if the alleged offense involved a weapon. Sergeant Bender also stated that he had no information regarding appellant “using guns, pointing guns, threatening people with guns, or aiming guns at anybody.” Sergeant Bender testified that he had no specific information that Gregory Price would even be in the house and that neither Price nor his car were seen at appellant’s house during surveillance prior to the execution of the search and seizure warrant. In addition, Sergeant Bender testified that he “did not have any information that he [Price] would point a gun at [the police].” Sergeant Bender also testified that he had no information that George Johnson, another friend of appellant, had ever carried a weapon or threatened to “shoot a policeman if he came into [appellant’s] house.” The Honorable Dennis M. Sweeney, in his Memorandum and Order filed on December 3, 2001, denying appellant’s motion to suppress, found that: ⁶⁰⁷ Sergeant Bender, at the time of the execution of the warrant, had reasonable suspicion that knocking and announcing his presence would increase the likelihood of danger to himself and the other officers ... and Here, Sergeant Bender knew that Defendant, [was] previously convicted of third degree burglary, was in possession of firearms and drugs, had a previous arrest for robbery (a crime of violence), and associated with individuals with extensive criminal records, including crimes of violence.

The [c]ourt is convinced that Sergeant Bender had a reasonable suspicion of danger sufficient to allow the Howard County Police officers to enter the house without a knock. Discussion I. Appellant argues that Judge Sweeney erred in denying his suppression motion and upholding a “no-knock” entry by the police.' 4 In response, the State argues that the criminal records of Carroll and his alleged cohorts, in conjunction with the presence of firearms and marijuana, was sufficient to provide the officers serving the warrant with a reasonable suspicion that knocking and announcing would put them in harm’s way. ⁶⁰⁸ Before thinking about a cure, it is necessary to consider the etiology, which begins with a careful empirical observation of the disease. Although it is tedious to tell again tales already plainly told, police, at common law, were entitled to break into a house to arrest after announcing their authority and purpose for demanding admission. The leading American case of Read v. Case, 4 Conn. 166 (1822), stands for the proposition that a police officer may dispense with the notice requirement when compliance with the rule would expose him to danger.

The Court reasoned that “[I]mminent danger to human life, resulting from the threats and intended violence of the principal towards his bail, constitutes a case of high necessity; and it would be a palpable perversion of a sound rule [requiring knock and announce] to extend the benefit of it to a man ... who wanted only for a demand, to wreak on his bail the most brutal and unhallowed vengeance.” Id. at 168 . The modern restatement of the logic in Read occurred in Richards v. Wisconsin, 520 U.S. 385 , 117 S.Ct. 1416 , 137 L.Ed.2d 615 (1997), in which the United States Supreme Court held: In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard—as opposed to a probable cause requirement—strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. Cf., Maryland v. Buie, 494 U.S. 325, 337 , 110 S.Ct. 1093 , 108 L.Ed.2d 276 (1990)(allow-ing a protective sweep of a house during an arrest where the officers have “a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene”); Terry v. Ohio, 392 U.S. 1, 30 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)(requiring a reasonable and articulable suspicion of danger to justify a pat-down search).

This showing is not ⁶⁰⁹ high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged. Richards, 520 U.S. at 394-95 , 117 S.Ct. 1416 . Following the Supreme Court’s decision in Richards , and aware that we do not have a unified theory of constitutional interpretation, this Court considered two cases in which we were asked to order suppression of evidence seized as a result of no-knock entries: Wynn v. State, 117 Md.App. 133 , 699 A.2d 512 (1997), rev’d on other grounds, 351 Md. 307 , 718 A.2d 588 (1998), and Lee v. State, 139 Md.App. 79 , 774 A.2d 1183 , cert. granted, 366 Md. 246 , 783 A.2d 221 (2001). In Wynn and Lee , the search warrant did not include a no-knock provision.

However, the officers serving the warrant elected not to knock and announce their presence before entering the houses. Like the devious labyrinth in which the voracious Minotaur is hidden, Fourth Amendment law is complex and contradictory. Even under what some may consider a superficial probing of the Fourth Amendment, we reviewed in Wynn the history of the no-knock requirement and its exceptions under Maryland law. We stated: The reasonableness of the officers’ conduct hinges on the facts within their knowledge indicating exigency, that is, whether the officers held an objectively reasonable belief that an emergency situation existed.

See United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1993). The State bears the burden of establishing that exigent circumstances excused its noncompliance with the knock and announce requirement. Id. at 167, 699 A.2d 512 . Wynn had a long criminal background, including drug convictions, assault, burglary, and handgun convictions.

Id. at 168, 699 A.2d 512 . In addition, Wynn was on parole and had pulled a concealed weapon on police, in the past, to avoid arrest. Id. at 168, 699 A.2d 512 . Another factor the Court considered in reaching its decision was the presence of another dangerous criminal in the house, namely Wynn’s wife, Angela Kenyon.

Id. at 168, 699 A.2d ⁶¹⁰ 512. The Wynn court, affirming the lower court, held that “sufficient particularized evidence existed to support the conclusion that the officers had an objectively reasonable belief that their personal safety was in danger because of appellant’s and Kenyon’s prior violent and criminal actions.” Id. at 167, 699 A.2d 512 . The other end of the spectrum is Lee . In Lee , Judge Sonner, writing for this Court, pellucidly explained: It is clear that, although Maryland law and the opinions of the Supreme Court of the United States presumptively require knocking and announcing before entry when searching with a proper warrant, the law also forgives the failure to do so when there are legally sufficient exigent circumstances.

It is equally clear that there is no blanket or per se exception for drug searches. Rather, in each case, the police must articulate a reasonable suspicion, based upon, particularized facts, that exigent circumstances exist which justify not knocking and announcing. Lee, 139 Md.App. at 89 , 774 A.2d 1183 . In Lee , we reached the conclusion that the “record failed to show anything more than that Lee was a drug dealer whom the police observed on two previous occasions selling a small amount of a controlled dangerous substance ...,” id. at 89 , 774 A.2d 1183 , and stated that “[t]he record is bare of any evidence of exigent circumstances that could possibly eliminate the constitutional necessity to knock and announce.” Id. at 91 , 774 A.2d 1183 .

The Lee Court held that the circuit court erred in ruling that there was justification for the police to