Christian v. State

MEREDITH, J. Based upon a not guilty plea and an agreed statement of facts, Steven Christian was convicted by the Circuit Court for Baltimore City of possession with intent to distribute heroin. On appeal, he raises two issues: I. Did the circuit court err in denying his motion to suppress evidence?

II

Did the circuit court err in proceeding with a not guilty/agreed statement of facts without first determin ²¹⁶ ing that appellant’s jury trial waiver was knowing and voluntary? Perceiving no error, we shall affirm. I. Suppression Motion In reviewing the denial of a motion to suppress evidence, the record at the suppression hearing is our exclusive source of facts. Lee v. State, 311 Md. 642, 648 , 537 A.2d 235 (1988). “The one invoking Fourth Amendment protection bears the burden of demonstrating his or her legitimate expectation of privacy in the place searched or items seized.” Laney v. State, 379 Md. 522, 545 , 842 A.2d 773 , cert. denied, 543 U.S. 966 , 125 S.Ct. 434 , 160 L.Ed.2d 335 (2004).

Accord Ricks v. State, 312 Md. 11, 26 , 537 A.2d 612 , cert. denied, 488 U.S. 832 , 109 S.Ct. 90 , 102 L.Ed.2d 66 (1988); State v. Savage, 170 Md.App. 149, 175 , 906 A.2d 1054 (2006). We extend great deference to the suppression court’s fact-finding, particularly that court’s ability to determine the credibility of the witnesses and to weigh and determine first-level facts. Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990). When conflicting evidence is presented, we accept the facts as found by the suppression court, unless clearly erroneous, and we review the evidence in the light most favorable to the prevailing party, in this case, the State.

Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001). After giving due regard to the suppression court’s findings of fact, we then make our own independent appraisal by reviewing the law and applying it to the facts of the case. McMillian v. State, 325 Md. 272, 281-282 , 600 A.2d 430 (1992). At the hearing on appellant’s motion to suppress evidence, Sergeant John Hergenroeder testified that, at approximately 3:00 p.m. on August 31, 2004, he was involved in a covert narcotics surveillance operation on North Glover Street.

Hergenroeder saw appellant walk out of the rowhouse at 19 North Glover, stop on the steps and look around twice before placing a bag inside the screen door of the house. Appellant went to the comer of the street and sat on the steps of another house. ²¹⁷ A man approached appellant and the two had a short conversation. Appellant walked back to 19 North Glover, retrieved the bag from behind the screen door, removed something from the bag, put the bag back inside the doorway, walked back to the corner, and exchanged a small item for U.S. currency. The other man then walked away.

Hergenroeder suspected that he had just seen a narcotics transaction, and that the bag left inside the screen door at 19 North Glover was appellant’s “stash.” Hergenroeder sent his partner, Detective William Denford, to the house where he had seen appellant leave the bag. He testified that he directed Denford to “... open the white— there was a door there — open that screen and there is a bag right on the ledge, and the stuff should be in that bag.” Denford recalled that his instructions were to “take a white bag out of in between a screen door and a wooden door.” Denford found that the white cross-buck screen door opened outward, and that the bag was sitting in the space between the screen door and the closed wooden door. He retrieved the bag without opening the closed front door to the residence. The bag contained 119 gel caps of heroin.

Denford communicated this information via radio to Hergenroeder, and appellant was arrested immediately. Hergenroeder joined Denford in front of the house. As the officers stood in front of the house, Roy Royster arrived and said he lived in the house. Royster advised that the arrested suspect was his brother, who stayed in Royster’s living room and basement.

Denford asked if the police could “check the house” and Royster said yes. Royster asserted that there were no drugs inside. Royster signed a form consenting to a search of “my residence located at 19 N. Glover St.” When Hergenroeder entered the house, he saw a mattress, a chair, and a stereo unit. On top of one of the speakers was a vial with white powder and a wad of money rubber-banded together.

On the floor was a shoe box containing plant material, gel caps, pill presses, a parole card in the appellant’s name, and two bags of heroin in a box. Royster denied ²¹⁸ knowing anything about his brother’s activities, and said that all of the items recovered belonged to appellant. When Royster testified at the suppression hearing, he contended that he asked the officers why they had to enter his house, and that he only consented after he was told “you can make it easy on yourself or you can make it hard on yourself----[W]e can hold you and get a warrant and just kick your door in and go in.” Royster said he showed the police the area of the house that his brother rented and told the officers that Royster, himself, lived upstairs. He described the search as “tearing up and throwing off some stuff.” Royster testified, in contrast to the police officers’ testimony, that no drugs were visible until the area was disturbed.

Royster testified that the police eventually searched the entire house, including his living area. When appellant was questioned by the police, after being arrested and receiving Miranda warnings, 1 appellant told police that the drugs “recovered from 19 N. Glover” were his. Appellant argues that all of the evidence should have been suppressed, for three reasons. We shall address each in turn.

A. First, citing Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), appellant argues that he had a reasonable expectation that the area behind the screen door of his brother’s home was private, and, therefore, the police were required to obtain a warrant before opening the screen door to seize the bag containing the suspected drugs. Appellant argues that the evidence clearly showed that he tried to protect his privacy by placing the bag behind the screen door, and by pulling the bag out to remove drugs, rather than opening the screen door wide and exposing his belongings to public view. Hergenroeder, however, testified that he had a clear view of the bag as appellant “opened the door and ²¹⁹ retrieved the bag, reached inside — it took him several seconds — removed something from the bag, and placed the bag back inside the doorway.” Whether or not an individual’s subjective expectation of privacy is reasonable is determined by an objective evaluation. California v. Greenwood, 486 U.S. 35, 39 , 108 S.Ct. 1625 , 100 L.Ed.2d 30 (1988).

Even in an otherwise private place, “what a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351 , 88 S.Ct. 507 . We do not consider this situation far removed from the facts of United States v. Santana, 427 U.S. 38 , 96 S.Ct. 2406 , 49 L.Ed.2d 300 (1976), in which the defendant was standing in an open doorway, holding a paper bag, when police approached. She turned away, into the house, and envelopes containing heroin fell from the bag. The Supreme Court concluded that the doorway was a “public place” because Santana was “as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.” 427 U.S. at 42 , 96 S.Ct. 2406 .

In Oliver v. United States, 466 U.S. 170, 177 , 104 S.Ct. 1735 , 80 L.Ed.2d 214 (1984), the Supreme Court noted that there must be an objectively reasonable expectation of privacy in order for the protection of the Fourth Amendment to apply: Since Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), the touchstone of [Fourth] Amendment analysis has been the question whether a person has a “constitutionally protected reasonable expectation of privacy.” Id., at 360 , 88 S.Ct., at 516 (Harlan, J., concurring). The Amendment does not protect the merely subjective expectation of privacy, but only those “expectation^] that society is prepared to recognize as ‘reasonable.’ ” Id., at 361 , 88 S.Ct., at 516 . See also Smith v. Maryland, 442 U.S. 735, 740-741 , 99 S.Ct. 2577, 2580-2581 , 61 L.Ed.2d 220 (1979). The Court explained in Oliver, id. at 177-78, 104 S.Ct. 1735 , that whether a particular location is entitled to Fourth Amendment protection depends upon a variety of factors: ²²⁰ No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant----In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, ..., the uses to which the individual has put a location, ..., and our societal understanding that certain areas deserve the most scrupulous protection from government invasion....

(Citations omitted.) The suppression court in this case recognized a difference in the way that the public uses the entry door that leads to the private quarters of the home and the screened door between such an entry door and the street. The suppression court found that the screen door in question was of the variety that would be accessible to strangers approaching the residence, stating: ... I started thinking in terms of when deliveries are made to a home, when guests come into a house, what do they do[? T]hey open the [screen] door and knock.

Oftentimes packages are placed within those two doors, and from a common sense perspective standpoint, that area between those doors does not or is not afforded that same level of protection as to the area beyond that wooden door where there is an expectation of privacy. So I’m finding ... there was no reasonable expectation of privacy within that area, that this is basically from a common sense perspective, it is not protected because too much open use is made of that area, and too much unauthorized use is expected in that area, between the storm door and that interior door for there to be an expectation of privacy.... We agree. The suppression court’s factual findings about the nature of the subject screen door are not clearly erroneous.

Both the custom of public use of such doors and the ²²¹ visual permeability of screen doors support the suppression court’s conclusions. A similar analysis was adopted by the court in United States v. Arellano-Ochoa, 461 F.3d 1142, 1145 (9th Cir.2006), in a case in which the police officers were confronted with a screen door. The court stated: Whether opening a screen door breaches a reasonable expectation of privacy depends on the circumstances. During winter in a cold climate, people ordinarily keep the solid door shut.

About the only way for mail and package delivery people, solicitors, missionaries, children funding school trips, and neighbors to knock on the door is to open the screen door and knock on the solid door. People understand that visitors will need to open the screen door, and have no expectation to the contrary. The reason why people do not feel that their privacy is breached by opening the screen door to knock is that it isn’t; the solid door protects their privacy. In the summer, when people leave their solid doors open for ventilation, the screen door is all that separates the inside from the outside.

People can get a resident’s attention by knocking on the screen door without opening it. Where the solid door is wide open, the screen door is what protects the privacy of the people inside — not just their visual privacy, which it protects only partially, but also their privacy from undesired intrusion. Where the solid door is open so that the screen door is all that protects the privacy of the residents, opening the screen door infringes upon a reasonable and legitimate expectation of privacy. The distinguishing factor is not whether the time of year is summer or winter, but whether the screen door is acting as the perimeter barrier to the residence.

See State v. Kitchen, 572 N.W.2d 106, 109 (N.D.1997) (“When officers knock on a door where visitors logically would knock, while engaged in legitimate police activities, they have no less right to be there than any member of the public calling at that home.”). See also Fitzgerald v. State, 153 Md.App. 601, 666-67 , 837 A.2d ²²² 989 (2003) (“[T]he vestibule of the apartment house was no different than a public street or an open field. The police needed no justification for being there.”), aff’d on other grounds, 384 Md. 484 , 864 A.2d 1006 (2004). In the present case, the suppression judge found that the solid door to the residence was closed, and that the screen door would have been opened by delivery men and others approaching the house.

There was no evidence that the screen door was latched, or that a door knocker or door bell were located on the outside of the screen door. Under the circumstances, we agree with the suppression court’s conclusion that appellant had no reasonable expectation of privacy in the space between the screen door and the solid entry door of the rowhouse. B. Next, appellant challenges the suppression court’s alternative holding, arguing: The trial court ruled in the alternative that even if the Appellant had an expectation of privacy in the area between the two doors, he waived it once he removed the bag from behind the screen door