Collins v. State

³⁰³ JAMES R. EYLER, Judge. Charles Terrence Collins, appellant, was convicted, on an agreed statement of facts, at a bench trial in the Circuit Court for Washington County, of possession of marijuana with intent to distribute and simple possession. The court sentenced appellant to five years imprisonment, all suspended, and three years probation on the possession of marijuana with intent to distribute conviction. The court imposed a concurrent one-year term, and concurrent probation, on the possession of marijuana conviction.

On appeal, appellant presents the following questions: 1. Did the lower court err by denying [his] motion to suppress the marijuana evidence that was obtained as a result of the entry into [his] apartment by two bail bondswomen acting as agents of a police officer? 2. Did the lower court err by failing to merge [his] conviction for possession of marijuana into his conviction for possession of marijuana with intent to distribute? We hold that the circuit court erred in ruling that the bail bond agents were not acting as State actors, and consequently, we remand for reconsideration of the motion to suppress.

Evidence at Suppression Hearing At the hearing on the motion to suppress, Officer Carl Hook was the only witness. He testified that he was advised by another officer to meet with two persons in the business of arranging bail bonds, Tanya Baer and Donna Morris. They advised him that they wanted to apprehend a “wanted subject,” Dale Michael Estep, and that he had been seen going into 126 East Avenue in Hagerstown. Officer Hook accompanied the bail bond agents to that residence.

He explained that he was performing a “service to stand by,” which meant that he was not to intervene unless there was a criminal matter that took place. He testified that such service was routinely provided under the circumstances present here. Officer Hook had no information other than that supplied to him by the bail bond agents. ³⁰⁴ The residence at 126 East Avenue was an apartment house containing four apartments. There was a porch on the front of the residence with an entrance from the porch to the apartment in question.

After Officer Hook and the two agents arrived at the entrance to the apartment, Officer Hook knocked on the door. The door was opened by appellant, who came out and closed the door behind him. Officer Hook stated that they were there for a “wanted subject” and asked for permission to come in to check the residence. Appellant advised that Estep was not there, that he had not seen him for two weeks, and refused entry into the residence.

Ms. Baer stated that she was going to enter the residence whether appellant liked it or not. Appellant again refused but called another person, who came outside to the porch. Officer Hook testified that Ms. Baer spoke to that person and knew him as “Jimmy.” “Jimmy” stated that Ms. Baer could go inside and check the residence. Ms. Baer and Ms. Morris went inside.

Although appellant was standing at the door, he did not object; nor did he try to stop them. Officer Hook stood near the door, which was still open. The officer said that he detected an odor of burnt marijuana coming out of the residence. When Ms. Baer and Ms. Morris exited the apartment, Ms. Baer stated that she had seen approximately fifteen marijuana plants inside, ranging in size from “beginning plants” to three feet in height.

Officer Hook testified that he called for backup and three officers responded. Officer Hook explained that he called for backup because of the odor of marijuana. After the other officers arrived, Ms. Baer advised Officer Hook that she had just seen appellant running in the alley at the rear of the apartment. Officer Hook then noticed appellant running with a black plastic garbage bag.

Officer Hook pursued appellant on foot. Appellant dropped the bag, and the police took him into custody. In the bag, although not visible prior to searching it, the police found “pot[s] of marijuana plants, high intensity lamp, electric scales, a multi-colored bag that contained marijuana seeds, and a pipe with marijuana residue.” ³⁰⁵ A search warrant was obtained for the apartment, and additional evidence was seized. Appellant moved to suppress the items seized from his person and the apartment, arguing that they were the fruits of the poisonous tree because his arrest was illegal and the warrant was based on information obtained during the bail bond agents’ prior illegal entry.

The suppression court ruled that (1) Officer Hook was credible; (2) the bail bonds agents were not State actors; and (3) Officer Hook had probable cause to arrest appellant and search the bag, based upon (A) the smell of marijuana emanating from the apartment, and (B) Ms. Baer’s statement that marijuana plants were inside the apartment. Consequently, according to the suppression court, the subsequent search of the apartment pursuant to a warrant was also legal. Analysis 1. In reviewing the denial of a Maryland Rule 4-252 motion to suppress, we look only to the record of the suppression hearing.

We do not consider the record of the trial. Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987)(quoting Jackson v. State, 52 Md.App. 327, 332, n. 5 , 449 A.2d 438 (1982)). 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 the witnesses and in weighing and determining first-level facts. Perkins v. State, 83 Md. App. 341, 346 , 574 A.2d 356 (1990); Lancaster v. State, 86 Md.App. 74, 95 , 585 A.2d 274 (1991), aff'd, 332 Md. 385 , 631 A.2d 453 (1993).

We accept the hearing court’s findings as to disputed facts unless those findings are clearly erroneous. McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430 (1992); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990). We accept the court’s finding in the light most favorable to the State as the prevailing party. Id.

We then make our own independent constitutional appraisal of the facts. See Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Munafo v. State, 105 Md.App. ³⁰⁶ 662, 669, 660 A.2d 1068 (1995); Perkins, 83 Md.App. at 346 , 574 A.2d 356 . Appellant contends that the lower court erred by denying his motion to suppress, because the items seized were as a result of the illegal entry into his apartment by Ms. Baer and Ms. Morris, acting as agents of the State. Appellant explains that his arrest was illegal because, absent knowledge obtained as a result of the illegal entry, there was no probable cause to arrest him or to search his bag, and the evidence seized in the apartment pursuant to a warrant was the fruit of the prior illegal arrest.

We agree. The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures by government officials. See U.S. Const, amend. IV. 1 While the Fourth Amendment proscribes conduct by state and federal actors, its guarantee does not extend to those searches conducted by private individuals.

See United States v. Jacobsen, 466 U.S. 109, 113 , 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984); Burdeau v. McDowell, 256 U.S. 465, 475 , 41 S.Ct. 574 , 65 L.Ed. 1048 (1921); Waters v. State, 320 Md. 52, 58-59 , 575 A.2d 1244 , cert. denied, 498 U.S. 989 , 111 S.Ct. 529 , 112 L.Ed.2d 539 (1990). Officer Hook was obviously a State actor, but Officer Hook did not enter the premises. The first question is whether bail bond agents are State actors when pursuing a defaulted principal, in the absence of any involvement by police officers. We recognize that there is authority for the proposition that bail bond agents may be State actors, at least for certain purposes, even without involvement by persons who are clearly State actors. 2 ³⁰⁷ Based on Shifflett v. State, 80 Md.App. 151, 158-59 , 560 A.2d 587 (1989) (quoting Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 369-72 , 21 L.Ed. 287 (1872)), aff'd, 319 Md. 275 , 572 A.2d 167 (1990), and Waters v. State, 320 Md. 52 , 575 A.2d 1244 (1990), we conclude that bail bond agents are generally not State actors for Fourth Amendment suppression purposes.

In Shifflett , this Court held and the Court of Appeals affirmed that bail bond agents have broad common law powers to arrest their principal, much greater than that possessed by a private citizen to effect an arrest and, under certain circumstances, greater than that possessed by police officers. Shifflett, 80 Md.App. at 158-59 , 560 A.2d 587 , aff'd, 319 Md. at 277-78, 572 A.2d 167 . In Waters , the Court of Appeals held that a search conducted by a private security guard was not subject to the Fourth Amendment prohibition. Waters, 320 Md. at 60 , 575 A.2d 1244 .

Bail bond agents may become State actors, however, based on the facts in a particular case. Generally, when a private party acts for his or her own purpose without police instigation or participation, and subsequently gives seized items to the police, there is no State action. See Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971); Knight v. State, 59 Md.App. 129 , 474 A.2d 947 (1984) (trespassing roofer who reported information to police not ³⁰⁸ State actor); Ward v. State, 30 Md.App. 113, 116-17 , 351 A.2d 452 , cert. denied, 277 Md. 742 (1976) (search and seizure by member of family not State action); Herbert v. State, 10 Md.App. 279, 290-91 , 269 A2d 430 (1970) (private parties who seized evidence at a party and turned it over to police not State actors). Moreover, the mere presence of a police officer is ordinarily not enough to constitute State action.

See United States v. Kinney, 953 F.2d 863, 865 (4th Cir.), cert. denied, 504 U.S. 989 , 112 S.Ct. 2976 , 119 L.Ed.2d 595 (1992) (“More than the mere presence of a police officer is necessary to constitute the government action required to implicate Fourth Amendment concerns.”). This Court has held that State action “is not measured by the primary occupation of the actor, but by the capacity in which he [or she] acts at the time in question.” In re Albert S., 106 Md.App. 376, 386-87 , 664 A.2d 476 (1995) (quoting State v. Woods, 790 S.W.2d 253, 257 (Mo.Ct.App.1990)(in turn quoting State v. Pearson, 15 Or.App. 1 , 514 P.2d 884, 886 (1973)))(emphasis in original). In order for a private party’s capacity or role to equal State action, the private party “in light of all the circumstances of the ease, must be regarded as having acted as an ‘instrument’ or agent of the State.” See Waters, 320 Md. at 57 , 575 A.2d 1244 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 487 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971)); United States v. David, 943 F.Supp. 1403, 1409 (E.D.Va.1996). Several courts have addressed when conduct involving private actors becomes governmental conduct.

See, e.g., United States v. Miller, 688 F.2d 652 (9th Cir.1982). In Miller , the victim of a theft received an anonymous tip that his stolen trailer was on Miller’s property. The victim contacted a federal agent and a sheriff. The sheriff noticed a trailer parked next to the frontage road running to Miller’s property with a “for sale” sign on it.

The victim met with the federal agent and the sheriff and offered to go inspect the trailer as a potential buyer. The victim went to Miller’s property, identified his trailer, which was one different from the one for sale ³⁰⁹ that was visible from the road, and reported this information back to the federal agent and the sheriff. Id. at 655 . The victim then suggested that he go back to the property to take some pictures.

The federal agent followed the victim and positioned himself where he could see but remained off of Miller’s property and out of sight. Based on his observations, the federal agent obtained a search warrant for Miller’s property. Id. at 655-56 . The Court of Appeals affirmed the trial court’s denial of Miller’s motion to suppress, holding that the Fourth Amendment was not violated because the victim’s conduct was not instigated by the officers, it was not illegal, and the officers remained out of sight and did not cast a “police aura” around the