Coomes v. State

ROBERT M. BELL, Judge. Brenda M. Coomes, appellant, was convicted by a jury in the Circuit Court for Cecil County of possession of marijua ³⁸⁰ na, possession of marijuana with intent to distribute, and possession of paraphernalia. The possession of marijuana charge having been merged into the intent to distribute charge, she was sentenced to a total of four years imprisonment. On this appeal from the judgments thus entered, she raises but one question: Did the trial court err in denying appellant’s pretrial motion to suppress?

The facts out of which this appeal arose are rather interesting. Appellant and a male companion were arrested in connection with a breaking and entering that occurred in Havre de Grace, Maryland. While they were in custody, the police obtained a warrant authorizing the search for, and seizure of, a small black handgun 1 , which witnesses reported was brandished by the male member of the duo during the breaking and entering. The application and affidavit in support of the warrant described the places to be searched as: the premises and the premises as completely described above and a vehicle described as a 1984 Ford Bronco, Maryland registration # 037950.

It also disclosed the reasons for the police focus on appellant, her male companion, and the premises described therein. Detective Corporal Downey learned from witnesses to the breaking and entering that the perpetrators were a white male and female. The white male, who was waving a black handgun in the air, punched out the front door window and entered the house, followed by the white female. When they exited the house, the man and woman entered a 1984 Ford Bronco, either blue or beige, with a damaged mirror and Maryland tag No. 037950.

The description of the vehicle and its occupants was broadcast, which resulted in the location of the suspect vehicle at 208 McGlothlin Road in Conowingo, Cecil County, Maryland by the Maryland State Police. The vehicle having been secured and the area surrounded, the State Police approached the subjects and ³⁸¹ the white female admitted that she and her male companion had committed the breaking and entering. The white female was identified as appellant. Notwithstanding the request in the application, the warrant only authorized the search of “the premises known as 208 McGOUTHIN Road, Conowingo, Cecil County, Maryland, described as one story “L” shaped brick rancher with a shingle roof, with a cement wall in the rear of the house with decending [sic] steps to a sliding glass door which is the main entrance to the house.” 2 While appellant was still in custody, the police executed the warrant.

They searched the premises at 208 McGlothlin Road and a 1986 Ford Bronco that was parked in front of the house. Recovered in the search, from various places in both the house and the vehicle, were suspected marijuana and controlled paraphernalia. Appellant was then charged with possession of marijuana with intent to distribute, possession of marijuana, and possession of paraphernalia. Appellant filed a pretrial motion to suppress the introduction of the marijuana and paraphernalia into evidence at her trial, claiming numerous deficiencies in the warrant and its mode of service.

At the hearing on appellant’s motion, the warrant was admitted into evidence, along with the return of the warrant, which described the items seized and the location from which they were seized. The return of the warrant noted the address of the premises as 208 McGlothlin Road. 3 Detective Downey testified to the circumstances leading to the issuance of the warrant and to the subsequent search of the house and the Bronco. He also testified that the return of the warrant accurately reflected the items found and the ³⁸² locations from which they were seized. On cross-examination, he acknowledged that the warrant did not specifically authorize the search of the Ford Bronco and that the warrant and the return of warrant specified different street names.

Downey also conceded on cross-examination that, although he located the marijuana in the Bronco and pointed it out to other officers, who actually seized it, he was not present when some of the items in the house were seized. Indeed, he could not recall whether he or someone else found those items. Finally, Downey recalled that appellant told him that the automobile she was driving that day was an '86 Ford Bronco and stated that he believed that appellant told him it belonged to her husband. Downey was not asked, and he did not volunteer, what, if any, training or expertise he had in the identification of marijuana and controlled paraphernalia.

At trial, appellant made several arguments in support of her motion to suppress. First, she called attention to the fact that the street name of the premises was misspelled in the application for warrant and in the warrant itself, urging the court to find that deficiency to be fatal. Second, concluding that the police were on a “fishing expedition”, i.e., they were not looking for a gun, she argued that the police should have gotten a specific warrant for controlled dangerous substances once controlled dangerous substances, and not a handgun, were discovered. Appellant also argued that, inasmuch as the warrant authorized only the search of the house, the search of the Bronco was illegal, rendering the controlled dangerous substances recovered in the Bronco inadmissible.

Appellant further expressed concern that some of the items seized were not illegal and did not result in charges being brought against her. The State’s rejoinder was two-fold. As to the house, it argued that the legality of the seizure of the marijuana and paraphernalia followed from the court’s finding that the warrant was validly issued on probable cause, and, as to the Bronco, the State’s position was that appellant had no standing to contest the search. The latter argument was ³⁸³ advanced by the State for the first time during its argument on the motion to suppress, after the evidence on the merits of the search had been presented and appellant had argued the point.

The trial judge denied the motion to suppress. He ruled: All right. I’m going to rule that—I’m going to deny the motion to suppress as to the goods found in the house. I think there’s certainly, in looking at the four corners of the search, the application and warrant, there certainly was ample evidence and grounds to issue the search warrant for the house.

Now, I realize that the Bronco, although it mentioned the year erroneously numerous times in the application of search warrant was not included in the actual search warrant itself, however I’m going to deny the motion to suppress on the items found in the Bronco at this point on the basis that the Defendant, Mrs. Coomes, by the testimony in the case had no possessory or ownership interest in the Bronco, and obviously Mr. Smith has none either. So I’m going to deny them on this basis. On the issue of standing, the court found that there was no evidence that appellant had a possessory or propriety interest in the Bronco. It found significant, in this regard, Det.

Downey’s testimony that appellant told him that the Bronco belonged to her husband. The court apparently also found significant appellant’s protestation that the Bronco she drove was a 1986, rather than a 1984, the year of the Bronco referred to in the application for the search warrant. On appeal, appellant contends that the lower court erred by: (1) determining that appellant had no standing to contest the search of the Bronco; (2) finding that the search warrant for the house was valid when the warrant failed to particularly describe the place to be searched; 4 and (3) finding that the controlled dangerous substances and para ³⁸⁴ phernalia were lawfully seized under the warrant when the State failed to establish that the search and seizures satisfied any exception to the warrant requirement. In appellant’s view, the latter argument has application to both the search of the house and the Bronco; however, as we will see infra, it actually applies only to the search of the home.

Appellant argues that since the warrant at issue here authorized search only of the house and then only for a small black handgun, the seizure of the marijuana and paraphernalia may not be justified pursuant to the warrant. To justify the seizures made, she continues, “the State must shoulder the heavy burden of showing that one of the exceptions [to the warrant requirement] applies.” State v. Wilson, 279 Md. 189, 194 , 367 A.2d 1223 (1977). See also DiPasquale v. State, 43 Md.App. 574, 578 , 406 A.2d 665 (1979), in which we stated: “[warrantless Fourth Amendment intrusions are presumptively unreasonable, Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), and the burden is allocated to the State of showing adequate justification for the exceptional departure from the Fourth Amendment norm.” Appellant asserts that the State failed to establish that the seizures fell within any exception to the warrant requirement. Specifically, she vigorously denies that the State proved circumstances sufficient to establish that the seized items were seized pursuant to the plain view doctrine.

In short, it is appellant’s position that the State failed to meet its burden of proving that there was probable cause for the seizures in this case. See Trusty v. State, 67 Md.App. 620 , 624 n. 1, 508 A.2d 1018 (1986), rev’d on other grounds, 308 Md. 658 , 521 A.2d 749 (1987); DiPasquale, 43 Md.App. at 578 , 406 A.2d 665 . Not unexpectedly, the State maintains that the court correctly denied the motion to suppress. It relies upon the plain view doctrine to justify the seizure from both the house and the Bronco.

Specifically, on this point, the State argues: ³⁸⁵ Police here were in search of (but never found) a small black handgun. The items recovered and their places or origin are listed on the return ... No listed places is inferably too small to contain a handgun. Appellant indulges in much creative appellate afterthought, speculating as to how the various places searched might not have accommodated the handgun.

These contentions were not raised or explored at the hearing. Because the officers were lawfully on the premises, the seizures of items in “plain view” [were] valid, (emphasis in original, footnote omitted). Because the Bronco was not listed on the warrant as a place specifically authorized to be searched, and the court did not make a finding that its exclusion was inadvertent, the State recognizes that it must justify the search of the Bronco. Thus, the State contends, first, that the Bronco is included in the term “the premises”.

United States v. Ventresca, 380 U.S. 102, 108 , 85 S.Ct. 741, 746 , 13 L.Ed.2d 684 (1965) is cited for the proposition that exclusion of the Bronco from the term “premises” would constitute the kind of “grudging ... negative attitude by reviewing courts toward warrants [which] will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” 5 Second, the State proffers that the warrantless search of the Bronco is justified by the Carroll doctrine. See Carroll ³⁸⁶ v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925). 6 Finally, the State asserts, as the trial judge found, that appellant did not prove that she had standing to contest the search. The analysis appropriate to determining the propriety of the court’s ruling as it relates to the seizures from the house is different from and yields a different result than that applicable to the seizures from the Bronco. Consequently, we will address them separately.

Addressing the seizures from the house first, we agree with appellant: if the seizures are to be sustained, it must be because the items in questions were seized pursuant to a valid warrantless Fourth Amendment intrusion. See Ross v. State, 59 Md.App. 251, 257, 261-62 , 475 A.2d 481 , cert. denied, State v. Ross, 301 Md. 177 , 482 A.2d 502 (1984); Brooks v. State, 235 Md. 23, 29-30 , 200 A.2d 177 (1964). The object of the search warrant was a small black handgun, not marijuana or paraphernalia. Thus, the items seized were not within the scope of the warrant.

Since they were not, their seizure may not be justified on the basis of that warrant. The plain view doctrine is an exception to the warrant requirement. See State v. Wilson, 279 Md. at 194-95 , 367 A.2d 1223 ; Ross v. State, 59 Md.App. at 161-62 , 475 A.2d 481 ; DiPasquale v. State, 43 Md.App. at 576-78 , 406 A.2d 665 . ³⁸⁷ This doctrine serves to supplement a previously justified intrusion, such as a search warrant for other property, and permits a warrantless seizure____ The exception, on the other hand, may not be used to expand a justified, but limited, intrusion into a general exploratory search of a person’s belongings until something incriminating at last emerges---- To confine the exception within these boundaries, the Court prohibited the use of any evidence seized outside the warrant unless (1) the police have a prior justification for the intrusion; (2) they find the evidence in plain view; (3) they find it inadvertently; and (4) it is “immediately apparent to the police that they have evidence before them____” (citations omitted) Wilson, 279 Md. at 194-95 , 367 A.2d 1223 . See generally Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971).

Thus, it is clear, in order to justify a warrantless seizure pursuant to the plain view doctrine, in addition to demonstrating that the police had prior valid justification for the intrusion, see Coolidge, 403 U.S. at 466 , 91 S.Ct. at 2038 , the State must prove circumstances which show that the evidence seized was found inadvertently, in plain view, and was such that the police were immediately aware of its significance. The latter three requirements are but a different and more precise way of stating that the circumstances must demonstrate that the police had probable cause to make the seizure, an issue upon which the State bears the burden of proof. DiPasquale v. State, 43 Md.App. at 578 , 406 A.2d 665 ; Trusty v. State, 67 Md.App. at 624 n. 1, 508 A.2d 1018 . Moreover, the State’s burden is not in any way affected by an accused’s failure to point out deficiencies in the State’s presentation of the evidence necessary to meet that burden.

Trusty, supra. Therefore, whether or not the accused argued in in the court below the existence of a deficiency in the State’s proof of probable cause, if, upon our independent constitutional reflective review of the evidence, see Parker v. State, 66 Md.App. 1, 10-11 , 502 A.2d 510 , cert. denied, 306 Md. 70 , 507 A.2d 184 ³⁸⁸ (1986), we determine that the State failed to prove any one of the four requirements of the plain view doctrine, reversal of the denial of the motion to suppress is mandated. See Trusty, 67 Md.App. at 625-630 , 508 A.2d 1018 . With these principles in mind, we now consider whether, in the case sub judice, the evidence presented at the suppression hearing was sufficient to prove that the seizures were made pursuant to the plain view doctrine.

As we have seen, Det. Downey was the only witness called by the State to justify the seizures from the house and the Bronco. His testimony concerning the seizures from the house was far from complete: he did not know who found and seized any of the items recovered; he did not know the order in which the items were seized; he was unable to testify as to the circumstances surrounding the discovery of any of the items; he did not know the location, except as set forth in the return of warrant, from which the items were taken. Det.

Downey could only testify that the items seized were those contained in the return of warrant. Our independent constitutional reflective review of the record leads us to conclude that, inasmuch as Det. Downey’s testimony failed to establish any of the circumstances surrounding the seizures from the house, only one of the four predicates—prior valid intrusion pursuant to the warrant—necessary for invoking the plain view doctrine was established. Thus, we hold that there was insufficient evidence presented to justify reliance on the plain view doctrine.

Even if we were to accept the State’s argument that, since the places searched were not inferably too small to contain a handgun, we may assume, especially when the point is not specifically argued by appellant, that the items were inadvertently found and were in plain view, we still would not agree that the trial judge correctly denied appellant’s motion to suppress. The record is noticeably deficient as to the seizing officers’ expertise and experience with controlled dangerous substances. Det. Downey, the ³⁸⁹ only officer to testify, did not mention the subject.

Indeed, the only information bearing on the expertise and experience of any of the officers is that contained in the application for warrant, and that only relates Det. Downey’s experience in the investigation and handling of violent and property crimes. Our review of the record reveals, therefore, that there was no evidence produced from which the court could have concluded that the seizing officers, by reason of their training and experience, had probable cause to believe that the items seized were marijuana and paraphernalia. The trial judge may not take judicial notice of the experience and expertise of a police officer and, from that, find probable cause for the seizure of evidence.

Trusty v. State, 67 Md.App. at 626 , 508 A.2d 1018 . In Trusty, on the basis that “the officer is an experienced narcotics officer and he’s operating in an area covertly, an area that is known to be an area of drug trafficking and his observation, from his testimony, fit the bill of the drug transaction,” the lower court found “ample probable cause to support” a search. Id., 67 Md.App. at 625 , 508 A.2d 1018 . The testimony, however, did not support the court’s findings, either as to the officer’s experience or the characterization of the area in which he was working.

In finding, upon our independent review of the record, that there was insufficient evidence to establish probable cause, we said: Thus, we believe the law to be clear that a trial judge cannot apply the knowledge personally gained from one case to the quantum of evidence presented in a later case. But, even if that were not the posture of the law, there is nothing in the record herein to indicate that the trial judge had earlier knowledge of Officer Dawkins’s training and expertise, or that in some prior case there was adequate testimony establishing