Doering v. State

McAULIFFE, Judge. A1 Wayne Doering appeals from his convictions of murder in the first degree, robbery, burglary, and related offenses, and from a sentence of death. We shall affirm the convictions but vacate the sentence and remand the case for a new sentencing proceeding. I Facts At about 1:00 a.m. on October 3, 1986, Doering and David Reinhardt, dressed in camouflage clothing and armed with knives and rifles, broke into the home of Harry Riepe, located on Jones Road in Baltimore County. 1 Mr. Riepe, who was 89 years of age, lived alone in the two and one-half story home, which, together with its surrounding 110 acres, was known as Mt.

Peru Farm. After searching the first floor of the home and gathering any valuables they wished to steal, Doering and Reinhardt proceeded to the second floor to search for additional valuables, and apparently to search for the “old man” they knew lived there. Under circumstances which will be more fully described as we ³⁹⁰ discuss the sufficiency of the evidence to show premeditation, they confronted the victim, and Doering killed him with a single shot from the .30-30 rifle he was carrying. They then gathered additional property and left, returning to a bus in which they both lived at the time, and which was parked in an area containing discarded construction equipment approximately one-quarter to one-half mile from the Riepe home.

At about 7:30 that morning, Brandon Moffett visited Doering at the bus, apparently to see Doering’s collection of guns. Doering told Moffett that he had shot and killed an old man. Doering then took Moffett to the Riepe home, so that Moffett could view the scene. As they were leaving the home, but were still in the driveway which led from the residence to Jones Road, they were seen by Mary Holt, granddaughter-in-law of the victim. 2 Mrs. Holt lived nearby, and had driven by her grandfather’s home on her way to work.

She became concerned when she saw two men, whom she described as white males, very dirty, with greasy hair, wearing blue jeans and dark shirts, both wearing glasses, and one or both carrying knives in sheaths on their belts. 3 After passing them, Mrs. Holt observed in her rear view mirror that they walked slowly out of the driveway and a short distance away from her on Jones Road, after which they stopped and turned to look at her car. She stopped, backed into the driveway to get a better look at them, and then returned to her home to report to her husband what she had seen. Mr. Holt took his wife back to the scene, and then to a nearby parking area, a truck stop, and a bar, in an unsuccessful attempt to locate the individu ³⁹¹ als she had seen. He then returned to his home, and, when he was unable to reach his grandfather by telephone, reported what had transpired to the police.

He then went to his grandfather’s home, where he met the police and discovered that his grandfather had been shot and killed. In response to a police broadcast relating the homicide and giving Mrs. Holt’s description of the two men who had been seen acting suspiciously on the victim’s property, Lieutenant Nugent and Corporal Foracappa of the Baltimore County Police Department began a search of the area. While searching sheds in the nearby Gunpowder Business Park, the officers were told by a manager or proprietor of the park that there were a couple of people living in a bus in a wooded area to the rear of the park. That individual also advised the police that “they were shooting back there often and to be careful if [you go] back there.” The officers drove on an unpaved road which led from Jones Road, through an area of discarded construction equipment on a lot owned by B & B Construction Company, to a point just short of the location of the bus.

Approaching on foot, they observed near the bus two men who fit the description given earlier by Mrs. Holt. As they approached with their service revolvers drawn, both officers noted shell casings on the ground, some of which Lieutenant Nugent described as not being tarnished, indicating that weapons had recently been fired there. Additionally, Lieutenant Nugent observed a third person entering the bus and closing the door behind him, and Corporal Foracappo saw the bus door close, although he did not see anyone enter the bus. The bus was described as a small, 30-foot school bus, apparently converted for use as a mobile home or camper.

Moffett, who had been standing next to a bicycle at the front of the bus, and Doering, who had been seated on a stack of old tires more to the side of the bus, were directed to place their hands on the front of the bus, and were subjected to a pat-down search for weapons. A bayonet knife and buck knife were taken from Moffett and a buck knife and three shotgun shells were taken from Doering. ³⁹² The officers then asked Moffett and Doering who had gotten onto the bus, and were told “no one.” Although the officers told them that they had seen the door close behind someone, Moffett and Doering again denied there was anyone else on the bus. The officers then called out instructions to anyone on the bus to come out, but there was no response. Then, after either Doering or Moffett said “come on out, Dave,” Reinhardt exited the bus.

After Reinhardt had been patted down for weapons, the officers asked who owned the bus, and were told by Reinhardt or Doering that they lived on the bus. The officers again inquired as to whether anyone else was on the bus, and were told by Reinhardt to “go check for yourselves.” Lieutenant Nugent entered the bus, which he found to be very dark because the windows were covered, and called out to anyone who might be inside. Receiving no reply, he took one or two steps and encountered a rifle. Backing out of the bus with the rifle, he found it was loaded, with a round in the chamber.

After removing the bullets from the rifle, Lieutenant Nugent again entered the bus and called out to any possible occupants. Again, receiving no reply, he allowed his eyes to adjust to the dim light, and then observed “weapons everywhere,” including rifles, shotguns, swords, knives, and bayonets. He removed the rifles and shotguns from the front area of the bus, finding all but two of them to be loaded. He could not see beyond, and did not go past, a curtain that concealed the rear portion of the bus.

As Lieutenant Nugent explained it, he intended to call in police dogs to search beyond the curtain, but “I got as many weapons as I could reach and made them all safe.” Shortly thereafter, other police officers brought Mrs. Holt to the bus, and she identified Doering and Moffett as the two men she had seen on her grandfather’s property earlier that morning. Moffett, Doering, and Reinhardt were then placed under arrest, advised of their rights, and taken to police headquarters, where Doering made a full confession. ³⁹³ Doering elected a court trial on the issue of guilt or innocence, and was found guilty of first degree murder, robbery, burglary, and related offenses. He elected a jury trial on the issue of punishment for the murder, and the jury found the appropriate sentence to be death. An appeal was taken to this Court in accordance with Maryland Rule 898 and Article 27, § 414 of the Code (1957, 1987 Repl.Vol.).

II Suppression of Evidence Doering contends that the evidence relating to the guns taken from the bus by Lieutenant Nugent should have been suppressed as the product of an illegal search and seizure, and that evidence of his confession should have been suppressed because it was the product of an illegal arrest. We divide these contentions into three parts, and discuss each separately. A Entry onto the Land Doering contends that because he made his home in the bus, and because the police came within the curtilage of his “home” without his permission, any search or seizure that followed was in violation of the Fourth Amendment. He is wrong for several reasons.

First, as we shall discuss more fully in Part II-B, we find that under all the circumstances of this case the bus was properly treated as a vehicle for purposes of the Fourth Amendment, and thus it had no curtilage. Second, even assuming that the bus had sufficient characteristics of a residence to justify consideration of the curtilage concept, 4 there was no definable curtilage in this case. The bus was on, and at the terminus of, ³⁹⁴ an unpaved road that traversed the B & B Construction Company lot. There was no enclosure of any kind, nor any other physical characteristics that could signal the existence of a discrete area contiguous to the bus and reserved for adjunct residential use.

Doering seems to suggest that the entire B & B lot must be treated as curtilage to the bus, but offers neither legal nor factual justification for that rather extraordinary proposition. Finally, even if we assume that Doering was within the protected curtilage when the police approached, we find no violation of Fourth Amendment protections. The police entered the property by way of a private road from a public street, in the course of a legitimate investigation of a serious crime. They encountered no obstacles or warnings as they entered, and under these circumstances we find that they had a right to be there.

As the Oregon Court of Appeals said in State v. Corbett, 15 Or.App. 470 , 516 P.2d 487, 490 (1983), “[cjriminal investigation is as legitimate a societal purpose as is census taking or mail delivery.” See also Brown v. State, 75 Md.App. 22 , 540 A.2d 143 (1988). See generally 1 LaFave, Search and Seizure, § 2.3(f) (1987). The concept of a reasonable expectation of privacy in a particular place is not simplistically singular. It involves, instead, a bundle of privacy interests.

One who closes the door to a glass telephone booth may have a reasonable expectation of privacy as to what he is about to say, but no reasonable expectation that the number he dials may not be seen by a casual observer outside the booth. Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). Similarly, one may have a legitimate expectation that police officers will not conduct a warrantless intrusive search of the curtilage to his home, but have no reasonable expectation that police officers will not simply enter a portion of that curtilage in the course of an investigation. Doering enjoyed no constitutionally reasonable expectation that police officers would be excluded from the place where they confronted him. ³⁹⁵ B Search of the Bus The State contends that the warrantless entry into the bus, and the seizure of weapons from within it, were justified on two bases: 1) a limited intrusion of a vehicle reasonably required for the protection of the investigating officers, and 2) a consent search.

The State eschews reliance upon the automobile exception established by Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925). Petitioner argues that under the circumstances here present the bus must be considered a dwelling, and that there was no showing of an exigency sufficient to justify the warrantless entry into a home. Concerning the issue of consent, he does not deny that the officer was invited to enter the bus. Rather, he contends that the consent was not voluntarily given, but was a response to a threat of force.

The first justification for the search advanced by the State is grounded upon the exception recognized in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). There, the Supreme Court recognized that certain on-the-spot police activity cannot be subject to the warrant procedure, but instead must be tested against the Fourth Amendment’s general proscription against unreasonable searches and seizures. Recognizing that “a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime,” 392 U.S. at 26-27 , 88 S.Ct. at 1882-83, the Court held that where specific and articulable facts and the inferences fairly deducible therefrom would warrant a person of reasonable caution in the belief that a search for weapons should be conducted, and the search is reasonably related in scope to the circumstances which justified the intrusion in the first place, a warrantless search may be reasonable. ³⁹⁶ Terry involved a pat-down of the person, but subsequent cases have made it clear that legitimate state interests in police safety may justify other types of intrusion. In Pennsylvania v. Mimms, 434 U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977), the Court held that once a motor vehicle has been lawfully detained for a traffic violation, the police may order the driver out of the vehicle without violating the Fourth Amendment.

The Court reasoned that a legitimate concern for the safety of the officer outweighed the minor inconvenience to the driver, and thus the action was reasonable. In Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972), the Court upheld as reasonable the action of a police officer in reaching into a vehicle and removing a gun from the occupant’s waistband, where the officer was conducting a legitimate investigation, the surrounding circumstances gave him ample reason to fear for his safety, and he had received information that the person he was investigating was carrying a loaded weapon at his waist. In Michigan v. Long, 463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983), the Supreme Court held that a limited Terry -type search could extend beyond the person of the suspect, and into the passenger compartment of a motor vehicle, if a reasonably prudent person in the position of the officer would have entertained an articulable suspicion that the protective search was reasonably necessary to neutralize the threat of physical harm. Borrowing from Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), and New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), the Court held that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons, (footnote omit ³⁹⁷ ted).

Michigan v. Long, supra, 463 U.S. at 1049 , 103 S.Ct. at 3481 . The Court made clear that not every investigative stop of an automobile will justify a search of the passenger compartment for weapons, but that the level of suspicion identified in Terry must be present. Id. at 1049-50, n. 14, 103 S.Ct. at 3481, n. 14 . Although the Belton concept engrafted upon Terry -type searches provides a bright-line rule for determining the permitted area of a limited search of a motor vehicle for weapons, the more difficult question of when such a search is reasonable within the meaning of the Fourth Amendment necessarily requires a careful balancing of interests under the particular facts of each case.

The justification for the intrusion must be balanced against the character of the intrusion. Circumstances that justify a brief “stop” for investigation may not be sufficient to support a “frisk” for weapons. Where the intrusion is minimal, it may be justified by the general knowledge that police officers are statistically at risk in certain situations. Pennsylvania v. Mimms, supra.

Where the justification is specific and substantial, an intrusion that exceeds an ordinary frisk may be reasonable. Adams v. Williams, supra. In assessing the gravity of an intrusion, we consider the objective expectation of privacy that reasonably existed, and the extent to which it was invaded. When the expectation of privacy is legitimately high, only the most exigent circumstances will justify a warrantless intrusion.

Thus, when the sanctity of the home is involved, the exceptions to the warrant requirement are few. Thompson v. Louisiana, 469 U.S. 17 , 105 S.Ct. 409 , 83 L.Ed.2d 246 (1984); Welsh v. Wisconsin, 466 U.S. 740 , 104 S.Ct. 2091 , 80 L.Ed.2d 732 (1984); Michigan v. Clifford, 464 U.S. 287 , 104 S.Ct. 641 , 78 L.Ed.2d 477 (1984). Where a motor vehicle is involved, however, the exceptions are more numerous. This is true not only because the mobility of an automobile tends to create an omnipresent exigency, but also because “the ³⁹⁸ expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.” South Dakota v. Opperman, 428 U.S. 364, 367 , 96 S.Ct. 3092, 3096 , 49 L.Ed.2d 1000 (1976).

Difficulty arises, however, when the distinction between one’s home and one’s means of transportation becomes blurred. The Supreme Court faced this problem in California v. Carney, 471 U.S. 386 , 105 S.Ct. 2066 , 85 L.Ed.2d 406 (1985), a case involving the warrantless search of a motor home parked in a lot in downtown San Diego. Carney argued that because his vehicle was capable of functioning as a home, and because at the time of the search it was being put to a use more consistent with that of a residence than that of a vehicle, he should be afforded the expectation of privacy one would have in his home. The Supreme Court disagreed.

Although noting that Carney’s vehicle possessed some, if not many, of the attributes of a home, the Court declined to establish categories for Fourth Amendment purposes based upon “the size of the vehicle and the quality of its appointments.” 471 U.S. at 393 , 105 S.Ct. at 2070. Rather, the Court focused upon the objective picture presented by the facts. A mobile home parked on or near a public road, retaining the indicia of ready mobility, will ordinarily be treated as a vehicle. Although not passing on the issue, the Court suggested that the same mobile home, on blocks and connected to utilities in a mobile home park, wbuld likely qualify for the Fourth Amendment protection afforded a home, because mobility is obviously lacking and the clear objective indications are that the vehicle is being used as a residence.

Applying the principles of Carney to the facts of this case, we are persuaded that the circumstances justified the officers’ treatment of the bus as a vehicle rather than a home for purposes of conducting a limited search for weap ³⁹⁹ ons in a portion of the bus. 5 To the officers, the bus presented the appearance of an instantly mobile vehicle. 6 It was not on blocks, but rested on its own fully-inflated tires. It was not connected to any utilities, nor was it located in a mobile home park or other similar area. It was fully equipped with lights, turn signals, mirrors, radio antennas, windshield wipers, and the like. Its window glass was intact and clean.

It bore Virginia license tags. 7 It was located on and at the end of an unpaved, but clearly established, roadway which traversed the B & B yard, and which intersected with Jones Road approximately 100 yards to the west. The bus had been backed into the end of the roadway, so that it pointed toward Jones Road. Although a dilapidated sofa was located in front of the bus, the sofa readily could have been moved, or the bus could have been backed up a few feet and then driven out to the right of the sofa. On the other hand, the officers had been told that people were living in the bus, and they could observe that interior curtains had been drawn across the windshield.

We conclude that under these circumstances the officers were not required to view the bus as a home. Although Doering lived in the bus, his expectation of privacy could be no greater than one who elects to live in his automobile or van. As the Supreme Court said in Carney , the public is fully aware that it is accorded less privacy in its automobiles than in its homes. 471 U.S. at 392 , 105 S.Ct. at 2070. Unless the surrounding circumstances indicate that the vehicle has lost its characteristic mobility and is being used exclusively as a residence (as opposed to a combination residence and means of transportation) it is not unreason ⁴⁰⁰ able to limit the expectation of privacy to that ordinarily associated with a vehicle.

A reasonably prudent police officer looking at this bus would have seen a vehicle and not a home. Doering’s reasonable expectation of privacy properly may be gauged by the circumstances under which he chose to live. These police officers were investigating a murder by gunshot that had occurred not more than one-quarter to one-half mile from the location of the bus. They had a description of several men who were seen acting in a suspicious manner near the victim’s residence less than an hour before.

The two men they saw outside the bus exactly fit the description they had been given. They also had been told the men who lived on the bus did a lot of shooting there, and to be careful. They had seen a number of rifle and shotgun shell casings in the immediate area of the bus, some of which were not yet tarnished, indicating that they had been recently fired. As a result of a pat-down search for weapons, they removed a buck knife and three shotgun shells from Doering, and a bayonet knife and buck knife from Moffett. 8 They knew that Moffett and Doering had lied to them about whether anyone else was on the bus, and that Reinhardt had attempted to hide, coming out of the bus only at the request of his friends.

The two officers faced a situation fraught with danger. .They had no way of knowing whether other persons were on the bus, and they had no confidence in the suspects’ statements that no one else was there. They had every reason to believe that there were guns on the bus, not only from what they had been told, but also from what they had observed. They had a right to detain the suspects until the victim’s granddaughter could be brought to the scene for a show-up, and yet they were vulnerable to attack by any confederates still on the bus, ⁴⁰¹ and at risk if there were, in fact, guns located in close proximity to the suspects. Under these circumstances, we conclude that a limited search for weapons, conducted in the passenger compartment of the bus, was reasonable.

No greater intrusion took place than was necessary under the circumstances. Even if, in retrospect, we could conjure up an alternative method by which the officers could have gained some measure of protection, that would not be decisive. These officers were faced with the need to make a quick decision as to how to protect themselves, and under these circumstances we believe their decision was reasonable. See Michigan v. Long, supra, 463 U.S. at 1052 , 103 S.Ct. at 3482 .

We also conclude that the initial entry into the bus by Lieutenant Nugent may be sustained on the ground of consent. After Reinhardt came out at the urging of his companions, the police inquired of all three suspects whether anyone remained on the bus. Reinhardt answered that there was no one else, and said “go check for yourselves,” or words to that effect. Lieutenant Nugent entered the bus and immediately encountered a substantial number of rifles and shotguns, most of them loaded.

He removed and unloaded the weapons. He did not find anyone else on the bus, although he declined to search beyond a curtain located near the rear of the bus. The first question is whether Reinhardt, who was living on the bus and who therefore had authority to consent to the entrance by another into a common area, made the statement attributed to him. Both officers testified that he did, and no one else who was present took the stand to deny that fact, or to suggest that the circumstances under which the statement was made were other than as related by the police.

We accept the finding that the statement was made. The next and more difficult question is whether the consent was voluntary in the constitutional sense. The burden of proving that the consent was freely and voluntarily given is upon the State. United States v. Mendenhall, 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980); Bump ⁴⁰² er v. North Carolina, 391 U.S. 543, 548 , 88 S.Ct. 1788, 1791 , 20 L.Ed.2d 797 (1968).

Consent that is coerced by threats or force, or granted only in submission to a claim of lawful authority, is not voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 233 , 93 S.Ct. 2041, 2051 , 36 L.Ed.2d 854 (1973). Coercion that defeats voluntariness may be by explicit or implicit means, by implied threat or covert force. 412 U.S. at 228 , 93 S.Ct. at 2048 . Although custody is a factor to be considered in determining voluntariness, it is not dispositive, and a person in custody may validly consent to a search.

United States v. Watson, 423 U.S. 411, 424 , 96 S.Ct. 820, 828