Dunnuck v. State

BELL, Chief Judge. In this case, the issue that we must decide involves the interplay between Maryland Code (1957, 2000 Repl.Vol.) Article 27, § 594B and the limitations that the Fourth Amendment to the United States Constitution places on the right of the police to effect a warrantless arrest in a defendant’s home. We shall hold that § 594B did not authorize the arrest at issue in this case and, so, reverse the judgment of the Court of Special Appeals. ²⁰² The Supreme Court of the United States has considered and discussed, at length, the permissible limits of warrantless arrests. 1 See Welsh v. Wisconsin, 466 U.S. 740 , 104 S.Ct. 2091 , 80 L.Ed.2d 732 (1984); Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980). In Payton , the Court reversed convictions in companion cases in which the police, who had ample time to have obtained a warrant, entered private residences without a warrant and, in the absence of exigent circumstances justifying the entry, in one case, Riddick v. New York, 445 U.S. at 578 , 100 S.Ct. at 1375 , 63 L.Ed.2d at 646 , effected an arrest of the accused.

Explaining that “the warrantless arrest of a person is a species of seizure required by the [Fourth] Amendment to be reasonable” and that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” the Court held: “it is a ‘basic principle of Fourth Amendment Law 1 that searches and seizures inside a home without a warrant are presumptively unreasonable.” Id., 445 U.S. at 585, 586 , 100 S.Ct. at 1379, 1380 , 63 L.Ed.2d at 650 , 651 (quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125, 2134 , 32 L.Ed.2d 752 (1972)). “The Fourth Amendment,” the Court further elaborated, “has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” 445 U.S. at 590 , 100 S.Ct. at 1382 , 63 L.Ed.2d at 653 . Payton , therefore, stands firmly for the proposition that the Fourth Amendment “prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” 445 U.S. at 576 , 100 S.Ct. at 1375 , 63 L.Ed.2d at 645 . ²⁰³ See also Johnson v. United States, 333 U.S. 10, 14 , 68 S.Ct. 367, 369 , 92 L.Ed. 436, 440 (1948) (“The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent”); Taylor v. United States, 286 U.S. 1, 6 , 52 S.Ct. 466, 467 , 76 L.Ed. 951, 953 (1932) (“Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guaranties (Const.Amend. 4) against unreasonable search”); Agnello v. United States, 269 U.S. 20, 33 , 46 S.Ct. 4, 6 , 70 L.Ed. 145, 149 (1925) (“Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant.

And such searches of that place are held unlawful notwithstanding facts unquestionably showing probable cause”); United States v. McCool, 526 F.Supp. 1206, 1208 (M.D.Tenn.1981). The principles announced in Payton were applied and elucidated in Welsh, supra. In that case, the issue for the Court’s resolution was the propriety of the accused’s arrest for noncriminal traffic charges by officers who entered his home in the nighttime without a warrant. Acknowledging that the gravity of the offense for which the accused is arrested is an important factor in the determination of whether exigency exits, 466 U.S. at 753 , 104 S.Ct. at 2099 , 80 L.Ed.2d at 745 , the Court concluded that the arrest in that case was not justified by any exigency in light of the minor nature of the offense involved. 466 U.S. at 753-54 , 104 S.Ct. at 2099-2100 , 80 L.Ed.2d at 745-46 .

Moreover, in discussing the applicable principles, the Court made clear that “[bjefore agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” 466 U.S. at 750 , 104 S.Ct. at 2098 , 80 L.Ed.2d at 743 . The Court stated explicitly ²⁰⁴ that “no exigency is created simply because there is probable cause to believe that a serious crime has been committed,” 466 U.S. at 753 , 104 S.Ct. at 2099 , 80 L.Ed.2d at 745 , and, further, that “[E]xceptions to the warrant requirement are ‘few in number and carefully delineated,’ United States v. United States District Court, supra, [407 U.S.], at 318 [, 92 S.Ct. at 2137 , 32 L.Ed.2d at 767 ], and that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Indeed, the Court has recognized only a few such emergency conditions, see, e.g., United States v. Santana, 427 U.S. 38, 42-43 [, 96 S.Ct. 2406, 2409-2410 , 49 L.Ed.2d 300 ] (1976) (hot pursuit of a fleeing felon); 2 Warden v. Hayden, 387 U.S. 294, 298-299 [, 87 S.Ct. 1642, 1645-1646 , 18 L.Ed.2d 782 ] (1967) (same); Schmerber v. California, 384 U.S. 757, 770-771 [, 86 S.Ct. 1826, 1835-1836 , 16 L.Ed.2d 908 ] (1966) (destruction of evidence); Michigan v. Tyler, 436 U.S. 499, 509 [, 98 S.Ct. 1942, 1949 , 56 L.Ed.2d 486 ] (1978) (ongoing fire), and has actually applied only the ‘hot pursuit’ doctrine to arrests in the home, see Santana, supra.” Id., 466 U.S. at 749-50 , 104 S.Ct. at 2097 , 80 L.Ed.2d at 743 . Thus, it is well settled that the Fourth Amendment to the United States Constitution is not infringed when a warrantless search and seizure of a dwelling is conducted pursuant to exigent circumstances.

Michigan v. Tyler, 436 U.S. 499, 509 , 98 S.Ct. 1942, 1949 , 56 L.Ed.2d 486, 498 (1978); United States v. Santana, 427 U.S. 38, 42-43 , 96 S.Ct. 2406, 2409-10 , 49 L.Ed.2d 300, 305-06 (1976); Warden v. Hayden, 387 U.S. ²⁰⁵ 294, 298-300, 87 S.Ct. 1642, 1645-46 , 18 L.Ed.2d 782, 787-88 (1967); Schmerber v. California, 384 U.S. 757, 770-71 , 86 S.Ct. 1826, 1835-36 , 16 L.Ed.2d 908, 919-20 (1966); Ker v. California, 374 U.S. 23, 37-41 , 83 S.Ct. 1623, 1632-34 , 10 L.Ed.2d 726, 740-42 (1963). Our cases, see e.g., Carroll v. State, 335 Md. 723, 729 , 646 A.2d 376, 379 (1994); Oken v. State, 327 Md. 628, 646 , 612 A.2d 258, 267 (1992); McMillian v. State, 325 Md. 272, 281 , 600 A.2d 430, 434 (1992); Stackhouse v. State, 298 Md. 203, 211-12 , 468 A.2d 333, 338 (1983); Lebedun v. State, 283 Md. 257, 278 , 390 A.2d 64, 73 (1978); Nilson v. State, 272 Md. 179, 191 , 321 A.2d 301, 307 (1974); Davis v. State, 236 Md. 389, 395 , 204 A.2d 76, 80 (1964), cert. denied, 380 U.S. 966 , 85 S.Ct. 1113 , 14 L.Ed.2d 156 (1965), and those of the Court of Special Appeals, e.g. Bellamy v. State, 111 Md.App. 529, 534-35 , 682 A.2d 1185, 1187-88 (1996); Torres v. State, 95 Md.App. 126, 129 , 619 A.2d 566, 568 (1993); Smith v. State, 72 Md.App. 450, 456-60 , 531 A.2d 302, 305-07 (1987); Lett v. State, 51 Md.App. 668, 672-73 , 445 A.2d 1050, 1053-54 (1982), are in accord. The “exigent circumstances” exception is a narrow one; “exigency’ implies urgency, immediacy, and compelling need.’ ” Stackhouse, 298 Md. at 212 , 468 A.2d at 338 .

Thus, we have explained, see Carroll, 335 Md. at 729 , 646 A.2d at 379 (quoting Michigan v. Tyler, 436 U.S. at 509 , 98 S.Ct. at 1949 , 56 L.Ed.2d at 498 ), that, whenever a “compelling need for official action and no time to secure a warrant” converge, exigent circumstances exist. Stated differently, “[e]xigent circumstances are ‘those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search until a warrant could be obtained.’ ” Wengert v. State, 364 Md. 76, 85 , 771 A.2d 389, 394 (2001) (quoting United States v. Robertson, 606 F.2d 853, 859 (9th Cir.1979)). See McDonald v. United States, 335 U.S. at 459-460, 69 S.Ct. 191 (Jackson, J. concurring) (“When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant”). Relevant to the determination of whether exigent ²⁰⁶ circumstances justifying a warrantless arrest effected in a private residence are present is the opportunity of the police to have obtained a warrant.

See Payton, 445 U.S. at 583 , 100 S.Ct. at 1378 , 63 L.Ed.2d at 648-49 ; Welsh, 466 U.S. at 749-50 , 104 S.Ct. at 2097 , 80 L.Ed.2d at 743 . See also Smith v. State, 72 Md.App. 450, 464 , 531 A.2d 302, 309 (1987) (“in reviewing the legality of a warrantless arrest effected in a private residence, the presence or absence of exigent circumstances, which necessarily involves an assessment of the opportunity of the police to have obtained a warrant prior to invading the residence to make the warrantless arrest, is a highly relevant factor to be considered by a reviewing court and, indeed, is critical, analytically, to that determination.”), citing United States v. McCool, 526 F.Supp. 1206, 1209 (M.D.Tenn.1981). We have found exigent circumstances where there is reason for the police to believe that a burglary recently had occurred, Wengert, 364 Md. at 85 , 771 A.2d at 389 ; Carroll, 335 Md. at 730 , 646 A.2d at 379 , or where they reasonably believe injured persons or suspects may still be on the premises. Oken, 327 Md. at 646 , 612 A.2d at 267 , but not when there is no risk of the destruction or removal of evidence.

McMillian, 325 Md. at 281 , 600 A.2d at 434 . The burden of establishing exigent circumstances is on the State. Stackhouse, 298 Md. at 217 , 468 A.2d at 341 . The exception for exigent circumstances is construed narrowly.

Buie v. State, 314 Md. 151, 160 , 550 A.2d 79, 84 (1988); Stackhouse, 298 Md. at 215-216 , 468 A.2d at 340 . The exigent circumstances, therefore, must be genuine, Stackhouse, 298 Md. at 216 , 468 A.2d at 340 ; see Commonwealth v. Huffman, 385 Mass. 122 , 430 N.E.2d 1190, 1191-92 (1982); Howe v. State, 112 Nev. 458 , 916 P.2d 153, 159-61 (1996); State v. O’Herron, 153 N.J.Super. 570 , 380 A.2d 728 , 733 (1977); State v. Kesler, 111 Ohio App.3d 98 , 675 N.E.2d 875, 879 (3d 1996); they cannot be created or precipitated by police actions or conduct designed to have that result. Spiering v. State, 58 Md.App. 1, 12 , 472 A.2d 83, 89 (1984). See United States v. Duchi, 906 F.2d 1278, 1284 (8th Cir.1990) (“We have recently held, adopting the view consistently taken by our ²⁰⁷ sister circuits, that the situations of urgency protected by this exception cannot be created by police officers”); United States v. Morgan, 743 F.2d 1158, 1163 , (6th Cir.1984), cert. denied, 471 U.S. 1061 , 105 S.Ct. 2126 , 85 L.Ed.2d 490 (1985) (No exigency where the arrest is “a planned occurrence, rather than the result of an ongoing field investigation”); Hornblower v. State, 351 So.2d 716, 718 (Fla.1977) (“[T]he suspicious movement which occurred when the police announced their presence cannot supply the exigent circumstances for the warrantless search”); State v. Schur, 217 Kan. 741 , 538 P.2d 689, 695 (1975) (“[lit is our conclusion that if any exigency existed it was created by the acts of the officer”); State v. Wagoner, 126 N.M. 9 , 966 P.2d 176, 180 (1998), citations omitted (“[T]he exigency should not be one improperly created by law enforcement officers.... [C]ourts will not permit a warrantless entry if it appears that the officers have organized their conduct for the purpose of creating an exigency that presumably would justify a warrantless entry”); State v. Jenkins, 104 Ohio App.3d 265 , 661 N.E.2d 806 (1995) (probable cause cannot justify warrantless entry precipitated by exigent circumstances of the police’s own making.); State v. Williams, 615 N.E.2d 487 (Ind.Ct.App.1993) (although the officers had probable cause to believe drugs present in the defendant’s residence, the police created the “emergency” by knocking on the door); State v. Kelgard, 40 Or.App. 205 , 594 P.2d 1271, 1273 (1979) (“... whether exigent circumstances exist is normally determined at the time the officer with probable cause decides whether to proceed with or without a warrant.

The officer who chooses to act without a warrant cannot create his own exigent circumstances by a premature confrontation with a potential defendant”); State v. Kiekhefer, 212 Wis.2d 460 , 569 N.W.2d 316, 326 (App.1997) (“Here the agents’ conduct-an unannounced warrantless entry-created any potential danger, and the exigent circumstances resulting from that conduct cannot justify the warrantless entry”). Maryland Code (1957, 2000 Repl.Vol.) Article 27, § 594B, as relevant, provides: ²⁰⁸ “(a) A police officer may arrest without a warrant any person who commits, or attempts to commit, any felony or misdemeanor in the presence of, or within the view of, such officer. (b) A police officer who has probable cause to believe that a felony or misdemeanor is being committed in the officer’s presence or within the officer’s view, may arrest without a warrant any person whom the officer may reasonably believe to have committed such offense.” Pursuant to this statute, an officer who witnesses the commission of a felony or misdemeanor, or who simply has probable cause that a felony or misdemeanor is being committed in his or her presence, may arrest the perpetrator or suspected perpetrator, without the necessity of obtaining a warrant. On this authority and that of Griffin v. State, 200 Md. 569, 574 , 92 A.2d 743, 745 (1952), cert. denied, 345 U.S. 907 , 73 S.Ct. 647 , 97 L.Ed. 1343 (1953), in which this Court “specifically h[e]ld that it is lawful for a police officer without a warrant to enter and search a dwelling when he can see from the outside that a crime is being committed,” and recalling the observation of the Court of Special Appeals in Brown v. State, 15 Md.App. 584, 605 , 292 A.2d 762, 774 (1972), that “a valid visual observation ... furnishes probable cause for ... the warrantless entry to effect an arrest for a crime being committed in the officer’s presence,” the Court of Special Appeals, in an unreported opinion, held that “[w]here, from a lawful vantage point outside a private home, a law enforcement officer observes an offense being committed inside the home, the officer may forcibly enter the home to make an arrest.” Squarely presented by this case, then, is the issue whether the arrest authority prescribed by § 594B “trumps,” to use the petitioner’s word, the limitations that the Fourth Amendment to the United States Constitution 3 imposes on the power ²⁰⁹ forcibly to enter a home to make a warrantless arrest. 4 ²⁰⁸ “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be ²⁰⁹ violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” We now turn to the facts of the present case.

Late on the morning of June 8, 1999, Deputy John Meyers of the Queen Anne’s County Sheriffs Department received an anonymous telephone call reporting that marijuana plants could be seen in a window of a “white house, single story house, just in front of the Tuck Davidson’s Excavating business” on Flat Iron Square Road, which was “maybe about 15 minutes” from the courthouse in Centreville. Having notified his partner, Detective Bruce Layton, and unsuccessfully attempting to reach his supervisor for instructions as to how to proceed, Deputy Meyers and Det. Layton drove to the described location and from the driveway of the excavating business, observed, as also described, what they believed to be marijuana in a birdcage in a side window. Det.

Layton knocked on the front door of the house. When there was no answer, he and Deputy Meyers drove approximately one eighth of a mile to a parking lot, from which they still could see the house. There, Deputy Meyers received a response to his page to his supervisor, who advised that they should ascertain whether someone was home and try to obtain consent to search, but if no one was at home, or came back within ²¹⁰ a short time, to go and get a search warrant. 5 Although they were aware that no one was at home, rather than go and get a search warrant as they were advised to do, the officers called for back up units to “sit on the residence and see if somebody did return to the residence and then we would possibly get a search warrant for the house.” It was 1:00 p.m. when Deputy Meyers and Det. Layton drove up to the house and saw the marijuana.

It was about 2:00 p.m. when Trooper Guyer, one of the back-up units for which they had called, arrived. The petitioner arrived shortly thereafter and went inside the house. Sometime after the petitioner’s arrival and entry into the house — from ten to fifteen minutes — Deputy Meyers, Det. Layton, Trooper Guyer and Corporal Deward Coner, also of the Sheriffs Department, approached the petitioner’s house.

Before their actual arrival, about three minutes before they approached the front door, however, according to Deputy Meyers, a pick-up truck drove into the driveway next door to the petitioner’s house and kept going, but not before Deputy Meyers observed that the driver looked “at us really suspiciously.” 6 Deputy Meyers also stated that he thought that the truck was going into the petitioner’s driveway. All of the officers, except Deputy Meyers, who was stationed at the window at which the birdcage containing the marijuana could be seen, approached the front door. Det. Layton testified that he knocked on the door and, in response, the petitioner “opened the Venetian blinds and asked who is it,” to which the detective replied, “Queen Anne’s County ²¹¹ Drug Task Force.

We need[ ] to come in.” Shortly after the petitioner asked them to “hold on a minute,” 7 Deputy Meyers yelled that the plants were moving, prompting Det. Layton to begin “kicking on the door.” Deputy Meyer’s testimony was consistent. He testified to hearing footsteps and then seeing the “cage