Dyson v. State

MOYLAN, Judge. In a non-jury trial in the Circuit Court for St. Mary’s County, the appellant, Kevin Darnell Dyson, was convicted of conspiracy to possess cocaine with intent to distribute. On this appeal, he raises the two contentions 1. that the trial court erroneously denied his motion to dismiss the indictment because of the State’s failure to bring him to trial within 180 days; and ⁴¹⁷ 2. that the trial court erroneously denied his motion to suppress the physical evidence. The Forfeiture of the Right to Complain We see no merit in the appellant’s first contention.

Following his indictment on July 29, 1996, the appellant first appeared before the court for arraignment on September 6. That was the day, therefore, on which the 180-day clock of Maryland Rule 4-271 began to tick. Pursuant to the Rule, the appellant was entitled to a trial on or before March 4, 1997. Trial was initially set for January 7.

On January 3, the State moved for a postponement of the trial date and that motion was granted. The trial was subsequently set for April 15. That January 3 postponement, therefore, turned out to be the critical postponement that caused the trial to be held beyond the 180-day deadline. The appellant’s present complaint that the 180-day rule was violated because of the failure of the court to conduct a “good cause” hearing before the administrative judge, however, is quite beside the point.

Even assuming a violation of Rule 4-271 and Article 27, § 591, the appellant, himself a party to the violation, may not exploit it. The appellant overlooks two closely related and very fundamental principles. When an attorney represents a client in the trial of a lawsuit, the attorney 1) is not a party to the lawsuit and 2) is not a stranger to his client, notwithstanding a discernible tendency of defendants to distance themselves from defense counsel whenever a trial goes badly. The attorney is the agent of the client.

With limited exceptions not here pertinent, the defense attorney, therefore, is authorized by basic principles of agency to make decisions for a defendant that are binding on the defendant. When the State, in January of 1997, sought a postponement of the January 7 trial date in order to obtain a transcript of testimony taken at a motions hearing on December 30, 1996, counsel for the appellant expressly stated that he had no objection to such a postponement. There was still, to be sure, ⁴¹⁸ ample time within which to reschedule the trial before the March 4 deadline. It was defense counsel, however, who indicated that he would be out of the state for the entire month of February.

A scheduling accommodation for the benefit of defense counsel is presumptively an aspect of the total defense interest and not something antithetical to it. On behalf of the appellant, therefore, there was filed, through his attorney, a “Waiver of the 180-Day Rule.” The appellant, with ill grace, now seeks to repudiate that action taken by his agent on his behalf. He may not do so. In State v. Brown, 307 Md. 651, 658 , 516 A.2d 965 (1986), the Court of Appeals, through Judge Eldridge, flatly characterized the sanction of dismissal as inappropriate when a defendant, directly or through counsel, has consented to such postponement: Finally, even when a circuit court criminal case has been postponed beyond the 180-day time limit in violation of § 591 and Rule 746, the sanction of dismissal is inapplicable “where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date in violation of Rule 746.” State v. Hicks, supra, 285 Md. [310] at 335, 403 A.2d 356 [1979].

See Pennington v. State, supra, 299 Md. [23] at 28-29, 472 A.2d 447 [1984]; State v. Frazier, supra, 298 Md. [422] at 447 n. 17, 470 A.2d 1269 [1984]; Goins v. State, supra, 293 Md. [97] at 108, 442 A.2d 550 [1982]. This is not because the defendant, by his action or consent, has “waived” the requirements of § 591 and Rule 746, so that the requirements are inapplicable. Rather, it is because “[i]t would ... be entirely inappropriate for the defendant to gain advantage from a violation of the rule when he was a party to that violation.” State v. Hicks, supra, 285 Md. at 335 , 403 A.2d 356 . (Emphasis supplied).

As recently as Jackson v. State, 120 Md.App. 113, 136-37 , 706 A.2d 156 (1998), Judge Eyler for this Court referred to the inappropriateness of the dismissal sanction when the defendant has consented to the violation of the Rule: ⁴¹⁹ Under Hicks and its progeny, when a trial date is postponed beyond the 180 day period, without a finding of the requisite cause by the administrative judge or his or her designee, dismissal is mandatory unless the defendant seeks or expressly consents to a trial date in violation of the rule. State v. Parker, 847 Md. 533 , 537-38, 702 A.2d 217 (1995); Goins, 293 Md. at 107-08 , 442 A.2d 550 ; Franklin [v. State], 114 Md.App. [530] at 534, 691 A.2d 257 [1997], (Emphasis in original). The actions of counsel in this regard, moreover, are binding on a defendant and are not sapped of vitality simply because the defendant has not directly or personally participated in the decision-making process. In Woodlock v. State, 99 Md.App. 728, 738 , 639 A.2d 188 (1994), Judge Getty observed for this Court: Where counsel, being aware of the Rule, consents to a trial date beyond the limitations set by the Rule, dismissal would be an inappropriate sanction for non-compliance.

(Emphasis supplied). In criminal cases, defense counsel 1) are presumed to know the law; 2) are empowered, with exceptions not here pertinent, to act on behalf of their clients; and 3) are, in the absence of clear evidence to the contrary, deemed to have acted on behalf of their clients. These principles were lucidly articulated by Judge Wilner for this Court in State v. Lattisaw, 48 Md.App. 20, 28-29 , 425 A.2d 1051 (1981): Defense counsel presumably can count to 180 as well as prosecutors; they know when they entered their appearances — when the clock began to tick — and they can figure out when the time under the Rule expires. These were not inexperienced counsel; according to the record, both attorneys had extensive background in the trial of criminal cases and were well aware of both the Rule and the interpretation given to it in Hicks.

They both agreed, to the June 9 date because it was convenient to them and, in the absence of any contrary indication, we assume was acceptable to their clients. ... To require dismissal of an indictment in such ⁴²⁰ a case would be tantamount to doing precisely what the Court said was inappropriate — permitting “the defendant to gain advantage from a violation of the rule when he [through counsel] was a party to that violation.” (Footnote omitted; emphasis in supplied). The Carroll Doctrine Exception to the Warrant Requirement The appellant will fare better, however, with his second contention. He claims that at a pre-trial hearing on his motion to suppress physical evidence, the hearing judge erroneously declined to suppress the evidence.

The evidence consisted of 28 grams of cocaine and approximately $3,150 in U.S. currency. The evidence was seized by deputy sheriffs of the St. Mary’s County Sheriffs Department at approximately 1 A.M. on the morning of July 3, 1996. It was discovered as a result of the warrantless search of a red Toyota that had been rented by the appellant several days earlier from the Enterprise Rental Company and was, immediately prior to its stop and search, being driven by the appellant on Route 235 in the vicinity of Lexington Park. It is the Fourth Amendment propriety of that warrantless search that concerns us in this case.

The core protection of the Fourth Amendment is the warrant requirement. As a general rule, nothing less than probable cause will justify an intrusion, even in the service of the investigative imperative, into a protected area, such as an individual’s home, automobile, luggage, or pockets. The purpose of the warrant requirement is to make sure that the determination as to whether probable cause exists will be made, whenever reasonably possible, by a neutral and detached member of the judicial branch of government rather than by a member of the executive branch engaged in the investigation and prosecution of crime. The notion is that, absent some dire emergency, you should not be permitted to “call the balls and strikes” if you are a player on one of the competing teams.

It is preferable, when feasible, to have a ⁴²¹ disinterested umpire make those delicate judgments. The principle was best expressed by Justice Robert Jackson in Johnson v. United States, 383 U.S. 10, 13 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948): The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists of requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. The guidelines for implementing that warrant requirement were succinctly spelled out by Coolidge v. New Hampshire, 403 U.S. 443, 454-55 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971): [T]he most basic constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” The exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek exemption ... that the exigencies of the situation made that course imperative.” “[T]he burden is on those seeking the exemption to show the need for it.” (Footnotes omitted).

The command of the Fourth Amendment is simple. When the police wish to search a home or an automobile for evidence of crime, the expected way to do business — the norm — is for them to obtain a judicially-issued search and seizure warrant. As a practical matter, however, it is not always possible to do so. When, therefore, it is not possible or feasible to obtain a warrant because of some exigency, the police will be exempted from the warrant requirement.

Such exemptions, however, are the exceptions to the rule and not the rule itself. The command of the Fourth Amendment to the American police officer and the American prosecutor is simple: ⁴²² “You always have to get a warrant— UNLESS YOU CAN’T.” The burden, moreover, is always on the party claiming that he could not get a warrant to establish to the satisfaction of the court precisely why he could not. The police must set forth the exceptional circumstances that justify the exceptional departure from the norm. As a general rule when dealing with any exception to the warrant requirement, the State must rebut the presumptive unreasonableness of a warrantless search and seizure by showing that the set of necessary preconditions for the exception in question has been satisfied.

The burden is not that difficult. It is a burden, however, that may not be ignored. The exception to the warrant requirement that the State relies on in this case is the so-called “automobile exception” or the better-called “Carroll Doctrine.” A brief word may be in order as to preferred terminology. The use of the term “Carroll Doctrine” for this exception avoids some possible confusion emanating from the fact that “automobile exception,” as a term, is both under-inclusive and over-inclusive.

It is an under-inclusive term because it fails to make expressly clear that it covers legitimate warrantless intrusions into many repositories of possible evidence that are not literally automobiles. Included are such obvious automobile equivalents as trucks, United States v. Johns, 469 U.S. 478 , 105 S.Ct. 881 , 83 L.Ed.2d 890 (1985), and buses. Also included, however, are other possible repositories that share with the automobile the characteristics of 1) ready mobility, California v. Carney, 471 U.S. 386 , 105 S.Ct. 2066 , 85 L.Ed.2d 406 (1985) and 2) a lesser expectation of privacy, Cady v. Dombrowski, 413 U.S. 433 , 93 S.Ct. 2523 , 37 L.Ed.2d 706 (1973); Cardwell v. Lewis, 417 U.S. 583 , 94 S.Ct. 2464 , 41 L.Ed.2d 325 (1974). Covered would be such slightly less obvious automobile equivalents as motorcycles; bicycles; motor homes, California v. Carney, supra; motorboats; sailboats, United States v. Villamonte-Marquez, 462 U.S. 579 , 103 S.Ct. 2573 , 77 L.Ed.2d 22 (1983); airplanes; wagons; horses with saddlebags; and even ⁴²³ suitcases or other containers, California v. Acevedo, 500 U.S. 565 , 111 S.Ct. 1982 , 114 L.Ed.2d 619 (1991).

Conversely, the term “automobile exception” is over-inclusive because it seems to cover all legitimate warrant-less intrusions into the interior of an automobile when, in fact, it does not. Many legitimate warrantless intrusions into the interiors of automobiles are justified by something other than the combination of 1) probable cause and 2) exigency required by the Carroll Doctrine. An intrusion into an automobile may be