Gibson v. State

CHARLES E. MOYLAN, Jr., Judge. The appellant, Larry Gibson, was convicted by a Montgomery County jury, presided over by Judge James C. Chapin, of armed robbery and first-degree burglary. On this appeal, he raises the four contentions 1. that his allegedly Fourth Amendment-violative detention in an unrelated case two and one-half months before the crime in issue rendered the entire investigation in the present case excludable as the “fruit of the poisonous tree;” 2. that his confession was the involuntary product of impermissible promises and inducements; 3. that he was erroneously subjected to a mandatory sentence because of the State’s failure formally to allege and to prove to the jury the pivotal aggravating factor; and 4. that unreliable and unauthenticated documents were erroneously admitted at the sentencing hearing. “Fruit of the Poisonous Tree” Doctrine The appellant seeks the only solace he can hope to find in the “fruit of the poisonous tree” doctrine. That doctrine traces back to Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920).

It deals with the second generation exclusion of indirect or derivative evidence and was explained by Justice Holmes: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall ⁴⁰³ not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. 251 U.S. at 392 , 40 S.Ct. 182 . In Nardone v. United States, 308 U.S. 338 , 60 S.Ct. 266 , 84 L.Ed. 307 (1939), it was Justice Frankfurter who first employed the term “derivative evidence” and who coined the felicitous label “the fruit of the poisonous tree” doctrine. It was also Justice Frankfurter who first recognized a limitation on the doctrine’s reach, as he pointed out that between the original illegality and the ultimate derivative evidence, the “connection may have become so attenuated as to dissipate the taint.” 308 U.S. at 341 , 60 S.Ct. 266 .

It has come to be recognized that there are three ways of what has colorfully been described as “unpoisoning the fruit.” Less colorfully but more accurately, these are actually three ways of determining that the fruit was not poisoned in the first instance. The first, presaged by Justice Frankfurter in Nardone , is the attenuation of taint. Wong Sun v. United States, 371 U.S. 471, 488 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963), rejected a “but for” rule in applying the doctrine and explained that the proper question to be answered with respect to derivative evidence is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Tony Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L.Rev. 378, 390 (1964), pointed out that the underlying purpose of the attenuation test is to mark “the point of diminishing returns of the deterrence principle.” A second way of determining that evidence is not poisoned fruit, notwithstanding a suspicious “post hoc — propter hoc” time sequence, is when the evidence has proceeded from an independent source.

Murray v. United States, 487 U.S. 533 , ⁴⁰⁴ 537, 108 S.Ct. 2529 , 101 L.Ed.2d 472 (1988), explained that the “independent source” exception applies not “only to evidence obtained for the first time during an independent lawful search,” but “also to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality.” A third way of determining that derivative evidence is not excludable is a finding of “inevitable discovery.” The lead case on that exemption is Nix v. Williams, 467 U.S. 431, 444 , 104 S.Ct 2501 , 81 L.Ed.2d 377 (1984): It is clear that the cases implementing the exclusionary rule “begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.” Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense. A defendant seeking shelter under the umbrella of the “fruit of the poisonous tree” doctrine has to prove each of two propositions: 1) the primary illegality, to wit, that the tree was poisonous; and 2) the cause and effect relationship between the primary illegality and the evidence in issue, to wit, that the evidence was, indeed, the identifiable fruit of that particular tree.

The Pertinent Chronology: From A To C To B Because three unrelated criminal incidents figure in this case, the chronology could become confusing. In an effort to foreclose such confusion, let us set out the three key dates and their relationship to each other. A. NOVEMBER 11,1998: A resident of Bethesda reported a burglary in progress at approximately 4:00 A.M. that morning. The police, responding to the scene, 1) observed, 2) stopped, and 3) questioned the appellant. ⁴⁰⁵ That incident never led to a prosecution because the homeowner, having observed only the top of the intruder’s head, could not make an identification.

This incident only has significance in this case because the appellant claims 1) that the stopping of him that morning was a violation of the Fourth Amendment and 2) that a surveillance of him three months later for an unrelated crime was the tainted “fruit” of that earlier “poisonous tree.” B. JANUARY 27, 1999: Marilyn Mills, a resident of Silver Spring, was awakened at approximately 4:00 A.M. by an intruder in her bedroom. She was robbed at knife point and sexually threatened. It is only the conviction for this crime which is now on appellate review. Ironically, the details of this crime, unlike what went before and unlike what came after, do not figure in our analysis of any of the issues on this appeal.

The key evidence against the appellant for this crime was a taped confession to it which he gave after being arrested for an unrelated crime almost three weeks later. C. FEBRUARY 14-15, 1999: During the early morning hours of February 14, the police conducted a surveillance on the movements of the appellant. He was observed driving to Bethesda at about 4:00 A.M., putting on a ski cap and gloves, and ultimately opening first the rear screen door and then the front screen door of a home at 5023 Acacia Avenue. The appellant was later arrested on the early morning of February 15 for this attempted burglary.

It was in the course of being interrogated as a result of that arrest that the appellant confessed to the unrelated robbery and burglary of Marilyn Mills on January 27. The appellant claims that the police would never have conducted the surveillance that led to the issuance of an arrest warrant on February 14 if they had not known his name and address as a result of the allegedly unconstitutional stopping of him back on November 11. In effect, the appellant claims ⁴⁰⁶ that the key evidence at his trial for Crime B came as a result of an arrest for Crime C which was tainted by evidence allegedly improperly obtained in the investigation of Crime A. “Fruit of the Poisonous Tree” Doctrine as Urged by the Appellant At a pretrial suppression hearing, the appellant went to great lengths to try to establish, albeit without success, that two-and-one-half months before the January 27 commission of the crime in this case, he was unconstitutionally stopped on November 11 and questioned about an unrelated attempted burglary. He argues, quite accurately, that the Montgomery County Police thereby learned his identity and his home address.

They knew, moreover, that he had been stopped because he was spotted on November 11 by them in suspicious proximity to an apparent burglary attempt in a residential neighborhood seven miles distant from his own home at approximately 4:30 in the morning. He argues that the police thereby kept him in mind, as a possible suspect worthy of at least further investigation, whenever an early-morning burglary should take place in that general area of Montgomery County. He maintains that that awareness and focus is the “fruit of the poisonous tree” and that any information learned or observations made, even if themselves facially unobjectionable, should be excluded from future trials of future crimes if such information probably would not have been learned or such observations probably would not have been made if his identity had remained unknown to the police. He argues, in effect, that the alleged police over-reaction on November 11, 1998, endowed him with a broad transactional immunity from any future investigation that might be facilitated by police knowledge of who he was and where he lived.

He wants, in effect, a “Get Out of Jail Free” card with no expiration date. Finessing the Question of the Primary Illegality Our initial and cursory reflection on the events of November 11, 1998, yields the strong tentative belief that there was ⁴⁰⁷ nothing at all unreasonable about the brief initial stopping of the appellant that produced the police knowledge of his name and address as the person seen in the neighborhood of the attempted burglary. At approximately 4:00 A.M. on November 11, the Montgomery County Police responded to a call reporting a burglary at 5005 Allen Road in Bethesda. The house owner reported seeing a black male dressed in black attempting to break into her basement window.

Officer Brett Trahan was responding to the scene approximately ten minutes after the burglary was first called in. He approached the neighborhood in a marked police cruiser but with the lights off. At the intersection of Allen Road and Jamestown Road, approximately five houses from the scene of the attempted burglary, Officer Trahan observed a car pulling away from the curb. The officer followed the suspect car on a meandering and indirect route out of the residential neighborhood.

When the suspect car ended up doing a speed of 55 miles per hour in a 25-mile zone, Officer Trahan stopped it. Before Officer Trahan stopped the car, he determined that it was a blue Lexus with a Maryland registration. The officer ran a registration check and discovered that the car was registered to the appellant at an address in Silver Spring approximately seven miles from the site of the attempted burglary in Bethesda. The car was occupied only by the appellant, a black male.

Immediately after stopping the appellant, Officer Trahan asked him what he had been doing in the Allen Road neighborhood. The appellant denied ever having been in the neighborhood. The appellant explained that he was out at that hour because he was a delivery man for medical supplies and was “trying to get some route down” that he had to travel the next day. If the issue were before us, it is hard to imagine finding anything improper about that stop or the first minute or so of ensuing conversation.

Anything that happened after that, while arguably quite proper, had no remote impact on this case. After ruling that Officer Trahan’s stopping of the ⁴⁰⁸ appellant was reasonably based on articulable suspicion pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), Judge Chapin offered the further thought, with which it is hard to disagree, that “if the police officer hadn’t done that, as a citizen of the county I would file a letter of complaint against him.” It is, however, unnecessary that we expend time or effort to engage in a more intensive legal analysis of police conduct on November 11 that we conclude is, in any event, utterly immaterial to any issue now before us. The simple fact is that the November 11 stop in this case, be it a poisonous or a nonpoisonous tree, bore no fruit that was ever offered against the appellant. Although the appellant complains about a search warrant, there is no search issue before us, for neither physical evidence nor any other product of a search was ever offered against the appellant.

We elect not to base our decision on this contention on the subissue of proof of the primary illegality, lest we distract from the significance of our holding with respect to the other subissue, the establishment of the necessary cause-and-effeet relationship between the “tree” and its alleged “fruit.” The Confession As An Alleged Fruit The appellant boldly asserts, but does not support with law or logical argument, that his confession of February 15, 1999 was ipso facto involuntary as the unattenuated product of an unlawful arrest. He fails to establish, however, the fact of any unlawful arrest. The Legality of the February 15 Arrest It is a single police action that calls for any Fourth Amendment scrutiny in this case. The arrest that immediately preceded and was the occasion for the appellant’s interrogation in this case was made by Detective Edward Tarney at the appellant’s home at approximately 1 A.M. on February 15, 1999.

That arrest was pursuant to a warrant of arrest issued to Det. Tarney by District Court Commissioner M.T. Nasser three hours earlier at 10:08 P.M. on February 14. ⁴⁰⁹ In terms of the supporting probable cause, sworn to by Det. Tarney, the warrant was on its face unassailable. Although the appellant’s subsequent confession revealed his guilt in the trial now under review, the arrest was for the unrelated third-degree burglary of the home of Ms. Debbie Boylen at 5023 Acacia Avenue on the early morning of February 14.

The following pertinent passage from the warrant application established, in and of itself, probable cause for the issuance of the warrant: During a surveillance on 02-14-99 Gibson again left his residence, operating a 1995 Lexus, Md tag EZL914 which is registered to his wife, Cynthia Gibson. He was followed to Bethesda where he was observed parking this vehicle on Bardon Rd. at Cedar Ave. Gibson was wearing a red jogging suit with a hood. As Gibson was walking in the neighborhood he was observed placing a dark ski cap and gloves on.

The time was approximately 0419 hours. Gibson was observed in the front yard of 5023 Acacia Ave. Officer David Hardy observed a motion detector light come on at this residence and the subject, Gibson, run from the area. He made his way through back yards to his vehicle in a hurried manner and returned home.

At approximately 0625 hours Cpl. Auger made contact with the resident of 5023 Acacia Ave., a Debbie Boylen who was inside that address when the motion detector was activated. She reported that she heard the rear door opening. She observed a figure approach the fi*ont door and heard the front screen door open.

When Boylen looked outside she observed a subject she believed to be an adult black male wearing a red jogging suit wearing a hood. When Boylen and this subject made eye contact, the subject ran. The Arrest Warrant Was Never Expressly Challenged It is. significant that the appellant never challenged or even focused attention on the arrest warrant issued on the evening of February 14. There was no request for a “taint hearing” with respect to it pursuant to Franks v. Delaware, 438 U.S. ⁴¹⁰ 154, 98 S.Ct 2674 , 57 L.Ed.2d 667 (1978).

What the appellant may be mounting is not an eleventh-hour attack on the arrest warrant of February 14 but a thirteenth-hour attack that untimely comes, like the Battle of New Orleans, after the war is over. Because the attack would not have carried the day, however, even had it been timely mounted, we will consider its implications further. Probable Cause For the Arrest Warrant In addition to the surveillance of February 14, which alone established probable cause for the issuance of the arrest warrant, the warrant application recited the details of the robbery-burglary perpetrated on Marilyn Mills on January 27 at 3:20 A.M. It recited that the appellant lived “only a few blocks” away and it detailed how the early morning surveillance of February 12 observed the appellant’s jogging by the scene of that crime and “seem[ing] to pay particular attention to the Marilyn Mills residence” before “he went into a neighbor’s back yard.” The warrant application also recited that the appellant “had recently been paroled from the State of New York and has a history of similar offenses.” The warrant application, to be sure, also included the single sentence reciting that the appellant had been “stopped by the Montgomery County Police on 11-11-98 at approximately 0400 hours leaving the area of a burglary” in Bethesda. Even if we were to assume, purely for the sake of argument, that the November 11 stop of the appellant was improper, the subtracting of that brief recitation, of de minimis significance, from the warrant application would not have diminished the probable cause in the slightest.

No “taint hearing” under Franks v. Delaware would have been justified, even had the appellant called for one (he did not). Pushing Out the Envelope At oral argument, however, and somewhat tentatively, the appellant championed a more virulent strain of the “fruit of the poisonous tree” doctrine that, if ever loosed upon the law, would not contaminate a piece of fruit or two in a single ⁴¹¹ orchard but would blight and level entire forests. He argues that BUT FOR their stopping of him on November 11, the police would never have learned 1) his identity, 2) his lengthy history of burglary and his parole status in New York, and 3) the fact that he lived a few blocks from the scene of the January 27 crime. He argues further that BUT FOR that information, they would have had no occasion to be parked across the street from his home during the early morning hours of February 12 and February 14 in a position to make the observations they did after he left his house.

He argues finally that those observations are excludable “fruits of the poisonous tree.” The appellant’s argument is a four-step affair. 1) The admissibility of the confession depended on the legality of its antecedent arrest. 2) The legality of the arrest depended on the adequacy of the probable cause in the application for the arrest warrant. 3) The adequacy of the probable cause depended on the surveillances of February 12 and February 14. 4) Those surveillances would never have been conducted, although legally they could have been, if the police, three months earlier, had not learned who the appellant was and where he lived. The potential contagion, however, is not nearly so epidemic. The appellant’s argument soon reduces itself to an absurdity. If the police were where they were only because they knew it was the appellant’s house, their lips, his argument would insist, would be forever sealed as to what they there might see.

If the police were to observe, for instance, the appellant 1) come out of his house and gun down a victim in the middle of the street, 2) drive downtown and hold up a bank, or 3) shoot at the officers themselves, they would be prohibited from testifying to those allegedly “tainted” observations. One might as readily argue that if the G-men had not been overzealously hot on the trail of A1 Capone for bootlegging, the IRS would never have thought to audit his income tax returns. Perhaps so, but so what? ⁴¹² Even assuming, arguendo, that the stop on November 11 was bad (we are not remotely suggesting that it was), that would not operate to bar from evidence or from other uses the police observations of February 12 and February 14. The admissibility of the observations would be clear whether considered as an instance of the attenuation of the initial taint, Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963); United States v. Ceccolini, 435 U.S. 268 , 98 S.Ct. 1054 , 55 L.Ed.2d 268 (1978), or as the product of an independent source, Segura v. United States, 468 U.S. 796 , 104 S.Ct. 3380 , 82 L.Ed.2d 599 (1984); Murray v. United States, 487 U.S. 533 , 108 S.Ct. 2529 , 101 L.Ed.2d 472 (1988).

The Appellant’s Movements of February 12 & 14 Were Not Shielded by the Fourth Amendment In United States v. Knotts, 460 U.S. 276 , 103 S.Ct. 1081 , 75 L.Ed.2d 55 (1983), the defendants complained that BUT FOR an unconstitutionally placed “beeper” device, at one point monitored from an airplane, the police would never have been able to maintain a successful surveillance of them as they traveled in their automobile. The Supreme Court opinion made it clear that it did not matter how the police were able to follow the suspects, so