Gorman v. State

⁴¹⁶ ADKINS, Judge. Christopher Gorman was arrested and charged with numerous narcotic and firearm possession offenses. Before trial, he moved to suppress the physical evidence seized in his apartment, claiming that it was obtained pursuant to a warrantless entry that violated the Fourth Amendment. The Circuit Court for Baltimore City denied his motion on the grounds that the warrantless entry was justified by exigent circumstances.

A jury convicted Gorman of four firearm possession charges, and he was sentenced to ten years in prison. In this appeal, Gorman contends that the suppression court erred when it denied his motion to suppress. He claims that there were no exigent circumstances, and that even if there were, warrantless entries to arrest for marijuana possession are presumptively unreasonable because that crime is a “minor offense.” We disagree, and will affirm the judgment because we conclude that the warrantless entry was reasonable under the circumstances. FACTS AND LEGAL PROCEEDINGS On July 9, 2002, at about 10:00 p.m., Sergeant Steven Nalewajkl, a twenty-one year veteran with the Baltimore City Police Department, was called to investigate a shooting in the Brooklyn neighborhood of Baltimore City. 1 Upon arrival at the scene, Sgt.

Nalewajkl observed that Christopher Gorman had suffered a gunshot wound. He also encountered Gorman’s girlfriend, Leslie Nicole Harmon, who was pregnant and not wearing any shoes. Because he wished to question Harmon about the shooting, Sgt. Nalewajkl, accompanied by Detective Clarence Grear, escorted the woman in an unmarked police cruiser to her apartment to retrieve her shoes.

Harmon shared this apartment, located about five blocks from the ⁴¹⁷ scene of the shooting, at 932 East Patapsco Avenue, with Gorman and his brother, Curtis Painter. When they arrived at the apartment house, Sgt. Nalewajkl accompanied Harmon to the second floor apartment, explaining that he did so because “possible witnesses to shootings disappear on you.” Harmon attempted to open the door to the apartment, but it was locked. She “jingled the handle,” and then knocked on the door.

From inside the apartment, a man asked her to identify herself, and after a “minute or two,” Painter answered the door. Painter appeared to Sgt. Nalewajkl to be very nervous: STATE: Okay. When the door was opened, did you notice anything unusual?

NALEWAJKL: I noticed his mannerisms. He was extremely nervous, appeared to be breathing hard, and just very nervous in general. STATE: When you first had your observations of him, were you still outside the door—meaning not inside the apartment yet? NALEWAJKL: Yes.

Sgt. Nalewajkl also “smelled the odor of burnt marijuana emanating from the apartment.” 2 His observation of Painter and the smell of marijuana caused his “intent” to change while at the apartment door: STATE: So your only reason for going into the apartment was for the shoes? NALEWAJKL: My only intent to go up to the apartment was to get her shoes. STATE: Did that change?

NALEWAJKL: Yes. STATE: What did it change to? NALEWAJKL: Well, when I went up to the apartment and [Painter] didn’t immediately open the door, that arose [sic] ⁴¹⁸ my suspicion, and, then, when he opened the door, I could smell the odor of burnt marijuana, and he was extremely nervous. And when I asked him what he was so nervous about, he said he had two bags of weed.

Nalewajkl then entered the apartment and placed Painter under arrest: NALEWAJKL: At that point, he was under arrest, when I could smell the burnt marijuana. He said he had two bags of weed. He was under arrest at that time. STATE: And, at this point, were you inside the apartment?

NALEWAJKL: Yes. Nalewajkl clarified the sequence of events: [S]he just knocked on the door, and I stepped into the apartment with her and immediately smelled the odor of burnt marijuana on the inside. I’m inside—I’m right at the doorway where they opened the door, and he opens the door, I could smell the burnt marijuana. I could see him extremely nervous.

So, then, I asked him why he was nervous. He said he had two bags of weed, so instantaneously he was under arrest. Harmon testified that she walked into the apartment and immediately entered her bedroom, which was three feet to the right of the doorway. She never told Nalewajkl to enter the apartment, but could hear him questioning Painter while she 'was in the bedroom.

She first noticed that Nalewajkl had come inside when she emerged from the bedroom with her shoes. Painter similarly testified that Nalewajkl simply followed Harmon into the apartment and began questioning him, and that neither he, nor Harmon, ever invited Nalewajkl in. Upon entering the apartment, Sgt. Nalewajkl placed Painter under arrest.

He called Detective Grear, who was still sitting in the cruiser, to come place handcuffs on Painter. He then “secured the apartment for any persons that might be in the ⁴¹⁹ apartment” because he “was going to get a search warrant.” When asked what he meant by “secure the apartment,” Nalewajkl explained: NALEWAJKL: It’s to check the apartment for any other persons in the apartment— STATE: And why do you do that? NALEWAJKL:—and I would bring them out to the living room for officer’s safety reasons and— And the fact that if you don’t secure the apartment, evidence could be destroyed. As the sergeant went through the apartment, he noticed a chair in an open closet.

The back of the chair was facing outwards. Because it was “unusual to have a chair in the closet,” and because he “believed [a] person may have been standing on the chair to secret himself in the closet,” Sgt. Nalewajkl went to investigate. He observed that inside the closet “there was an attic that was open and there was the butt of a handgun on the ledge of the closet.” He then “secured the rest of the house.” A search warrant was obtained, pursuant to which police seized cocaine, various firearms, walkie-talkie radios, digital scales, and assorted drug paraphernalia.

As a result of the seizure of these goods, most of which were found in the closet, Gorman was named in two separate indictments, totaling 26 counts for various narcotic and firearm possession offenses. Gorman moved to suppress the weapons, drugs, and other items that were seized in his apartment, arguing that because Nalewajkl never had legal authority to enter the apartment in the first place, their discovery was the fruit of the poisonous tree. The circuit court conducted a hearing on the motion, at which defense counsel indicated that the “only focus of this hearing is going to be whether or not [the police] had the initial right to go into the apartment.” ⁴²⁰ The court denied Gorman’s motion. It reasoned that the entry into the apartment was justified by exigent circumstances, explaining: Having reviewed the authorities and considered all of the arguments and the evidence in particular, ... it is my belief that under the Maryland law that exists at this time, when the officer was at the door and testified that he smelled the odor of burning marijuana and had someone before him who appeared as though he may have been smoking marijuana, that he had, at that point, probable cause, and that the fact that it was a substance that could be so easily disposed of, that, in addition to the probable cause, there was exigency which allowed him to both make an arrest and then do a brief search of the immediate area for officer’s safety and for contraband, and that led to him looking into the closet and seeing the butt of the weapon, which later led to the State’s using that as probable cause to obtain a search and seizure warrant which was later executed.

So, on the basis of that, the Court is going to deny the motion. The two cases against Gorman were tried together. Gorman was convicted of four counts of possessing regulated firearms after having been convicted of a prior felony that disqualified him from possession of firearms. See former Md.Code, Art. 27 § 445(d)(1)(h) (recodified as Md.Code, Pub.

Safety § 5-13S(b) (2003)). He was sentenced to ten years in prison. Gorman’s sole question on appeal is whether the suppression court erred in denying his motion to suppress on grounds that there were exigent circumstances. He argues that the court erred because (1) the State did not meet its burden of showing that Sgt.

Nalewajkl’s entry was to protect against the destruction of evidence, and (2) a warrantless entry can never be justified by exigent circumstances where the underlying offense is marijuana possession, because that crime is a “minor offense.” For the reasons explained in detail below, we ⁴²¹ conclude that the suppression court properly denied the motion. DISCUSSION Standard Of Review Our review of the circuit court’s denial of a motion to suppress evidence is confined to the record of the suppression hearing. See Faulkner v. State, 156 Md.App. 615, 640 , 847 A.2d 1216 , cert. denied, 382 Md. 685 , 856 A.2d 721 (2004). We “consider the evidence in the light most favorable to the prevailing party,” here, the State.

Id. We also “accept the suppression court’s first-level factual findings unless clearly erroneous, and give due regard to the court’s opportunity to assess the credibility of witnesses.” Id. We exercise plenary review of the suppression court’s conclusions of law, and “make our own constitutional appraisal as to whether an action taken was proper, by reviewing the law and applying it to the facts of the case.” Id. The Fourth Amendment And Exigent Circumstances The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” 3 U.S. Const. amend.

IV

The central requirement of this Amendment is that searches and seizures be “reasonable.” See City of Indianapolis v. Edmond, 531 U.S. 32, 37 , 121 S.Ct. 447, 451 , 148 L.Ed.2d 333 (2000). Unless there is consent to enter, “searches and seizures inside a home without a warrant are presumptively unreasonable.” 4 Payton v. N. Y., 445 U.S. 573 , ⁴²² 586, 100 S.Ct. 1371, 1380 , 63 L.Ed.2d 639 (1980). “[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Id. at 590 , 100 S.Ct. at 1382 . The exception to the warrant requirement for exigent circumstances is narrow, and “[a] heavy burden falls on the government to demonstrate exigent circumstances that overcome the presumptive unreasonableness of warrantless home entries.” Williams v. State, 372 Md. 386, 403 , 813 A.2d 231 (2002). “Exigent circumstances exist when a substantial risk of harm to the law enforcement officials involved, to the law enforcement process itself, or to others would arise if the police were to delay until a warrant could be issued.” Id. at 402 , 813 A.2d 231 .

Exigent circumstances include “an emergency that requires immediate response; hot pursuit of a fleeing felon; and imminent destruction or removal of evidence.” Bellamy v. State, 111 Md.App. 529, 534 , 682 A.2d 1185 , cert. denied, 344 Md. 116 , 685 A.2d 451 (1996). Certain factors must be considered in the determination of whether exigent circumstances are present: “the gravity of the underlying offense, the risk of danger to police and the community, the ready destruetibility of the evidence, and the reasonable belief that contraband is about to be removed.” Williams, 372 Md. at 403 , 813 A.2d 231 . Also “[r]elevant to the determination ... is the opportunity of the police to have obtained a warrant.” Dunnuck v. State, 367 Md. 198, 205-06 , 786 A.2d 695 (2001). When the State argues that a warrantless search was justified by the potential for the destruction of evidence, “the government must show that the police, at the time of the entry, had a reasonable basis for concluding the destruction of evidence was imminent.” Williams, 372 Md. at 403-04 , 813 A.2d 231 .

The State must demonstrate that the circumstances ⁴²³ “present[ed] a specific threat to known evidence.” Id. at 404 , 813 A.2d 231 (citations omitted). The need to enter “must be immediate and compelling and not justified by an inference about a future possibility.” Id. (quotations and citations omitted). It also “cannot be created or precipitated by police actions or conduct designed to have that result.” Dunnuck, 367 Md. at 206 , 786 A.2d 695 .

The determination of exigency is made on a case-by-case basis, considering “the facts as they appeared to the officers at the time of the entry.” Williams, 372 Md. at 403 , 813 A.2d 231 . With these principles in mind, we evaluate Gorman’s contentions. I. Destruction Of Evidence Gorman argues that the State failed to meet its “heavy burden ... to demonstrate exigent circumstances,” Williams, 372 Md. at 403 , 813 A.2d 231 , justifying Sgt. Nalewajkl’s warrantless entry into his apartment. 5 He contends that “[t]he record is devoid of any indication that Sgt.

Nalewajkl’s purpose in initially entering the apartment was to prevent the destruction of evidence^]” “At best,” he claims, Nalewajkl’s “testimony established that destruction of evidence was a possibility.” He maintains that “[t]his kind of generalized, speculative offering is clearly insufficient,” and that, although the smell of marijuana might be enough to support the inference that Painter was smoking marijuana, it was not enough to conclude that he was destroying it. ⁴²⁴ Gorman further argues that even if Sgt. Nalewajkl, upon questioning Painter, developed a belief that Painter might destroy evidence remaining in the apartment, this belief would not “justify the entry because (a) it did not precede the entry, and (b) circumstances created or precipitated by police actions or conduct cannot justify a warrantless entry.” See Dunnuck, 367 Md. at 206 , 786 A.2d 695 . We are unable to find a Maryland case that presents a factual scenario comparable to Gorman’s. In Dunnuck v. State, the circuit court refused to suppress marijuana obtained through a warrantless entry on the police’s theory that its possible destruction constituted exigent circumstances.

The Court of Appeals reversed. 367 Md. at 218 , 786 A.2d 695 . The Court found critical the officers’ decision to sit outside the house for over an hour waiting for the defendant to return home, even though they had received an anonymous tip that there was marijuana in the house, and had personally spotted marijuana through a window while no one was home. Id. at 214-15 , 786 A.2d 695 . The Court reasoned that because no one was home, the homeowner “was not aware that the police had become aware of the contraband.” Id. at 214 , 786 A.2d 695 .

Thus, because the officers had ample time to obtain a search warrant before the need to enter the house arose, “the police created the exigency that they rel[ied] upon to justify the warrantless entry ... and to excuse their failure to obtain a search warrant.” Id. at 215 , 786 A.2d 695 (emphasis added). Dunnuck is readily distinguishable from Gorman’s case. Sgt. Nalewajkl accompanied Harmon to the apartment only to ensure that she, a potential witness to an apparently unrelated shooting, would not wander off.

The trip to the apartment was prompted by Harmon’s need to pick up her shoes. Nalewajkl’s apprehension of an exigency arose only after he perceived, from the threshold of the apartment through the open door, Painter’s nervousness and the odor of marijuana. 6 ⁴²⁵ Nalewajkl was also suspicious of Painter’s delay in opening the door. The Sergeant therefore did not create the exigency by waiting (for over an hour) outside the apartment until the occupant returned home, as was the case in Dunnuck . Cases from other jurisdictions are more comparable to this case because they involve scenarios in which the police did not create the exigency, and had no opportunity to obtain a search warrant ahead of time.

In U.S. v. Grissett, 925 F.2d 776 (4th Cir.1991), cert. denied, 500 U.S. 945 , 111 S.Ct. 2245 , 114 L.Ed.2d 486 (1991), police officers went to a hotel room because a suspect in their custody told them that a person inside the room could identity him. When the person inside opened the door, the officers identified themselves. Smelling burning marijuana, they entered the room and seized marijuana and cocaine in plain view. The Fourth Circuit determined that the warrantless entry was justified by the potential for destruction of the drugs, reasoning that [sjince the police had identified themselves before smelling the marijuana, an officer could reasonably conclude that the occupants of the room would attempt to dispose of the evidence before the police could return with a warrant.

This is especially true in the case of an easily disposable substance like drugs. 925 F.2d at 778 . The court also explained that “the proper inquiry” in determining the existence of exigent circumstances “focuses on what an objective officer could reasonably believe;” there need not be “concrete proof that the occupants of the room were on the verge of destroying evidence[.]” Id. In Mendez v. Colorado, 986 P.2d 275 (Colo.1999), cert. denied, 529 U.S. 1070 , 120 S.Ct. 1680 , 146 L.Ed.2d 487 (2000), an officer who was investigating trespassers inside a hotel smelled burning marijuana coming from one of the hotel rooms. He summoned another officer and the hotel manager, ⁴²⁶ and, “[f|earing that the occupant of the room had heard the police activity in the hallway and would attempt to flush evidence of the drug use down the motel room toilet,” the officer asked the manager to open the room. 986 P.2d at 278 .

When he stepped into the room, the officer observed the occupant run into the bathroom and flush the toilet. He seized marijuana located in plain view and other drugs found on the occupant’s person. The Supreme Court of Colorado concluded that the warrantless entry was justified because “there was a very real and substantial likelihood that contraband would continue to be destroyed before a warrant could be obtained to search the motel room.” Id. at 282 . The court also reasoned that “the exigencies arising in this case were not foreseeable and a warrant could not have readily been obtained,” because the officer was present “on the premises to investigate an unrelated complaint when he inadvertently encountered the smell of burning marijuana.” Id.

In Cameron v. Alabama, 861 So.2d 1145 (Ala.Crim.App. 2003), a police officer approached an apartment in a public housing project because the Housing Authority had notified the police that a vehicle was parked on its front lawn and needed to be moved. When someone opened the door, the officer could smell marijuana and see smoke in the apartment. The officer asked to speak to the tenant of the apartment, at which point the person who had opened the door ran into the kitchen. The officer then entered the apartment and observed the person remove objects from the kitchen table and place them in a drawer.

A subsequent consent search resulted in the seizure of marijuana. The Alabama Court determined that the warrantless entry was justified by exigent circumstances. The court first reasoned that the odor of marijuana gave the officer probable cause to believe that there was marijuana in the apartment. 861 So.2d at 1150 . The court next considered that the person who opened the door ran from it and began to hide things.

Id. at 1152 . Finally, the court observed that the officer had ⁴²⁷ approached the apartment “for a legitimate and uncontrived reason.” Id. The court concluded that “[tjaking all of this into consideration, [the] [o]fficer [ ] could have reasonably concluded from [the person’s] suspicious actions that he would likely destroy or remove some portion of the marijuana.” Id. In Hughes v. Wyoming, 65 P.3d 378 (Wyo.2003), officers investigating a child runaway approached a residence at which they believed the runaway might be located.

When they arrived at the doorway, a man exited the home, but when he noticed the officers, turned around as if to go back inside. The officers “observed that [the man] smelled of burnt marihuana, his eyes were watery and bloodshot, and his movements were somewhat slow.” 65 P.3d at 380-81 . The officers asked the man if they could talk to the occupant of the home about the runaway. When the man opened the door for the officers, they smelled marijuana and, through the open door, could see a marijuana pipe, scales, and loose marijuana on the coffee table.

The officers entered the apartment behind the man. The people inside the house confirmed that they had been smoking marijuana, and a subsequent search pursuant to a warrant resulted in the seizure of marijuana. The Supreme Court of Wyoming concluded that the warrantless entry into the home was supported by exigent circumstances. Id. at 382-83 .

The court reasoned that the officers could smell the odor of marijuana and see it through the open door of the home. Id. at 382 . It also explained that the man at the door “had knowledge of the deputies’ arrival,” and therefore “[t]he deputies could have reasonably concluded that [the man] would, if given the chance, inform the other occupants of their presence, allowing the occupants to quickly dispose of the evidence.” Id. In Cherry v. Virginia, 44 Va.App. 347 , 605 S.E.2d 297 (2004), an officer knocked on the door of a known “problem” house because a stolen car was parked in the driveway.

The officer smelled marijuana when a woman opened the door. When the woman called inside that the police were at the door, the officer entered the house. Once inside, he saw ⁴²⁸ cocaine and paraphernalia on a table, and seized cocaine from one of the persons seated at the table. The Virginia Court reasoned that the warrantless entry was justified by exigent circumstances.

It factored into its decision the officer’s purpose in going to the house, which was to “investigat[e] a non-drug-related offense.” 605 S.E.2d at 304 . Because the officer “heard significant movement” in the house “[immediately following” the notification that the police were at the door, the court concluded that the officer “acted reasonably in concluding that both the drugs and any occupants in possession of them were likely to be gone by the time he could obtain a warrant.” Id. at 305. In Rideout v. Wyoming, 122 P.3d 201 (Wyo.2005), officers approached a residence for purpose of investigating the marijuana possession of a third party. They could smell the “very strong” odor of marijuana when a person opened the door, exited, and closed the door behind him.

From the front porch, the officers could see an occupant of the house moving quickly from the dining room area in the front of the house