Grimes v. State

DEBORAH S. EYLER, J. In the Circuit Court for Montgomery County, Antwan Grymes, the appellant, was charged with robbery with a dangerous weapon, assault in the first degree and use of a handgun in the commission of a crime of violence. A jury acquitted him of all charges except the lesser included offenses of robbery and assault in the second degree. He was sentenced to a term of 15 years’ incarceration for robbery and a concurrent term of 10 years for assault. In this Court, the appellant poses four questions for review, which we have reordered and slightly rephrased: I. Did the motion court err in denying his motion to suppress evidence of a gun found during a warrant-less search of the common laundry room of the multiunit apartment building in which he was living?

II

Did the motion court err in denying his motion to suppress evidence of a cell phone that was the fruit of a custodial interrogation carried out prior to his being advised of his Miranda rights? 1 III. Did the trial court err in permitting the jury to consider evidence of the gun?

IV

Did the trial court err in declining to give a requested jury instruction on missing evidence? For the following reasons, we shall affirm the judgments. ⁷⁶ FACTS AND PROCEEDINGS In the early evening of November 80, 2009, a group of friends gathered to watch a football game on television at Carroll Walker’s apartment, at 8118 Roanoke Avenue, in Takoma Park. In addition to Walker, his girlfriend, Michelle Foster; Walker’s cousin, Mabel Williams; Williams’s boyfriend, Robert Pumphrey; and two other people were present. During the gathering, Delores Amankwah, a friend of Williams, came by to see Williams and Pumphrey.

Williams, Pumphrey, and Amankwah had been planning to move into an apartment together beginning January 1, 2010. The apartment also was in the 8118 Roanoke Avenue building and the three already had completed a rental application. That evening Pumphrey told Amankwah she could not move in with him and Williams unless she contributed one-third of the security deposit. Amankwah, who was unemployed, could not afford to do so and became very upset.

At the time, Amankwah was living temporarily in a nearby apartment, at 657 Houston Avenue, leased by one Sharon Harkum. Harkum lived on the third floor of that multi-unit apartment building. The appellant, a long-time friend of Harkum, also was staying at her apartment. After the exchange with Pumphrey, Amankwah left Walker’s apartment in tears and walked to Harkum’s apartment, where the appellant was present.

Amankwah told Harkum and the appellant about her dispute with Pumphrey. Shortly thereafter, the appellant left, saying he was going to “go out and talk to [Pumphrey].” The appellant went to Walker’s apartment and knocked on the door. Walker let him in. The appellant shook hands with everyone and asked each person’s name.

When Pumphrey identified himself, the appellant asked if they could speak outside. The two men spoke briefly at the door to the apartment before Walker suggested they go into the bedroom to talk. The appellant and Pumphrey entered the bedroom, which was at the back of the apartment. ⁷⁷ According to Pumphrey, once the two men were inside the bedroom, the appellant pulled out a handgun, aimed it at him, and demanded that he hand over his coat and wallet. He did so.

Pumphrey’s cell phone was inside his coat. His wallet contained $150 and a debit card. Walker overheard the appellant and Pumphrey arguing and asked them to leave the bedroom, which they did. The appellant, still carrying Pumphrey’s coat and wallet, exited the apartment.

Shortly thereafter, Pumphrey also left, accompanied by Williams. About five minutes later, a man showed up at the apartment and gave Pumphrey’s coat to Walker and Foster. The man, who is not identified in the record, but who it appears also was staying with Harkum, said, “Man, I don’t know why he did that.” Pumphrey’s wallet was in the coat pocket, but his cash, debit card, and cell phone all were missing. In the meantime, Pumphrey and Williams walked to a nearby pizza shop where Pumphrey called 911 and reported that he had just been robbed at gunpoint. 2 A little after 8:00 p.m., Corporal Jerome Irwin of the Takoma Park Police Department (“TPPD”) responded to the scene.

After learning that the robbery occurred inside the 8118 Roanoke Avenue apartment building, Corporal Irwin drove Pumphrey and Williams back to that location. Corporal Thomas Black and Detective Charles Hoezel arrived shortly thereafter. The police interviewed Pumphrey, Williams, and Walker, who came outside and returned Pumphrey’s coat and wallet to him. All three identified Pumphrey’s assailant as “D” or “Dogg” and said they thought he was staying at 657 Houston Avenue.

Pumphrey further described the weapon used as “black with a brown handle,” and having a long barrel. He thought it possibly was a .38 caliber. ⁷⁸ While speaking with police, Pumphrey noticed Amankwah on the street. He told the police that she knew his assailant and might have been involved in the robbery. The police stopped Amankwah, who gave them a false name because there was an outstanding warrant for her arrest.

She provided the police with the appellant’s first name and confirmed that he currently was staying in the 657 Houston Avenue apartment building. Around 9:00 p.m., Detective Hoezel and Corporals Erwin and Black went to the 657 Houston Avenue apartment building to look for the appellant. The front door of the building was unlocked. The police entered and went to Harkum’s apartment on the third floor.

They knocked, and Harkum opened the door. She consented to a search of her apartment. 3 The appellant was not there. Pumphrey, Williams, and Walker were transported to the TPPD station, where each gave a statement. Detective Hoezel conducted an internal database computer search for people going by the street name “D” or “Dogg” and identified the appellant as a suspect.

The police showed Williams and Walker a photograph of the appellant and each positively identified him. Pumphrey was shown a photographic array that contained the appellant’s photograph. He quickly selected the photograph as depicting the man who had robbed him. Six hours later, around 3:00 a.m. on December 1, Detective Hoezel and Corporals Black and Erwin returned to the 657 Houston Avenue apartment building with a warrant for the appellant’s arrest.

They entered the unlocked front door, went to Harkum’s apartment, and found the appellant asleep on the floor in the bedroom. They placed him under arrest. As we shall explain in greater detail, certain items of clothing belonging to the appellant were searched and revealed Humphrey's cell phone and $112 in cash. Amankwah also was present in Harkum’s apartment.

She gave her true name to ⁷⁹ the police this time and was arrested on the outstanding warrant. The appellant and Amankwah were transported to the police station. The appellant declined to give a statement. Amankwah told the police that, after the appellant left Harkum’s apartment to “talk to [Pumphrey],” he returned and told her (Amankwah) that he had robbed Pumphrey.

She also told the police that, earlier in the evening, she had seen the appellant with a gun. She suggested that the gun might be in the laundry room of the 657 Houston Avenue apartment building. At 5:30 a.m., Detective Hoezel and Corporal Black returned to the Houston Avenue apartment building for a third time. They did not have a warrant.

They entered the laundry room, which was on the first floor and was unlocked, and in a search that we shall discuss in greater detail, infra, recovered a loaded .38 caliber revolver from behind a row of washing machines. As noted, the appellant was charged with robbery with a dangerous weapon, assault in the first degree, and use of a handgun in the commission of a crime of violence. Before trial, he moved to suppress from evidence the gun and the cell phone. 4 A two-day suppression hearing was held and his motions were denied. The case was tried to a jury for three days.

The State called Pumphrey, Williams, Foster, and Amankwah. Each testified, with slight variations, to the facts as we have recounted them. Detective Hoezel, Corporals Black and Erwin, and a firearms expert also testified for the State. The appellant did not testify.

He called Harkum as his only witness. We shall include additional facts in our discussion of the issues. ⁸⁰ DISCUSSION I. Search of the Laundry Room, The appellant contends the circuit court erred by denying his motion to suppress evidence about the gun the police found in the common laundry room of the 657 Houston Avenue apartment building, including the gun itself. He asserts that the warrantless search of the laundry room violated his Fourth Amendment rights. The State responds that the appellant did not have a legitimate expectation of privacy in the common laundry room of the multi-unit apartment building, and therefore his Fourth Amendment rights could not have been violated.

In reviewing the circuit court’s ruling on the motion to suppress, “[w]e extend great deference to the fact finding of the suppression court and accept the facts as found by that court unless clearly erroneous.” Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086 (2002) (quoting Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001)). We consider the evidence introduced at the suppression hearing and the reasonable inferences therefrom that are most favorable to the party prevailing on the motion. State v. Ofori, 170 Md.App. 211, 218 , 906 A.2d 1089 (2006). Nevertheless, we review the ultimate question of constitutionality de novo and must “make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.” Bailey v. State, 412 Md. 349, 362 , 987 A.2d 72 (2010) (quotations omitted).

The evidence adduced at the suppression hearing about the police visits to the 657 Houston Avenue apartment building and their ultimate arrest of the appellant and seizure of the handgun found in the common laundry room is as we have recounted above, with the following additions. According to Harkum, at the relevant time, the appellant had been living in her apartment for about two months. He kept clothing and food there. Although he did not pay rent, ⁸¹ he helped purchase groceries and assisted with cooking and cleaning.

The front door to the 657 Houston Avenue apartment building and the door to the laundry room on the first floor of that building were kept unlocked at all times. Tenants were issued keys only to their own apartments. The front door of the building was posted with a sign that read, “NO TRESPASSING. NO LOITERING OR SITTING IN THE HALLWAY STAIRS, BY ADULTS, CHILDREN OR, GUESTS.

VIOLATORS WILL BE ASKED TO MOVE WITHOUT NOTICE.” The laundry room door bore a sign stating that it was “OPEN 8 A.M. TO 8 P.M.” Harkum consented to a search of her apartment when the police made their first visit. According to Detective Hoezel, on the second visit, when the police had an arrest warrant for the appellant, Harkum also consented to a search of the apartment. Harkum disagreed. In any event, as noted above, on that second visit the appellant and Amankwah were arrested and transported to the police station.

When Detective Hoezel interviewed Amankwah at the police station, at a little after 4:00 a.m., she told him that, earlier in the day, she had seen the appellant with a gun. The gun was just “sitting on the floor [in Harkum’s apartment], black long nozzle with [a] brown handle.” She also told Detective Hoezel that the gun had “gotta be outside somewhere” and later suggested that it “might be in the laundry room” of the apartment building. It was this information that prompted Detective Hoezel and Corporals Black and Erwin to return to that building for a third time, around 5:00 a.m. Just as they had the two previous times, they entered the building through the unlocked front door.

This time they headed straight to the laundry room on the first floor, which was unlocked, and searched it. When Corporal Black found a gun stashed behind a row of washing machines, he exclaimed, “there’s the gun.” Before the motion court, defense counsel argued that, as a long-term guest of Harkum, the appellant had a legitimate ⁸² expectation of privacy not only in Harkum’s apartment but also in the laundry room of the 657 Houston Avenue apartment building. The State responded that it was objectively unreasonable for the appellant to have any expectation of privacy in a common laundry room in a multi-unit apartment building in which he was staying as a guest of a tenant. The motion court found as a fact that Harkum had consented to the initial searches of her apartment and that Amankwah had told the police that she had seen the appellant with a gun and that the gun might be in the laundry room of the 657 Houston Avenue apartment building.

With respect to the laundry room, the court opined: Now, as indicated in the exhibits, Exhibit No. 2 and I believe Exhibit No. 14, Exhibit No. 14 is a sign on the laundry room door that says “Laundry room open 8 a.m. to 8 p.m.” But the laundry wasn’t locked. . There is no evidence that the laundry room was locked. It was just a sign saying the times that the laundry room was open. Presumably in an apartment complex, for the convenience of the tenants, people don’t want to hear the noise of laundry machines late at night, and so the hours are 8 a.m. to 8 p.m.

With respect to whether the appellant had a reasonable expectation of privacy in the contents of the laundry room, the court ruled: I don’t find that the defendant in this case had any reasonable expectation of privacy under these circumstances, particularly he—the only evidence before this Court is that the defendant had been staying at this place for some period of time. The evidence is that there was no other address that he had. There’s no evidence that he was a lessee in the place. He had some food there that he kept in the refrigerator and he had some clothing.

Notwithstanding that, one of the comments that Garrison [ 5 ] discusses is whether a person’s actions and intentions ⁸³ indicate a reasonable expectation of privacy. I think that stashing of a weapon oLr] contraband is not consistent with any reasonable expectation of privacy, but rather consistent with the belief that if it’s hidden in those places, it will not be found. I think hiding something in a place where you don’t expect it to be found is distinguishable from a reasonable expectation of privacy. I don’t know that that particular issue has ever been addressed in that fashion.

For these and other reasons, 6 the court denied the appellant’s motion to suppress evidence about the gun. The Fourth Amendment to the United States Constitution guarantees individuals the right to be secure in “ ‘their persons, houses, papers, and effects, against unreasonable searches and seizures.’ ” Whiting v. State, 389 Md. 334, 346 , 885 A.2d 785 (2005) (quoting United States v. Stevenson, 396 F.3d 538, 545 (4th Cir.2005)). 7 “[A defendant] invoking Fourth Amendment protections bears the burden of demonstrating his or her legitimate expectation of privacy in the place searched or items seized.” Williamson v. State, 413 Md. 521, 534 , 993 A.2d 626 , cert. denied, — U.S.-, 131 S.Ct. 419 , 178 L.Ed.2d 327 (2010) (citing Smith v. Maryland, 442 U.S. 735 , 99 S.Ct. 2577 , 61 L.Ed.2d 220 (1979)). In deciding the existence vel non of a legitimate expectation of privacy, the court must determine whether the defendant possessed 1) “an actual (subjective) expectation of privacy in the item or place searched” and 2) whether “the expectation is one that society is prepared to recognize as reasonable.” Id. See also Katz v. United States, 389 U.S. 347, 361 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) (Harlan, J., concurring) (establishing two-prong test); Venner v. State, 279 Md. 47, 51-52 , 367 A.2d 949 ⁸⁴ (1977) (adopting the Katz test).

A legitimate expectation of privacy is one that has its source outside of the Fourth Amendment “either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128 , 143-44 n. 12, 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978). To support his contention that he had both an actual and objectively reasonable expectation of privacy in the common laundry room of the 657 Houston Avenue apartment building, the appellant relies, as he did below, upon Garrison v. State, supra, 28 Md.App. at 257, 345 A.2d 86 . In that case, based on information from a confidential informant (“Cl”), the police had reason to believe that Garrison was distributing heroin from the multi-unit apartment building in which he lived. Under police direction, the Cl contacted Garrison to arrange a buy.

At 2:35 a.m., the police and the Cl arrived and entered the apartment building through the front door, which was not locked. From the first floor hallway, the police observed the Cl knock on the door to Garrison’s apartment and enter. The police moved to a covert position in the basement of the apartment building, behind the stairs. The common laundry room for the apartment building was located in the basement, as were several other rooms.

From their hiding place, the police saw Garrison enter the basement and unlock one of the basement rooms (not the laundry room), which was padlocked, using a key. He entered the room, disappearing from view, and reappeared after about a minute holding a tinfoil packet. He then returned to the first floor of the apartment building and was observed re-entering his apartment, where the Cl had remained. The Cl later provided the police the tinfoil packet, which contained heroin.

Based on their observations and the contraband provided by the Cl, the police obtained a warrant to search the room in the basement they had seen Garrison enter. They sawed the padlock off of the door. Their search revealed a large quantity of heroin. ⁸⁵ Garrison was charged with possession with intent to distribute heroin. Before trial, he moved to suppress the heroin from evidence, challenging the search of the room in the basement of the apartment building on the ground that the probable cause for the warrant “was only obtained by means of the prior alleged illegal entry [by the police] into the apartment building and its basement.” Id. at 265, 345 A.2d 86 .

Evidence at the suppression hearing established that the apartment building was three stories, with approximately 13 apartments. Garrison’s apartment was one of four on the first floor. The front door of the apartment building opened into a small vestibule and a four-step staircase led to a first-floor landing. Garrison’s apartment was at the end of a narrow hallway off of this landing.

In the vestibule adjacent to the stairway to the first floor was a door leading to a staircase to the basement of the building. The resident manager of the apartment building testified that the front door to the apartment building was kept locked at all times. He, the tenants, and the building superintendent had keys to the front door. To gain entry to the building, guests of tenants had to call in advance and have the tenant unlock the front door.

The front door did not lock automatically, however, so if tenants entered or exited and forgot to lock the door behind them, the door would be left unlocked. The manager further testified that the door to the basement of the apartment building also was kept locked and, as with the front door, only he, the tenants, and the building superintendent had keys. The tenants were issued keys to the basement door so they could gain access to the laundry room. The other rooms in the basement were not for tenant use and, purportedly, were kept locked.

The manager had not placed the padlock on the door to the room that the police had searched, however. As of the date of the suppression hearing, a sign had been posted on the door to the basement stating that the laundry room was open from 7:30 a.m. until 9:30 p.m. There was no evidence that such a sign was present when the police entered the basement to conduct surveillance. ⁸⁶ The court ruled that Garrison lacked standing to challenge the search because he had no right to be in the padlocked basement room. On appeal, we reversed.

On the issue of standing, we reasoned: At the time [Garrison] was observed in the basement at 2:35 A.M. he was, as the trial court held, “in a place he had a right to be”, ie., he was “legitimately on the premises”, in an area common to all tenants, but excluded to the public in general. The fact that a person does not have exclusive use or is not the only person who is legitimately on the premises is not a bar to his having standing to object to a search of that area. In Mancusi v. De Forte, 392 U.S. 364 [ 88 S.Ct. 2120 , 20 L.Ed.2d 1154 ] (1968), the U.S. Supreme Court held that a union official had standing to object to a search of the offices where he worked even though it was an office shared by several union officials and even though the defendant did not claim the records were seized from an area set aside for his personal use. The Court relied on Jones [v. United States ], supra [ 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (196) ], and Katz v. U.S., 389 U.S. 347 [ 88 S.Ct. 507 , 19 L.Ed.2d 576 ] (1967), and held that the capacity to claim the protection of the Fourth Amendment “depends not upon a property right in the invaded place, but upon whether the area was one in which there was a reasonable expectation of freedom from government intrusion.” 392 U.S. at 368 [ 88 S.Ct. 2120 ].

In the circumstances, we hold that while [Garrison] was in the basement, except for the time he was in the large empty room, he had a reasonable expectation that he would be “free from governmental intrusion”. The expectation was “reasonable” because he was “legitimately on the premises”, with knowledge that the area was excluded from the public’s presence and sight. [Garrison] met his burden of establishing his standing to object to the warrantless intrusion into the basement area. Id. at 269-70, 345 A.2d 86 . This Court proceeded to conduct an independent analysis of the reasonableness of the police entry into the basement based ⁸⁷ on the facts, which were undisputed.

We explained that the police entered the building at 2:35 a.m. for the sole purpose of finding Garrison’s hiding place for his drug stash and that they had not obtained permission from anyone to enter the building. Notwithstanding the established evidence that the doors to the apartment building and the basement were unlocked at the time, we concluded that there was “no evidence from which the police could have reasonably concluded that the building or its common hallways were open to the public at 2:35 A.M.” Id. at 271, 345 A.2d 86 . In our analysis, we discussed Eisenstein v. State, 200 Md. 593 , 92 A.2d 739 (1952). There, the police entered an unlocked front door to a small apartment building, 8 and observed from the common hallway Eisenstein exiting an apartment and “shoving lottery tickets into his pocket.” Id. at 599, 92 A.2d 739 .

The police arrested Eisenstein, searched him, and seized the lottery tickets. Affirming Eisenstein’s conviction for possession of lottery paraphernalia, the Court of Appeals reasoned that, if the police had a right to be in the common hallway of the apartment building, the arrest and search of the defendant was legal. Observing that there was no evidence that the entrance door ever was kept locked, the Court held that the police were legally in the common hallway of the apartment building as the building had a public entrance and the entrance door “was open to the public.” Id. at 600, 92 A.2d 739 . In Garrison , we distinguished Eisenstein on the ground that, in that case, the front door to the apartment building never was kept locked and so the apartment building was open to the public at all times.

We emphasized the manager’s testimony that, to enter the apartment building in Garrison , guests had to call and have a tenant unlock the front door, and further emphasized the Cl’s testimony that he ordinarily called the defendant when he wanted to “com[e] over to ‘Re-Up.’ ” 28 Md.App. at 272 , 345 A.2d 86 . We concluded that this ⁸⁸ evidence supported a strong inference that, on the morning in question, the Cl had called Garrison and advised him that he was coming to buy drugs; and that Garrison had unlocked the door in anticipation of the Cl’s arrival. (There also was some testimony in Garrison to suggest that the police, not the Cl, actually had opened the front door to the building.) This Court opined that, “under the circumstances, this was an illegal entry on th[e] part [of the police] for the expressed purpose of searching for evidence of crime against [Garrison].” Id. We further opined: Even if we were to assume the initial entry into the building was somehow lawful, there can be no doubt that the entry into the basement was not.

Here again, the police concede they had no permission from anyone to enter the basement. There are cases, such as Eisenstein, supra, where courts have held it reasonable in certain circumstances for police officers to enter lobbys [sic] and common hallways of apartment buildings found to be used by the general public. No case has been cited to us and we have found none, holding that, absent consent or exigent circumstances, the police may make a warrantless search of a basement area closed to the public and to be used only by tenants of the building. From what we have said it follows that evidence concerning the observations of the police inside the apartment building in the early morning hours of June 30, 1973, should not have been admitted as evidence at the trial in chief or used to form the basis for the search warrant subsequently obtained.

Id. at 274, 345 A.2d 86 . The State asserts that Garrison is distinguishable on its facts. 9 We agree. With respect to the police entry into ⁸⁹ the apartment building itself, unlike in Garrison , the evidence in this case was that the front door always was unlocked. No keys were issued to tenants for this door.

Before the time of the challenged entry, the police already had entered the apartment building twice to go to Harkum’s apartment, on the third floor. There was no suggestion below that the police had had no right to enter the apartment building on those prior occasions. Thus, whereas in Garrison we opined that there was “no evidence from which the police could have reasonably concluded that the building or its common hallways were open to the public at 2:35 A.M.” id. at 271, 345 A.2d 86 , here the evidence supported the conclusion that the 657 Houston Avenue apartment building always was open to the public. Moreover, in Garrison , the evidence was that the door to the basement ordinarily was locked.

We emphasized in that case that the police had entered a “basement area” that was “closed to the public and to be used only by tenants of the building.” In the instant case, the evidence was uncontradicted that the laundry room was on the first floor and its door always was unlocked. The lack of a keyed entry to this space and its location on a main floor provides further support for our conclusion that Garrison does not control the instant case. Whether the appellant had a legitimate expectation of privacy in the common laundry room of the 657 Houston Avenue apartment building is best analyzed by reference to the relevant Maryland and federal case law that has developed in the more than 30 years since Garrison was decided. Of particular importance is Fitzgerald v. State, 384 Md. 484 , 864 A.2d 1006 (2004), in which the Court of Appeals held that a canine sniff of an apartment door in a multi-unit apartment building was not a search under the Fourth Amendment.

In reaching its holding, the Court had occasion to consider the propriety of ⁹⁰ warrantless entries by police into common hallways of apartment buildings. The relevant facts in Fitzgerald were as follows. A K-9 unit police officer, accompanied by his certified drug-sniffing dog, entered a multi-unit apartment building through “unlocked glass doors.” 384 Md. at 488 , 864 A.2d 1006 . Two apartments and a staircase opened directly onto the vestibule and two more apartments opened onto a common hallway at the top of the staircase.

The officer directed the dog to scan the vestibule and second-floor common hallway. The dog did so and alerted outside the defendant’s apartment. Based in part on the positive canine sniff, the police obtained a search warrant for the defendant’s apartment. The search conducted pursuant to the warrant revealed substantial amounts of marijuana.

After being charged with various drug offenses, the defendant unsuccessfully moved to suppress the contraband from evidence on the ground that the dog sniff was an illegal, warrantless search of his home. On appeal to this Court after conviction, we affirmed. Fitzgerald v. State, 153 Md.App. 601 , 837 A.2d 989 (2003). The Court of Appeals granted certiorari and likewise affirmed.

In holding that the canine sniff of the exterior of the apartment conducted from the common hallway of the apartment building was not a search within the ambit of the Fourth Amendment, the Court explained that, under prevailing United States Supreme Court law, “government tests, such as a canine sniff, that can reveal only the presence or absence of narcotics and are conducted from a location where the government officials are authorized to be, i.e., a public place, are not searches.” 384 Md. at 493 , 864 A.2d 1006 . The Court emphasized that the police directing the canine sniff must “lawfully be present at the site of the sniff.” 384 Md. at 503 , 864 A.2d 1006 . In other words, contraband located inside an area for which a defendant has a legitimate expectation of privacy by means of a test conducted outside that area, in a place the police or government actors are permitted to be, is not a Fourth Amendment search. ⁹¹ The Fitzgerald Court had no difficulty concluding that the police officer and his dog were lawfully present in the hallway of the apartment building “as the apartment building’s common area and hallways were accessible to the public through an entrance of unlocked glass doors.” Id. at 504, 864 A.2d 1006 (citing Eisenstein, 200 Md. at 593 , 92 A.2d 739 ). Because the canine sniff that detected the smell of drugs inside Fitzgerald’s apartment was carried out in the common hallway of the apartment building, where the public, including the police, had a right to be, Fitzgerald’s Fourth Amendment rights were not implicated, and therefore could not have been violated. 10 ⁹² One year after its decision in Fitzgerald, the Court of Appeals held in Whiting v. State, supra, 389 Md. at 334 , 885 A.2d 785 , that a squatter in an abandoned building owned by the Housing Authority of Baltimore City did not have an objectively reasonable expectation of privacy in a room in which he was living, which he kept locked.

Although the case did not involve the precise issue of common areas of apartment buildings, the Court’s recitation of factors relevant to whether a person has an objectively reasonable expectation of privacy in a particular place is pertinent. The Court noted that these factors include “whether the individual [claiming an objectively reasonable legitimate expectation of privacy in a particular place] owned, leased, controlled, lawfully occupied, or rightfully possessed the premises searched.” 389 Md. at 359 , 885 A.2d 785 . With one exception, all of the federal courts of appeal that have considered whether tenants of multi-unit apartment buildings have an objectively reasonable expectation of privacy in the common areas of their buildings have held they do not. See United States v. Hawkins, 139 F.3d 29, 32 (1st Cir.1998) (opining that “[i]t is now beyond cavil in this circuit that a tenant lacks a reasonable expectation of privacy in the common areas of an apartment building” and concluding that the defendant did not have a reasonable expectation of privacy in the basement storage area of his apartment building); United States v. Barrios-Moriera, 872 F.2d 12, 14-15 (2nd Cir.1989) (holding that the defendant did not have a reasonable expectation of privacy in the apartment hallway of his building); United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (holding that there is no reasonable expectation of privacy in the hallway of an apartment building); United States v. Eisler, 567 F.2d 814, 816 (8th Cir.1977) (holding that there is no reasonable expectation of privacy in common hallways of a locked apartment building); United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir.1993) (holding that there is no reasonable expectation of privacy in apartment hallway despite locked entrance with buzzer system); United States v. Miravalles, 280 F.3d 1328, 1333 (11th Cir.2002) (holding that ⁹³ there is no reasonable expectation of privacy in the common area of a multi-unit apartment building without functioning locks). 11 In support of these holdings, the courts have reasoned that “tenants have little control over [common] areas, which are available for the use of other tenants, friends and visitors of other tenants, the landlord, delivery people, repair workers, sales people, postal carriers and the like.” Miravalles, 280 F.3d at 1332 .

We return to the case at bar. As in Fitzgerald, the 657 Houston Avenue apartment building was accessible to outsiders 24 hours a day. The front door was unlocked at all times; indeed, there was no evidence that tenants were issued keys to the front door and it appears that the door simply did not have a lock at all. To be sure, there was a sign on the front door that read: “NO TRESPASSING.

NO LOITERING OR SITTING IN THE HALLWAY STAIRS, BY ADULTS, CHILDREN OR, GUESTS. VIOLATORS WILL BE ASKED TO MOVE WITHOUT NOTICE.” In Eisenstein, 200 Md. 593 , 92 A.2d 739 , the Court of Appeals rejected an argument that officers who entered onto the common hallway of an apartment building where the front door was unlocked and mail was left for the tenants were “trespassers ... ab initio. ” Id. at 600, 92 A.2d 739 . The Court observed that the evidence, on the contrary, supported the conclusion that “it was the custom of everyone entering this apartment house to use this vestibule [otherwise described as the common hallway] as a public ⁹⁴ entrance and that this unlocked entrance door was open to the public.” Id. The presence of the “no trespassing” sign in this case does not distinguish it from Eisenstein, Fitzgerald, or any of the many federal circuit court cases holding that in most situations tenants of multi-unit apartment buildings do not have a legitimate right of privacy in the common hallways and areas of the buildings in which they live.

Indeed, the Court’s observations in Eisenstein apply here with equal force. A trespass against property “occurs when there is interference in the exclusive possession of the land of another,” either “by entering or causing something to enter the land.” Rosenblatt v. Exxon, 335 Md. 58, 78 , 642 A.2d 180 (1994). Tenants of the 657 Houston Avenue apartment building did not have exclusive possession of the common hallways of the building. Because the front door was unlocked, the hallways were readily accessible to visitors, repair people, delivery people, and anyone who wished to enter, including police officers.

Moreover, the common areas of the building did not belong to the tenants; they belonged to the landlord. See Hemmings v. Pelham Wood Ltd. Liability P’ship, 375 Md. 522, 538 , 826 A.2d 443 (2003) (common areas are “among the portions of a landlord’s property over which it retains control” and a landlord may be held liable in tort for failure to maintain such areas in a “reasonably safe condition”). The import of the sign, given the custom, as in Eisenstein, for members of the public to enter the unlocked front door to access the common hallways, was to warn people who already had entered, but had no reason to be in the building or business to carry out, not to use the common areas as a place to “hang out.” The laundry room of the apartment building, like the front door, was not locked. It was on the first floor.

It was accessible to tenants and their invitees, see Miravalles, supra, 280 F.3d at 1332 ; to the landlord and repair persons; and, as the facts of this case amply demonstrate, to anyone who entered the building through the unlocked main entrance. ⁹⁵ None of the factors the Whiting Court found relevant to whether a person has an objectively reasonable expectation of privacy in a particular place militate in favor of such a finding with respect to the appellant and the common laundry room of the 657 Houston Avenue apartment building. He did not own the building, control its common areas, possess or have the right to possess, to the exclusion of others, the common areas; nor did he lease those areas or have a right to occupy or possess them to the exclusion of others. As noted, the laundry room door bore a sign stating that it was “OPEN 8 A.M. TO 8 P.M.” The police search of the laundry room did not take place within those hours. That makes no difference as to whether the appellant had a legitimate expectation of privacy in the laundry room.

The room was not made physically inaccessible during those hours; it remained unlocked, and apparently did not have a lock at all. Given that nothing prevented entry into the laundry room during hours other than those posted on the sign, the likely purpose of the sign was to limit the times in which tenants would use the washers and dryers, so as not to create noise that would bother tenants within their individual units. Under these circumstances, even if it could be said that the appellant had an actual, subjective expectation of privacy in the common laundry room of the 657 Houston Avenue apartment building (which the evidence did not support in any event), he did not have an objectively reasonable expectation of privacy in that room. As we have noted, to the extent the State maintains that the appellant’s status as a temporary resident of Harkum’s apartment meant that he had no reasonable expectation of privacy in any area of the apartment building, we disagree.

He clearly had a reasonable expectation of privacy in the area of Harkum’s apartment in which he was staying. However, for the reasons we have explained, neither he nor any resident of the apartment building had an objectively reasonable expectation of privacy in the common laundry room of the building. ⁹⁶ The motion to suppress evidence of the gun recovered in the search of the laundry room of the 657 Houston Avenue apartment building was properly was denied.

II

Seizure of Pumphrey’s Cell Phone The appellant next contends the circuit court erred in denying his motion to suppress from evidence Pumphrey’s cell phone, as the fruit of a custodial interrogation improperly conducted prior to his receiving Miranda warnings. At the suppression hearing, Detective Hoezel testified to the following relevant facts. When, in the early morning hours of December 1, 2009, Detective Hoezel and Corporals Erwin and Black arrived at Harkum’s apartment with an arrest warrant for the appellant, Harkum let them in her apartment and they found the appellant sleeping on the floor in the bedroom. He was using two jackets as a pillow.

After the officers confirmed his identity, the appellant was handcuffed and “placed [ ] in custody.” He was wearing a pair of shorts and possibly a T-shirt. A search incident to arrest revealed $112 in cash and a small bag of marijuana in the pockets of his shorts. 12 The police escorted the appellant out of Harkum’s apartment, to the hallway of the apartment building, and Detective Hoezel informed him that he was going to be transported to the police station. At that point, the appellant asked the detective for “the rest of his clothes.” Specifically, he asked for the “two black jackets” he had been using as his pillow and “a pair of gray pants.” Detective Hoezel re-entered Harkum’s apartment, returned to the bedroom, and located the clothing the appellant had described. He then returned to the hallway and showed the clothing to the appellant, who confirmed that it was his.

Before giving the appellant the clothing to put on, Detective Hoezel searched the pockets of the jackets. According to the detective, it was “standard protocol [for] officer safety” to search any clothing that a suspect in custody would ⁹⁷ be wearing. In the pocket of one of the jackets, Detective Hoezel found the appellant’s ID and a cell phone. The cell phone matched the description of the cell phone stolen from Pumphrey.

The cell phone and clothing were processed as evidence. The appellant was advised of his Miranda rights after he was transported to the police