Groves v. State

Moylan, J. ⁶⁹⁸ Our primary focus on this appeal is on the protective sweep as an incident of lawful arrest. The appeal is a primer of Fourth Amendment law because of the plenitude of issues it raises. On December 14, 2017, the appellant, Curtis Groves, entered conditional guilty pleas to 1) the possession of heroin with intent to distribute and 2) the possession of a firearm in a drug trafficking crime before Judge Mark K. Boyer in the Circuit Court for Washington County. On the two convictions, the appellant was sentenced to an aggregate term of 32 years of incarceration with all but 26 years suspended.

The guilty pleas were conditioned upon the appellant's reserving his right to appeal from an adverse ruling at a pre-trial suppression hearing. Maryland Rule of Procedure 4-242(d)(2). ²⁴⁰ Our chronology in this case looks backward from that point. The Suppression Hearing Looking backward to the suppression hearing, the appellant moved pre-trial to suppress various contraband and instrumentalities of crime (to wit, drugs, a quantity of ammunition, and a handgun) seized by the police during a warranted search on January 25, 2017, of 43 Charles Street in Hagerstown, a residence shared by the appellant with his girlfriend, Sidrease ⁶⁹⁹ Morgan. A hearing was conducted on the motion on November 29, 2017, before Judge Boyer.

In an order of December 8, 2017, Judge Boyer denied the motion to suppress. The key issue before the suppression hearing was the constitutionality of the search and seizure warrant for 43 Charles Street issued by Judge Daniel Dwyer on January 25, 2017. There was no question but that the detailed, eight-page warrant application submitted by Agent Tammy Jurado of the Washington County Narcotics Task Force facially furnished abundant probable cause for the issuance of the warrant. The nub of the appellant's contention, however, was that the police had made an earlier entry into 43 Charles Street on that very day, to wit, when they first arrested the appellant, and had at that time made a number of visual observations which, in turn, became the essential core of the warrant application.

The warrant application recited: In the process of arresting Groves , Corporal Will Blount of the Prince George's County Police Department and assigned to the Capital Area Regional Fugitive Task Force, observed to the right of the basement stairs a long box. Between the box and the basement wall he observed a brick shaped item lying on the dirt floor, which was wrapped in a layer of white paper and then in clear plastic. The brick shaped item appeared pliable, and based on Agent Jurado's knowledge, training and experience as a police officer, large amounts of controlled dangerous substances are often packaged in a similar manner for concealment, and prior to being broken down into smaller amounts for the purpose of distribution or dispensing. Deputy Chris Carson, also assigned to the Capital Area Regional Fugitive Task Force, observed in the basement an artificial Christmas tree box.

Deputy Carson observed what is consistent with the black grip of a firearm protruding from the box. Deputy Carson also told Agent Jurado the basement wall is brick and one of the bricks had been removed and/or was missing. In the space where the brick should have been Deputy Carson observed a box of ammunition. ⁷⁰⁰ Deputy Carson further advised that while clearing the residence to ensure there was no one else inside, he observed lying on the bedroom floor of a second floor bedroom what appeared to be a black semi-automatic handgun. This black semi-automatic handgun was lying next to the bed.

(Emphasis supplied). The appellant's argument is that the unreasonable extent and duration of that earlier intrusion in the course of which the police made those observations violated the Fourth Amendment. The argument followed that if those unconstitutional observations, as fruit of the poisonous tree, were excised from the warrant application, what then remained would not have been enough to justify the issuance of the warrant. With respect to that conditional quantitative assessment, the appellant is on solid ground.

With respect to the constitutionality of the initial intrusion, however, ²⁴¹ we must look backward to the facts of that earlier event. The Protective Sweep Incident To Arrest: A Homegrown Product A. A National Phenomenon With A Local Provenance Before turning to the application of protective sweep law to the specific facts of this case, however, it behooves us to examine protective sweep law in the abstract. It also is gratifying to remember that this now universally recognized constitutional principle grew from strong native roots. It was the 1987 opinion of Judge Theodore Bloom for the Court of Special Appeals of Maryland that found expression in the Supreme Court's first recognition of the protective sweep phenomenon in terms essentially indistinguishable from those first enunciated by Judge Bloom.

In Buie v. State , 72 Md. App. 562 , 531 A.2d 1290 (1987), seven officers went to Buie's home in Prince George's County with an arrest warrant and arrested him for armed robbery. One officer called down basement stairs for everyone in the basement to come up with hands raised. After some discernible delay, Buie came up and was immediately arrested, handcuffed, ⁷⁰¹ and searched. As Buie was being led from the house, another officer went down into the basement "in case there was someone around." Id. at 566 , 531 A.2d 1290 .

B. The Protective Sweep As A "Prior Valid Intrusion" What the officer found was a red jogging suit matching a description of the clothing worn by the armed robber. Pursuant to the Plain View Doctrine, it was seized and admitted into evidence. If the police entrance into the basement to conduct the protective sweep was reasonable, there was no disputing the fact that the warrantless seizure of the red jogging suit was also reasonable. The sweep into the basement was the Plain View Doctrine's "prior valid intrusion." The police had probable cause to believe that the red jogging suit, spotted in plain view, had been worn by the robber and was evidence of crime.

Coolidge v. New Hampshire , 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971) ; Arizona v. Hicks , 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987). The Task Force did not immediately or warrantlessly seize the contraband or other evidence which they observed in the course of the protective sweep. They simply included these observations in their application for a search warrant. In the meantime they placed a guard on 43 Charles Street, effectively seizing the property while they obtained the warrant.

Illinois v. McArthur , 531 U.S. 326 , 121 S.Ct. 946 , 148 L.Ed.2d 838 (2001) ; Segura v. United States , 468 U.S. 796 , 104 S.Ct. 3380 , 82 L.Ed.2d 599 (1984). C. The Measure Of Certainty The key issue before this Court was one of first impression. Maryland has not previously determined whether , following the execution of an arrest warrant, officers may make a cursory inspection of the premises where the arrest took place to search for other known suspects [.] 72 Md. App. at 572 , 531 A.2d 1290 (emphasis supplied). Holding that only reasonable suspicion and not probable cause is the measure of certainty that must be satisfied, Judge Bloom concluded: ⁷⁰² [I]f there is reason to believe that the arrestee had accomplices who are still at large, something less than probable cause-reasonable suspicion-should be sufficient to justify a limited additional ²⁴² intrusion to investigate the possibility of their presence . 72 Md. App. at 576 , 531 A.2d 1290 (some emphasis supplied).

A splintered Court of Appeals, by a four-to-three vote, reversed the decision of this Court and held that probable cause rather than reasonable suspicion was the appropriate measure of certainty required. Buie v. State , 314 Md. 151 , 550 A.2d 79 (1988). The only difference between the conclusion of the Court of Appeals and that of the Court of Special Appeals was with respect to the measure of certainty-probable cause versus reasonable suspicion-required to justify a protective sweep. The Supreme Court granted certiorari and reversed the Court of Appeals's decision.

Maryland v. Buie , 494 U.S. 325 , 110 S.Ct. 1093 , 108 L.Ed.2d 276 (1990). D. The Measure Of Justification Is Reasonable Suspicion That measurement became, in turn, the primary focus of the Supreme Court. In this case we must decide what level of justification is required by the Fourth and Fourteenth Amendments before police officers , while effecting the arrest of a suspect in his home pursuant to an arrest warrant, may conduct a warrantless protective sweep of all or part of the premises. 494 U.S. at 327 , 110 S.Ct. 1093 (emphasis supplied). After analogizing the question for decision to that before the Court in Terry v. Ohio , 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and Michigan v. Long , 463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983), the Supreme Court articulated both the standard and the test: We conclude that by requiring a protective sweep to be justified by probable cause to believe that a serious and demonstrable potentiality for danger existed, the Court of Appeals of Maryland applied an unnecessarily strict Fourth Amendment standard.

The Fourth Amendment permits a ⁷⁰³ properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. We therefore vacate the judgment below and remand this case to the Court of Appeals of Maryland for further proceedings not inconsistent with this opinion. 494 U.S. at 336 -37 , 110 S.Ct. 1093 (emphasis supplied). E. The Purpose Of A Sweep Is Officer Protection The analogy to Terry v. Ohio and to Michigan v. Long is the very core of the raison d'être for the protective sweep in Buie . All three cases serve precisely the same purpose-officer safety.

They do so in the respective contexts of 1) a Terry stop on the street, 2) a Terry stop on the open road, and 3) an arrest in a home. That is why, of course, they share precisely the same triggering quantitative authorization- Terry reasonable suspicion. The protective sweep, therefore, does not in any way look for evidence of crime. Its exclusive purpose is to look for potentially armed and dangerous persons, who might harm the officers.

F. The Definition Of A Protective Sweep The Supreme Court's Buie opinion, at its outset, gave us an effective "nutshell" definition of the protective sweep. A "protective sweep" is a quick and limited search of premises, incident to an arrest and conducted to protect the ²⁴³ safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. 494 U.S. at 327 , 110 S.Ct. 1093 . G. The Geography Of A Protective Sweep The geography of the protective sweep is interesting.

Security measures in a very limited area are automatically available as an incident of lawful arrest in a home-a bright line formula. Justice White's opinion in Buie pointed out: ⁷⁰⁴ We also hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. 494 U.S. at 334 , 110 S.Ct. 1093 (emphasis supplied). It is only as the protective sweep then moves outward from that central core that justification, at the reasonable suspicion level, becomes necessary. Beyond that , however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

This is no more and no less than was required in Terry and Long , and as in those cases, we think this balance is the proper one. Id. (Emphasis supplied; footnote omitted). H. The Scope Limitations Of A Protective Sweep The Buie opinion also carefully pointed out the scope limitations-in terms of both space and time-that circumscribe the protective sweep.

We should emphasize that such a protective sweep , aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. 494 U.S. at 335 -36 , 110 S.Ct. 1093 (emphasis supplied; footnote omitted). I. Reasonable Suspicion Is Objectively Assessed Judge McAuliffe, who had been in dissent when the Buie case was first before the Court of Appeals, wrote the majority ⁷⁰⁵ opinion for that Court on remand from the Supreme Court. The Court of Appeals was again split, four to three with one of the four, moreover, Judge Chasanow, simply concurring in the result.

On remand, the Court of Appeals had to determine whether the standard for measuring reasonable suspicion was subjective or objective. [W]e must first determine whether the presence of "reasonable suspicion" must be tested from the view of the particular police officers involved, or from the view of a reasonable police officer under the same circumstances, or a combination of the two. Buie argues the State must show that the officers had a subjective belief that there was a dangerous individual in the basement, and that this belief must have been objectively reasonable. The State insists an objectively reasonable belief is sufficient. Buie v. State , 320 Md. 696 , 699, 580 A.2d 167 (1990) (emphasis supplied).

The reason for uncertainty was that the Supreme Court's opinion had been less than crystal clear in that regard. ²⁴⁴ From the Supreme Court's Buie , it is not easy to tell whether the established standard is subjective or objective. Id. The Court of Appeals then opted for the objective standard. We conclude that in determining the existence of reasonable suspicion in a case such as this, the objective standard must be used.

The Supreme Court in this case spoke specifically of the use of an