Holmes v. State

WILNER, J. Petitioner was convicted by the Circuit Court for Baltimore City, on an agreed statement of facts, of possession with intent to distribute cocaine and marijuana and possession of a firearm in connection with a drug trafficking offense. Those convictions rested, in large part, on evidence found during a search of petitioner’s home, and the issue is whether that evidence was lawfully obtained. The search was pursuant to a warrant, but the warrant was based, in part, on information gained by the police through an earlier warrantless entry into the house. The Circuit Court concluded that the initial entry was justified by exigent circumstances and that there was probable cause to support the warrant.

On appeal, the Court of Special Appeals disagreed with the finding of exigent circumstances, but remanded the case for a determination of whether the initial entry was with the consent of petitioner’s father. We have a different view than either of the two lower courts, but one that will effect an affirmance of the Circuit Court judgment. BACKGROUND Petitioner, to his misfortune, got snared in a police operation directed against his confederate, Brian Covell. On March 22,1999, the police had obtained warrants to search Covell, his house at 522 Midwood Road, and his Cadillac automobile.

Police agents, led by Officer James Harlee, drove to the Midwood Road home just in time to see Covell drive away in his Cadillac. They followed him to the 4500 block of Marble Hall Road, about a mile away, where Covell parked his car and entered the home of his parents at 4548 Marble Hall Road. Covell soon left the home, got into his car, and drove ⁵⁰⁹ off. Intending to effect a stop, the police followed but lost sight of the car as it crested a hill, so they returned to Marble Hall Road.

Covell returned a few minutes later and reentered his parents’ home. About five minutes later, Harlee observed the arrival of petitioner. Petitioner parked his car, looked around in what Harlee regarded as a suspicious manner, and then went into 4626 Marble Hall Road, which was in the same block as 4548, but a half to three-quarters of a block away. Petitioner stayed only about a minute.

He then came out, looked around again, got into his car, and drove away. Petitioner returned about three minutes later, got out of his car, looked around as before, reentered 4626, stayed a few minutes, then came back out and walked down to and entered 4548. After just a “couple minutes,” petitioner and Covell exited the house together and walked to the corner, where they met three men. Harlee, still surveilling from the police car, observed both Covell and petitioner make a hand-to-hand exchange with the men. 1 The three men left, whereupon Covell and petitioner got into petitioner’s car and drove off. ⁵¹⁰ The police stopped the car about a block away.

As Officer Harlee approached, he observed in petitioner’s jacket pocket a plastic bag containing plant material which, from his 21 years of police experience, he recognized as marijuana. Petitioner was arrested for possession of marijuana, and Covell was informed of the search warrants for him, his Midwood Road home, and automobile. When asked whether there were any drugs in either of the Marble Hall Road houses, petitioner refused to answer, saying only, “do what you got to do. I’m not answering that question.” Initially, the police had the two men sit on the sidewalk, but, when they noticed several people gathering up the street and watching them, they escorted Covell and petitioner back to 4626, where they were greeted at the door by petitioner’s father.

Officer Harlee explained that they had arrested petitioner and believed that there were drugs in the house. According to Harlee, the father consented to their entering and searching the house, but Harlee responded that he would get a search warrant and desired only to secure the house. He explained at the suppression hearing that, as the current warrants he had regarding Covell covered only Covell, the Midwood Road home, and the Cadillac, he needed a new warrant for Covell’s mother’s home at 4548 Marble Hall Road, and decided to obtain a warrant for 4626 as well, to avoid later challenges to the search of that house. He and several officers entered the house.

One went upstairs to do a protective sweep — to see if anyone else was there — and one went downstairs for the same purpose. There was no actual search — no drawers or containers were opened and nothing was disturbed. The officer who went upstairs informed Har-lee that he observed a safe in a bedroom closet. When assured that there was no one else in the house, Harlee detached two officers to remain in the house with petitioner and his father, accompanied Covell to 4548, which was also ⁵¹¹ impounded pending a warrant, and finally left to obtain the warrants.

Harlee succeeded in obtaining search warrants for both Marble Hall Road houses from a judge of the Circuit Court. He included in his application as to 4626 the fact that there was a safe in the house. He returned within two hours. The search of 4626 that ensued uncovered, among other things, over $8,000 in cash, several plastic bags containing cocaine, one containing marijuana, other paraphernalia, two handguns, a flare signal pistol, and five shotgun shells.

Petitioner moved to suppress this evidence on the ground that both the initial entry, which led to the discovery of the safe, and the ultimate search were unlawful as being unsupported by probable cause. Relying largely on Segura v. United States, 468 U.S. 796 , 104 S.Ct. 3380 , 82 L.Ed.2d 599 (1984), the Circuit Court concluded that the initial entry and “impoundment” of 4626 were proper and that probable cause existed for the warrant. The court credited Harlee’s concern that the crowd gathered on the street “had a clear and direct opportunity to get back to those houses and destroy or remove the other evidence or have people in the houses do that.” In effect, that concern justified the initial entry and impoundment, and consequently the discovery of the safe, on the ground of exigency. The Court of Special Appeals found no prejudice from the impoundment itself, but viewed the ultimate issue of probable cause as dependent on the validity and effect of the discovery of the safe during the protective sweep that accompanied the impoundment.

In that regard, it saw no evidence that the crowd of people that concerned Officer Harlee was inclined to interfere with the police investigation or destroy any evidence and, for that reason, rejected the Circuit Court’s finding of exigency. The appellate court concluded that the initial entry might be sustainable on a finding of consent notwithstanding that the State never argued consent as a basis for sustaining the entry, but noted that the trial court had made no finding in that regard. It therefore remanded for consideration of that issue and, depending on the court’s resolution of it, ⁵¹² reconsideration of whether there was probable cause for the warrant. Neither petitioner nor the State are happy with those rulings, and both have sought review here.

Petitioner raises two issues: (1) whether, in light of the prosecutor’s statement at the suppression hearing that the police had been refused consent by petitioner’s father and the State’s reliance only on exigency as a justification for the initial entry, it was appropriate for the Court of Special Appeals to remand for a ruling on consent; and (2) if so, whether there was a sufficient nexus between petitioner’s activities outside the house to generate probable cause for a search of the house. In a cross-petition, the State urges that: (1) under Segura , exigent circumstances are not necessary to justify impoundment of a home and a cursory protective sweep while a warrant is obtained; and (2) even if such circumstances are required, the Court of Special Appeals erred in concluding that they did not exist. DISCUSSION The Relevant Issue The questions raised by the parties focus, for the most part, on the validity of the initial intrusion into the house, because it was from that intrusion that the police discovered the safe. The evidence actually challenged by petitioner was uncovered during the search conducted pursuant to the warrant, however, and not as a result of the protective sweep that accompanied the initial entry.

The alleged illegality of the initial entry is significant only because the existence of the safe was noted in the application for the warrant and was presumably considered by the judge in finding probable cause, and thus, in petitioner’s view, tainted the warrant itself. Whether there was consent to the first intrusion or whether there were, or needed to be, exigent circumstances to justify it are important only in that context. We dealt with a similar kind of issue in Klingenstein v. State, 330 Md. 402 , 624 A.2d 532 , cert. denied, 510 U.S. 918 , 114 S.Ct. 312 , 126 L.Ed.2d 259 (1993). As part of an investí- ⁵¹³ gation into whether Klingenstein, a pharmacist, was violating the controlled dangerous substance laws by filling forged prescriptions for two particular drugs, two search warrants were issued, one for his pharmacy and one for his home.

The warrant for the pharmacy was held to be valid on its face, but limited in scope. The attack on it arose from the fact that; in executing the warrant, the police seized a number of items that allegedly were not included within the scope of the warrant. 2 Treating that warrant as a general one, Klingen-stein moved to suppress everything seized, and the trial court granted that motion. The second warrant, for the home, was challenged on the basis that the application for it made several references to items seized pursuant to the first warrant and, indeed, incorporated the inventory of items seized. Because the judge had held the first warrant invalid and had suppressed everything seized pursuant to it, he concluded that the second warrant was fatally tainted, and therefore Constitutionally deficient.

On appeal directly from the suppression hearing, we agreed with the holding of the Court of Special Appeals that the suppression judge erred in suppressing everything taken pursuant to the first warrant-that the proper remedy for a scope ⁵¹⁴ violation was the suppression of only those items that were outside the scope of the warrant. We therefore directed a remand for the trial court to sort through the items taken, determine which were within the scope and which were not, and suppress only those that exceeded the scope of the warrant. Klingenstein, supra, 330 Md. at 414-15 , 624 A.2d at 538-39 . With respect to the second warrant, we concluded, based on Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978), United States v. Karo, 468 U.S. 705 , 104 S.Ct. 3296 , 82 L.Ed.2d 530 (1984), and United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), that “tainted information in the warrant application does not necessarily render the warrant unconstitutional.” Klingenstein, supra, 330 Md. at 414 , 624 A.2d at 538 .

See also State v. Mazzone, 336 Md. 379, 399 , 648 A.2d 978, 987 (1994). The Court of Special Appeals, which had reached the same conclusion, had gone further and found that the reference in the application to the Schedule II drugs seized under the first warrant was not an indispensable component of probable cause, and that the remaining untainted information established probable cause for the warrant. See State v. Klingenstein, 92 Md.App. 325, 362 , 608 A.2d 792, 810 (1992). We noted, however, that, when a motion to suppress evidence seized under a warrant is based on the lack of probable cause for issuance of the warrant, the matter is initially for the hearing judge, and that it therefore followed “that the culling of tainted information and the determination of whether the remaining untainted information is adequate to show probable cause is also a matter for the hearing judge in the first instance.” Klingenstein, supra, 330 Md. at 414-15 , 624 A.2d at 538 .

We continued: “The further proceedings on remand to the circuit court should be to that end, not strictured by a culling by the appellate court and a holding by it that the remaining untainted information was adequate. If the hearing judge concludes, after factoring out the tainted information, that the information remaining established probable cause for the issuance of the warrant, he should, of course, uphold it ⁵¹⁵ and deny the motion to suppress insofar as it is founded on the unconstitutionality of the issuance of the warrant. The appellate court will then be in a position to perform its function of making an independent constitutional appraisal of the propriety of the hearing court’s rulings.” Id. at 415 , 624 A.2d at 538-39 . This approach, of remanding a case to the trial court to make the initial determination of whether, after excising the unusable information, the remaining assertions in the application suffice to establish probable cause, appears, at least on its face, to be inconsistent with the approach taken by the Supreme Court in analogous circumstances.

In Karo, supra, 468 U.S. 705 , 104 S.Ct. 3296 , 82 L.Ed.2d 530 — a case cited by us in Klingenstein — Federal agents, alerted that certain persons had ordered several cans of ether for use in extracting cocaine from clothing shipped into the country, installed a beeper into one of the cans that was eventually sold to the defendants. In part through monitoring the beeper and in part through visual surveillance, the agents kept track of the ether cans as they were moved from one place to another, eventually ending up in a private house. Based on this surveillance and observations they made from outside the house, the agents obtained a warrant to search the house. The defendants moved to suppress the evidence seized pursuant to the warrant on the ground that the warrant was fatally tainted by the unconstitutional use of the beeper.

The Supreme Court found no Fourth Amendment violation in the initial installation of the beeper, but did find one in the monitoring of the beeper while it remained in private homes which, the Court held, was tantamount to a warrantless search of the homes. That information, it concluded, would invalidate the warrant for the house “if it proved critical to establishing probable cause for the issuance of the warrant.” Id. at 719, 104 S.Ct. at 3305, 82 L.Ed.2d at 544. Citing Franks, supra, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 , however, the Court also noted that “if sufficient untainted evidence was presented in the warrant affidavit, to establish probable cause, the warrant was nevertheless valid.” Karo, supra, 468 U.S. at ⁵¹⁶ 719, 104 S.Ct. at 3305, 82 L.Ed.2d at 544. Significantly, the Supreme Court did not remand the matter for the trial court to make that determination but undertook the task itself, holding that “[i]t requires only a casual examination of the warrant affidavit, which in relevant respects consists of undisputed factual assertions, to conclude that the officers could have secured the warrant -without relying on the beeper to locate the ether in the house sought to be searched.” Id.

See also U.S. v. Glinton, 154 F.3d 1245, 1256-57 (11th Cir.1998), cert. denied, 526 U.S. 1032 , 119 S.Ct. 1281 , 143 L.Ed.2d 374 (1999) (concluding that, after excising excludable information, application for warrant sufficed to establish probable cause and sustained warrant); State v. Revenaugh, 133 Idaho 774 , 992 P.2d 769, 774-75 (1999) (same); State v. Vallas, 16 Conn. App. 245 , 547 A.2d 903, 909-10 (1988) (same). The inconsistency between the Karo and Klingenstein approaches may be more facial than real. In Karo , the record before the Supreme Court allowed it to determine, with precision, the information that had to be excluded and thus the untainted information that was left.

The Court could then make its traditional Constitutional appraisal of whether the remaining untainted information sufficed to establish probable cause for the warrant. That was not so clearly the case in Klingenstein. There, a detailed culling process needed to be performed. A court would be required (1) to consider each of the items seized pursuant to the first warrant, (2) to determine whether the item was or was not within the scope of the first warrant, (3) if it concluded that the item was wrongfully seized, to determine whether and to what extent it was mentioned in and may have materially tainted the application for the second warrant, (4) if the item was mentioned in and tainted the second warrant’s application, to excise it, and then (5) to determine whether, absent all of the excised items, there remained sufficient facts alleged in the application to establish probable cause for the second warrant.

It was clear from our conclusion (and that of the Court of Special Appeals) regarding the first warrant that the culling would have to be done by the suppression court. Neither ⁵¹⁷ appellate court was in a position to determine from the record which items were properly seized and which were not. Indeed, the Court of Special Appeals noted that “it is difficult from our vantage point to predict precisely the value of the evidence recovered in the search of the pharmacy or to assess the precise nexus between it and the command clause of the warrant.” Klingenstein, supra, 92 Md.App. at 336 , 608 A.2d at 797 . Absent that information, which, in large part, was factual in nature, we were reluctant to determine, as a matter of law, the effect on the second warrant of excising consideration of items that were improperly seized pursuant to the first warrant when it was impossible for us to determine what those items were.

That difficulty does not concern us in the present case. Here, the sole alleged taint arising from the first intrusion was the discovery and mention of the safe in the bedroom closet. We know precisely what would have to be excised should that intrusion be declared invalid, and we can