Johnson v. State

Lowe, J., delivered the opinion of the Court. “The precise question in this case, then, is what must the prosecution prove to demonstrate that a consent was ‘voluntarily’ given.” Schneckloth v. Bustamonte, 412 U. S. 218, 223 . Oscie Walker Johnson and his wife, Bessie Louise Johnson, were convicted by a jury of the Circuit Court for Montgomery County of possession of heroin in an amount sufficient to indicate an intent to distribute it. The heroin and paraphernalia were found in their Montgomery County apartment as the result of a search by police officers. The search of appellants’ apartment and the subsequent seizure of the evidence found therein, which piovided the basis for appellants’ convictions, was predicated upon a consent given by Oscie Johnson immediately prior to the search while in custody.

The circumstances of Oscie Johnson’s arrest, less than an hour before his consent was obtained, is an important factor in the “totality of all the circumstances” by which the voluntariness of the consent is to be determined, ²⁸² Schneckloth, supra, 412 U. S. at 227 . However, contrary to appellants’ assertion, the illegality of an arrest does not itself make all consents resulting therefrom involuntary. Cf. United States v. Watson, 423 U. S. 411 , 18 Cr.

L. 3051; Whitman v. State, 25 Md. App. 428 . The legality or illegality of a custodial holding is but one element to be considered in determining the voluntariness of the consent. More determinative of the question are the actual circumstances surrounding the arrest. A custodial consent derived from a telephone request to an accused asking him to come to a police station and submit voluntarily to police custody, is far less suspect than a consent resulting from an arrest at gun-point by several carloads of police officers armed with shotguns.

Whether either arrest was legal or illegal is a factor in the equation, but the “heightened possibilities for coercion”, Schneckloth v. Bustamonte, 412 U. S. at 240, n. 29 , derive more from the particular custodial atmosphere than from whether the arrest conformed to the technical standards of legality. The Wong Sun 1 doctrine that the illegality of the arrest poisons its fruits 2 may affect the flavor of the consent, but does not render it poisonous in all circumstances. Wilson v. State, 30 Md. App. 242 (1976). It is hard to imagine a more coercive atmosphere than appears from the facts of the instant case.

While under ²⁸³ surreptitious surveillance by four plainclothes officers in two unmarked police cars, Oscie Johnson and an associate left his Montgomery County apartment about midnight and entered his automobile. They drove into Prince George’s County on East-West Highway followed closely by the two unmarked police cars. When appellant stopped at a red traffic light, one police car pulled behind him and the other next to him. Two officers in plainclothes armed with shotguns started out of their cars toward Johnson’s car.

Johnson accelerated rapidly although the signal was still red and the unmarked cars, joined by a marked police car, followed him through the intersection. They apprehended him within fifty yards. Johnson was covered by shotgun wielding officers at the front and side windows of his car. He and his associate were taken from the car, forced to assume the customary spread-eagle position and searched. 2A Suspected narcotics were found on Johnson and in his car. ²⁸⁴ Appellant’s hands were then manacled behind his back and he was placed in the back seat of a police car.

Three or four officers were in the vehicle with him and others, including uniformed officers, remained outside. Within fifteen minutes of his arrest, appellant verbally consented to a search of his apartment. Plainclothes State policemen were summoned to the scene. Upon arrival, between thirty and forty-five minutes later, one State policeman entered the car with a written consent form and asked appellant if he would sign it.

After receiving an affirmative response, he advised appellant that if more narcotics were found in his home they would be used to bring charges against him in Montgomery County. The State policeman in charge of the case also advised appellant that he could withdraw his consent at any time. Johnson’s handcuffs were unlocked, so he could sign the consent form, and then refastened. The procession of police vehicles then proceeded to the Johnson’s home.

When they arrived there, Oscie explained to his wife that he had consented to a search of the premises. The two Johnsons were seated on the sofa and, at Bessie Johnson’s request, were permitted to be joined by their young daughter. The search revealed substantial narcotics and paraphernalia. Appellant’s testimony differed little from that given by the police officers.

His descriptions were more varied and certainly more detailed. Although Oscie Johnson was not able to say specifically which officer did what, he did testify that the two officers who apprehended him identified themselves as “Batman and Robin.” “Q Do you recall which officer went around to the passenger side of the car? A No. All I was looking at was at the shotgun. I wasn’t looking at the officers.” ²⁸⁵ His detailed recollection of the arrest was not rebutted, but might have been disbelieved by the trial judge.

He testified that when he was stopped after going through the red light: “A Two officers jumped in front of my car, and I saw them. I guess they cocked the shotguns, pointed them directly at my windshield, and I put my hands up. Q What was said at that time? A They walked around to the side of the car and they asked me, told me to get out of the car.

The car wasn’t in park and I was scared to move my hands to put it in park. Q Is that what you said to them? A Yes. Q What did they say?

A They reached in and put it in park. Q Then what happened? A I proceeded to get out of the car. Q Were there any guns pointed at you at this time?

A Yes. Q What kind of guns? A Revolvers and two or three shotguns. Q How close was the closest shotgun to your head?

A A shotgun was on my neck. Q Literally on your neck? A Touching my neck, both of them. Q What did you do then?

A He asked me to run and, well, the shotgun was pointed at my head. The officer that just testified said, ‘This is a hairpin trigger I got. You can breathe hard if you want to.’ I asked him to remove the shotgun from my head. Q Then what happened? ²⁸⁶ A The officer standing across from me with the pistol on the other side of the car, the officer across the car, the officer behind me, I don’t know how many were behind me, that is about it.

Q Well, all right, did you have your hands on the car? A Yes.” He admitted that he was advised fully of his rights in accordance with Miranda v. Arizona, 384 U. S. 436 , and warned that he need not consent to the search of his home. However, he denied being told he had the right to be taken to a court commissionér forthwith to be formally charged. When asked why he consented, he assigned various reasons, two of which he articulated upon cross-examination: “Q You consented to the search because you didn’t think they would find anything?

A I knew they wouldn’t find anything. Q That is the reason you signed the form, though; isn’t that right? You didn’t sign it because you figured they would kick the door down? A They said they would kick the door down.

MR. DONOHUE: I object. MR. SHAW: If I can finish the sentence, that is all I am trying to do.

THE COURT: Re-state your question. BY MR. SHAW: Q You didn’t sign the consent form because you thought they were going to kick down the door anyway; that is not the reason? A That is one of the reasons.

I misunderstood your question. Q That was your reason? A That was one of the reasons. Q How many reasons did you have?

A For one reason, I knew there weren’t any narcotics in my house. It didn’t make any ²⁸⁷ difference whether I signed it or not, I had my girl there, little girl there and I didn’t want them kicking down the door. Q How many reasons did you have for signing it? A I didn’t see any reason not to.” It was upon this testimony that the trial judge denied appellants’ motions to suppress. 3 The court stated: “In any event, considering all the facts presented at the suppression hearing, and following the guidelines set down in the Schneckloth and Lopata [ 18 Md. App. 451 ] cases, the Court finds that the consent of defendant Oscie Johnson to search the premises at 7406 Hancock Avenue was freely and voluntarily given and the subsequent search and seizure of evidence was valid.” In Whitman v. State, 25 Md. App. 428 , we adopted the procedure prescribed by United States v. Hearn and Taylor, 496 F. 2d 236 (6th Cir.), of isolating the factors of coercion and non-coercion and placing them in juxtaposition in order to determine the voluntariness of a consent search.

The elements of coercion in the case at bar completely counterbalance the non-coercive acts of the police. The fact that appellant admitted he was given his Miranda warnings and told he had the right to refuse consent to the search of his home are certainly non-coercive factors. See Schneckloth v. Bustamonte, supra, 412 U. S. at 226 . We add to the positive side of the scale the trial judge’s finding that appellant saw no reason not to consent because there was nothing to find.

We do not regard these factors as so compelling as to outweigh the melodramatic atmosphere of Johnson’s midnight apprehension at gun-point followed by his confinement to the back seat of a police car with his hands manacled behind his back. Nor do we believe that the time period between the first verbal consent and the written consent signed while still in the same atmosphere (though ²⁸⁸ not then at gun-point) vitiated the appalling circumstances of Johnson’s arrest so as to add any weight to the non-coercive side of the scale. If the totality of these circumstances are not coercive, we can find little meaning in the test espoused in Schneckloth v. Bustamonte, supra, that: “ . .. whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U. S. at 227 . Who Decides Voluntariness Because we shall remand for a possible new trial, we feel compelled to respond to another of appellants’ tangential complaints.

Appellants argue that the same procedure should be used in determining the voluntariness óf a consent to search as in determining the voluntariness of a confession. The procedure used when the latter is at issue is that: “. . . the court has the preliminary decision whether or not the confession was voluntary and the trier of facts has the final determination. . . .” Barnhart v. State, 5 Md. App. 222, 223 . Although appellants’ argument is beguiling, the application of such a procedure to the consent to search issue' has not been accepted by this Court, nor by the Court of Appeals since the adoption of Md. Rule 729. Prior to that rule’s adoption, however, in Hubbard v. State, 195 Md. 103, 107 , the Court of Appeals spoke directly to this question. “In a case like this, where the traverser testifies that the search was made over her objection, and the police officers testify that she permitted them to make the search, whether the fruits of the search should go to the jury is in the first instance a matter for the court.

If the court is of the opinion that the accused freely and voluntarily consented to ²⁸⁹ the search, and there was no coercion or fear brought to bear upon the traverser by the police, the matter should be submitted to the jury, and it is then for the jury to say, on all the facts, whether the traverser waived her right she might have to object to the search.” See also Payne v. State, 207 Md. 51 , 54-55 and Wilson v. State, 239 Md. 245 . Hubbard was decided on April 14, 1950, before the Supreme Court had ruled that the Fourth Amendment guarantee against unreasonable searches and seizures was applicable to the states through the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U. S. 643 (1961). In June of 1965, the Court of Appeals, relying on Hubbard and Payne , both supra, held in Wilson v. State, 239 Md. 245 that counsel was entitled to argue to the jury the question of voluntariness of a consent to search (as well as the legality of an arrest). “We think the judgment must be reversed because the trial judge erred when he prevented defense counsel from arguing to the jury the questions whether the appellant had voluntarily consented to the searches and seizures, or whether his apparent acquiescence had been induced by an unlawful arrest.

Whether these were questions of law or of fact, or a combination of both, they were within the domain of the jury and counsel was entitled to discuss the facts relative thereto and inform the jury of the applicable law.” Id. at 254 . Thereafter, in June of 1967, the Court of Appeals adopted Md. Rule 729 to clarify for bench and bar the procedure to be followed in cases wherein the question of the legality of a search and seizure is raised. That rule, pertinent to the issue here, provides