Johnson v. State

RAKER, Judge. Jamore Van Johnson appeals from his conviction in the Circuit Court for Anne Arundel County for the offenses of possession of a controlled dangerous substance with intent to distribute and simple possession. The sole issue he raises before this Court is the trial court’s denial of his motion to suppress evidence seized pursuant to a search incident to his arrest for trespass on public housing property in violation of Maryland Code (1957, 1996 Repl.Vol.) Article 27, § 577(a)(2) 1 Johnson contends that the police did not have probable cause to believe that he was trespassing because the notification that he received in 1995 to stay off the property was stale in 1997; thus, the arresting officer, knowing the date of the notification, could not reasonably have believed that Johnson was committing a crime. The Court of Special Appeals found no merit in his argument and affirmed the judgments.

We agree, and shall affirm. At the time of this offense 2 , § 577 stated in pertinent part: (a) In general.—(1) Any person who remains upon, enters upon or crosses over the land, premises, or private property ... of any person or persons in this State after having been ⁵⁰¹ duly notified by the owner or his agent not to do so is considered guilty of a misdemeanor, and upon conviction is subject to a fine not exceeding $500, or imprisonment not exceeding 3 months, or both. (2) The provisions of paragraph (1) of this subsection shall apply to property used as a housing project and operated by a housing authority ... if a duly authorized agent of the housing authority ... gives the required notification specified in paragraph (1) of this subsection. (3) This section may not be construed to include within its provisions the entry upon or crossing over any land when such entry or crossing is done under a bona fide claim of right or ownership of said land, it being the intention of this section only to prohibit any wanton trespass upon the private land of others.

Petitioner was found guilty in the Circuit Court for Anne Arundel County, in a bench trial upon an agreed statement of facts, of the offenses of possession of a controlled dangerous substance with intent to distribute, namely heroin, and possession of a controlled dangerous substance, namely, cocaine. The court sentenced him on each count to a term of incarceration of three years, to run concurrently. Officer John Miller of the Annapolis Police Department was the only witness to testify at the suppression hearing. The evidence presented at the hearing is as follows.

Shortly after midnight in the early morning hours of May 7, 1997, Officer Miller was patrolling the public housing community in Annapolis known as Annapolis Gardens. He testified that the area is a posted no trespass area and that these signs are affixed upon light posts throughout the community. Officer Miller explained that “the community oriented policing squad has been given the authority by Annapolis Housing Authority to issue banning notices to individuals that they feel have no proper reason for being in these communities.” 3 In accor ⁵⁰² dance with this authority, the police department maintained a trespass banning list. Officer Miller testified that when his check reveals that a person is on the banning list, the person is arrested.

Officer Miller testified that he noticed Petitioner driving on Bowman Drive, a street within the Annapolis Gardens community, recognized him, and recalled his name. He radioed the police dispatcher and requested a check for outstanding warrants and driver’s license status. The dispatcher advised the officer that Petitioner had a valid driver’s license and that there were no outstanding warrants for his arrest. Officer Miller then requested the dispatcher to check Petitioner’s name against a “binder or folder ... of names of people that have been banned from different Housing Authority properties throughout the City of Annapolis.” The dispatcher advised the officer that Petitioner’s name was listed “as being issued by Officer Berger on 5/5/95 as not to return to the property of Bowman Court/Annapolis Gardens” and that he had been “banned” from the property in 1995.

Upon learning that Petitioner was banned from the property, the officer stopped Petitioner’s car and arrested him for trespass. The officer searched the car and seized the drugs in question concealed within the vehicle, as well as $84.00 and a beeper. Petitioner filed a timely motion to suppress the evidence by the police on the grounds that his arrest was unlawful because the police officer lacked probable cause to support the arrest. Petitioner argued that the search incident to that arrest was unlawful and the items seized by the police were inadmissible. • The trial court denied Johnson’s motion to suppress.

The State entered a nolle prosequi to the trespass charge and Petitioner proceeded to trial on an agreed statement of facts. Following his conviction and sentence, he noted a timely appeal to the Court of Special Appeals. In an unreported opinion, the court affirmed. We granted the petition for writ of certiorari.

Petitioner presents a single argument before this Court— that the officer lacked probable cause for the arrest because ⁵⁰³ he knew that the notification was two-years old and thus could not have reasonably believed that Petitioner was duly notified not to enter upon the property. He maintains that notification proper in 1995 was stale in 1997; that Officer Miller, knowing the date of the notification, could not reasonably have believed that it was not stale and thus could not have believed that Petitioner was trespassing. Petitioner’s premise is that a critical element of the crime of trespass after warning is that the person’s presence on the property be after he or she was “duly notified” not to trespass. Before this Court, Petitioner does not dispute that Officer Miller knew that Petitioner had entered the property.

Nor does Petitioner dispute that Officer Miller knew that Petitioner was notified earlier—on May 5, 1995—by another officer not to enter the property. Rather, he argues that this notification was not “due” notification on May 7, 1997, and that no reasonable officer could have believed that the notification given on May 5, 1995 was adequate notice under the statute. Without suggesting any guidelines, he maintains that the notice not to enter must be reasonably contemporaneous. Petitioner relies on dictionary definitions of the word “duly” to support his argument that the word has a connotation of timeliness. 4 Citing the American Heritage Dictionary (2d ed.1992), defining “duly” as “in a proper manner; in the expected time,” and Webster’s New World Dictionary (2d College ed.1978), defining “duly” as “in due manner,” “when due; at the right time; on time,” he concludes that only “reasonably contemporaneous” notification would be due notification and that a reasonable police officer would not think otherwise.

Officer Miller knew that the notification was two-years old, and therefore, according to this argument, could ⁵⁰⁴ only have reasonably believed that the due notification element was negated; the possibility that a trespass had been committed in his presence was therefore negated as well. Consequently, he could not have had probable cause for the arrest. Our review of the trial court’s denial of a motion to suppress under the Fourth Amendment is based solely upon the record of the suppression hearing. See Ferris v. State, 355 Md. 356 , 735 A.2d 491 (1999).

The arrest in this case was a warrantless arrest, based upon on a misdemeanor having been committed in the presence of the police officer. 5 The legality of a warrantless arrest is determined by the existence of probable cause at the time of the arrest. See Collins v. State, 322 Md. 675, 679 , 589 A.2d 479, 481 (1991). “The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion.” Doering v. State, 313 Md. 384, 403 , 545 A.2d 1281, 1290 (1988). Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information would justify the belief of a reasonable person that a crime has been or is being committed. See Beck v. Ohio, 379 U.S. 89, 91 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964); Collins, 322 Md. at 680 , 589 A.2d at 481 .

We have recognized that in dealing with probable cause, we deal with probabilities. “These are not technical; they are the factual and practical ⁵⁰⁵ considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Doering, 313 Md. at 403 , 545 A.2d at 1290 (quoting Brinegar v. United States, 338 U.S. 160, 175-76 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949)). Before the Court of Special Appeals, Petitioner presented two arguments. First, that there was no evidence that Johnson was ever on Annapolis Gardens property, and second, that the notification not to enter the property was not timely; it was not due; rather it was clearly stale. As to the first argument, the court held that because the argument was not made at the hearing on the motion to suppress, it was waived. 6 As to the second argument, Retired Chief Judge Robert C. Murphy, writing for the court, found that “there was no reason whatsoever to believe that the trespassing prohibition against [Johnson] had somehow expired or that [Johnson’s] name had otherwise been removed from the list.

There is ⁵⁰⁶ simply no suggestion that the information that the dispatcher gave to Officer Miller was stale.” The court also noted that the statute expressly permits a housing authority to notify a person not to enter upon housing project property, and that the statute contains no time limitation on such bans. We agree with the Court of Special Appeals. The plain language of the statute does not create expressly any time limitation upon the notification requirement. Examination of the statutory scheme of criminal trespass as a whole, moreover, shows that while the General Assembly intended to create a requirement of contemporaneous notification for criminal trespass on certain types of property, it did not intend to do so for private property or public housing projects.

Our review of the legislative history of the provision on public housing projects, added by amendment in 1994, reinforces this conclusion. Under the common law, trespass to real property is not a crime unless it amounts to a breach of the peace. Thus, for the most part, criminal trespass is a creature of statute. It is only the notification element of the statute that concerns us in this case.

We begin our discussion by pointing out that Maryland’s statutory scheme for criminal trespass divides property into two categories: private property, including public housing projects on the one hand, and public buildings and grounds on the other. The section pertaining to private property and public housing projects, recited above, provides that one may not “enter[ ] ... after having been duly notified ... not to do so.” Section 577(a)(1). The section criminalizing trespass on public buildings and grounds provides as follows: (1) During regularly closed hours.—Any person refusing or failing to leave a public building or grounds, or specific portion thereof, of a public agency or public institution during those hours of the day or night when the building, grounds, or specific portion thereof, is regularly closed to the public, upon being requested to do so by a regularly employed guard, watchman or other authorized employee of ⁵⁰⁷ the public agency or institution owning, operating or maintaining the building or property if the surrounding circumstances are such as to indicate to a reasonable man that such person has no apparent lawful business to pursue at such place, shall be guilty of a misdemeanor.... (2) During regular business hours.—Any person refusing or failing to leave a public building or grounds, or specific portion thereof, of a public agency or public institution during regular business hours, upon