Jones v. State

RAKER, J. In this murder case, we must decide whether the Circuit Court for Anne Arundel County erred in denying petitioner’s motion to suppress evidence seized by the police. The Court of Special Appeals affirmed the trial court, holding that the “No Trespassing” sign on petitioner’s property did not lead to a reasonable expectation that the sign would prevent police officers from walking to the front door in furtherance of an investigation. We shall affirm. I. Petitioner James Desmond Jones was indicted by the Grand Jury for Anne Arundel County in a multi-count indictment, charging murder in the first degree, conspiracy to commit murder, use of a handgun in a felony and use of a handgun in the commission of a crime of violence.

Following a bench trial, he was convicted of second degree murder and use of a handgun in the commission of a crime of violence. The court sentenced him to a term of incarceration of twenty five years on the murder charge and twenty years on the handgun charge, to be served concurrently. The court recommended that petitioner serve his sentence at Patuxent Institution. Prior to trial, petitioner filed an “Omnibus Motion pursuant to Rule 4-252” which included a motion to suppress all physical evidence the police seized from 11299 Station Road, Worton, Maryland on January 25, 2006, when they went there to investigate the murder of Darnell Brown.

Petitioner’s argument at the motion hearing was that when the police entered on to his property, they were trespassers and hence, the ³⁹ search of the vehicle was illegal, as was everything that flowed from it. The following facts are derived from the hearing on the motion to suppress. Detective William Johns, a twenty-four year veteran police officer, and Detective John Lee investigated the murder of Darnell Brown on January 13, 2006. Detective Johns found a cell phone on Brown’s body, and after checking incoming calls to that phone, he learned that several calls had been made shortly before Brown’s death from the same phone number.

Detective Johns testified as follows: “Well the first thing that struck us was that the last phone call placed to or from the victim before his death was from that number. Looking further we found that there are multiple calls back and forth between the victim and that phone number shortly before his death.” The police determined that the owner of the cell phone number was Tammy Jones, petitioner’s wife, and they obtained her address. On January 25, 2006, in the afternoon when it was still daylight, Detectives Lee, Johns and three other law enforcement officers went to the address listed to the cell phone, 11299 Station Road, Worton, Maryland. Four of the officers, including Detectives Lee and Johns, were in plainclothes, while Kent County Deputy Hickman was in uniform.

Detective Johns described what he saw when they arrived at the property. He noticed several buildings on the premises, some houses and travel trailers. He observed a driveway and a split in the road, the left fork that ended at the home of Mary (Elizabeth as she is known) and Carl Web, the parents of Tammy Jones, and to the right, the home of petitioner and his wife. A six foot privacy fence between the Webs’ and Joneses’ houses divided the property in two.

Mailboxes for the Webs and Joneses were located at the split in the driveway. Petitioner testified that people came once a day to make deliveries for his mail order business. In addition, about thirty feet off the road and posted on a cedar tree was a sign that said “No Trespassing, Hunting or Fishing.” In smaller ⁴⁰ letters, the sign said, “Violators prosecuted under penalty of law.” At the bottom of the sign, Carl and Elizabeth Web had signed their names with a magic marker. The sign was shaded by overhanging branches, and Detectives Johns and Lee both testified that they did not see the sign.

Detectives Johns and Lee went up to the Webs’ house, where they talked to Mrs. Web, Tammy Jones’s mother. She told them that the Joneses lived in the other house and that the phone number the police had found belonged to her daughter, Mrs. Jones. Mrs. Web also expressed concern that her daughter had not returned a car that Mrs. Web had rented, and for which she was still paying. After a short visit with Mrs. Web, and after seeing Mrs. Jones outside her house briefly, the detectives went over to the Joneses’ house to speak with Mrs. Jones.

Detectives Johns and Lee went up to the front door and knocked persistently for approximately five minutes. Mrs. Jones answered the door, stepped outside and quickly shut the door behind her. Detective Johns asked if there was some place they could talk because it was cold outside. Detective Johns described the initial encounter as follows: “She stepped outside and shut the door behind her.

It was a rather cold day and I told her we needed to talk to her and asked her if we could step inside. Instead she said that she would rather us to step out to one of the—they had two large metal shop buildings in their yard and she asked me to step out to one of those, which we did.” Mrs. Jones led them into one of the warehouses on the property that was used for the Internet sales business she and petitioner operated and that specialized in selling skateboards, snow boards and clothing. Once inside, Detective Johns explained why they were there and asked her some questions about the homicide. According to Detective Lee, Mrs. Jones behaved in a friendly manner and was very willing to talk to them.

Detective Johns asked about the rental car Mrs. Web had mentioned, and Mrs. Jones said it was in the building next door. He asked if he could go look at it, and Mrs. Jones said ⁴¹ yes, but that she had to go get the key. She left for about ten minutes and returned with the key to the building, and then she led the detectives into a third building on the property where the car was located. 1 Detective Johns asked Mrs. Jones for permission to look inside the car, and she agreed but needed to get the keys, so she left again for about ten minutes to retrieve them. When she came back with the car keys, she gave them to Detective Johns, who opened the car and looked inside briefly.

He saw a stain on the back seat that appeared to be blood, along with a hole in the seat that appeared to be from a bullet. After Mrs. Jones brought the key to the car and told the detectives they could look inside, the detectives agreed to Mrs. Jones’s request for her to go back in the house. Both Detectives Johns and Lee testified that throughout the encounter, Mrs. Jones never exhibited any reluctance to speak or interact with them and never asked any of them to leave. The officers called a tow truck service to take the car to the police station.

As they were waiting for the tow service to arrive, Detectives Lee and Johns walked back to the front door, knocked on it and Mrs. Jones answered. Mrs. Jones came outside with a bag containing several cell phones, one of which was the cell phone that had placed and received calls from the victim, Darnell Brown. Mrs. Jones agreed to the detectives’ request to examine the contents of the cell phone’s memory. Shortly thereafter, the detectives took Mrs. Jones to the Kent County Sheriffs Office.

The car was transported to the Annapolis Fire Department where, later that same day, the detectives obtained a search warrant, and they searched the car. On February 3, 2006, the detectives executed search warrants for the property at 11299 Station Road and for saliva samples of Mrs. Jones and petitioner. In a model, detailed, opinion resolving the motion to suppress, the trial judge set forth specific findings of fact, re ⁴² solved conflicts in the testimony, and set out conclusions of law. There was a discrepancy in the testimony as to the number of “No Trespassing” signs that were actually posted on the property at the time of the police entry.

The court found, contrary to petitioner’s testimony that there were many signs posted, that there was only one sign posted when the police went on the property and that all the signs except the one posted on the cedar tree, “appeared pretty crisp and new,” and had been put up after the fact. The court reasoned as follows: “So I would find as a fact the evidence persuades me that the only sign that was there when the police came to the property was this large sign on the—what appears to be a large cedar tree that according to the testimony was set back 30 feet from the driveway, from the gravel driveway. “And that that sign, which in the photos that we have is shaded by overhanging branches, was a sign which might have been overlooked by someone coming up the driveway in a normal fashion. “But even if it had not been overlooked what the sign says is ‘No Trespassing, hunting or fishing’ all of those in larger letters. And in smaller letters ‘Violators prosecuted under penalty of law.’ “The inclusion of the words ‘hunting and fishing’ and the fact that the sign is placed back from the road in the middle of a field is significant to the Court as to the expectations of the owners of the property and the significance they intended that sign to have. “In this case the evidence as to the placement of that sign is that again it is a sign which is out in the field and includes reference to hunting or fishing, so that one might reasonably infer that that was the primary intent of it, to keep people from going out in the fields. ⁴³ “And secondly, the evidence is that there were mailboxes which were up the driveway. And that a mailman regularly would go to the same area that the police had gone. “And Mr. Jones, the Defendant himself, acknowledged that everyday delivery people from Fed-X, or UPS, or one of those services made deliveries and I guess pickups because they were running a retail and wholesale business out of the sheds, so they were shipping things out. “They were receiving deliveries and they were shipping things out.

They were receiving mail. I would assume that there was electricity and heating in these homes, so they were probably also receiving either electricity—I mean either heating oil deliveries or people coming to read the electric meters. “And I would assume that, like most people, they would not have discouraged that. If there was smoke coming from their house I think fire trucks would have come. If there was a crime that the police thought should be investigated, then like the fire department, they might come. “And I think under all of the circumstances that it was not a violation of the reasonable expectations of privacy for them to come up the driveway in the first place and to go knock on the first door that they came to. “Because the testimony we have heard was that she is the co-owner of the whole property and she is also a participant in the business with Mr. Jones. “So that if she wants to invite them into the shop where the business takes place, she has as much right to do that as Mr. Jones would have to forbid them. * * sj: “So I think the evidence is very clear that it had become a consent search.

And once they were invited with consent into the sheds and saw the rental car, I think ... that in order to preserve the evidence that they would have the ⁴⁴ right to tow it, and to preserve it, and get a search warrant before going further if there were containers within the vehicle that might not be accessible. “And they got that search warrant, so there is not a question once they saw the car the rest of it flows from the facts that we have heard, that the police did only what they had a right to do.” The trial court denied the motion to suppress. The court found that Mrs. Jones consented voluntarily to the search of the car and that because Mr. Jones was a resident at the house with his spouse, Mrs. Jones, she could lawfully consent to search the property when petitioner was not present. Following a bench trial, the court found petitioner guilty. Petitioner noted a timely appeal to the Court of Special Appeals, which affirmed the Circuit Court.

Jones v. State, 178 Md.App. 454 , 943 A.2d 1 (2008). The intermediate appellate court held that, despite the “No Trespassing” sign posted on the cedar tree, petitioner did not have a reasonable expectation of privacy with respect to his yard and door, and that petitioner’s wife voluntarily consented to the search. We granted Jones petition for writ of certiorari to consider the following question: (1) Did the police violate the Fourth Amendment and Article 26 when they trespassed upon private property clearly marked with “No trespassing” signs and surrounded by a six foot high privacy fence, knocked “persistently” on the residence door for five minutes, in order to conduct a “knock and talk”? (2) Was the search of the property the product of an involuntary consent?

Jones v. State, 405 Md. 290 , 950 A.2d 828 (2008).

II

When this Court reviews the Circuit Court’s denial of a motion to suppress, ordinarily our review is limited to the evidence presented at the suppression hearing. See Owens v. State, 399 Md. 388, 403 , 924 A.2d 1072, 1080 (2007) (citing ⁴⁵ State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439, 443-44 (2003)). We give deference to the trial court’s factual findings, upholding them unless they are clearly erroneous. Id.

We consider the evidence and all inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion. Id. Nonetheless, we make an independent constitutional evaluation, by “reviewing the relevant law and applying it to the facts and circumstances of the individual case.” Id. We turn to the first question presented in the certiorari petition and at the outset point out that the question as presented assumes the truth of certain facts contrary to the finding of the Circuit Court.

The question presented in the certiorari petition states that the police trespassed onto property that was clearly marked with “No Trespassing” signs. The Circuit Court found, however, as a fact, that petitioner’s property was not clearly marked “No Trespassing,” and that there was only one posted sign, covered by hanging tree limbs. The court also concluded that the police officers were not trespassers and the initial entry by the police officers onto the property was lawful. The Court of Special Appeals affirmed, holding that the police officers were not trespassers and concluding that police officers on legitimate business, by merely approaching a dwelling to ask questions, do not commit an unlawful search or seizure of property or an unlawful seizure of a person.

Jones, supra, 178 Md.App. at 472 , 943 A.2d at 11 . The intermediate appellate court reasoned as follows: “For Fourth Amendment purposes, appellant could not have had a reasonable expectation that the ‘No Trespassing’ sign would or should prevent visitors with a legitimate purpose from walking to the front door, including police officers in furtherance of an investigation. The Supreme Court has held (1) that the threshold of a home is not a protected area when voluntarily exposed, [United States v. Santana, 427 U.S. 38 , 96 S.Ct. 2406 , 49 L.Ed.2d 300 (1976) ], and (2) open land not otherwise subject to a reasonable expectation of ⁴⁶ privacy is not made so by the presence of a no trespassing sign, even if the investigating officer sees it. Oliver v. United States, [ 466 U.S. 170 , 104 S.Ct. 1735 , 80 L.Ed.2d 214 (1984) ].” Id. at 473-74, 943 A.2d at 12 .

Applying the reasoning of the Supreme Court cases, the court concluded that “[i]n the case before us, the front of the house and the door were exposed to the public, and appellant had no reasonable expectation of privacy with respect to entry of the yard and a knock on the door by investigating officers.” Id. at 472 , 943 A.2d at 11 . We agree. Petitioner next invokes our “knock and talk” jurisprudence, see Scott v. State, 366 Md. 121 , 782 A.2d 862 (2001), and Brown v. State, 378 Md. 355 , 835 A.2d 1208 (2003), arguing that the officers knocked persistently on the front door of his home in order to conduct a “knock and talk,” and that we should overrule our recent cases blessing this police procedure and find the