Joyner v. State

⁴⁴⁷ ALPERT, Judge. On April 28, 1989, police officers arrested Keith Watson and Leonard Joyner (appellants), at Joyner’s residence, for drug law violations. Appellants subsequently were charged with possession of cocaine with intent to distribute. On June 7, 1990, the Circuit Court for Baltimore City held a hearing on appellants’ motions to suppress the evidence.

The court denied the motions. Appellants entered a plea of not guilty at the court trial (the Hon. John C. Themelis, presiding) on June 11, 1990. At the conclusion of the trial, the court found appellants guilty as charged.

The court sentenced Watson to eight years imprisonment, with four years suspended and five years supervised probation. Joyner received a five-year suspended sentence with five years of probation. On appeal, appellants ask us whether: I. Keith Watson has standing to move for the suppression of evidence that police officers seized during a search of Joyner’s backyard.

II

The police officers’ warrantless entry into the back yard to seize the paper bag, absent exigent circumstances, violated appellants’ Fourth Amendment rights.

III

The search and seizure warrant for the house should be considered the “fruit of the poisonous tree” because the warrant was based on probable cause derived from an illegal search and seizure of the paper bag. FACTS At 4:10 p.m. on April 28, 1990, four plain clothes police officers — Officers Snow, Sewell, Moore, and Bevilacqua— were on patrol in the 1200 block of North Dallas Street, which encompasses the alley for the 1500 block of Preston ⁴⁴⁸ Street. 1 Although the officers were travelling in an unmarked blue Chevrolet Cavalier, the vehicle was recognizable to neighborhood residents as one operated by the Eastern District Drug Enforcement Unit. The officers were in the area in response to anonymous telephone calls that concerned neighborhood residents had made to the Eastern District the day before to report drug-related activities which were occurring in the neighborhood. The callers reported that individuals were stashing and selling drugs in a back alley located in the 1500 block of Preston Street.

Specifically, they stated that individuals were hiding the drugs in a pigeon coop and in abandoned vehicles. These callers further stated that “they wanted the area cleaned up.” While driving in the alley, Officer Snow observed Keith Watson standing in the alley with his hand over the four-foot high chain-link fence that surrounds the back yard of 1505 East Preston Street. A large pigeon coop with pigeons and a clothes line were visible in the yard. At the same time, the officers also observed Theodore Johnson, who was standing inside the yard and was in the act of handing a “balled up” brown paper bag to Watson.

The officers did not recognize the men as criminals or drug offenders. " The officers exited their car and began to approach Watson and Johnson. Although the officers prominently displayed their badges, they did not draw their guns or verbally communicate with the men. Johnson dropped the bag among the trash lying in the yard, turned, and ran into the house when he saw the officers 2 — apparently after they ⁴⁴⁹ had exited their car.

Watson saw the officers when he turned around but remained where he was. One of the officers left to cover the front exit of the house. Officer Snow was standing next to Watson at this point. Based on the anonymous tips, his observations of the men’s activities, and his knowledge of narcotics activities, Snow concluded that the men had been engaged in a drug transaction and detained Watson.

With the help of another officer, Snow lifted the chain link fence and reached into the yard to retrieve the brown paper bag. Although Snow could not know what the bag’s contents were before he actually opened it and looked inside, he considered the paper bag to be significant because of his expertise in narcotics activities. Normally, the bag would have been the size of a lunch bag but was “all crinkled up, balled up into a ball.” At the hearing on the motions to suppress, Snow testified that individuals in that area commonly used similar bags to hide and transport drugs. 3 The bag was designed to look like “another piece of trash that can just be laid in the gutter or anywhere and no one actually has to hold the drugs on them[selves].” Individuals used the bags to keep the drugs outside so that they could avoid suspicion by not having to make numerous trips in and out of the stash house. When he opened the bag, Snow found seven vials containing what he suspected to be (and what later was determined to be) cocaine.

Snow postulated that if Watson merely had been a user, Johnson simply would have given him the vials containing the drugs, not the paper bag. Further, someone buying for personal use would purchase only one to three vials at one time, never seven. From this, Snow concluded that Johnson supplied drugs from the stash house and that ⁴⁵⁰ Watson was a “runner” — a person who delivers drugs to users on the street. The officers arrested Watson at this point.

Snow climbed over the fence, went to the back door of the house, and knocked. When Craig Phillips answered, Snow identified himself, entered with the other officers, and secured the house. That is, the officers made a protective sweep of the premises, locating everyone in the house and placing them in the first floor front room. The officers found appellant Leonard Joyner on the steps between the second and third floors.

Because he eventually concluded that Joyner controlled the drugs in the house in Johnson’s absence, Snow later arrested Joyner. During the sweep, Snow observed narcotics-related items in the house. 4 The officers did not search further after they secured the house. Snow then left and obtained a search warrant. Execution of the search warrant resulted in the seizure of a substantial quantity of cocaine in plastic vials in addition to drug paraphernalia.

I. Watson contends that he has standing to move for the suppression of the evidence which led to his arrest that the officers found when they removed the brown paper bag from the backyard at 1505 East Preston Street. A defendant who moves to suppress the evidence must demonstrate that he or she has standing, i.e., that he or she “has a lawful right under the Constitution to contest the search and seizure.” McMillian v. State, 65 Md.App. 21, 31 , 499 A.2d 192 (1985). To establish standing, the defendant must show that under the “totality of the circumstances” he or she had a “ ‘legitimate expectation of privacy in the area invaded at the time of the search.’ ” Id. (citation omitted).

Whether one’s expectation of privacy is legitimate is in “ ‘large measure a function of its reasonable ⁴⁵¹ ness, and that, in turn, is determined to some extent by the elements of time, place, and circumstance.’ ” Id. (citing Graham v. State, 47 Md.App. 287 at 294 , 421 A.2d 1385 ). Those elements of time, place, and circumstance that we have considered in the past include: the appellant’s possessory interest in the premises; appellant’s right to and duration of stay at the searched premises; whether or not he had unlimited access to the searched premises; whether appellant had a right to exclude others from access to the searched area; what precautions he took to maintain his privacy there; appellant’s subjective expectation of privacy in the area searched; the location of the property at the time of the search; [and] ownership of the evidence seized____” McMillian, 65 Md.App. at 32-33 , 499 A.2d 192 (citations omitted). The circuit court’s ruling on the standing issue is subject to the clearly erroneous standard of review.

See Coomes v. State, 74 Md.App. 377, 391 , 537 A.2d 1208 , cert. denied, 313 Md. 8 , 542 A.2d 845 (1988). In determining the propriety of the lower court’s ruling, we “must look to the record of the suppression hearing and not to the evidence presented at trial.” McMillian, 65 Md.App. at 33 , 499 A.2d 192 ; see also Gamble v. State, 318 Md. 120, 125 , 567 A.2d 95 (1989). Watson argues that he has standing because “it was his own back yard being searched” and because he was “a member of the household.” Johnson’s testimony at the suppression hearing established that Watson did, in fact, reside at the premises. The police, however, searched the inside of the paper bag, not the yard itself.

On this basis, we find that Watson did not have standing because Johnson was the owner of the bag. Watson also contends that even if the actual area searched was the inside of the paper bag rather than the backyard, he still has standing. He reasons that he has “an obvious possessory interest” because the State charged him ⁴⁵² as “an equal member in the possession of the cocaine to be distributed.” Watson essentially makes an argument for “automatic standing,” see Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960), a concept that Maryland has never adopted, see Gahan v. State, 290 Md. 310, 311 , 430 A.2d 49 (1981), and which most other states have discarded. See 4 W. LaFave, Search and Seizure § 11.3(g), at 350 n. 314 (1987).

The record shows that Johnson dropped the bag in the backyard before Watson had the chance to take it. Thus, Watson never had physical possession of the bag— not even for a moment. Further, we note that Watson never asserted a possessory (ownership) interest in the bag either at the time of the seizure or at the evidentiary hearing. Watson cannot now claim a possessory interest in the bag based solely on the possession charges and conviction.

Furthermore, we note that even if we did find that Watson had standing, that ruling would not improve his position because we shall hold that the area in which Johnson dropped the bag was not curtilage. We hold that the circuit court was not clearly erroneous when it concluded that Watson did not have standing to challenge the search and seizure of the bag.

II

Appellants contend that the removal of the paper bag from the backyard constituted a warrantless search and seizure that violated the Fourth Amendment’s protections against such state actions. They argue that because appellant’s backyard was curtilage, the area was within the protective ambit of the Fourth Amendment. Thus, reason appellants, the officers’ invasion of the backyard by forcibly moving the fence and taking the bag was an improper search and seizure. They further assert that the warrant-less search of the appellants’ curtilage was not excused as the paper bag had not been abandoned. ⁴⁵³ The State, however, contends that because the officers had probable cause to believe that they had witnessed a crime, the warrantless search and seizure was valid as a search incident to Watson’s arrest.

The State further argues that the search was constitutionally permissible because (1) the yard was not curtilage, and (2) even if the yard was curtilage, Johnson had abandoned the paper bag and therefore had no reasonable expectation of privacy in it. We think that the officers’ warrantless search and seizure of the paper bag was valid as a search incident to Watson’s arrest so long as the officers had probable cause to make the arrest. Probable Cause “[T]he right of arrest arises only when a crime is committed or attempted in the presence of the arresting officer or when the officer has ‘reasonable grounds to believe’ — sometimes stated ‘probable cause to believe’ — that a felony has been committed by the person to be arrested.” 1 W. LaFave, Search and Seizure § 3.1(b), at 545 (1987); see also State v. Doe, 371 A.2d 167, 169 , 371 A.2d 167 (1975) (“Probable cause to arrest exists where the facts and circumstances within the officer’s knowledge or of which he has reasonably trustworthy information would warrant a man of ordinary caution in the belief that the arrestee has committed or is committing a crime.”); Wynn v. State, 69 Md.App. 536, 540 , 518 A.2d 1072 (1987), rev’d on other grounds, 313 Md. 533 , 546 A.2d 465 (1988) (“ ‘[A]n officer who initiates an arrest must have ... probable cause to believe that a crime has been or is about to be committed, and that the suspect is involved in the crime.’ ” (citation omitted)). There is ample evidence in the suppression hearing record to support the conclusion that the officers had probable cause to believe that they were witnessing a crime in progress.

When the officers entered the alley and observed the two men, the officers already were armed with information ⁴⁵⁴ from citizens’ reports made the previous day. The callers had reported that individuals were storing and selling drugs in a back alley 'of the 1500 block of Preston Street. Further, the callers specifically had mentioned that individuals were storing the drugs in a pigeon coop. Thus, the presence of the coop in the backyard of 1505 East Preston Street tended to corroborate the reports and focused the officers’ attention on the two men.

The officers observed Johnson in