Koenig v. State

BELL, Chief Judge. Dissenting Opinion from Dismissal of Petition for Certiorari as improvidently granted This Court issued the writ of certiorari to consider the propriety of the ruling by the Court of Special Appeals that ¹⁵¹ the “loafing shed” 1 on petitioner Bruce Wayne Koenig’s property “was not part of the curtilage of his house and that, therefore, the police did not need a warrant to enter and excavate a hole inside the shed looking for [the] bodies [of his parents],” whether “the police reasonably believed that [the] petitioner’s wife had authority to consent to the search of [the] petitioner’s ‘cargo box’ when the police had express knowledge to the contrary,” and, conditionally, assuming the “loafing shed was within the curtilage, whether, because conducted pursuant to warrant, its ultimate search was valid. In so doing the Court acknowledged and, in fact, determined that it was “desirable and in the public interest” that these questions “be certified to it for review and determination.” See Md. Code (-, - Replacement Volume) § 12-203 of the Courts and Judicial Proceedings Article. It now dismisses the petition, after briefing and oral argument, the majority concluding that it was improvidently granted.

Under the facts and circumstances of this case, I cannot agree and, consequently, dissent. The Court of Appeals has a responsibility to decide any case properly presented that meets the threshold criteria: presenting issues that it is desirable and in the public interest to decide. That responsibility, as to any issue, may be triggered by such considerations as novelty, complexity, conflicting precedents, impact or importance and the breadth or extent thereof and likelihood of recurrence. Once a “cert” worthy case has been accepted on certiorari, there must be a compelling reason not to decide it; it really must have been improvidently granted.

Black’s Law Dictionary, Seventh Ed.1999, defines “improvident” as “of or relating to a judgment arrived at by using misleading information or a mistaken assumption.” Thus, when certiorari has been granted to address a particular issue, there being no other ¹⁵² “cert” worthy issue, and briefing and argument have disclosed that the issue for which certiorari was granted is not, in fact, presented by the case, need not, or cannot, be reached on the merits, then it is appropriate to dismiss the petition as improvidently granted. 2 In that case, certiorari will have been issued under the mistaken belief that the issue that was “cert” worthy was in the case. This is the basis of the dismissal of most of the cases this Court dismisses as improvidently granted. To be sure, even when the issue for which certiorari was granted remains in the case, dismissal as improvidently granted may still be appropriate. Subsequent events, such as legislative action, may render the issue less important or its impact less extensive, making the decision to await another case proper.

Neither situation applies to the case sub judice. As we have seen, the Court granted review of two questions presented by the petitioner and, depending on the resolution of one of them, the first, one question presented by the State. The petitioner’s questions challenged the rulings by the Court of Special Appeals with respect to suppression issues. The first, in truth, the primary reason for the certiorari grant, involved defining the boundaries of the curtilage of a dwelling house and the second, the ability of a spouse under express instructions from the other spouse not to open a package, of which the police are aware, to consent to the search of that package.

The facts in support of the petition for writ of certiorari demonstrate that both of these issues are, in fact, presented, that their viability and importance have not be diluted by subsequent events and that an issue subsumed in the first is a critically important one that should be addressed and decided. ¹⁵³ The petitioner was charged with the murder of his parents after an investigation of their disappearance by the Frederick County Sheriffs Department discovered their bodies buried on his property. Suspicion focused on the petitioner, who had recently moved back to Maryland after many years in Texas, when information developed from inquiries of family members and friends of the victims contradicted the story that the petitioner told concerning the victims’s appearance. Rather than supporting a planned cross country trip, as the petitioner had told his siblings, the evidence the Sheriffs Department discovered suggested a sudden disappearance. Attention was also directed to the 12 acre wooded property, reachable only by a private road and a long driveway, recently purchased by the petitioner and on which the petitioner resided.

Having visited the property and noticed the “loafing shed,” which was within the % acre cleared area, approximately 71 feet from the house on the property, and subsequently learning that the petitioner had recently received a delivery of crushed stone, which was being spread over various parts of the property, including in the “loafing shed,” a detective in the Sheriffs Department, without having obtained the petitioner’s permission, brought a dog specially trained in the detection of dead bodies to the property and walked the dog over the property, starting in the wooded area and ending in the “loafing shed.” When the dog alerted in the area of the “loafing shed,” the police entered the “loafing shed” and dug a hole, uncovering a part of a dead body and the smell of decomposing flesh. Thereafter, they sought, and obtained a warrant, execution of which resulted in the recovery of the decomposing bodies of the petitioner’s parents. The autopsy revealed that each had been shot in the head with a gun. The petitioner shipped a “cargo box” by air to his wife in Texas.

She gave her consent to the police to search the “cargo box.” Before doing so, however, she informed the police that she had authority to “pick up the box from the airport, but not ... open it.” Recovered from the “cargo box” were two suitcases containing personal papers and jewelry belonging to the petitioner’s parents. ¹⁵⁴ In his petition for writ of certiorari, the petitioner noted that the Court of Special Appeals ruled, relying on State v. Martin, 553 A.2d 1264, 1264 (Me.1989) (“shed [that] ‘appeared to be a shanty for animals to get in and out of the weather,’ a ‘horse hovel’ ” was not within the curtilage), that the “loafing shed” “was used for agricultural purposes,” and not put to domestic use. Challenging that ruling, he offered facts supportive of the “loafing shed” being within the curtilage: that it was in the cleared area, that it was only 71 feet from the house and that the house, and therefore, the “loafing shed,” was reachable only by private road. In addition, the petitioner argued that there was no evidence that the shed was used for agricultural purposes. Moreover, he noted the existence of, and cited, authority contradicting that relied on by the intermediate appellate court and holding that outbuildings, including sheds, barns, garages, are within the curtilage.

The petitioner also argued; “... [T]he Court of Special Appeals did not even address a second argument advanced by Petitioner both in his brief and at oral argument — that the facts in United States v. Dunn, 480 U.S. 294 , 107 S.Ct. 1134 , 94 L.Ed.2d 326 (1987), the leading Supreme Court case on the curtilage question and one on which the Court of Special Appeals relied, were significantly different from the instant facts and that, therefore, the police conduct countenanced in Dunn, supra, was significantly less egregious than that which occurred in the instant case. In Dunn, supra ‘[t]he officers walked under the barn’s overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn.... The officers did not enter the barn.” Dunn, supra at 298 , 107 S.Ct. 1134 . Thus, the Supreme Court said, “the officers’ use of the beam of a flashlight, directed through the essentially open front of respondent’s barn, did not transform their observations into an unreasonable search and seizure within th meaning of the Fourth Amendment.” Dunn, supra. at 305 , 107 S.Ct. 1134 .

In stark contrast, in the instant case, the police did much more than peer into the loafing shed without entry and then go ¹⁵⁵ and seek a warrant — the police entered and excavated the floor of the shed through a layer of crushed stone and then through dirt until they unearthed a body. Only after this discovery of exactly what they came looking for did the police deign to secure a warrant to grant an imprimatur for their already completed activities. “The ruling of the Court of Special Appeals sets a dangerous precedent in this case of first impression in this state. Besides ignoring substantial and well reasoned precedent from other states on the curtilage question, the Court of Special Appeals failed to limit the scope of what the police can do in searching non-curtilage areas of a person’s property. The instant case condoned an excavation for bodies but did not place any future limits on police conduct in that area, no matter how intrusive or even shocking.

Review by this Court is therefore desirable and in the public interest.” The same arguments, albeit somewhat more expansively, were made in the petitioner’s brief. With respect to the pure curtilage issue, the petitioner expanded upon the unauthorized and unconsented to police entry on his property, noting that it occurred on three occasions prior to the discovery of the bodies. 3 He also offered additional facts to support the argument that the shed was a part of the curtilage: the shed could not be seen from the roadway and there was a no trespass sign on the property. The petitioner concluded that the Dunn four factor test was misapplied by the intermediate appellate court, it having placed dispositive emphasis on “the nature of the uses to which the area is put.” Dunn, 480 U.S. 294, 301 , 107 S.Ct. 1134, 1140 , 94 L.Ed.2d 326, 335 (1987). The petitioner also repeated his lament that the Court of Special Appeals failed to address the boundaries of police ¹⁵⁶ conduct in “open fields,” on private property that does not fall within the curtilage.

Relying on Wayne R. LaFave, Search and Seizure, § 2.4(a) at 529-30 (3rd ed.1996)