Laney v. State

BATTAGLIA, J. Richard C. Laney was convicted in the Circuit Court for Howard County of unlawful possession of a destructive device and unlawful possession of an explosive without a license. We now review the Circuit Court’s denial of Laney’s motion to suppress evidence seized during several warrantless searches of Laney’s former residence, 3612 Fels Lane in Ellicott City, Maryland. Laney asserts that, although he did not hold title to 3612 Fels Lane, he had an expectation of privacy in the property, and the entry upon the premises violated his Fourth Amendment right to be free from unreasonable searches and seizures. We hold that Laney had no reasonable expectation of privacy in 3612 Fels Lane because ownership of the property had passed to the Department of Veterans Affairs (hereinafter the “DVA”), which, accordingly, had authority to enter, possess, and give consent for the authorities to search the property.

Therefore, no Fourth Amendment violation occurred in this case, and the Circuit Court was correct in denying Laney’s motion to suppress. I. Background A. Facts Some time prior to December of 1998, Laney purchased improved real property located at 3612 Fels Lane in Ellicott City, Maryland. To finance the purchase, Laney acquired a loan, which was secured by 3612 Fels Lane and guaranteed by the DVA. Under the DVA loan guarantee, if the lender foreclosed on the loan, it could convey title to the property to the DVA.

Laney failed to make payments according to the ⁵²⁸ loan agreement, and, on December 13, 1999, the loan was foreclosed. On December 27, Commercial Federal Mortgage Corporation, the purchaser of 3612 Fels Lane at the foreclosure sale, initiated the process of conveying the property to the DVA by providing it with a “notice of intention to convey.” Commercial Federal subsequently conveyed title to 3612 Fels Lane to the DVA on March 17, 2000. The DVA assigned Brad Criddle the responsibility to “manage” the property, meaning that he would “attend to or look after” the foreclosed property. As part of the management responsibilities, if Criddle were to find a property occupied, he would attempt to contact the person occupying the house to discuss the DVA’s eventual possession of the property.

Criddle made his first visit to 3612 Fels Lane in December of 1999 and knocked on the door of the house. When he received no response, he left his business card, which provided his name and phone number, identified Criddle as the property manager, and stated that the property was owned by the DVA. During this and subsequent visits, which Criddle made at least once a month, the house appeared to be occupied because personal property could be seen through the windows and objects around the outside of the house would appear to have been moved between visits. Criddle, however, could not establish contact with anyone at the house until 11:00 a.m. on July 14, 2000, when he stopped by 3612 Fels Lane to encourage whomever was in the home to abandon the property.

As he walked toward the front door, he encountered two men, one of whom was Joseph Winkle, who lived across the street. Winkle explained to Criddle that he was there to “rescue” some geese on the property for Laney, the former occupant of the house, who had been his neighbor for fifteen years and was currently in prison. Winkle explained further that, although he had obtained a key to the house from Laney’s brother, he was afraid to enter the house because he believed there were “explosives and weapons” kept there. Because one of Criddle’s responsibilities as a property manager was to “make every effort to get in the house,” he asked ⁵²⁹ Winkle to let him inside the house to look around.

Winkle agreed and opened the door. Inside the house, Criddle observed, in one room, a couple of olive green objects shaped like “two liter bottle[s]” and marked with “U.S. Army” in black writing and, in another room, “five or six grenades” in a trash can. When he went upstairs, he found “several guns, gun barrels, ... camouflage^]____kni[v]es, ... [and] numerous shell casings.... ” Criddle went to the outside shed where he observed “something that looked like a small rocket ... [and] other empty cartridge containers [and] shell casings ... everywhere.” Other than the weapons and ammunition, Criddle saw that the bathtub had been removed and that some of the home appliances were sitting on the front porch. This gave Criddle the impression that “somebody was dismantling the house[,] ... selling it off piece by piece.” Criddle left the house, called the DVA for instructions on how to proceed, and was told to grant access to the property to local authorities.

He called the Howard County Police Department. About an hour and a half after his initial visit to 3612 Fels Lane on July 14, Criddle returned to the property and met Frank McCreary of the DVA and Officer Keith Berry of the Howard County Police Department. Criddle identified himself to Officer Berry and described what he had seen in the house. Criddle then led Officer Berry into the unlocked house, where they looked around for five minutes.

Other police officers, including Officer Keith Fisher and the State Fire Marshall arrived at the house and obtained written consent from the DVA to inspect the property. Thereafter, at the request of those officials, personnel of the fire department, Federal Bureau of Alcohol, Tobacco and Firearms (“ATF”), Federal Bureau of Investigation (“FBI”), and the U.S. Army’s Explosive Ordnance Disposal Company (“EOD”) arrived at the scene. The police and Army officials thoroughly searched the house, spending several hours taking objects from the house and laying them on a tarp outside on the lawn. The following items, as listed on the EOD Incident Report, were seized and later disposed of by the authorities: ⁵³⁰ 26 M228 Fuze, Grenade; 1 M201A1 Fuze, Grenade; 2 Grenade body, practice; 1 Grenade fuze, model unknown; 9 M117 Boobytrap simulators; 2 Commercial blasting caps; 3 20mm projectile, practice; 1 60mm mortar, illumination; 1 M51 projectile fuze; 1 60mm mortar, practice with residue; 2 M18 smoke grenade; 1 M7A3 smoke grenade, riot; 2 40mm illumination projectiles; 1 British Mill Bomb (grenade); 1 M158 Red star cluster signal; 1 M604 Fuze, mine practice; 1 Boobytrap flare on stake; 3 PML 62 Friction fuze; 1 Vial of black powder; 1 KDM 51A2(20); 1 2.36 inch Rocket; 7 flare pens, with ignitors; 1 20-foot piece of commercial detonating cord; 1 40mm projectile, practice; 10 15mm projectiles, German; 18 Blast simulator; 1 6000psi pressure bottle; 1 81m projectile, practice; 4 pounds of smokeless powder; 1 model rocket motor; 1 DM 28 subcaliber projectile (UEB-T); 1 SWAT Distraction Device (flash-bang); 9 fuzes, German; 1 M48 subcaliber projectile; 6 M73 35mm subcaliber rockets, practice (for LAW).

Criddle had the locks of the house changed to a DVA master key lock after all of the law enforcement and military personnel left the house at around 10:00 p.m. on July 14. Three days later, on July 17, 2000, Criddle unlocked 3612 Fels Lane and allowed police officers and agents of the State Fire Marshall to search the house with a K-9 unit. As a result of that search, other items were seized. On July 21, 2000, Criddle again unlocked the house, this time to permit Army officials to look for a radio.

He then hired a contractor to clean the property, making it possible for the DVA to market and eventually sell the house. B. Procedural History The State charged Laney in the Circuit Court for Howard County with nine counts of possession of a destructive device in violation of Maryland Code, Article 27, Section 139C (1957, 1996 Repl.Vol., 2000 Supp.), 1 one count of reckless endanger ⁵³¹ ment in violation of Maryland Code, Article 27, Section 12A-2 (1957, 1996 Repl.VoL, 2000 Supp.), 2 and one count of possession of explosives without a license in violation of Maryland Code, Article 38A, Sections 27A and 34C (1957, 1997 Repl. VoL). 3 Laney moved to suppress the evidence obtained from 3612 Fels Lane on the ground that it was seized in violation of Laney’s Fourth Amendment guarantee against unreasonable searches and seizures. The court denied Laney’s motion to suppress, concluding that the searches of 3612 Fels Lane and the seizures of property during those searches were lawful.

Assuming that Criddle was a state agent for the purpose of its decision, the court reasoned that Criddle was a legal representative of the DVA, which had acquired title to 3612 Fels Lane and, thus, was the lawful owner of the property on the day of the initial search. The court determined that, as the agent of the lawful owner of the property, Criddle did not need to seek ⁵³² action by the court to enter the house legally. As an alternative basis for its ruling, the court concluded that Criddle “had the right to rely upon the consent” of Winkle, who “arguably was entitled to ... enter the premises.” Finally, the court found Criddle’s entry was justified because of the “exigency” created when he learned that “munitions” and “explosives” were in the house and that Winkle may have been selling house “fixtures.” The judge then conducted a bench trial on an agreed statement of facts and found Laney guilty of unlawfully possessing an explosive device without a license and one count of unlawfully possessing a destructive device. The State later nolle prossed all remaining counts.

The court sentenced Laney to ten years’ imprisonment for the possession of a destructive device and five years’ imprisonment for the possession of an explosive device. The court suspended the sentences except for time served and ordered probation. Laney appealed, challenging the denial of his motion to suppress, and the Court of Special Appeals, in an unreported opinion, affirmed the trial court’s ruling. The intermediate appellate court determined that Laney’s Fourth Amendment rights had not been violated on any of the occasions when 3612 Fels Lane was searched.

The court concluded that, assuming Criddle was acting on behalf of the state, his first entry on July 14 was supported by probable cause and justified by exigent circumstances. Probable cause existed, in the court’s view, because a person of reasonable caution would have believed contraband might be inside the house based on information learned from Winkle that explosives and weapons were inside the house and that he was afraid to go inside. According to the court, this same information, described as “credible evidence that the house was filled with explosive materials of unknown age and stability,” validated Criddle’s initial July 14 search also because “illegal explosives, or dangerous chemicals in a home has been repeatedly held to constitute exigent circumstances justifying a warrantless search.” The court then held that the discovery of the weapons and munitions in the house escalated the exigency, ⁵³³ justifying the subsequent searches by law enforcement authorities on July 14. With respect to the July 17 search, the court determined that it was “a continuation of lawful initial entry,” “confined to ‘the scope of the original invasion,’ and therefore did ‘not require a warrant.’ ” We granted Laney’s petition for a writ of certiorari, Laney v. State, 376 Md. 139 , 829 A.2d 530 (2003), to determine whether the seizure of the items in the house located at 3612 Fels Lane constituted infringements of Laney’s Fourth Amendment rights. 4 We hold that, because Criddle, the agent of the title owner of the premises, had authority to possess and enter the house, Laney had no reasonable expectation of privacy in it.

Therefore, Laney’s Fourth Amendment rights were not violated when the authorities seized the evidence from the house.

II

Standard of Review When reviewing the denial of a motion to suppress evidence, we ordinarily consider only the evidence before the court at the suppression hearing. State v. Green, 375 Md. 595, 607 , 826 A.2d 486, 493 (2003); State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439, 444 (2003). We view the evidence and all reasonable inferences drawn from that evidence in the light most favorable to the prevailing party on the motion. Green, 375 Md. at 607 , 826 A.2d at 493 ; Dashiell v. State, 374 Md. 85, 93, 821 A.2d 372, 376-77 (2003).

Although we extend great ⁵³⁴ deference to the hearing judge’s findings of fact, we review, independently, the application of the law to those facts to determine if the evidence at issue was obtained in violation of the law and, accordingly, should be suppressed. Green, 375 Md. at 607 , 826 A.2d at 493 ; Wallace v. State, 373 Md. 69, 78 , 816 A.2d 883, 888-89 (2003).

III

Discussion Laney avows that the multiple warrantless searches of 3612 Fels Lane as well as the seizures of the items on those premises impinged upon his Fourth Amendment rights. He claims that the Fourth Amendment is applicable because he maintained a legitimate expectation of privacy in the property even though title had passed to the DVA. He argues further that the searches and seizures were not supported by probable cause or any of the exceptions to the Fourth Amendment’s warrant requirement, such as exigent circumstances or consent. Proper consent did not exist, Laney contends, because the DVA’s ownership interest in 3612 Fels Lane “was inferior to [his] possessory and privacy interests.” Although conceding that the DVA had a property interest in the premises, Laney claims that Criddle, as DVA’s agent, did not have authority to consent to search 3612 Fels Lane because Laney was a “tenant of the premises.” The State responds that the searches were supported by probable cause, exigent circumstances, and consent.

It asserts that the DVA could enter the property as owner of 3612 Fels Lane and take possession, as it did. Moreover, under the State’s view of consent, the DVA’s sole possession of the house entitled its agent, Criddle, to search the premises and provide consent for other government officials to do so as well. A. Property Interests Answering the issues in this case requires some discussion of the principles of Maryland property law, particularly those governing the conveyance of foreclosed property. Under Maryland law, as the following discussion demonstrates, Laney lost and the DVA acquired the right to possess the ⁵³⁵ 3612 Fels Lane before Criddle entered the premises and discovered the contraband therein.

The Real Property Article of the Maryland Code and the Maryland Rules strictly govern foreclosure procedures. Generally, in the event that a purchaser of real property secured by a mortgage or deed of trust (“mortgagor”) defaults under the terms of the mortgage or deed of trust, the holder of the security interest (“mortgagee” or “trustee”) may initiate foreclosure proceedings. Maryland Code, § 7-105 of the Real Property Article (1974, 2003 Repl.Vol.) (governing the summary procedure for a power of sale in deed of trust); Maryland Rule 14-203 (setting forth the conditions precedent to commencing an action to foreclose a mortgage) 5 ; see Fairfax Savings, F.S.B. v. Kris Jen Ltd. P’ship, 338 Md. 1, 15 , 655 A.2d 1265, 1271-72 (1995) (discussing briefly the procedures for foreclosure pursuant to a power of sale clause in a deed of trust). Those proceedings lead to the eventual sale and conveyance of the property, which allows the mortgagee to attempt to recover the money owed on the mortgage debt.

Before the foreclosure sale may take place, however, the provisions of the Real Property Article and Maryland Rules require that the mortgagee fulfill certain notice requirements. Code, § 7-105 of the Real Property Article 6 ; Mary ⁵³⁶ land Rule 14 — 206(b). 7 Under Section 7-105 of the Real Prop ⁵³⁷ erty Article, written notice of the proposed foreclosure sale must be sent by certified mail and first-class mail to the record owner of the property, who in many cases is the mortgagor. Maryland Rule 14-206 provides that the person authorized to conduct the foreclosure sale “shall publish notice” of the proposed sale in a newspaper of general circulation and further send notice by certified and first-class mail to the mortgage debtor, record owner, and the “holder of any subordinate interest in the property.” Maryland Rule 14 — 303(b) provides that, where a third party trustee is appointed by the court to conduct the foreclosure sale, the trustee shall give notice by advertising “the time, place, and terms of sale in a newspaper of general circulation....” 8 Once proper notice has been provided, the one authorized to conduct the foreclosure sale may sell the property. ⁵³⁸ Complete title does not immediately pass to the purchaser upon the sale of the property. The mortgagee first must submit to the court a report of the sale and an affidavit affirming the fairness of the sale and the truth of the report.

Md. Rule 14-305(a). 9 The purchaser also must file an affidavit setting forth, in part, that the purchaser has not discouraged anyone from bidding for the property. Md. Rule 14-305(b). 10 Thereafter, the court shall issue notice of the sale by publishing a description of the property and a statement that the sale will be ratified by the court unless exceptions are taken within 30 days. Md. Rule 14-305(c). 11 If no exceptions are filed within that period and the court is satisfied the sale was fair, the court shall ratify the sale. Md. Rule 14-305(e). 12 It is the court’s ratification of the ⁵³⁹ sale that allows title of the property to pass to the purchaser.

See Plaza Corp. v. Alban Tractor Co., 219 Md. 570 , 151 A.2d 170 (1959); Fisher v. Federal Nat’l Mtg. Ass’n., 360 F.Supp. 207 (D.Md.1973). Foreclosure, sale, and ratification operate to cut off the mortgagor’s right of redemption — the right to repay the mortgage debt — and terminates the mortgagor’s interest in the property. Section 7-105 of the Real Property Article states that the sale of foreclosed property and subsequent conveyance of the property to the purchaser “operates to pass all the title which the borrower had in the property at the time of the recording of the mortgage or deed of trust.” See Lippert v. Jung, 366 Md. 221, 235 , 783 A.2d 206, 214 (2001) (recognizing that if an owner of foreclosed property “fails to redeem, the purchaser acquires absolute title to the property”) (quoting LaValley v. Rock Point, 104 Md.App. 123, 127 , 655 A.2d 60, 62 (1995)); Moss v. Annapolis Savings Inst., 177 Md. 135, 144 , 8 A.2d 881, 884-85 (1939) (“The mortgagee [who purchased property at a foreclosure sale] ... acquired the same title to the property that any other purchaser would have taken, and had the same power to rent, sell, or mortgage it that the mortgagor had when the mortgage was recorded.”); Sullens v. Finney, 123 Md. 653, 657 , 91 A. 700, 701-02 (1914); Duval v. Becker, 81 Md. 537, 548-49 , 32 A. 308, 310 (1895).

As this Court has held as early as 1869 in Lannay’s Lessee v. Wilson, 30 Md. 536 (1869), foreclosure, sale, and ratification also cause the mortgagor to lose the right of possession in the property. In Lannay’s, the Court of Chancery issued a decree for the sale of mortgaged property and appointed a trustee to conduct the sale. Id. at 548 . The mortgagee purchased property at the foreclosure sale, which ⁵⁴⁰ the Chancellor later ratified, and the mortgagor then turned possession of the premises over to the purchaser.

Id. Arguing that the sale was defective because the trustee allegedly failed to deliver the property deed to the purchaser, the mortgagor’s successor in interest filed an ejectment action. Id. at 545-46 . The Court rejected the mortgagor’s claim, favoring, instead, the view that ratification of the foreclosure sale divests the mortgagor of the right of possession, a requisite for prevailing on an action for ejectment.

Id. at 550 . Explaining the effect of the foreclosure sale, the Court stated: [T]hough the decree [for the sale of mortgaged property] does not operate as a conveyance of the legal title, the purchaser, holding possession under it, does not hold wrongfully or unlawfully; and, consequently, all right of possession of those bound by the decree, and the proceedings under it, other than the purchaser, is divested and taken away, and, of course, with it the right to maintain ejectment. Id. at 550 . The Court in Lannay’s explained further that, after ratification of the sale, the right of possession to the foreclosed property lies solely with the purchaser: A purchaser under a decree in equity, becomes the substantial owner of the property from the moment of final ratification of the sale, and he is entitled to and can recover the rents and profits of the estate.

He is not only entitled to possession of the property, but it remains at his risk, notwithstanding the legal title may not be conveyed. By such sale the dry legal title, and the right of possession often become completely severed, at least for a time, — the legal title remaining in some of the parties to the cause, while the equitable estate and right of possession become vested in the purchaser. Id.; see also Merryman v. Bremmer, 250 Md. 1, 8 , 241 A.2d 558, 563 (1968) (stating that the purchaser of property at a foreclosure sale is entitled to possession of the property after the court ratifies the sale). After ratification of a foreclosure ⁵⁴¹ sale, therefore, the right to possess the sold property lies with the purchaser, not the former mortgagor.

When a mortgagor loses the right to possess foreclosed property but fails to vacate the premises, the purchaser of that property, in lieu of actually taking possession, may seek a court order to remove the holdover mortgagor. Zeller v. Silverman, 143 Md. 339, 343 , 122 A. 255, 256 (1923); Applegarth v. Russell, 25 Md. 317, 319-20 (1866). We embraced this concept in Applegarth : The practice is settled in this State, that when a purchaser at a [foreclosure] sale under a [judicial] decree has fully complied with the terms of sale, and possession of the premises purchased is withheld by a party to the suit, ... the purchaser may obtain an order under which possession will be delivered to him by proper process. 25 Md. at 319-20 . Also in recognition of the purchaser’s right of possession, Maryland Rule 14-102(a) provides the right to use judicial process to acquire actual possession of an occupied premises.

The Rule states in pertinent part: Whenever the purchaser of an interest in real property at a sale conducted pursuant to these Rules is entitled to possession, and the person in actual possession fails or refuses to deliver possession, the purchaser may file a motion requesting the court to enter a judgment awarding possession of the property. When the landowner receives such a judgment awarding possession, upon the landowner’s request, the “clerk [of the court] shall issue a writ directing the sheriff to place [the landowner] in possession of the property.” Maryland Rule 3-647. 13 Although this judicial process may be used to oust a ⁵⁴² mortgagor who no longer is entitled to possession, the use of the term “may” in Rule 14-102(a) and in Applegarth reflects the fact that the ouster process is not mandatory to obtain possession of the purchased property. In other words, seeking the court’s assistance in dispossessing the holdover mortgagor is only one option available to the purchaser to obtain possession from a holdover mortgagor. Failure to exercise that option does not undermine the mortgagee’s ownership of the property nor the right to possession.

Rather, a purchaser with the right to possess property may take possession of that property peacefully without the court’s assistance. This right was incorporated into Maryland law through the adoption of Article 5 of the Maryland Declaration of Rights, which establishes that “the Inhabitants of Maryland are entitled to the Common Law of England ... and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six. . . .” In Moxley v. Acker, 294 Md. 47, 50 , 447 A.2d 857, 858-59 (1982), we discussed the evolution of the cause of action of forcible detainer, shedding light on the common law origin of the landowner’s “right of self-help” to recover possession of real property: ⁵⁴³ Id. (quoting G. Liebmann, Maryland Practice 82-83 (vol.2, 1976)). 14 Our cases have not abrogated the landowner’s common law “right of self-help” as modified by 5 Richard 2d, Chapter 8. See Maryland Code, § 14-115 of the Real Property Article (1974, 2003 RepLVol.) (listing the British statutes that “are no longer in force” in Maryland and not including 5 Richard 2d Chapter 8); Eubanks v. First Mount Vernon Indus.

Loan Assoc., Inc., 125 Md.App. 642, 662-63 , 726 A.2d 837, 847 (1999) (stating that 5 Richard 2d Chapter 8, as incorporated by the Declaration of Rights, has not been repealed by the Maryland Legislature). The right of peaceable self-help, therefore, is a viable mechanism for a title owner of property to obtain actual possession of real property from a holdover mortgagor. 15 ⁵⁴² At common law and prior to the enactment of the statute of 5 Richard 2d, Chapter 8 (1381) in the 14th century, whenever a right of entry existed the party entitled to the right could lawfully enter and regain his possession by force. This right of self-help was curbed by 5 Richard 2d Chapter 8 which limited entries under claim of right to entries “not with strong hand, nor with a multitude of people, but only in a peaceable and easy manner.” ⁵⁴⁴ Under the facts in the case at bar, the right to possess and title of 3612 Fels Lane clearly belonged to the DVA. Laney lost his right to possess the property when Commercial Federal purchased it at a public sale in Howard County that was “duly reported, ratified and confirmed by the Circuit Court for Howard County....” Subsequently, on January 6, 2000, the Circuit Court “substituted the [DVA] as the foreclosure sale purchaser in place and in stead of Commercial Federal Mortgage Corporation.” Then, at least by the date of the deed, March 17, 2000, when fee simple in 3612 Fels Lane was granted to the DVA, the DVA obtained its ownership and the right to possession of the house. ⁵⁴⁵ B. Reasonable Expectation of Privacy Notwithstanding Laney’s lack of a property interest in 3612 Fels Lane, we must decide whether, under the United States Constitution, he had a legitimate expectation of privacy in that property on July 14, 2000.

The Fourth Amendment to the United States Constitution, made applicable to the State through the adoption of the Fourteenth Amendment, guarantees the people’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” See Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684, 1691 , 6 L.Ed.2d 1081, 1090 (1961); Wallace v. State, 373 Md. 69 , 78 79, 816 A.2d 883, 889 (2003). The Fourth Amendment guarantees do not apply, however, unless the individual maintained “a legitimate expectation of privacy” in the houses, papers, and effects searched or seized. Rakas v. Illinois, 439 U.S. 128, 143 , 99 S.Ct. 421, 430 , 58 L.Ed.2d 387, 401 (1978); Wallace, 373 Md. at 79 , 816 A.2d at 889 ; Simpson v. State, 121 Md.App. 263, 277 , 708 A.2d 1126, 1133 (1998). The one invoking Fourth Amendment protection bears the burden of demonstrating his or her legitimate expectation of privacy in the place searched or items seized.

Smith v. Maryland, 442 U.S. 735, 740 , 99 S.Ct. 2577, 2580 , 61