Matthews v. State

ROSALYN B. BELL, J. Barrington Keith Matthews was convicted by a jury in the Circuit Court for Prince George’s County of possession of marijuana, possession of marijuana with intent to distribute, and possession of drug paraphernalia. He was sentenced to the statutory maximum of five years in prison and fined a total of $2,500. Matthews has appealed, contending that the trial judge erred: —in admitting into evidence the marijuana and drug paraphernalia discovered by INS agents (1) when they arrested him on suspicion of being an illegal alien, and (2) when they searched his apartment following his arrest; and —in admitting the testimony of his wife as to allegedly confidential communications, in violation of the spousal privilege statute. Because we find no error in the trial judge’s rulings, we will affirm.

THE FACTS On the morning of November 14, 1989, Agents Mullen and Farley of the United States Immigration and Naturalization Service (INS) went to the 16th Avenue area of Hyattsville to investigate an informant’s tip that Matthews, a Jamaican national, was in the country illegally. A check of the INS computers revealed no information whatsoever on Matthews. When they arrived, at about 7:15 a.m., the agents spotted a car containing two persons. The passenger matched the description the agents had of Matthews.

The agents approached the car; Agent Farley spoke to the driver, while Agent Mullen spoke to the passenger. The passenger confirmed that he was, in fact, Barrington Matthews, a Jamaican national. When requested by the agents, Matthews could not produce any identification showing his legal pres ⁴⁹³ ence in the country. 1 As a result, the agents placed Matthews under arrest on suspicion of being an illegal alien. Following Matthews’s arrest, the agents, acting pursuant to INS procedures, searched Matthews’s pockets and found three bags of marijuana, two in the left pocket and one in the right.

The agents then handcuffed Matthews and called their Baltimore central office, requesting that Prince George’s County police be called to the scene. During the wait, the agents conversed with Matthews. Agent Farley stated that it was a “good possibility” that he and Agent Mullen asked Matthews for permission to search his apartment, that Matthews refused 2 and the agents then “could have” told Matthews that they would simply get a warrant. Some time later, the police arrived and took custody of Matthews.

Rather than obtain a warrant to search Matthews’s apartment, Farley and Mullen telephoned and, after a brief conversation with Ms. Matthews, the agents went over to the apartment. When they arrived, the agents told Ms. Matthews that her husband had been arrested, and that they were looking for documentation regarding his immi ⁴⁹⁴ gration status. She then produced a dresser drawer which she stated contained all of his personal papers. When the agents looked in the drawer, they found a Jamaican passport, as well as several bags containing more marijuana.

The agents again called Prince .George’s County police to inform them of the additional marijuana. Farley and Mullen then asked Ms. Matthews for consent to search the remainder of the apartment for additional immigration documents. According to them, she orally consented. A further search of the entire apartment revealed no additional immigration documents, but not surprisingly, the agents discovered yet more marijuana in the bedroom closet along with a balance scale.

Prince George’s County police were called, for yet a third time, to inform them of the drugs that had been discovered. After the search was completed, Officer Michael Keller of the Prince George’s County police arrived, and he and the two agents then had Ms. Matthews sign a written consent to search the entire apartment. THE MOTION TO SUPPRESS At a pretrial suppression hearing, appellant unsuccessfully sought to have the marijuana and the scale excluded from evidence. At trial, all of the marijuana recovered from both appellant and the search of his apartment, as well as the scale, were admitted into evidence over his objection.

Appellant contends that the trial judge’s decision to admit the evidence was error. For the reasons set forth below, we do not agree. —The Arrest— Appellant first contends that his warrantless arrest by the INS agents was illegal. Under 8 U.S.C.A. § 1357 (a)(2) (1991 Supp.), INS agents are authorized to make warrantless arrests where there is “reason to believe” that a person is illegally in the country and that the person is likely to flee or escape if a warrant is obtained. Appellant, apparently conceding that the INS agents possessed ⁴⁹⁵ probable cause to arrest him, argues that there was no probable cause to believe that he was likely to flee.

We see no merit in this contention. The words “reason to believe” in § 1357(a)(2) have been interpreted as analogous to probable cause. Lee v. INS, 590 F.2d 497, 499-500 (3rd Cir.1979). In this case, two factors suggest that the requisite probable cause to believe that appellant was likely to flee were present.

First, when the agents spotted appellant, he was in an automobile, which the Court of Appeals has stated creates an “omnipresent exigency.” Doering v. State, 313 Md. 384, 397 , 545 A.2d 1281 (1988). The trial judge explicitly made such a finding here. Second, at least three federal circuit courts analyzing this issue have found the requisite probable cause where, as here, evidence of an undisputed and clear cut violation of the immigration laws was presented. Contreras v. United States, 672 F.2d 307, 808-309 (2d Cir.1982) (per curiam); United States v. Reyes-Oropesa, 596 F.2d 899, 400 (9th Cir.1979); Aguirre v. INS, 553 F.2d 501, 502 (5th Cir.1977) (per curiam).

We hold that appellant’s warrantless arrest by the INS agents was in accordance with the federal statute authorizing such arrests, and was supported by probable cause. The arrest was therefore legal. —The Search Following the Arrest— Appellant concedes that, if his arrest was legal, the agents’ search of appellant’s pockets was a perfectly proper, run-of-the-mill search incident to a lawful arrest: “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the ⁴⁹⁶ warrant requirement of the Fourth Amendment, but it is also a ‘reasonable’ search under that Amendment.” Colvin v. State, 299 Md. 88, 97-98 , 472 A.2d 953 , cert. denied, 469 U.S. 873 , 105 S.Ct. 226 , 83 L.Ed.2d 155 (1984), quoting United States v. Robinson, 414 U.S. 218, 235 , 94 S.Ct. 467, 476 , 38 L.Ed.2d 427 (1973). —The Search of Appellant’s Apartment— Appellant next asserts that the search of his apartment was illegal. Because we hold that Ms. Matthews voluntarily consented to the search of appellant’s apartment, we do not agree. 3 Consent of one with actual, United States v. Matlock, 415 U.S. 164, 171 , 94 S.Ct. 988, 993 , 39 L.Ed.2d 242 (1975); Doering, 313 Md. at 401 , 545 A.2d 1281 , or apparent, Illinois v. Rodriguez, — U.S. -, 110 S.Ct. 2793, 2800 , 111 L.Ed.2d 148 (1990), authority over the premises sought to be searched is a valid exception to the warrant requirement of the Fourth Amendment.

Schneckloth v. Bustamonte, 412 U.S. 218, 227 , 93 S.Ct. 2041, 2047 , 36 L.Ed.2d 854 (1973); Gamble v. State, 318 Md. 120, 123 , 567 A.2d 95 (1989). In order to be valid, the consent must not be the product of coercion, threats or other pressure. Schneckloth, 412 U.S. at 227 , 93 S.Ct. at 2047 ; Gamble, 318 Md. at 123 , 567 A.2d 95 . The burden of proving that the consent was voluntary is on the State.

United States v. Mendenhall, 446 U.S. 544, 557 , 100 S.Ct. 1870, 1878 , 64 L.Ed.2d 497 (1980); Gamble, 318 Md. at 123 , 567 A.2d 95 . The voluntariness of a consent to search is determined from the totality of the circumstances. Schneckloth, 412 U.S. at 227 , 93 S.Ct. at 2047 ; Gamble, 318 Md. at 123 , 567 A.2d 95 . Voluntariness is a factual matter.

Schneckloth , 412 U.S. at ⁴⁹⁷ 227, 93 S.Ct. at 2047 ; Gamble, 318 Md. at 123 , 567 A.2d 95 . An appellate court is obliged to “extend great deference to the fact finding of the suppression hearing judge with respect to determining the credibilities of contradicting witnesses and to weighing and determining first-level facts.” Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990). The reviewing court, however, is obliged to make an “independent constitutional appraisal” of the ultimate conclusion of voluntariness. Gamble, 318 Md. at 128 , 567 A.2d 95 ; Perkins, 83 Md.App. at 346 , 574 A.2d 356 .

Based on these principles, and after conducting a thorough review of the facts before the trial judge at the suppression hearing, we hold that there was sufficient evidence for the trial judge to conclude that Ms. Matthews voluntarily consented to the search of appellant’s apartment. The only witnesses at the suppression hearing were Agents Farley and Mullen, and Officer Keller. 4 Both Farley and Mullen testified that Ms. Matthews admitted them into the apartment. When they informed her that her husband had been arrested, and that they were seeking any documentation he might have on his immigration status, she produced a drawer which contained his Jamaican passport. The agents also found several bags of marijuana in the drawer as well.

The agents then asked Ms. Matthews for consent to search the remainder of the apartment for additional documentation. They testified that she orally consented. There was no evidence to suggest that any threats or coercion was employed. The only evidence which suggests a lack of voluntariness was Farley’s testimony that it was a “good possibility” that the agents discussed a search warrant with Ms. Matthews, although he could not remember why.

Appellant posits that the only “conceivable reason for discussing a search warrant with Mrs. Matthews [was] to coerce ⁴⁹⁸ her consent.” While this may be true, there was no testimony from either appellant or his wife to substantiate that the agents mentioned a search warrant. Because no other evidence on this record suggests coercion, and because of the ambiguous nature of Farley’s testimony, we hold that the trial judge did not err in holding that Ms. Matthews’s consent to search the apartment was voluntary. We hold that the search of appellant’s apartment was made pursuant to a valid and voluntary consent by his wife, and that the trial judge properly denied appellant’s motion to suppress the evidence obtained as a result of that search. 5 CONFIDENTIAL COMMUNICATIONS At trial, Ms. Matthews testified for the prosecution and described the events leading up to the INS agents’ discovery of the marijuana, both in the drawer and the closet, as well as the balance scale. The transcript of the trial suggests that this testimony apparently came as a great surprise to appellant; his counsel indicated his belief that Ms. Matthews had invoked her privilege not to testify against her husband. 6 ⁴⁹⁹ On appeal, appellant contends that Ms. Matthews’s testimony violates the “confidential communication” privilege set forth in Md.Cts. & Jud.Proc.Code Ann. § 9-105 (1974, 1989 Repl.Vol.): “One spouse is not competent to disclose any confidential communication between the spouses during their marriage.” Appellant contends that, by revealing the location of the drugs and the balance scale in their apartment, his wife’s testimony violated § 9-105.

Based on a review of Ms. Matthews’s testimony, we do not agree. As an initial matter, the State contends that this issue has not been properly preserved for our review. As a general rule, this Court will only review those issues which were raised and decided in the trial court. Rule 8-131(a).

When an objection is made with specificity in the