McGurk v. State

JAMES P. SALMON (Retired, Specially Assigned), J. At approximately 3:15 a.m. on June 29, 2009, Carrie McGurk and a male companion were on the second floor balcony of a house located at 608 Philadelphia Avenue, Ocean City, Maryland. An Ocean City police officer, who was passing by on his bicycle, saw the couple. He parked his bike, and, uninvited, walked up one flight of stairs and entered onto the balcony. The officer was later joined on the balcony by one of his police colleagues, who was also uninvited.

Based upon what the police officers saw on the balcony, Ms. McGurk was arrested and twice searched. As a result of what was found in the searches incident to her arrest, she was charged with possession of marijuana, and possession of cocaine with the intent to distribute, and various other drug offenses. Ms. McGurk filed a motion to suppress the evidence that was taken from her by the police, as a result of the searches. After a hearing was held, the motions judge, without comment, denied the suppression motion.

Ms. McGurk elected a bench trial and proceeded on a not-guilty agreed statement of facts as to the charge of possession with the intent to distribute cocaine. The trial judge found her guilty of that offense and sentenced her to three-years incarceration but suspended all that sentence in favor of a period of probation. 1 In this appeal, Ms. McGurk contends, for various reasons, that the motions judge erred in denying her motion to suppress. The most important issue raised is whether the police officers, who entered onto the second story balcony, physically intruded into a “constitutionally protected area” i.e., an area in which Ms. McGurk had a reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 ²⁸ L.Ed.2d 576 (1967).

The issue is important because if the intrusion was into a “constitutionally protected area,” all the evidence seized by the police incident to the arrest should have been suppressed based on the “fruits of the poisonous tree doctrine.” Wong Sun v. Untied States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963). I. Facts Established At The Suppression Hearing 2 Philadelphia Avenue is a two-way street in Ocean City, Maryland, that runs north and south. The place where Ms. McGurk was arrested, 608 Philadelphia Avenue, is approximately 13 blocks north of the inlet, which is the southern most part of Ocean City. That address is on the east side of Philadelphia Avenue and has a front porch and a balcony.

The floor of the balcony is 10 feet above ground. A waist high wooden railing is on the west and a portion of the north side of the balcony. Both the front porch and the balcony face Philadelphia Avenue. A person on the balcony can gain entrance into the living quarters of the dwelling by accessing a door at the rear (east side) of the balcony.

At the time Ms. McGurk was arrested, the balcony was decorated with flowers and plants. A glass table was positioned towards the south-end of the balcony. Additionally there was “a two-person style rocking chair” and at least one other chair on the balcony. Below the balcony, on the west side of the front porch, there is a very narrow lawn that is adjacent to the sidewalk that borders on Philadelphia Avenue.

The first step on the staircase that leads to the balcony is very ²⁹ close to the sidewalk. From the stairs, the entrance onto the balcony is on the north side. On June 29, 2009, Carrie McGurk was on the second-floor balcony of 608 Philadelphia Avenue, as was Roberto Villagra. According to Ms. McGurk’s uncontradicted testimony, on the date of her arrest she was an overnight guest of one Brady Cox, who leased the Philadelphia Avenue premises.

She had brought with her an overnight bag and planned to stay for the night at 608 Philadelphia Avenue. At approximately 3:15 a.m. on the morning in question, Ocean City police officer Michael Valerio, while in uniform, was riding his patrol bicycle south-bound (i.e., towards the inlet) on Philadelphia Avenue when he smelled the odor of burnt marijuana. He turned his bicycle around and peddled approximately 60 feet north of 608 Philadelphia Avenue in an attempt to locate the source of the odor. He then looked back towards the south and saw two people sitting on a balcony.

Officer Valerio approached the staircase that led to the second-floor balcony at 608 Philadelphia Avenue and “radioed for additional officers to help [him] locate the source of the marijuana.” Before any of his fellow officers arrived, Officer Valerio, uninvited, walked up the stairway to the second-floor balcony. Once on the balcony, Officer Valerio identified himself as a police officer and asked the porch occupants “what are you up to tonight” or “what are you doing tonight?” Mr. Villagra replied that they were “just watching traffic.” Officer Valerio then inquired “were you doing anything else?” As he asked the last question the officer “got closer to” Mr. Villagra and smelled “the odor of burnt marijuana, THC, which [he] knew through [his] training and knowledge and experience” was coming from Villagra. This led Officer Valerio to believe “that there had been other things going on that night.” Officer Valerio asked Villagra “if he had any marijuana on him.” Villagra said that he did not. Officer Valerio next asked “is it a little bit, or did you just have a lot more on you?” That awkwardly phrased inquiry was repeated by the officer ³⁰ “one or more times” whereupon Villagra said that he had smoked a “roach” but had thrown the “roach” off the balcony.

By the time Officer Valerio obtained that admission, two “back-up officers” (PFC. Kelley and Officer Perry) had arrived to assist him. Officer Valerio then went down the stairwell and found, in the front yard, a small marijuana “roach” that was still warm. He collected that evidence, brought it back up to the balcony, held it in his hand and asked Villagra if the “roach” that he had found was the marijuana cigarette that Villagra had thrown away.

Villagra admitted that it was. Officer Valerio then placed Villagra under arrest. Officer Charles Kelley arrived at 608 Philadelphia Avenue approximately 5 minutes after Officer Valerio’s arrival. Officer Kelley climbed the steps to the second-floor balcony to assist Officer Valerio who by that time had already made a “custodial arrest” of Villagra.

Officer Kelley initiated a conversation with Ms. McGurk. He asked her what her relationship was to Villagra, how she knew him, how long she was staying in Ocean City, and whether she was on vacation. While he made those inquiries, he stood only 2]é feet away from Ms. McGurk. His proximity to her allowed Kelley to “immediately detect an overwhelming odor of burnt marijuana coming from her person.” After smelling marijuana, he asked if he could see Ms. McGurk’s identification.

When she opened her purse to get her identification, Officer Kelley observed a “prescription style” orange bottle with a white lid. The bottle was transparent which allowed him to see, “in plain view” that inside the bottle was a “glassine cellophane type baggie” that contained a “greenish-brownish leafy vegetable like substance.” He recognized through his “training, knowledge and experience as a police officer” that the leafy substance was marijuana. Officer Kelley ordered Ms. McGurk to give him the prescription bottle. She did not comply with that command but instead tried to conceal the bottle in her hand.

She also attempted to remove other objects from her purse and to ³¹ “shove them towards her front pocket.... ” He then advised Officer Valerio, who was standing nearby, that Ms. McGurk was under arrest. The arrest occurred at 3:27 a.m., approximately seven minutes after Officer Kelley arrived at 608 Philadelphia Avenue. After Ms. McGurk was handcuffed and placed under arrest, she was removed to a “safer area on the sidewalk” and searched by Officer Valerio, who found $813.00 in the rear pocket of her pants. Officer Valerio described how he searched the upper part of Ms. MeGurk’s body, which was covered by both a tank top and a bathing suit top, as follows: I used my index finger and thumb of my right hand and grabbed the middle area between the swim suit and pulled that away from her body and still underneath the tank top to see if there was any illegal drugs or evidence that was concealed....

When he pulled the swim suit away from appellant’s body, six “cream colored rocks” of cocaine fell to the ground. 3 II. Appellant contends that the second-floor balcony where she was seated when the Ocean City police officers arrived, was part of the curtilage of the dwelling house located at 608 Philadelphia Avenue, and was therefore a constitution ³² ally protected area that police officers were not entitled to enter without permission. An area is considered to be part of the curtilage of a dwelling house if it “is so intimately tied to the home itself that it should be placed under the home’s umbrella of Fourth Amendment protection.” United States v. Dunn, 480 U.S. 294, 301 , 107 S.Ct. 1134 , 94 L.Ed.2d 326 (1987). In response, the State makes three arguments: 1) McGurk never had standing to argue that she was in a constitutionally protected area; 2) even assuming that McGurk had standing, the second-floor balcony was not part of the curtilage of 608 Philadelphia Avenue, and 3) even if the second-floor balcony was a part of the curtilage, entry by the Ocean City police officers was still lawful based on “extigent circumstances.” A. Standing Immediately prior to the hearing on McGurk’s motion to suppress, defense counsel filed a lengthy memorandum contending, inter alia, that the entry by the police upon the second-floor balcony violated Ms. McGurk’s Fourth Amendment Rights.

During the suppression hearing, Ms. McGurk testified that on the evening in question she was an overnight guest of the lessor of 608 Philadelphia Avenue, and that when she arrived she carried her belongings in an overnight bag. The prosecutor did not cross-examine appellant in regards to this testimony, nor did the prosecutor introduce evidence to contradict that testimony. Moreover, at no time during the hearing did the prosecutor indicate that she contested Ms. McGurk’s standing. After hearing the testimony of appellant, along with that of several Ocean City police officers, defense counsel presented oral argument in support of the suppression motion but the prosecutor made no oral reply.

Instead, the prosecutor accepted the motions judge’s offer to allow her to reply in a written memorandum. The State subsequently filed a lengthy reply memorandum. Significantly, however, the State never contended in its memorandum that McGurk lacked standing. ³³ On appeal the State contends that McGurk lacks standing to raise the contention that the police officer’s entry onto the balcony was illegal. Nevertheless, it admits that in Minnesota v. Olson, 495 U.S. 91, 98-99, 110 S.Ct. 1684 , 109 L.Ed.2d 85 (1990), the Supreme Court held “that an overnight guest in a house had a reasonable expectation of privacy in the host’s home” and therefore—such a guest has a right to contest the entry of police into that home.

The State also admits that Ms. McGurk testified that on the evening she was arrested she was an overnight guest of the lessor of the premises known as 608 Philadelphia Avenue. The State nevertheless argues: Because the suppressing court denied McGurk’s motion to suppress without making factual findings on the record, her self-serving testimony as to her relationship to the property deserves no credit. Thus the record is devoid of any credible evidence that McGurk had a reasonable expectation of privacy in any area of 608 Philadelphia Avenue, and thus, she was in no position to raise a Fourth Amendment challenge to the alleged unlawful entry. We hold that by failing to raise the standing issue in the circuit court, the State waived that issue for appellate purposes.

See Maryland Rule 8-131(a) (except for jurisdictional issues, an appellate court will ordinarily not decide any other issue neither raised nor decided in the circuit court). In McCain v. State, 194 Md.App. 252 , 4 A.3d 53 (2010), the State contended on appeal that the appellant, Sheldon McCain, did not have standing to contest a search, by police officers, of his Wife’s purse, because appellant had no “expectation of privacy in the purse.” Id. at 278 , 4 A.3d 53 . But at the suppression hearing, the State did not contend that appellant lacked standing. Id.

What we said in McCain is here apposite: Because the search at issue was without a warrant, the State had the burden of production and persuasion at the , suppression hearing. See, e.g., Epps v. State, 193 Md.App. 687 [ 1 A.3d 488 ] (2010). As appellant correctly notes in his reply brief, the State did not contend at the suppression ³⁴ hearing that appellant lacked a legitimate expectation of privacy in Ms. McCain’s purse. As the issue was neither raised before, nor decided by, the circuit court, we can consider the State’s contention only through the exercise of the discretion conferred upon us by Maryland Rule 8-131(a).

Epps, [ 193 Md.App. at 708-10 , 1 A.3d 488 ] (citing, among other cases, Jones v. State, 379 Md. 704, 713-14 [ 843 A.2d 778 ] (2004), and State v. Bell, 334 Md. 178, 187-88 [ 638 A.2d 107 ] (1994)). We decline to do so in this case. Whether a party has a legitimate expectation of privacy in another’s property depends in part upon a consideration of the facts supporting the assertion of the expectation. See Laney v. State, 379 Md. 522, 545-46 [ 842 A.2d 773 ] (2004).

Because the State did not raise the issue at the suppression hearing, there was no reason for appellant to present such evidence and he did not. Under these circumstances, consideration of the standing issue for the first time on appeal would be unfair to appellant. Jones, 379 Md. at 714 [ 843 A.2d 778 ] (the discretion to review an unpreserved issue “should not be exercised when it will work an unfair prejudice to the parties.”) Id. at 278-79, 4 A.3d 53 . See also, State v. Mason, 173 Md.App. 414, 428-29 , 919 A.2d 752 (2007).

As pointed out in McCain , under Md. Rule 84.31(a), we have discretion to decide non-jurisdictional issues not raised or decided below, but we should not exercise that discretion and consider such issues if to do so would prejudice one or more of the parties. Here Ms. McGurk would clearly be prejudiced if we were to entertain the standing issue. First, in the circuit court Ms. McGurk’s counsel never had a chance to convince the judge that the State’s argument that his client was lying should be rejected. Second, it would be unfair to infer from a silent record that the trial judge disbelieved Ms. McGurk’s uncontested and uncontroverted testimony as to standing. 4 ³⁵ DISCUSSION B. Is the Second Story Balcony a Constitutionally Protected Area? “[T]he Fourth Amendment protects people, not places.

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) (citations omitted). A two-part test is to be used to determine whether the government has invaded an individual’s reasonable expectation of privacy: “[fjirst, an individual must demonstrate that he had an actual subjective expectation of privacy. Second, society must be willing to recognize that expectation as reasonable.” Kitzmiller v. State, 76 Md.App. 686, 690 , 548 A.2d 140 (1988) (citation omitted).

As explained by a concurring opinion in Katz: As the Court’s opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the ³⁶ expectation of privacy under the circumstances would be unreasonable. Katz, 389 U.S. at 361 , 88 S.Ct. 507 (Harlan, J., concurring); accord State v. Sampson, 362 Md. 438, 444 , 765 A.2d 629 , cert. denied, 532 U.S. 1056 , 121 S.Ct. 2202 , 149 L.Ed.2d 1032 (2001).

In considering the first part of this test, this Court has stated that “the Fourth Amendment applies only to ‘constitutionally protected areas’ such as a person’s house or curtilage.” Sproates v. State, 58 Md.App. 547, 557 , 473 A.2d 1289 (1984). Thus, the first question we must determine is whether the second story balcony in question was part of the curtilage of 608 Philadelphia Avenue. The curtilage is the area immediately surrounding the home “to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life,’ and therefore has been considered part of the home itself for Fourth Amendment purposes.” . Oliver v. United States, 466 U.S. 170, 180 , 104 S.Ct. 1735 , 80 L.Ed.2d 214 (1984) (citations omitted); see also Cal. v. Ciraolo, 476 U.S. 207, 212-13 , 106 S.Ct. 1809 , 90 L.Ed.2d 210 (1986) (“The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened”); Walls v. State, 179 Md. App. 234, 249 , 944 A.2d 1222 (2008) (“The Fourth Amendment’s protection of a person’s home from unreasonable searches and seizures extends to the home’s curtilage, that is, to the land immediately surrounding and associated with the residence.”).

As Professor LaFave has explained: The home “is accorded the full range of Fourth Amendment protections,” for it is quite clearly a place as to which there exists a justified expectation of privacy against unreasonable intrusion. It is beyond question, therefore, that an uncontested entry into a residential unit, be it a house or an apartment or a hotel or motel room, constitutes a search within the meaning of Katz v. United States. Moreover, this Fourth Amendment protection (and thus this search characterization of an entry) extends even to “occupants of flimsily constructed dwellings with unobstructed windows or ³⁷ other openings directly on public lands, streets, or sidewalks, who failed to lock their doors to bar entrance. 1 LaFave, Search and Seizure, § 2.3(b) at 565 (4th ed.2004) (footnotes omitted). The Supreme Court has held that “the extent of the curti-lage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” United States v. Dunn, 480 U.S. 294, 300 , 107 S.Ct. 1134 , 94 L.Ed.2d 326 (1987); accord Oliver, 466 U.S. at 180 , 104 S.Ct. 1735 .

In Dunn, the court held that the central component of this inquiry, “whether the area harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life,” is resolved with reference to four factors, including: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. United States v. Dunn, 480 U.S. at 301 , 107 S.Ct. 1134 . Applying these factors, the second story balcony at issue is a part of the home itself. It is located ten feet above street level, and includes a waist high wooden railing on the west and north sides of the building, which means that passersby on the sidewalk or on Philadelphia Avenue would not have a clear view of what is taking place on the balcony.

Located on the balcony are some flowers and plants as well as a glass table. There was at least one chair along with “a two-person style rocking chair” on the balcony, which suggests that the balcony is used for purposes akin to uses served by a room inside a house. All of these factors suggest that the balcony was within the curtilage of the home located at 608 Philadelphia Avenue. In regard to the last factor, the steps taken by the resident to protect the area from observation, we note that on the one hand, the wooden railing prevents persons on the highway or sidewalk from seeing most, but not all, of what is taking place ³⁸ on the balcony.

On the other hand, the external staircase leading up to the balcony is very close to the sidewalk and there is no evidence that there is a gate or other device preventing access from the stairway to the balcony. This last factor, while significant, does not outweigh the other factors supporting appellant’s subjective expectation of privacy. Certainly an occupant of the balcony at issue would not expect an uninvited stranger to climb the steps and enter onto the balcony in the middle of the night. The balcony was in no sense a “public place.” Thus, we hold that the balcony leading to the second story at 608 Philadelphia Avenue, was part of the curtilage of the home, and that appellant, while on that balcony, had a subjective expectation of privacy.

The next part of the Katz test is whether that subjective expectation was objectively reasonable. Here, the parties have not cited, nor have we been able to find, a case dealing with a warrantless entry by police onto a balcony of a residence accessible by an external staircase that begins at a sidewalk bordering on a public street. Instead, the State analogizes this case to those where the police entry was at the front door or front porch of a residence. With respect to the front door to a residence, this Court has observed: People commonly have different expectations, whether considered or not, for the access areas of their premises than they do for more secluded areas.

Thus, we do not place things of a private nature on our front porches that we may very well entrust to the seclusion of a backyard, patio or deck. In the course of urban life, we have come to expect various members of the public to enter upon such a driveway, e.g., brush salesmen, newspaper boys, postmen, Girl Scout cookie sellers, distressed motorists, neighbors, friends. Any one of them may be reasonably expected to report observations of criminal activity to the police. If one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that police will do so. ³⁹ Thus, when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g. walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment.

But other portions of the lands adjoining the residence are protected, and thus if the police go upon these other portions and make observations there, this amounts to a Fourth Amendment search. (Footnotes omitted). Brown v. State, 75 Md.App. 22, 33-34 , 540 A.2d 143 (1988) (citations omitted)(emphasis added); see also United States v. Taylor, 90 F.3d 903, 909 (4th Cir.N.C.1996) (concluding that police observation of cocaine and currency through large picture window next to the front door where the officers were standing was not an illegal search because the front entrance “was as open to the law enforcement officers as to any delivery person, guest, or other member of the public”). The Supreme Court considered front door access in United States v. Santana, 427 U.S. 38 , 96 S.Ct. 2406 , 49 L.Ed.2d 300 (1976).

There, following a controlled buy of heroin at Santana’s house, police officers returned to that location and observed Santana “standing in the doorway of the house with a brown paper bag in her hand.” Id. at 40 , 96 S.Ct. 2406 (footnote omitted). After yelling, “Police,” Santana retreated into the vestibule of her house and the police followed her inside, where they apprehended her and found heroin inside the same bag. Id. at 40-41 , 96 S.Ct. 2406 . One of the issues before the Supreme Court was whether Santana was in a “public place” when the police first sought to arrest her.

Id. at 42 , 96 S.Ct. 2406 . Relying on United States v. Watson, 423 U.S. 411 , 96 S.Ct. 820 , 46 L.Ed.2d 598 (1976), the Supreme Court concluded that Santana was in a public place and that the arrest was lawful, reasoning as follows: While it may be true that under the common law of property the threshold of one’s dwelling is “private,” as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment Santa ⁴⁰ na was in a “public” place. She was not in an area where she had any expectation of privacy. “What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 [ 88 S.Ct. 507 , 19 L.Ed.2d 576 ] (1967). She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.

Hester v. United States, 265 U.S. 57, 59 [ 44 S.Ct. 445 , 68 L.Ed. 898 ] (1924). Thus, when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which we have approved in Watson . United States v. Santana, 427 U.S. at 42 , 96 S.Ct. 2406 . 5 Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s ‘castle’ with the honest intent of asking questions of the occupant thereof—whether the questioner be a pollster, a salesman, or an officer of the law. Davis v. United States, 327 F.2d 301, 303 (9th Cir.1964); see also Robinson v. Commonwealth, 47 Va.App. 533 , 625 S.E.2d 651, 658 (2006) (“The landowner’s implied consent is generally presumed to exist absent evidence of an affirmative intent to exclude the public from the premises”), aff'd, 273 Va. 26 , 639 S.E.2d 217 (2007), cert. denied, 550 U.S. 957 , 127 S.Ct. 2442 , 167 L.Ed.2d 1131 (2007).

Courts in other jurisdictions have concluded that, whether or not it is curtilage, there is generally no reasonable expectation of privacy in a front porch. See United States v. Weston, ⁴¹ 443 F.3d 661, 667 (8th Cir.2006) (holding that a warrantless entry onto the curtilage was not unreasonable where the intrusion was limited and where a legitimate law enforcement objective exists) (citation omitted), cert. denied, 549 U.S. 956 , 127 S.Ct. 417 , 166 L.Ed.2d 274 (2006); Murphy v. Gardner, 413 F.Supp.2d 1156, 1167-68 (D.Colo.2006) (unenclosed front porch which contained homeowner’s mailbox and newspaper rack did not constitute curtilage for Fourth Amendment purposes); State v. Deary, 753 So.2d 200, 201 (La.2000) (stating that, while a front porch is curtilage, “[a] front porch does not necessarily enjoy the same measure of protection accorded the home by the Fourth Amendment, however, because of ‘an almost implicit understanding and custom in this country that, in the absence of signs or warning, a residence may be approached and the occupants summoned to the door by knocking’ ”) (citations omitted); State v. Kitchen, 572 N.W.2d 106, 111-12 (N.D.1997) (concluding, even if the area was curtilage, it was reasonable for the police to enter a vestibule—like area, through a