McMillian v. State

KARWACKI, Judge. Robert Lee McMillian was convicted by a jury in the Circuit Court for Baltimore City of conspiracy to distribute cocaine and maintaining a building as a common nuisance. He was sentenced to concurrent terms of ten years imprisonment. The Court of Special Appeals affirmed those judgments.

McMillian v. State, 85 Md.App. 367 , 584 A.2d 88 (1991). We granted certiorari to consider the following issues: (1) whether the police acted reasonably under the Fourth Amendment when they entered the social club managed by McMillian without a warrant and thereafter searched the club pursuant to McMillian’s consent; and (2) whether the evidence was sufficient to support McMillian’s convictions. I. This case originated from an investigation by the Baltimore City Police Department of the Foxes & Vixens Club (the Club), a private social club 1 located at 1601 West ²⁷⁶ Lexington Street in Baltimore City. At a pre-trial hearing on McMillian’s motion to suppress the cocaine seized at the Club, the State offered the following evidence to justify the warrantless search of that premises on December 29, 1988.

On that day, at approximately 3:00 p.m., Baltimore City Police Officer James Rood spoke to a “reliable source” who informed him that someone at the Club was selling drugs. The Western District Drug Enforcement Unit, of which Rood was a member, had previously received numerous complaints about the sale of controlled dangerous substances from that location. After receiving this information from his source, Officer Rood proceeded to the vicinity of the Club to investigate. He had previously obtained permission from the owner of a construction trailer located fifty to sixty feet from the Club to use the trailer for covert surveillance of the premises.

Officer Rood made observations from the trailer and communicated by radio with fellow officers who were stationed out of the line of sight of people at the Club. These officers planned to arrest people designated by Rood who were seen leaving the Club and suspected of illegal activity. Initially, Officer Rood observed eight or nine people standing outside the Club’s entrance. He saw a black female exit the Club and disperse small objects, which Rood believed to be controlled dangerous substances, to five or six people outside the Club.

Officer Rood ordered that the people receiving these packages be stopped. Thereafter, police stopped and arrested LaTanya Lee who was in possession of one glassine bag of cocaine. Officer Rood also observed people engaging in conversation outside the Club. He noticed these people handing currency to an unidentified person inside the Club, and receiving, from that unidentified person, a small object.

Officer Rood watched this type of transaction occur between 20 and 30 times. As a result of his observations, ²⁷⁷ Officer Rood ordered the stop and arrest of Bryant Livers and Darryl Lightner as they walked away from the Club. From Livers, police recovered two glassine bags of cocaine; from Lightner, police recovered a glass vial containing a white powder, which later was determined not to be a controlled dangerous substance. At approximately 4:40 p.m., the police also stopped a woman driving an automobile who had briefly entered the Club.

The woman immediately told the police that she had just stopped inside the Club to see a friend, that she did not have anything, and that she had not done anything. Concerned that this woman might jeopardize their operation by revealing their covert surveillance, the police told the woman that they had not known that she had been at the Club and that they had stopped her for another reason. Rood identified McMillian and Curley Jackson as two men whom he saw standing outside the Club and directing people to the door of the Club. Rood never saw either of these men distribute drugs, but he did see them watch drug transactions occur.

Rood also identified Arthur Lee Carter as the person who delivered drugs to LaTanya Lee. Rood also observed a man dressed in black clothing who had a key to the apartment that adjoined the Club. This person was seen going in and out of the Club, talking to people who were waiting outside the Club, and was seen observing drug transactions occur. Rood suspected that this man was involved in the drug transactions.

Throughout his surveillance, Officer Rood was in radio contact with Sergeant Bert Ricassa, his superior, and the officer in charge of the investigation, Agent Timothy Devine, as well as Sergeant John Slawinski and Officers Clarence Smith and Clifton Mazer. A transcript of the conversations between these police officers was introduced into evidence. That transcript recorded ongoing conversations between the officers regarding what measures they should and could take in light of Rood’s observations of the Club. Consideration was given to obtaining a search and seizure warrant, but Officer Rood was concerned that by ²⁷⁸ the time police applied for and obtained a warrant the drug distributors would have vacated the Club or the drug sales would have concluded.

Alternatively, consideration was given to securing the premises and either seeking consent to search from the owner or manager of the Club or obtaining a search warrant. At approximately 5:50 p.m., Rood left his observation post and returned to the Western District police station for about one hour to meet with Ricassa and other officers involved in the investigation of the Club. No direct observation was made by the police from 5:50 p.m. to 6:48 p.m., although Rood advised Ricassa that “I'm gonna have somebody watch this place for me. And if everybody leaves they’re gonna notify us.” Once at the station, Ricassa decided that rather than attempt to get a search and seizure warrant in the first instance, the officers would return to the Club and secure the place, holding everybody there while they attempted to obtain a consent to search the premises.

If they could not obtain such a consent, the police intended to detain those inside the Club until they could obtain a search and seizure warrant. Ricassa was concerned that if the premises were not immediately secured, that Club patrons might learn of the police surveillance by overhearing the radio communications between him and the other officers and that the drug distributors might leave the premises before a search and seizure warrant could be obtained. It was also decided that Officer Mazer would “slip in” with a patron rather than knocking on the door of the Club. The police returned to the vicinity of the Club at approximately 6:48 p.m.

Officer Mazer, wearing a police uniform, gained entry at approximately 7:05 p.m. by waiting until a patron went to the door of the Club and sought to enter. The door to the Club was opened by McMillian, who upon seeing Mazer began yelling “police” and tried, unsuccessfully, to shut the door to bar Mazer’s entry. Unable to make radio contact with Officer Mazer, Rood ordered the other officers at the scene to enter the Club. ²⁷⁹ Inside the Club, the officers found approximately 20 to 25 people, including McMillian, who were detained and patted down for weapons. The police determined that McMillian was the manager of the Club.

McMillian inquired whether the police had a search warrant. Rood testified that he and McMillian, who appeared to Rood to be about fifty-five years of age, discussed the issue of consent to search in the back room of the Club. Two or three people, both officers and civilians, were standing in the doorway. No guns were drawn by the police officers, and although not free to leave, McMillian was not formally placed under arrest or handcuffed.

Rood advised McMillian of the police surveillance of the Club that had occurred during the afternoon and that the authorities believed that he was involved with drug transactions. McMillian responded that he knew that the police “were coming and that he had to make a living somehow.” Officer Rood explained that the police wished to obtain McMillian’s consent to search the premises. If McMillian opted not to provide consent, Officer Rood explained that the officers would remain at the premises and that he would return to the station to apply for a search and seizure warrant, which he may or may not be able to obtain from a judge. No threats or promises were made to him.

McMillian signed the consent form five to ten minutes after the police entered the Club. The form that McMillian signed stated that he-was aware of his right to refuse the search. The form also stated that “[t]his written permission is being given by me to the above-named officer voluntarily and without threats or promises of any kind.” The ensuing search resulted in the seizure of a total of 59 glassine bags of cocaine: nine bags were found in a garbage can, 25 bags were found inside a Kool cigarette pack in the back room, and a manila pack of 25 bags was located in the center room where cards were being played. Also, a vial of white powder was found near the telephone.

The trial court denied McMillian’s motion to suppress, concluding that the entry of the Club without a warrant ²⁸⁰ was justified by the exigencies confronting the police. The court further found that McMillian voluntarily consented to the search of the Club.

II

After the denial of McMillian’s motion to suppress evidence, the case was tried on the merits before a jury. Arthur Carter and Curley Jackson, who also had been indicted for narcotics offenses and conspiracy with McMillian, each other, and “with certain other persons whose names are to the Jurors aforesaid unknown” to violate the controlled dangerous substance laws, were jointly tried with McMillian. The cocaine seized as a result of the December 29, 1988 search of the Club was admitted into evidence during the trial over McMillian’s objection. The jury acquitted both Jackson and Carter of all charges.

McMillian was convicted of conspiracy to distribute cocaine and of maintaining a common nuisance building. In affirming McMillian’s convictions, the Court of Special Appeals held that: (1) no exigency existed to justify the warrantless entry into the Club, but that notwithstanding that illegality, under the totality of the circumstances McMillian’s consent was voluntary, and therefore the trial court correctly denied McMillian’s motion to suppress the evidence, and (2) the evidence was sufficient to support McMillian’s convictions. Thereafter, McMillian petitioned this Court for certiorari. In responding, the State filed a conditional cross-petition for certiorari asking that the holding of the Court of Special Appeals that the police entry of the Club was illegal be reviewed.

We granted both petitions.

III

A. Certain basic principles guide our analysis of the officers’ conduct in entering the Club without a search warrant and ²⁸¹ thereafter searching the premises pursuant to McMillian’s consent. “The touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, — U.S. -, -, 111 S.Ct. 1801, 1803 , 114 L.Ed.2d 297, 302 (1991). Thus, “[t]he Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.” Id. Accord Maryland v. Buie, 494 U.S. 325, 331 , 110 S.Ct. 1093, 1096 , 108 L.Ed.2d 276, 284 (1990); United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568, 1573 , 84 L.Ed.2d 605, 613 (1985). Reasonableness is determined by balancing “the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Maryland v. Buie, 494 U.S. at 331 , 110 S.Ct. at 1096 , 108 L.Ed.2d at 284 .

Moreover, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576, 585 (1967) (footnotes omitted); State v. Wilson, 279 Md. 189, 194 , 367 A.2d 1223, 1227 (1977). To sustain the search and seizure here, the State has the heavy burden of showing that one of the exceptions applies. Coolidge v. New Hampshire, 403 U.S. 443, 455 , 91 S.Ct. 2022, 2032 , 29 L.Ed.2d 564, 576 (1971); Vale v. Louisiana, 399 U.S. 30, 34 , 90 S.Ct. 1969, 1972 , 26 L.Ed.2d 409, 413 (1970); State v. Wilson, 279 Md. at 194 , 367 A.2d at 1227 . Furthermore, in assessing whether the police conduct in this case was reasonable under the Fourth Amendment, we make our own independent constitutional appraisal.

Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990). The factual predicate for this appraisal is that evidence adduced at the suppression hearing that is most favorable to the State as the prevailing party on the motion. Id. at 183 , 571 A.2d at 1240-41 ; Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22, 22 (1990). The trial court’s findings as to disputed facts are accepted by this Court unless found to be ²⁸² clearly erroneous after having given due regard to the lower court’s opportunity to assess the credibility of the witnesses.

Riddick, 319 Md. at 183 , 571 A.2d at 1240 . With these principles in mind, we consider the legality of the police officers’ entry into and search of the Club. The police entered the Club with the intent to secure the premises and detain its occupants pending either the issuance of a search warrant or receipt of a consent to search the premises. The State contends that this procedure was valid under the “exigent circumstances” exception to the Fourth Amendment’s warrant requirement because the police were concerned that if they took the time to obtain a warrant the drugs would be destroyed and the distributor or distributors would leave and no longer be identifiable.

The burden to establish that exigent circumstances justified the warrantless entry of the Club rests with the State. Coolidge v. New Hampshire, 403 U.S. at 455 , 91 S.Ct. at 2032 , 29 L.Ed.2d at 576 ; United States v. Jeffers, 342 U.S. 48, 51 , 72 S.Ct. 93, 95 , 96 L.Ed. 59 , 64 (1951); McDonald v. United States, 335 U.S. 451, 456 , 69 S.Ct. 191, 193 , 93 L.Ed. 153 , 158 (1948). To determine whether exigent circumstances were present, we must limit our review to what the police reasonably believed at the time of their warrantless entry. Ker v. California, 374 U.S. 23 , 40 n. 12, 83 S.Ct. 1623 , 1633 n. 12, 10 L.Ed.2d 726 , 742 n. 12 (1963); Johnson v. United States, 333 U.S. 10, 17 , 68 S.Ct. 367, 370 , 92 L.Ed. 436, 442 (1948).

What prompted the police to enter the Club without a warrant was their concern that evidence of narcotics violations, in the form of drugs and identifiable drug dealers, would be lost. Useful then are principles that guide a determination of whether the exigent circumstance of risk of destruction or removal of evidence exists. In Stackhouse v. State, 298 Md. 203 , 468 A.2d 333 (1983), we discussed exigency at length in the context of risk of destruction or removal of evidence. In that case, the police searched the attic of a home where Stackhouse was arrest ²⁸³ ed after he was taken out of the attic and handcuffed.

The State argued that the presence of Stackhouse’s sister, who was free to re-enter the house, presented an exigency because she could have destroyed or removed the evidence. In reaching our decision, we observed that “[w]here the destruction or removal of evidence is urged as justifying a warrantless search, there must be a situation where there was an immediate, urgent, and compelling need for the police action.” Id. at 216 , 468 A.2d at 340 . Applying that test, we held that the State had not met its burden to prove exigent circumstances to justify the warrantless search of the attic. Id. at 220 , 468 A.2d at 342 .

The police officers in the instant case engaged in surveillance of the Club from 3:00 p.m. until they returned to their station house to meet with Sergeant Ricassa at approximately 5:50 p.m. No police officers were present to observe any activities for the next hour. Any exigencies that existed during those afternoon hours were apparently insufficient in the eyes of the police to justify a warrantless search during that time frame. Indeed, had there been sufficient immediate urgency to justify a warrantless search, Sergeant Ricassa would not have convened the station house meeting, leaving no officers behind to maintain the vigil at the Club.

Moreover, the suppression hearing record is completely silent as to any attempts by police to confirm that the suspected illegal activities which they had observed earlier that day were ongoing at the Club when they returned at 6:48 p.m. Rather, the tape transcript introduced into evidence reflects that police returned at 6:48 p.m. and that the first attempt to enter the Club occurred at 6:52 p.m. No discussions recorded on that tape or testimony during the suppression hearing indicate that any drug trafficking had been observed or that the three chief suspects, including McMillian, or any other persons were present at that time. The police merely waited for a Club patron to approach the door to enable one of them to enter the Club behind that person.

The police erred by assuming that any illegal ²⁸⁴ conduct present when they departed at 5:50 p.m. continued until they returned at 6:48 p.m. As a result, any exigencies existing prior to the station house meeting effectively dissipated during the lapse in surveillance. The police did not engage in any further surveillance upon returning to the premises; therefore, “the police could not have believed that evidence was likely to be destroyed or removed because at that point in time they did not know that there was any evidence.” Stackhouse, 298 Md. at 221 , 468 A.2d at 343 . See Shuman v. State, 83 Md.App. 319, 323-25 , 574 A.2d 345, 347-48 (1990) (any exigencies which existed at time when police officer entered apartment to justify officer’s warrantless search of guitar case had ceased when police restrained défendant’s freedom of movement or discovered the guitar case was locked).

This fact distinguishes the case sub judice, from the line of cases where the police knew that narcotics were present on the premises and other persons were likely to destroy the easily disposable contraband. See Thomas v. Parett, 524 F.2d 779 (8th Cir.1975); United States v. Rubin, 474 F.2d 262 (3rd Cir.), cert. denied, 414 U.S. 833 , 94 S.Ct. 173 , 38 L.Ed.2d 68 (1973); Henson v. State, 236 Md. 518 , 204 A.2d 516 (1964). Inasmuch as there were no exigent circumstances at the time of the warrantless entry, that entry was unlawful. Consequently, the Court of Special Appeals properly applied this Court’s directives in Stackhouse .

B. We now focus on McMillian’s consent to the search of the Club and the effect upon that consent of the illegal entry of the Club by the police. A search that is conducted pursuant to consent need not be supported by a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041, 2043-44 , 36 L.Ed.2d 854, 858 (1973); Gamble v. State, 318 Md. 120, 123 , 567 A.2d 95, 97 (1989). The State bears the burden of proving that the consent was freely and voluntarily given, ²⁸⁵ and not the result of duress or coercion.

Schneckloth, 412 U.S. at 248-49 , 93 S.Ct. at 2059 , 36 L.Ed.2d at 875 ; Gamble, 318 Md. at 123 , 567 A.2d at 97 ; Doering v. State, 313 Md. 384, 401-02 , 545 A.2d 1281, 1290 (1988); Wilson, 279 Md. at 201 , 367 A.2d at 1231 . Whether the consent was voluntary “is to be decided in light of the totality of all the circumstances.” Schneckloth, 412 U.S. at 227 , 93 S.Ct. at 2047-48 , 36 L.Ed.2d at 862-63 ; Gamble, 318 Md. at 125 , 567 A.2d at 98 . Moreover, the State must prove voluntariness by a preponderance of the evidence. Wilson, 279 Md. at 201 , 367 A.2d at 1231 .

See Lego v. Twomey, 404 U.S. 477, 488-89 , 92 S.Ct. 619, 626 , 30 L.Ed.2d 618, 627 (1972). This determination “ordinarily involves determination of a question of fact.” Gamble, 318 Md. at 125 , 567 A.2d at 98 . Although we are required to make an independent constitutional appraisal of the record, the trial court’s factual finding of voluntariness is not to be set aside unless clearly erroneous. Id. at 128-29 , 567 A.2d at 99-100 .

Moreover, we must determine what effect the prior illegal entry had on McMillian’s consent. In State v. Wilson, 279 Md. 189 , 367 A.2d 1223 (1977), we considered the effect of a prior illegality on the voluntariness of a consent to a search. Wilson’s residence had been searched previously pursuant to a validly issued search warrant for narcotics and narcotics paraphernalia. Although the police were unsuccessful in finding any narcotics or narcotics paraphernalia, one of the officers jotted down the serial numbers of various TV sets, stereo equipment, speakers, one or two clock radios, a camera and other items which he found in Wilson’s bedroom.

He later determined from a list of serial numbers of stolen property that a cassette recorder in Wilson’s bedroom had been stolen. That officer, in the company of others, returned to Wilson’s home the next day and were admitted by Wilson’s housemate. When they saw Wilson, one of the officers advised him of his Miranda rights, told him that a stolen cassette recorder was seen in his bedroom on the previous day, and requested that he relinquish the recorder. Wilson replied that the recorder was in his bed ²⁸⁶ room and led the officer to it.

After the serial number on the recorder was verified, it was seized and Wilson was arrested. Wilson’s objection to the admission of the recorder into evidence at his trial was overruled, and he was convicted of receiving stolen goods. We affirmed a reversal of that conviction by the Court of Special Appeals, which held that the warrantless search for the serial number of the recorder by the police while executing the search warrant for narcotics and narcotics paraphernalia was unreasonable and that the State had not met its burden of proving that Wilson had freely and voluntarily consented to the subsequent seizure of the recorder. We concluded that when he led the officers to the recorder Wilson reasonably could have believed that the police were acting under the authority of the prior search warrant.

We also observed that when Wilson acquiesced to the officers’ request to search, one or more of his housemates already had allowed the police to enter the house. Finally, we pointed out that although the police gave Wilson Miranda warnings, they did not inform him of his right not to consent to a search. We concluded that “the absence of this advice, coupled with the presence of the Miranda warnings, may well have led [Wilson] to believe that he had no right to refuse the officers’ request.” Id. at 203 , 367 A.2d at 1232 . We discussed the illegal search for and seizure of the serial number of the recorder as a factor that influenced our holding, stating: “The illegality of a prior seizure, of course, does not automatically render evidence obtained by a subsequent consent search inadmissible, but it is a relevant factor to consider in determining the voluntary nature of the consent.

Those cases in which consent has been