McMillian v. State

ALPERT, Judge. In Ciriago v. State, 57 Md.App. 563, 574 , 471 A.2d 320 (1984), cert. denied, 300 Md. 152 , 476 A.2d 721 (1984), we met the “Taj Mahal of blurts”; here, we are visited with the Gibraltar of consent searches. Robert Lee McMillian appeals to us from his conviction of maintaining a common nuisance building and conspiracy to distribute cocaine. He asks us to decide, inter alia, the question of whether a consent to search, which the police obtained after they illegally entered a private social club, was sufficiently purged of the taint of that prior warrantless entry and subsequent seizure of the premises and its occupants for us to consider the consent voluntary, and not an exploitation of that prior illegality.

FACTS AND PROCEEDINGS This case arose from the Baltimore City Police Department’s investigation of the Foxes and Vixens Club (the Club), a private social club located at 1601 West Lexington Street, Baltimore, Maryland. The facts herein came to light during a three-day hearing on McMillian’s motion to suppress the evidence that the police found during a consent search which followed their warrantless entry and seizure of the Club and its occupants. ³⁷¹ At approximately 3 p.m. on December 29, 1988, Baltimore City Police Officer Thomas Rood spoke with a “reliable source” who told him that someone at the Club was selling drugs. The Western District Drug Enforcement Unit previously had received numerous complaints about the sale of controlled dangerous substances from the Club’s location. Officer Rood proceeded to the Club to investigate.

The owner of a construction trailer, which was located nearby, gave Rood permission to use the trailer for covert surveillance of the Club. Officer Rood observed activities outside the Club and then radioed other officers to stop and arrest individuals who left the Club if Rood suspected them of criminal activity. Officer Rood initially observed eight or nine people standing outside the Club. He saw a black female exit the Club and give small objects, which he believed to be controlled dangerous substances, to five or six people.

Rood ordered the other officers to stop those who had received the packages. When police officers stopped and arrested one of the recipients, LaTanya Lee, they recovered one glassine bag of a white powder substance. Rood next testified that he saw numerous people go to and from the Club. He said that “[t]hey would come up and have conversation with one of the persons outside or they would ring the bell and have conversation.

I would see currency exchanged. I would see the door close. Sometimes I would see a person standing in the doorway but I couldn’t see ... [a] face. And I could see money go, come out of the [Club] or persons standing outside collect money, go to the door, ring the bell, talk with someone, money would go in, seconds later a small object would come out.

These people would disperse.” Rood saw such transactions occur twenty or thirty times. As a result of these observations, he ordered the stop and arrest of two men as they walked away from the Club. The police recovered two glassine bags of cocaine from Bryant Livers and a glass vial containing a white powder substance from Darryl Lightner. ³⁷² During this time, Rood also observed the people who stayed in and around the Club. At the suppression hearing, Rood identified McMillian and Curley Jackson as two men whom he had seen standing outside the Club.

Rood did not see either of these men deal drugs, but considered them to be “players” because they stood outside the Club and directed people to the door, and could see the transactions take place from that vantage point. Rood further identified Arthur Lee Carter as the person who sold drugs to LaTanya Lee. Rood did not see Carter’s face, but did see the arm of the person who gave the drugs to Lee. When Rood later entered the Club, he found Carter wearing the clothes that Rood earlier had seen on the arm of the person who delivered the drugs to Lee.

No one else was wearing such clothing. Throughout the surveillance period, Officer Rood was in radio contact with his supervisor, Sergeant Bert Ricassa, as well as Agent Timothy Devine, Sergeant John Slawinski, and Officers Clarence Smith and Clifton Mazer. The transcript of their conversations, which was introduced into evidence, showed extensive deliberation about the course of action that the officers should undertake based on their observations of the Club. They discussed the following options: (1) obtain a search and seizure warrant, (2) enter the Club and request that the owner or manager submit to a consent search, or (3) secure the premises while an officer obtained a search and seizure warrant.

Rood’s concern with the first option was that those involved would have concluded their drug sales or have vacated the Club by the time that the police obtained the warrant. He likewise vetoed the second option, believing that those inside the Club would “flush” the drugs before the police could enter. Sergeant Ricassa then decided that it was “safe to write a paper” (search warrant) and instructed the officers to meet him at the police station. Agent Devine expressed concern that the officers would have to enter the Club that evening because those arrested had overheard the radio communications among the officers and might alert the others involved ³⁷³ in illicit activities at the Club.

The officers convened their meeting at the police station at approximately 5:50 p.m., and it appears as though all of the officers withdrew from the surveillance for that hour-long meeting. After discussing the case with his officers, Sergeant Ricassa decided that they would return to the Club and “secure the place, hold everybody there until we could type up a search and seizure warrant, ... unless we [could] get a consent to search form signed by either the manager or the people, person in charge of the premises.” Although Ricassa believed that he had probable cause for a warrant to issue, he did not pursue a warrant prior to entry because he believed that “these dealers or these main players ... [would not be there] three to four hours or the next day after we ... [had] a search and seizure signed ... by a Judge.” Rood testified that the officers also decided to “slip in” when one of the patrons knocked on the door and someone inside opened up the Club door. At 7:05 p.m., a uniformed police officer, Officer Mazer, approached the Club door, waited until a patron rang the bell, and then, when the door opened, stepped in front of the patron and entered the Club. McMillian yelled “police” when he saw Officer Mazer and tried to close the door on him.

Because the other officers were unable to make radio contact with Officer Mazer, they entered the Club. The officers found between twenty and twenty-five people rather than the three to five that they had expected to find. The officers detained these people and patted them down. Although those in the Club were not under arrest, neither were they free to leave.

The police determined that McMillian was the Club manager. McMillian then inquired whether Rood had a search warrant. Officer Rood advised McMillian that the officers had had the Club under surveillance for several hours and that they believed he was involved with drug transactions. McMillian stated that “he knew ... [the police] were coming.

Rood explained that “[he] had come in to try to obtain a consent search from [McMillian]. If [McMillian] didn’t want to give me a con ³⁷⁴ sent search, that the officers would stay there and secure the premises. I would go into the station, type up a search and seizure warrant, and try to have — either a Judge would sign it or wouldn’t sign it.” When Rood asked McMillian why an elderly man like himself was involved with drugs, McMillian replied that he had to make a living somehow. Rood testified that he neither threatened McMillian nor promised him anything when he requested the consent to search.

McMillian signed a consent form five to ten minutes after the police entered the Club. The form included a statement that McMillian knew that he had the right to refuse the search. The police then searched the Club, which consisted of a large room with a game board, pool table, and several poker machines; a second room with a large wooden picnic table; and a back room that appeared to serve as a small office in which untaxed liquor and cash was stored. The police found the following items during their search: (1) 9 glassine bags of cocaine in a garbage can, (2) 25 glassine bags of cocaine inside a Kool cigarette pack in the back room near a box of tiles, and (3) 25 glassine bags of cocaine in a manilla envelope located in the center of the room where people played cards.

Officer Rood’s expertise in narcotics law enforcement led him to conclude that the Club was a front for the distribution of controlled dangerous substances. On March 1, 1989, the Grand Jury for Baltimore City charged McMillian with the following crimes: possession with intent to distribute cocaine, possession of cocaine, maintaining a common nuisance building, conspiracy to distribute cocaine, and conspiracy to possess cocaine with intent to distribute. The Grand Jury also charged co-defendants Curley Jackson and Arthur E. Carter with narcotics-related offenses, including conspiracy, 1 that related to the same course of criminal conduct alleged against McMillian. ³⁷⁵ McMillian filed a motion to suppress the evidence that the police found during the December 29, 1988 search. The Circuit Court for Baltimore City denied the motion.

At the conclusion of the jury trial (the Hon. Thomas Ward, presiding), the jury acquitted Jackson and Carter of all charges. Although the jury acquitted McMillian of possession of cocaine with intent to distribute, possession of cocaine, and conspiracy to possess cocaine with intent to distribute, it convicted him of conspiracy to distribute cocaine and of maintaining a common nuisance building. McMillian filed a motion for a new trial, challenging the trial court’s denial of his motion to suppress the evidence as well as the jury’s verdicts.

The court denied the motion. We subsequently granted leave to file a belated appeal. ISSUES On appeal, McMillian asks us to answer three questions: I. Whether the trial court erroneously failed to suppress the evidence seized by police as a result of the warrant-less search and seizure of the Foxes and Vixens Club?

II

Whether the trial court erroneously failed to grant McMillian’s motion for new trial or, in the alternative, for judgment of acquittal of conspiracy to distribute cocaine?

III

Whether the trial court erroneously failed to grant McMillian’s motions for judgment of acquittal and motion for a new trial or, in the alternative, for judgment of acquittal of maintaining a common nuisance? I. The trial court denied McMillian’s motion to suppress the evidence for three reasons. First, the court found that exigent circumstances existed because the police were convinced that “if the premises were not entered and secured, or commission [sic] to search effectuated, that both the ³⁷⁶ main players and the evidence would have disappeared.” Second, the court found that McMillian’s consent to search was voluntary because Officer Rood had obtained that consent “in a relaxed atmosphere devoid of any forced pressure or promises.” Finally, the trial court relied on the Supreme Court’s opinion in Segura v. United States, 468 U.S. 796 , 104 S.Ct. 3380 , 82 L.Ed.2d 599 (1984), for the proposition that the police Officers had the authority to secure the Club to maintain the status quo and to prevent the destruction of evidence while they obtained McMillian’s consent to search. A. SCOPE OF REVIEW When a defendant alleges that the police have infringed upon his or her constitutional rights, we must make our own “independent constitutional appraisal.” Riddick v. State, 319 Md. 180 , 571 A.2d 1239 (1990); Borgen v. State, 58 Md.App. 61, 79 , 472 A.2d 114 (1984).

To do so, we must review[ ] the law and apply[ ] it to the peculiar facts of the particular case. When the facts are in dispute, we accept them as found by the trial judge unless he is clearly erroneous in his judgment on the evidence before him. In ascertaining whether he is clearly erroneous, we give ‘due regard to the opportunity of the trial court to judge the credibility of the witnesses,’ as commanded by Md.Rule 8-131(c). When the question of the dishonor of a constitutional right arises by the denial of a motion to suppress, the relevant facts which we consider ‘are limited to those produced at the suppression hearing, which are most favorable to the State as the prevailing party on the motion.’ Riddick, 319 Md. at 183 , 571 A.2d 1239 (citations omitted).

B. CONSTITUTIONAL LAW The Fourth Amendment, as applied to the states through the Fourteenth Amendment, protects the privacy interests of individuals against unreasonable searches and ³⁷⁷ seizures. 2 See U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684, 1691 , 6 L.Ed.2d 1081 (1961). “What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” 3 United States v. Montoya de Hernandez, 473 U.S. 531, 537 , 105 S.Ct. 3304, 3308 , 87 L.Ed.2d 381 (1985). The courts determine reasonableness by “balancing] the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Maryland v. Buie, — U.S. ——-, 110 S.Ct. 1093, 1096 , 108 L.Ed.2d 276 (1990) (citations omitted). Generally, “[a] warrantless search is per se unreasonable unless the government can demonstrate that it falls within one of a carefully defined set of exceptions to the fourth amendment’s warrant requirement,” United States v. Munoz-Guerra, 788 F.2d 295, 297 (5th Cir.1986), including those cases in which “the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate.” Arkansas v. Sanders, 442 U.S. 753, 759 , 99 S.Ct. 2586, 2590 , 61 L.Ed.2d 235 (1979).

In the event of illegal police conduct, the exclusionary rule serves as an individual’s principal remedy. “The exclusionary rule prohibits introduction into evidence ³⁷⁸ of tangible materials seized during an unlawful search____” Murray v. United States, 487 U.S. 533, 536 , 108 S.Ct. 2529, 2532 , 101 L.Ed.2d 472 (1988). Further, this prohibition extends to indirect as well as to direct evidence obtained through illegal police action. See Wong Sun v. United States, 371 U.S. 471, 484 , 83 S.Ct. 407, 415 , 9 L.Ed.2d 441 (1963). It also is true, however, that “[wjhether the exclusionary sanction is appropriately imposed in a particular case ... is an ‘issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.’ ” United States v. Leon, 468 U.S. 897, 906 , 104 S.Ct. 3405, 3412 , 82 L.Ed.2d 677 (1984) (citation omitted).

Despite the prior illegal conduct, “[e]vidence may be admitted if [1] it has but an ‘attenuated link’ to the underlying illegality, [2] if it derived from a source independent of the illegal conduct, or [3] if the evidence would inevitably have been discovered absent the illegality.” Hamilton v. Nix, 781 F.2d 619, 625 (8th Cir.1985), aff'd, 809 F.2d 463 , cert. denied, 483 U.S. 1023 , 107 S.Ct. 3270 , 97 L.Ed.2d 768 (1987) (citations omitted). 1. Exigent Circumstances Appellant contends that the trial court erred when it concluded that exigent circumstances existed, i.e., the possibility of loss or destruction of evidence existed, which justified the warrantless entry and subsequent seizure of the Club and its occupants by the police. He argues that there were no exigent circumstances under the facts of this case. We agree with appellant.

In Stackhouse v. State, 298 Md. 203 , 468 A.2d 333 (1983), the Court of Appeals addressed at length the meaning of exigency and when exigent circumstances sufficient to justify a warrantless search might exist. The Court noted that “[t]he meaning of exigency implies urgency, immediacy, and compelling need.” Id. at 212 , 468 A.2d 333 . ³⁷⁹ Upholding warrantless searches based upon exigent circumstances involves two principal categories of cases: ‘hot pursuit,’ and destruction or removal of evidence. [ ] Where a warrantless search is based upon the destruction or removal of evidence the surrounding circumstances must present a specific threat to known evidence. For example, in Thomas v. Parett, [ 524 F.2d 779, 782 (8th Cir.1975)], the police knew that narcotics were on the premises and that several people were present. The police could not risk arresting people as they left separately.

Stackhouse, 298 Md. at 213-14 , 468 A.2d 333 (citations omitted). “To justify the warrantless search the officers must reasonably believe that a strong likelihood exists that the removal or destruction of the evidence is imminent.” Id. (citations omitted). After reviewing numerous Supreme Court cases, including Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), and Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), the Stackhouse court concluded that the Supreme Court intended courts to construe narrowly the exception for exigent circumstances. “In the situation where the destruction or removal of evidence is urged as justifying a warrantless search, it must be a situation where there was an immediate, urgent, and compelling need for police action.” Stackhouse, 298 Md. at 216 , 468 A.2d 333 . “[T]he burden of establishing exigent circumstances is on the State, and ... the facts and circumstances upon which the question of reasonableness depends must be viewed in the light of established fourth amendment principles.” Id. at 217 , 468 A.2d 333 (citations omitted). In this case, the police officers observed the Club and its activities from about 3 p.m. until 5:50 p.m., at which time they returned to the police station to meet with Sergeant Ricassa.

Although it is unclear from the record, it appears as though no police officers remained to watch the Club in the hour during which the officers held their meeting. It seems unlikely that Sergeant Ricassa would have directed ³⁸⁰ the officers to return to the police station for a meeting had the situation shown an “immediate, urgent and compelling need for police action.” Thus, we must conclude that the police officers were not convinced that the situation as it existed between 3 p.m. and 5:50 p.m. was sufficient to justify a warrantless search and seizure. Further, even if exigent circumstances had existed in that time period, those circumstances very well might have dissipated during that one hour gap in surveillance. The record is silent as to whether the police officers tried to determine that the previously observed activities still were in progress when they returned at 6:48 p.m.

Because the record shows that Officer Mazer entered the Club at 6:52 p.m., we can only assume that the officers made no such determination. Thus, the police could not reasonably have believed that evidence was likely to be destroyed or removed because they could not know that there was any evidence at that time. We hold that the trial court erred when it found that exigent circumstances existed under the facts of this case. 2. Consent Searches Appellant contends that the trial court should have excluded the fruits of the consent search from evidence.

He argues that his consent to search was not voluntary under the facts and circumstances of this case. He also contends that even if his consent was voluntary in the constitutional sense, the evidence still must be suppressed under the “fruit of the poisonous tree” doctrine because the evidence was insufficiently attenuated from the illegal entry and subsequent seizure of the premises and its occupants. To support his contention, appellant relies on LaFave’s proposition that the fruit of the poisonous tree doctrine can extend to invalidate a consent which a court previously has determined to be voluntary. See W. LaFave, Search and Seizure, § 8.2(d), at 189-90 (1987). ³⁸¹ In that section on which appellant relies, LaFave explains that the courts have taken different approaches to determining the admissibility of “physical evidence obtained by a purported consent [that was] given following some form of illegal police action____” Id.

Some courts frame the question in terms of the “ ‘totality of the circumstances’ ” voluntariness test and ascertain “whether the prior illegality and the other circumstances resulted in coercion of the person who purportedly consented to the search.” Id. Other courts frame the question as “whether the consent was a fruit of the prior illegality” under the “ ‘fruit of the poisonous tree’ ” doctrine developed in Wong Sun. Id. at 190. These courts then must decide “ ‘whether, granting establishment of the prior illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Id.

LaFave points out that while the two tests overlap, they are not the same. Consequently, he believes that a court should admit evidence obtained by the purported consent only if it determines “that the consent was both voluntary and not an exploitation of the prior illegality.” Id. (emphasis in original). Under this analysis, LaFave is doubtful that a consent search ever can be “ ‘purged of the primary taint’ ” if a court finds that the consent was not voluntary after accounting for the prior illegality and other relevant factors.

Id. He reaches this conclusion because he believes that the primary taint will remain so long as the prior illegality is a factor that enters the equation to determine whether the individual was coerced. Id. LaFave notes that a consent search which fails the voluntariness test because of a prior illegality also may be said to be a fruit of that prior illegality.

Id. He also believes, however, that the fruit of the poisonous tree doctrine can extend to invalidate even a consent that was voluntary. Id. He contends that such a situation could occur if “pressure upon the person from the prior illegality is not so great that ‘his will has been overborne’ under the Schneckloth voluntariness rule \see ³⁸² Schneckloth v. Bustamonte, 412 U.S. 218, 226 , 93 S.Ct. 2041, 2047 , 36 L.Ed.2d 854 (1973) ], but yet it cannot be said under Wong Sun that his consent was 'sufficiently an act of free will to purge the primary taint.’ ” Id. at 190-91.

Those courts that apply the fruit of the poisonous tree doctrine — either alone or in conjunction with the “totality of the circumstances” voluntariness test — to determine the validity of a consent after a prior illegality have adopted for that purpose the Supreme Court’s attenuation analysis in Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975). 4 See, e.g., People v. Odom, 83 Ill.App.3d 1022 , 39 Ill.Dec. 406 , 404 N.E.2d 997 (1980). In Brown , the issue before the Court was whether a defendant’s inculpatory statements, made after an illegal arrest, should have been excluded as the fruit of that illegality, or were admissible because the Miranda warnings sufficiently attenuated the taint of the arrest. Id. 422 U.S. at 591 , 95 S.Ct. at 2255 . The Supreme Court reversed the Illinois Supreme Court, holding that Miranda warnings, “alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession.” Id. at 603 , 95 S.Ct. at 2261 .

In its opinion, the Court set forth those factors that courts should consider to determine “whether a confession is the product of a free will under Wong Sun.” ³⁸³ Id. “[F]or the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint.’ ” Id. at 602 , 95 S.Ct. at 2261 (citations omitted). For a statement to be the product of a free will for fourth amendment purposes, a court must consider not only whether Miranda warnings were given but also “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.” Id. at 603-04 , 95 S.Ct. at 2261-2262 . By applying both the “totality of the circumstances” voluntariness test and Brown’s attenuation analysis under the fruit of the poisonous tree doctrine, a court conceivably could conclude — as LaFave has postulated — that a consent which followed illegal police conduct was voluntary but yet invalid because the nexus between the illegality and the challenged evidence was insufficiently attenuated to dissipate the taint of that illegality. We disagree with LaFave’s contention that the fruit of the poisonous tree doctrine can extend to vitiate a consent to search which a court otherwise has determined to be voluntary.

The Supreme Court has never modified or qualified its decision in Schneckloth to hold that a consent to search which is voluntary for fourth amendment purposes