Miller v. State

KRAUSER, J. Baltimore County police officers arrested appellant, Anthony J. Miller, in Baltimore City for a rape that occurred in Baltimore County. The legality of that extra-territorial arrest is the principal issue of this appeal. We are asked to determine whether, in crossing county boundaries, county police were out of bounds—or whether, as the State contends, they were merely out of time. In any event, they were not out of ²³⁹ luck: appellant was arrested in Baltimore City within a quarter mile of the crime scene and within an hour and a half of the crime.

Following his arrest, appellant was convicted in the Circuit Court for Baltimore County of first degree rape and was sentenced to life imprisonment. On appeal, he challenges the lawfulness of his arrest and the failure of the circuit court to suppress the evidence that flowed from it. Of lesser moment, he accuses the circuit court of admitting “prejudicial evidence of other crimes” and permitting the State to make improper remarks during closing argument. For the reasons that follow, we shall hold, as the circuit court did, that appellant’s arrest was lawful under the emergency provision of § 2-102 of the Maryland Criminal Procedure Article.

But, even if it was not, we conclude that there are no statutory or constitutional grounds upon which to suppress the evidence seized. Finding no merit in any of the other issues raised by appellant, we shall affirm the judgment of the circuit court. Background This case presents a farrago of facts. To avoid confusion, one should keep in mind that although appellant was, in this case, convicted of the rape of a college student, Rebecca D., on the campus of Towson University, he was not arrested until two and a half months after that attack and then it was not for the rape of Rebecca but of a twelve-year-old girl on a street in Baltimore County.

Appellant’s arrest for that crime occurred in Baltimore City within an hour and a half of that attack. It was the rape of the girl, not Rebecca, that resulted in the retrieval of appellant’s DNA and his ultimate identification as Rebecca’s assailant. We begin our review of the events leading up to appellant’s arrest by recounting the circumstances surrounding the first of the two assaults, the attack on Rebecca. On March 25, 2001, at 12:25 a.m., Rebecca was walking home after working late at a restaurant.

As she walked through the campus of ²⁴⁰ Towson University to her apartment building, she noticed a man walking behind her. Minutes later, he grabbed her from behind and threatened to kill her if she screamed. He insisted that he had a needle with HIV in it. Rebecca believed he was armed with at least a knife.

The man then wrestled Rebecca to the ground and raped her. Choking her, he told her that if she did not stop screaming, he would kill her. He then dumped the contents of her purse, took her wallet, and fled in a “boxy, gold-colored sedan.” After he left, Rebecca ran to her apartment, a short distance away. When she got there, her roommate called the police.

Officer Cathleen Dover of the Baltimore County Police Department responded to the call. During her interview with the officer, Rebecca described her attacker as a dark-complected, black male, with a shaved-head, 1 approximately thirty years old, five foot nine inches tall, two hundred pounds, and a “heavy build.” Later, at the Greater Baltimore Medical Center, Rebecca underwent a physical examination. There, • a sample of her blood was taken, and vaginal swabs collected. The next day, on March 26, 2001, Rebecca met with a police sketch artist, and he drew, with her assistance, a sketch of her assailant.

Two and a half months later, on June 7, 2001, a twelve-year-old girl was raped in Baltimore County. Her attacker was described as a black male, clean cut and sporting a mustache, wearing a white shirt and black pants, and driving a maroon Mercury with license plate number HHE917. With that information, Baltimore County police arrested appellant, who matched that description, an hour and a half later in Baltimore City. The photograph taken of appellant following his arrest was later shown to the minor victim as part of a photo array.

From that array, she was able to identify appellant as her ²⁴¹ attacker. As a result of that identification, the police were able to obtain a search warrant authorizing them to obtain a penile swab and to collect a sample of appellant’s blood from which they extracted his DNA. When it is was found that his DNA matched the DNA of Rebecca’s assailant, appellant was charged with that offense as well. Suppression Hearing Before trial, appellant moved to suppress “all testimony regarding DNA testing and results.” At the suppression hearing, Detective Wayne Jedlowski of the Baltimore County Police testified that, on June 7, 2001, Lieutenant Garleska, his supervisor, received information that a twelve-year-old girl was raped at 4:16 p.m. that day on York Road in Baltimore County by a “clean cut” black male with a mustache, wearing black pants and a white shirt.

The detective was also given the license plate number and a description of the vehicle in which the suspect fled the scene of the crime. The vehicle was described as a maroon Mercury with a Maryland license plate number HHE917. A motor vehicle records check revealed that the vehicle was registered to Venous Charlotte Marie Johnson, a twenty-year-old woman, living at 346 East Belvedere Avenue in Baltimore City, about a quarter mile away. At 5:00 p.m., approximately forty-five minutes after the rape occurred, the lieutenant requested that Detective Jedlowski and his partner, Detective Aiosa, conduct a surveillance at the East Belvedere Avenue address to determine whether “the suspect vehicle was there and [to] wait at th[at] location” to see if the vehicle would show up.

The detectives then drove to that address in an unmarked car, but displayed badges around their necks that identified them as police officers. The detectives arrived at the East Belvedere Avenue address at 5:15 p.m. Fifteen minutes later, at 5:30 p.m., Detective Aiosa saw a maroon Mercury with the license plate number HHE917 approaching. As the vehicle passed the detectives, the officers observed a clean-cut black male driver, with short hair, wearing a white dress shirt, and a female ²⁴² passenger in the front seat.

The vehicle passed them, and the detectives followed. They lost sight of the vehicle but, within seconds, observed the vehicle in a parking lot, its two occupants looking at the officers. When the detectives drove into the lot, the Mercury pulled out of the parking lot and then drove into an alley behind a group of row houses, one of which bore the address of the Mercury’s owner, Venous Johnson. At that point the detectives called the dispatcher for the Baltimore City Police Department and requested backup.

As the vehicle traveled down the alley, the officers followed at a distance of about “a foot or two,” holding their police badges up and motioning to the driver to pull over. He did not. Ignoring their request, the driver of the Mercury, with the detectives trailing behind, proceeded to do another loop around the block. Throughout the pursuit of the Mercury, the detectives continued to update the dispatcher, hoping that a Baltimore City or a Baltimore County police car would respond.

Detective Jedlowski testified that, at one point, the Mercury came to a complete stop and the driver’s side door opened. The detectives were about to exit their vehicle when the Mercury’s door shut and it continued down the road. When a marked Baltimore County police car arrived, the detectives radioed the squad car to get behind the Mercury. It did, and with its emergency equipment activated, it began to follow the Mercury.

Eventually, the Mercury stopped at an intersection because of oncoming traffic. The detectives took that opportunity to block the suspect’s Mercury with their vehicle and arrested appellant. A photograph was taken of appellant following his arrest, which was later placed in a photo array. That array was shown to the twelve-year-old rape victim, who thereupon identified appellant, from his photograph, as her attacker.

As a result of that identification, the State obtained a search warrant authorizing it to perform a penile swab and collect a sample of appellant’s blood to obtain his DNA. ²⁴³ Denying appellant’s motion to suppress, the circuit court first found that County police had probable cause to arrest appellant. The court observed that, at the time of his arrest, appellant was driving the car identified as having been used by the suspected rapist to flee the crime scene only an hour and a half earlier; that he matched the description of the suspect; and that he had taken evasive action when police attempted to stop his vehicle. It further found that County police had authority to make the arrest within the City boundaries under § 2-102 of the Maryland Criminal Procedure Article, as they were confronted by an emergency when they came upon a man matching the description of a rapist and driving a car identical to the one driven by the rapist as he fled the scene. The court pointed out that the detectives did not know the status of the woman who was in the car with appellant and stressed that a rapist on the loose posed a danger to society at large.

It concluded “that even absent the probable cause and absent the statutory authority, case law would [have] still permit[ted] the use of [appellant’s] photograph” to obtain a search warrant to collect a sample of appellant’s DNA. I. Appellant contends that the trial court erred in failing to grant his motion to suppress the fruits of the arrest, specifically his photograph and his DNA. He argues that the Baltimore County police had no legal authority to arrest him in Baltimore City, as the police were not engaging in fresh pursuit of a suspected felon, under § 2-301 of the Maryland Criminal Procedure Article, at the time of his arrest. That section provides that a “law enforcement officer may engage in fresh pursuit of a person who ... has committed or is reasonably believed by the law enforcement officer to have committed a felony in the jurisdiction in which the law enforcement officer has the power of arrest.” Md.Code (2001, 2002 Supp.) § 2-301(c)(1) of the Crim.

Pro. Art. Therefore, according to appellant, his “arrest was illegal and any fruits of that illegal arrest should have been suppressed as the ‘fruit of the poison[ous] ²⁴⁴ tree’ ” under Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963). In making that argument, appellant erects a “straw man:” That is to say, he misrepresents the circuit court’s holding and then confutes it. “Fresh pursuit” was not the basis of the circuit court’s decision. In fact, neither fresh pursuit nor the statute authorizing it, § 2—301(c)(1), was even mentioned by the circuit court in denying appellant’s motion to suppress.

It upheld appellant’s arrest based on an entirely different provision of Maryland law: § 2-102 of the Maryland Criminal Procedure Article. That section provides, in part, that “a police officer may make arrests, conduct investigations, and otherwise enforce the laws of the State ... without limitations as to jurisdiction” when: (i) 1. the police officer is participating in a joint investigation with officials from another State, federal, or local-law enforcement unit, at least one of which has local jurisdiction; 2. the police officer is rendering assistance to another police officer; 3. the police officer is acting at the request of a police officer or State Police officer; or 4. an emergency exists; and (ii) the police officer is acting in accordance with regulations adopted by the police officer’s employing unit to carry out this section. 2 Md.Code (2001, 2002 Supp.) § 2-102(b)(3) of the Crim. Pro. Art. (emphasis added).

An “emergency” is defined in § 2-101(b) as “a sudden or unexpected happening or an unforeseen combination of circumstances that calls for immediate action to protect the ²⁴⁵ health, safety, welfare, or property of a person from actual or threatened harm or from an unlawful act.” Md.Code (2001, 2002 Supp.) § 2-101(b) of the Crim. Pro. Art. The circuit court found, and we agree, that an “emergency” justified appellant’s arrest. County police received information that a twelve-year-old girl had been raped on York Road in Baltimore County at approximately 4:16 p.m. that day.

They received a detailed description of the purported rapist and a description of the car in which he had been seen leaving the scene of the crime. It was a maroon Mercury with license plate number HHE917. A vehicle registration records check revealed that the car was registered to Venous Charlotte Marie Johnson at 346 East Belvedere Avenue in Baltimore City. That address is only a quarter mile from where the rape occurred.

At 5:00 p.m., only forty-four minutes after the attack, the detectives went to Ms. Johnson’s residence, as instructed by their superior, to determine whether “the suspect vehicle was there and [to] wait at the location” to see if the vehicle would show up. Fifteen minutes later, at 5:15 p.m. the detectives arrived at East Belvedere Avenue, and, about fifteen minutes after that, they saw a maroon Mercury with the license plate number HHE917 approaching. The detectives observed that the male driver was wearing a white dress shirt and had short, clean cut hair, which fit the description of the rapist. They also noticed that a female was in the passenger seat next to him.

The detectives had reason to believe, as the circuit court found, that an emergency situation existed. The registration address of the vehicle appellant was seen driving, as he left the scene of the crime, was for an address only a quarter mile away. The detectives therefore had reason to believe that a dangerous and violent felon, who had just raped a twelve-year-old girl, might be only a short distance from where they were. Moreover, the vehicle was registered, not to a male, but to a female, which of course raised questions as to her safety. ²⁴⁶ Attempting to intercept a malefactor, the officers drove over to the registration address.

Shortly after they arrived at that address, they spotted the suspect vehicle and the man driving the vehicle fit the description of the rapist. Inside the car was an unknown female, who may or may not have then been in danger. Under these circumstances, it was imperative to act quickly to protect the public, and possibly the female passenger, from a violent sexual predator. As this Court observed in Swain v. State, 50 Md.App. 29, 41 , 435 A.2d 805 (1981), “[t]he greater the danger to the public safety, the more important it is to apprehend the suspect quickly.” Not only did appellant fit the description of the twelve-year-old girl’s assailant, but he was driving a vehicle that matched the description of her attacker’s car down to its license plate number.

Disregarding every effort by the detectives to induce him to pull over, appellant stopped only when the officers blocked his path. The decision of the detectives to make an extra-territorial arrest of appellant was justified by the pressing urgency of the situation. The circumstances of that apprehension constituted an emergency under § 2-101 and thus the detectives had the necessary statutory authority to investigate and arrest appellant in Baltimore City. But even if the officers did not have authority under § 2-102 of the Maryland Criminal Procedure Article to arrest appellant, the court had no legal basis upon which to suppress the evidence obtained from that arrest.

Maryland does not have an independent exclusionary rule, Howell v. State, 60 Md.App. 463, 466 , 483 A.2d 780 (1984), nor does § 2-102 create one. That section does not require the suppression of any evidence obtained in violation of it. And we cannot supply what the legislature has omitted, without, in the words of Justice Felix Frankfurter, “add[ing] a colonial wing to a gothic cathedral.” Interstate Commerce Comm’n v. J-T Transp. Co., 368 U.S. 81, 115 , 82 S.Ct. 216 , 7 L.Ed.2d 147 (1961)(dissenting opinion).

Indeed, § 2-102 was intended not to control or limit police activity, but to enhance and expand it. Its purpose, as ²⁴⁷ stated in the legislative summary of its senate progenitor, was to “foster greater efficiency and cooperation among law enforcement officers in fighting crime on a multi-jurisdictional level.” Limited Extrajurisdictional Authority far Police Officers, 1993 Leg. (Md.l993)(summary of S.B. 344). We therefore conclude that § 2-102 does not require, by either its terms or its history, the suppression of evidence as a sanction for the failure to comply with its provisions.

Nor is there any constitutional basis for suppressing appellant’s photograph and DNA, as there is no constitutional right at issue here. It hardly needs to be stated that appellant has no constitutional right to be arrested by the police of a particular jurisdiction. And finally, even if County police had unlawfully arrested appellant, the Fourth Amendment does not necessarily require the suppression of any and all evidence seized pursuant to that arrest, as fruit of the poisonous tree. Not all evidence, the Supreme Court has observed, is “ ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” Wong Sun v. United States, 371 U.S. at 488 , 83 S.Ct. 407 .

The appropriate question, the Court instructed, is “whether, granting establishment of the primary 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. at 487-88 , 83 S.Ct. 407 (citation and internal quotation omitted). Indeed, where “the connection between the lawless conduct of the police and the discovery of the challenged evidence” is so attenuated as to dissipate the taint, such evidence is admissible. Id. at 487 , 83 S.Ct. 407 . See also Nardone v. United States, 308 U.S. 338, 341 , 60 S.Ct. 266 , 84 L.Ed. 307 (1939).

Citing that language, this Court held, in Robinson v. State, 53 Md.App. 297 , 452 A.2d 1291 (1982), that a routine booking photograph could be used to identify Robinson both in and out of court, even though it had been taken as a result of an unlawful arrest for another offense. In other words, the con ²⁴⁸ nection between that photographic event and the unrelated charges for which Robinson now stood accused was so attenuated that it rendered the photographic evidence untainted by whatever illegality may have previously occurred. In Robinson , two men robbed an automotive moving center and two of its employees on April 18, 1981. Id. at 298 , 452 A.2d 1291 .

Two weeks later, on May 5, 1981, Robinson was arrested in connection with another criminal offense and his photograph was subsequently taken pursuant to that arrest. Id. One month later, that photograph was shown, as part of a photo array, to the two employees of the April robbery. Id.

One of them was consequently able to identify Robinson as the robber, and Robinson was arrested. Id. Prior to trial, Robinson moved to suppress the photograph taken from the May 5th arrest on the ground that he was illegally arrested, and, as a consequence, the photograph was the tainted fruit of that arrest. Robinson, at 307, 452 A.2d 1291 .

The circuit court disagreed. It prohibited Robinson from inquiring into the circumstances of the May 5th arrest to determine its legality and then denied his motion to suppress. Id. Following his conviction for robbery, Robinson noted an appeal, arguing that he was entitled to inquire into the validity of the May 5th arrest at the suppression hearing.

Robinson, at 308, 452 A.2d 1291 . He reasoned that, “if [the May 5th] arrest was unlawful, the photograph taken of him would be subject to suppression as tainted fruit from a poisonous tree.” Id. Affirming the denial of Robinson’s motion, Judge Wilner, speaking for this Court, stated that “[w]hether appellant’s warrantless arrest on May 5 was legal or illegal, it had absolutely nothing whatever to do with [the pending] case.” Robinson, at 310, 452 A.2d 1291 . There was no evidence, or even a suggestion, we pointed out, that Robinson had been “arrested (or photographed) as a pretext for gathering evidence” for that case.

Id. Quoting People v. McInnis, 6 Cal.3d 821 , 100 Cal.Rptr. 618 , 494 P.2d 690 (1972), we explained that ²⁴⁹ if a court were “[t]o hold that all such pictures resulting from illegal arrests are inadmissible forever because they are ‘fruits of the poisonous tree’ ” it “would in effect be giving a crime insurance policy in perpetuity to all persons once illegally arrested.” Robinson, at 311, 452 A.2d 1291 (internal quotations omitted)(quoting McInn is, 100 Cal.Rptr. 618 , 494 P.2d at 693 ). Although, as McInnis pointed out, “it could be urged that but for the old illegal arrest the criminal would not have been identified,” we agreed with the conclusion of the McInnis court that this “but for” relationship is “insufficient” to render such a photograph inadmissible, since its subsequent use in the prosecution of an entirely different offense did not constitute an