Moulden v. State

KENNEY, J. This appeal arises from judgments against Brian Lee Moulden, appellant, in the following cases in the Circuit Court for Anne Arundel County: • In Case No. K-10-2130, appellant was convicted by a jury of the robbery, second degree assault, and theft of Taylor Stevens. He was sentenced on the robbery conviction to fifteen years incarceration (five years suspended) and five years probation, beginning October 19, 2010. That sentence was to run concurrent to the sentence imposed in Case No. K-10-2231. The remaining convictions were merged for the purposes of sentencing. • In Case No. K-10-2131, appellant was convicted by a jury of the robbery, second degree assault, reckless endangerment, and theft of Vincente Ramirez.

He was ³³⁷ sentenced on the robbery conviction to twelve years incarceration (four years suspended) and five years probation, beginning October 19, 2010. The remaining convictions were merged for the purposes of sentencing. • In Case No. K-10-2230, appellant was convicted by the court based on an agreed statement of facts of the robbery of Sarai Justo Prospero. He was sentenced to fifteen years incarceration (all fifteen years suspended) and five years probation. • In Case No. K-10-2231, appellant was convicted by the court based on an agreed statement of facts of the robbery of Tony Alfaro. He was sentenced to fifteen years incarceration (five years suspended) and five years probation, beginning October 19, 2010.

That sentence was to run concurrent to the sentence imposed in Case No. K-10-2130. On appeal, appellant presents three questions for our review, which we have revised as follows: I. Did the circuit court err in denying his motion to suppress?

II

In Case No. K-10-2230, did the circuit court impose an illegal sentence in violation of the plea agreement?

III

In Case No. K-10-2131, was the evidence sufficient to support his conviction for reckless endangerment? For the reasons set forth below, we answer “no” to questions I and III, and “yes” to question II. MOTION TO SUPPRESS Facts On April 4 and 8, 2011, the parties came before the court on appellant’s motion to suppress “physical items seized,” “statements,” and “some subsequent photo arrays” that were allegedly the “fruit” of “one specific stop” involving appellant. As explained by appellant’s counsel, evidence obtained and statements made as the result of this stop “leads to ... five cases,” including the four in the instant appeal. ³³⁸ Detective John Murphy testified that, in the fall of 2010, he was investigating several robberies that had occurred in the area of Thom and Forest Drives in the Quiet Waters Village community of Annapolis.

According to Detective Murphy, police had formed a “suspect description” based on descriptions given by the robbery victims: “[b]lack male, six foot, cornrows, dreads, and slight facial hair.” Police had also been “made aware” that the suspect went by the nickname “B.” On October 18, 2010, a robbery occurred in Quiet Waters Village. The suspect was described as a “[b]lack male, wearing cornrows” and riding a dark-colored bicycle. The next day, Detective Murphy was watching a “live feed” of “the Bens Drive area, the Marcs Court, which is across the street from Quiet Waters.” He observed “two subjects ... on [bicycles] at the bottom of Marcs Court. One was on a bike that was darker in color, one was on a light-colored bike.... ” According to Detective Murphy, the individual on the dark-colored bicycle matched the description of “the suspect in the robberies”: “[b]lack male, dark-colored clothing, I could see cornrows on his head.

I couldn’t see his face.” Detective Murphy “called for a patrol officer who was in the area to go down and identify the subjects[.]” Through the live feed, the detective observed that, when Officer Michael Prout arrived on the scene, the man on the dark-colored bicycle “took off’ and “ran off into the building straight ahead”; the man on the light-colored bicycle stood by his bicycle. Officer Prout testified that he was on patrol duty on October 19, 2010, when he received a radio call from Detective Murphy asking him to go to the Marcs Court area to investigate two black males riding bicycles. He “knew of a robbery that happened the evening before” and had been “briefed in lineup as to the suspect’s description”: “a black male, ranging in six foot one to about six foot three in height. And his nickname was B[.]” The officer drove to the Marcs Court area and, as he turned his marked police cruiser onto Marcs Court, he saw two men riding bicycles toward a nearby apartment building located at 9 Marcs Court, their backs to the cruiser.

One of the men ³³⁹ was wearing “a white sweatshirt with red vertical lines, blue jeans,” and the other was wearing “a black baseball cap, I think a dreadlock style haircut and a camouflaged jacket.” As he approached, the man in the white sweatshirt, later identified as appellant, abandoned his bicycle, ran “with his back turned ... into the mouth” of 9 Marcs Court, and entered Apartment F. Officer Prout was “not sure” if the suspect saw him. The other man (later identified as Joshua Grier) “just stood there.” He told Officer Prout that the man who ran away went by the nickname “B.” 1 According to the officer, “as soon as Mr. Grier said that, alarms went off’ and he radioed for backup, indicating that the “subject that ran into the building” matched the description from the briefing: “a black male fitting the height requirements, nickname of B.” Additional officers arrived, and a “p[e]r[ijmeter” was set up “around the building.” Detective Richard Truitt attempted to “make contact with the resident whoever was in apartment F ... to try to ... get into the apartment and ... identify the subject that just ran in.” According to Officer Prout, Detective Truitt announced that he was a police officer and banged on the door to the apartment. Eventually, an “adult female came to the door” and indicated that her two children and appellant were in the apartment. She agreed to leave the apartment with her children and they were “escorted away.” At that point, the group of officers “stood outside of the apartment and Detective Truitt continued to ask the person inside, [appellant], to come out for approximately 25/30 minutes.” Officer Prout testified that, “after the [SWAT] Access Team arrived, I believe [appellant] came out on his own accord and they were able to put him into custody.” The officer also testified that “I believe the consent was given by the female” and the SWAT team “searched the apartment.” ³⁴⁰ Officer Jennifer Card testified that, on October 18,2010, she was “called” to 9 Marcs Court, Apartment F, in Annapolis.

There, she “spoke with” Sherry Brown, who indicated that she was the “leaseholder” of Apartment F and that “B” was in the apartment at that time. According to Officer Card, Ms. Brown consented to a search of the apartment and later, at the police station, Ms. Brown executed a consent to search form. After the testimony, the prosecutor argued that there was probable cause to arrest appellant, and that appellant did not have standing to contest the search of Apartment F. As to the arrest, appellant’s counsel responded that “I don’t think that the information that [the police] were acting on even comes close to them having probable cause to arrest [appellant] for this situation.” More specifically, counsel reasoned, inter alia: (1) the description of the suspect was “very vague”; (2) there was no indication that appellant had seen Officer Prout’s cruiser when he fled (“So, at best, what we have is a guy with his back to the police officer, with absolutely no eye contact, who is running into an apartment.”); and (3) there were no “exigent circumstances” justifying a “warrantless stop,” such as “the exigency of a felony having been committed or a misdemeanor being committed in the officer’s presence,” or “hot pursuit” of a fleeing felon. Regarding the search of the apartment, appellant’s counsel submitted that “the consent search, itself, is fruit of the poisonous tree” of an illegal arrest, and thus appellant did not “necessarily need[] standing” to challenge the search. “Because but for the arrest of [appellant], they would not have even attempted to have a consent search there.” The court found that “the police had ample evidence from which they could conclude that they had probable cause” to arrest appellant.

The court reasoned: (1) “he meets the description in the same area of the robber who committed the robbery the day before”; (2) “[t]hey give not the most detailed description but they do say black male, they give a height, they say cornrows or dreadlocks”; (3) “[w]hy does someone throw [his] bike down, leave [his] bike there and take off ³⁴¹ running?”; and (4) Mr. Grier indicated that the man who fled went by the nickname “B,” “which is the same nickname that was given of the person who was involved in the robbery on the 18th.” The court also found that appellant lacked standing to “complain about the search of the apartment”: I don’t see anything [in evidence] that tells me what was seized or where it was seized from. It seems that [appellant’s] argument [alludes] to the fact that those items were seized from the apartment and all I know is that the woman, Ms. Brown, is the leaseholder. There has been [no] evidence in the case that [appellant] is also a co-leaseholder. So, I have no basis from which to conclude that he had the authority to consent or not consent to the search of the apartment.

So, it appears that the evidence presented shows that he has no standing to contest the search of the apartment. Discussion The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment in Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), includes “two separate clauses, the first protecting the basic right to be free from unreasonable searches and seizures and the second requiring that warrants be particular and supported by probable cause.” Payton v. New York, 445 U.S. 573, 584 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980). It reads as follows: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const.

Amend. IV. “The touchstone of the Fourth Amendment is reasonableness[.]” United States v. Knights, 534 U.S. 112, 118 , 122 ³⁴² S.Ct. 587 , 151 L.Ed.2d 497 (2001). With this in mind, the Supreme Court has consistently affirmed that searches and seizures “conducted outside the judicial process,” Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), i.e., without “a judicial warrant ... issued by a neutral magistrate after finding probable cause,” United States v. Place, 462 U.S. 696, 701 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983), are both “presumptively unreasonable,” Payton, 445 U.S. at 586 , 100 S.Ct. 1371 , or “per se unreasonable under the Fourth Amendment^]” Katz, 389 U.S. at 357 , 88 S.Ct. 507 . 2 But the warrant requirement is “subject ... to a few specifically established and well-delineated exceptions.” Id. In regard to arrests, the Court of Appeals has said that a police officer “possesses legal justification ‘to make a warrant-less arrest where he has probable cause to believe that a felony has been committed, and that the arrestee perpetrated the offense.’ ” Prince George’s County v. Longtin, 419 Md. 450, 506 , 19 A.3d 859 (2011) (quoting Ashton v. Brown, 339 Md. 70, 120 , 660 A.2d 447 (1995)) (emphasis removed).

And § 2-202(c) of the Criminal Law Article states: A police officer without a warrant may arrest a person if the police officer has probable cause to believe that a felony has been committed or attempted and the person has committed or attempted to commit the felony whether or not in the presence or within the view of the police officer. In regard to searches of a residence, another exception to the warrant requirement is the consent of the occupant of the property searched. Nestor v. State, 243 Md. 438, 443 , 221 A.2d 364 (1966); Georgia v. Randolph, 547 U.S. 103, 106 , 126 S.Ct. 1515 , 164 L.Ed.2d 208 (2006). ³⁴³ On appeal, appellant contends that the circuit court “erred” in denying the motion to suppress. According to appellant: • there was no probable cause to arrest him because (1) “[t]he State relied on evidence that [appellant] fit the description of a person who had committed robberies in the area”—a “[b]lack male, six foot, cornrows, dreads, and slight facial hair” who went by the nickname “B”— without “presenting] any evidence about the source or sources of that description, the basis of the source’s or sources’ knowledge, or the veracity or reliability of the source or sources”; and (2) neither Officer Prout’s observation of appellant running into the apartment building nor appellant’s belated exit from Apartment F supports a finding of probable cause; • the State “sandbagged” him with the standing issue “at the end of the hearing when the time for presenting evidence on the issue of standing had passed”; and • the State did not meet its burden of “establishing] where in the apartment the incriminating evidence was found, and whether it was found in a common area in which Ms. Brown had actual or apparent authority to allow a search.” 3 The tree standing at the heart of appellant’s “fruit of the poisonous tree” argument is the arrest; the consent search and thus the evidence recovered in that search are the “fruit.” ³⁴⁴ The State responds that many of these arguments are being “raised for the first time on appeal,” and, therefore, have been “waived”; but, even if these arguments had been preserved, “the motions court properly denied [appellant’s] motion to suppress evidence.” The Court of Appeals has explained appellate review of a motion to suppress and the concept of probable cause as follows: Our review of a motion to suppress is limited to the record of the suppression hearing.

We review the findings of fact for clear error and do not engage in de novo fact-finding. This Court will review de novo the question whether, based on the facts presented at the suppression hearing, probable cause existed to support a warrantless arrest. We consider the facts in the light most favorable to the State as the prevailing party and independently apply the law to those facts to determine if the evidence at issue was obtained in violation of the law. Probable cause is a nontechnical conception of a reasonable ground for belief of guilt.

To determine whether probable cause exists, we consider the totality of the circumstances, in light of the facts found to be credible by the trial judge, factoring in the variables of the information leading to police action, the environment, the police purpose, and the suspect’s conduct. Probable cause exists where the facts and circumstances within the knowledge of the officer at the time of the arrest, or of which the officer has reasonably trustworthy information, are sufficient to warrant a prudent person in believing that the suspect had committed or was committing a criminal offense. A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion. Haley v. State, 398 Md. 106, 131-33 , 919 A.2d 1200 (2007) (internal citations omitted).

We review a circuit court’s determination of standing for clear error. See Joyner v. State, 87 ³⁴⁵ Md.App. 444, 451 , 589 A.2d 1330 (1991) (“The circuit court’s ruling on the standing issue is subject to the clearly erroneous standard of review.”). We are persuaded that there was probable cause to support appellant’s warrantless arrest. When Officer Prout turned his marked police cruiser into Marcs Court, he observed a man abandon his bicycle and run away.

Although it was undisputed that, as the officer approached, the man’s back was to him, it was still reasonable to infer that the man was aware of Officer Prout’s approach and fled to avoid the police, and that his flight indicated, in light of the recent robberies, consciousness of guilt—especially when, in his haste, he abandoned his bicycle and made no effort to retrieve it. Officer Prout was also aware that the suspect from the October 19, 2010 robbery had been described as “a black male, ranging in six foot one to about six foot three in height” who went by the nickname “B.” 4 According to the officer, the man who ran fit that physical description, and, when Mr. Grier, appellant’s cycling companion, stated that the man who ran into the Apartment F went by the nickname “B,” “alarms went off” because Officer Prout recognized “B” as “[t]he initial that was given in the previous lineup for the possible robbery suspect.” 5 Regarding the search of the apartment, we are not persuaded that appellant’s arguments regarding being “sandbagged” on the standing issue and the location of the evidence within the apartment are properly before us on appeal. See Johnson v. State, 138 Md.App. 539, 560 , 772 A.2d 1260 (2001) (“The failure to argue a particular theory in support of suppression constitutes a waiver of that argument on appeal.”). In fact, not only did appellant not make these arguments during the hearing, but he specifically asserted that neither ³⁴⁶ issue was of consequence.

His counsel stated that appellant did not “necessarily need[ ] standing” to challenge the search of the apartment and that “where specifically in the apartment the items were seized or taken from” does not “come[ ] into play” That said, appellant would not prevail even if these arguments were properly preserved for our review. In regard to standing, appellant has not referred us to any supporting authority for his contention that the State must challenge standing “before or during the evidentiary portion of the hearing[.]” (Emphasis added). This Court has said that the “initial” burden is on the State to challenge standing, but “[i]f the prosecution does raise the challenge, however, by even the most informal of oral pleadings, it is then clear that the burden of proof is allocated to the defendant to show his standing.” Thompson v. State, 62 Md.App. 190, 202-03 , 488 A.2d 995 (1985) (quoting R. Gilbert & C. Moylan, Maryland Criminal Law: Practice and Procedure (1983)). Moreover, after the State raised appellant’s lack of standing to challenge the search of the apartment, appellant made no effort to rebut that argument or reopen the evidentiary portion of the hearing.

Regarding the location of the evidence and Ms. Brown’s authority to consent to a search of Apartment F, both Officer Prout and Officer Card testified that Ms. Brown provided verbal consent at the scene to a police search of the apartment, and Officer Card testified that Ms. Brown, who identified herself as the “leaseholder,” also executed a consent to search form later at the police station. Thus, and assuming, without deciding, that appellant was a “co-tenant” of Apartment F, we are persuaded that Ms. Brown had actual or common authority to consent to a search of the areas of the apartment where the “incriminating evidence” was found. See Nestor v. State, 243 Md. 438, 443 , 221 A.2d 364 (1966) (“The rule is well established that one co-tenant may give consent to a search and the evidence there disclosed can be used against the other tenant whose permission to enter and search the ³⁴⁷ premises had not been elicited.”); State v. Miller, 144 Md.App. 643, 650 , 799 A.2d 462 (2002) (“In [United States v. Matlock, 415 U.S. 164 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974) ], a woman who shared a room with the defendant authorized a search that resulted in finding inculpatory evidence to be used against the defendant. The Court held that the woman possessed common authority through joint access or control of the room, and thus, her consent was not unreasonable and the evidence discovered was admissible against the defendant.”).

In sum, even if appellant’s arguments regarding standing had been properly preserved, we would hold that the motion to suppress was properly denied. ILLEGAL SENTENCE Facts On April 28, 2011, appellant appeared before the court on a “plea hearing,” and the following colloquy occurred: [APPELLANT’S COUNSEL]: Your Honor, we are [here] for a plea hearing and my understanding of the plea agreement is as follows____[Appellant] will enter a plea in K-10-2230 to Count 1, which is robbery. [Appellant] will also enter a plea to K-10-2231, Count 1, which is robbery. Upon disposition in those two cases, the remaining counts in those two cases will be dismissed or nol-prossed---- What we agreed upon is that any sentence both active and suspended imposed in K-10-2230 and 2231 will be run concurrent to each other. The length of active incarceration, the length of suspended sentence, any probation supervised, unsupervised terms or such, we are essentially free to argue for and it is up to you to impose.

THE COURT: Okay. (Emphasis added). The court accepted the plea. In Case No. K-10-2231, appellant was sentenced to fifteen years incarceration (five years suspended) and five years probation.

In Case No. K-10-2230, appellant was sentenced to fifteen years incarceration (all fifteen years suspended) and ³⁴⁸ five years probation. At the sentencing hearing, the court stated that, “in the event of a violation of probation,” the fifteen suspended years in Case No. K-10-2230 would be “served consecutive ” to the five suspended years in Case K-10-2231. (Emphasis added). 6 “So, essentially, there is an additional 20 years that will be potential incarceration if [appellant] were to violate probation.” Discussion According to appellant, by imposing a consecutive suspended sentence in Case No. K-10-2230, the court violated the plea agreement’s call for concurrent sentences and entered an “illegal sentence.” In the State’s view, “[t]he court properly exercised its discretion under law and by agreement with the parties, to impose that appropriate term and sanction on probation in the event [appellant] violated his probation.” Whether a trial court has violated the terms of a plea agreement is a question of law which we review de novo. Cuffley v. State, 416 Md. 568, 581 , 7 A.3d 557 (2010).

Section 6-224 of the Criminal Procedure Article states, in pertinent part: (b) Sentencing by presiding judge of circuit court.—If a defendant is brought before a circuit court to be sentenced on the original charge or for violating a condition of probation, and the judge then presiding finds that the defendant violated a condition of probation, the judge: (1) may