Redmond v. State

EYLER, DEBORAH S., J. In the Circuit Court for Baltimore City, Kenneth Redmond, the appellant, was convicted by a jury of robbery with a deadly weapon, robbery, second-degree assault, and theft of less than $1,000. He was sentenced as a repeat offender to a term of 25 years without parole. He appeals, posing three questions for our review, which we have rephrased slightly: I. Did the trial court err in denying his motion to suppress?

II

Did the trial court err by permitting the State to reopen its case-in-chief?

III

Did the trial court impose an illegal sentence? For the reasons to follow, we answer the first question in the affirmative and shall reverse the judgments of the circuit court and remand the case for further proceedings. We need not reach the second and third questions. FACTS AND PROCEEDINGS 1 On March 1, 2010, around 6:30 p.m., the victim, a high school junior, was on her way home from school in Baltimore City.

As she was sitting at a bus stop at the corner of Franklin ¹⁶⁹ and Gilmor Streets talking on her cell phone, a man approached her from behind. He demanded: “Gimme all your stuff or I’ll cut you.” The victim turned around and saw a man holding a knife. He touched the victim’s forearm with the knife and took her school bag, wallet, and cell phone and ran away. The victim returned to her school, where she called 911.

Officer Hassan Rodriguez from the Baltimore City Police Department (“BCPD”) Western District responded to the school and transported the victim to the police station. Detective George Cannida interviewed her. She described her assailant as a black male with a salt and pepper beard, wearing gold rimless glasses, a skullcap, and a brown or black jacket. She also gave Detective Cannida her cell phone number and a description of the phone.

Officer Rodriguez faxed a copy of the police report to BCPD’s Advanced Technology Team (“ATT”), a unit in the Criminal Investigations Division that specializes in locating stolen cell phones. The next morning, March 2, 2010, detectives with the ATT obtained a wiretap warrant, contacted the victim’s mobile service provider, learned that the cell phone remained active, and, by triangulating the signal from cell phone towers in the area, determined that the stolen cell phone was in the proximity of 3303 Round Road in Baltimore City’s Cherry Hill neighborhood. Later that day, at about 4:00 p.m., six ATT detectives, including Detective John Jendrek, 2 drove in two sport utility vehicles to the 3300 block of Round Road. They pulled up on the grass in front of 3305 Round Road.

The officers walked to the door of 3305 Round Road and, using a ruse that we shall ¹⁷⁰ discuss infra, entered that house and spoke to the residents. 3 They did not locate the stolen cell phone or any other evidence. Detective Jendrek then approached 3303 Round Road, a two-story brick house. The other five ATT detectives surrounded the house. Detective Jendrek knocked on the door.

Devon Smith opened the door. Detective Jendrek identified himself as a police officer and, using the same ruse he had ■employed at 3305 Round Road, told Smith he was looking for a pedophile named “Leroy Smalls” who was wanted for child molestation. In fact, Leroy Smalls was “a completely fictitious person” invented by the detectives. Detective Jendrek showed Smith a photograph of a man who supposedly was “Leroy Smalls.” 4 Smith looked at the picture and said, “Leroy doesn’t live here.” Detective Jendrek then asked Smith if he lived at 3303 Round Road and whether he had identification.

He also asked if anyone else lived in the house who could take a look at the photograph. According to Detective Jendrek, Smith replied, ‘Yeah, come on in.” 5 Smith walked upstairs to get his ID. When he came back downstairs, Detective Jendrek and five other police officers (the ATT detectives) were inside his house. Also inside the house was Smith’s mother, Linda Jones, who lived there as well. 6 Jones was in the kitchen making dinner ¹⁷¹ when she saw the police officers inside her house. 7 Some of them were walking upstairs.

Jones asked what was going on. A detective replied that they were looking for a pedophile. He showed her the photograph of “Leroy Smalls” and asked if she had seen him. She responded that she had not seen the man pictured.

In the meantime, once inside the house, an ATT detective surreptitiously dialed the victim’s cell phone number. Immediately thereafter, Detective Jendrek heard a cell phone ringing inside the house. The ringing sound was coming from the second floor. Jones told Detective Jendrek that the cell phone that was ringing had been given to her by her “boyfriend.” 8 Detective Jendrek and other ATT detectives went upstairs and observed a ringing cell phone on a dresser in a front bedroom.

Detective Jendrek did not touch the cell phone. Without saying anything more to Smith or Jones, Detective Jendrek and another ATT detective proceeded to conduct a “protective sweep” of the house to “make sure there [were] no other persons” inside. The two officers walked through the entire house, opening closet doors and checking under beds. Smith followed behind them.

He “assume[d] they [were] looking for this pedo[ph]ile.” The ATT detectives ordered Smith and Jones to go to the living room of the house and stay there. It was only then that Smith and Jones learned that the police were not in their house to look for a pedophile, but to investigate them. Detective Jendrek contacted Sergeant Santos, 9 at the Western ¹⁷² District, and told him that the stolen cell phone had been located inside 3803 Round Road. Sergeant Santos conveyed this information to Detective Cannida.

Detective Cannida prepared a search warrant application. In it, he averred that he had probable cause to believe that the items stolen from the victim, including her cell phone, and the knife used in the robbery were concealed inside 3303 Round Road. He further averred that, On March 2, 2010 at approximately 4:00 pm, members of the [ATT] utilized sophisticated mobile and/or portable surveillance equipment to locate the ... cellular telephone taken from the victim. The aforementioned equipment indicated that the target phone was in the house located at 3303 Round Road....

Members of the [ATT] entered the location with the permission of the owners of the dwelling. Once inside the dwelling [Smith and Jones] [were] found to be the only individuals inside the dwelling. The target phone was located at this address by Det. Jend[rek] using cellular site location data and received signal strength from the specific cellular telephone; advanced electronic directional finding equipment was able to pinpoint the precise location of the aforementioned handset.

In the meantime, Smith and Jones continued to be detained in their living room, first by the ATT detectives and later by two uniformed officers from the Western District. Smith was handcuffed for much of this time. 10 While Smith and Jones were being held in the living room, the appellant, who was Jones’s boyfriend and was living in the house as well, came home, using his key to let himself in through the back door. He stayed in the living room with Smith and Jones. The search warrant was executed around 8:35 p.m., four and one-half hours after the ATT detectives located the stolen cell phone.

The officers seized numerous items, including the ¹⁷³ stolen cell phone and two knives. 11 The cell phone was recovered from Jones’s bedroom. Smith, Jones, and the appellant all were advised of their Miranda rights and were interviewed by the police. Jones told the police that the appellant had given her the cell phone the day before, after she got off work. On March 3, 2010, the appellant was arrested and charged.

On May 6, 2010, the appellant moved to suppress the evidence seized from 3303 Round Road on the basis that the police had conducted a warrantless search of his house and that none of the exceptions to the warrant requirement were applicable. A hearing on his motion was held on August 30, 2010. The State called Detective Jendrek as its sole witness. The appellant called Detective Cannida, Smith, and Jones.

The State argued that the ATT had been able to determine that the stolen cell phone was “in the area [of] 3[3]03 Round Road,” but could “not be positive that the phone was [in that particular house] until they actually entered 3303.” So, to determine whether the stolen cell phone was inside 3303 Round Road, they used the pedophile ruse to gain consent to enter the house and, once inside, dialed the number for the stolen cell phone. After hearing the phone ring, the ATT confirmed that the stolen cell phone was inside 3303 Round Road and conducted a protective sweep for officer safety. The full blown search of the house and the seizure of the cell phone happened only after the warrant had been secured. Defense counsel argued that Smith’s and Jones’s testimony made plain that neither had consented to a warrantless entry into 3303 Round Road by the ATT detectives.

Moreover, he maintained that the ruse employed by Detective Jendrek rendered any consent given coerced and therefore not voluntary. Defense counsel further asserted that, because the ATT knew that the cell phone was located inside either 3303 or ¹⁷⁴ 3305 Round Road based on the triangulation data, the warrantless entry was particularly egregious as the police could have and should have sought a search warrant before making any entry into the house. Because the police chose to enter the house without a warrant and without valid consent, all of the evidence seized and the witness statements obtained were inadmissible as fruits of the poisonous tree. The court denied the motion to suppress.

It found as a fact that, using “phone company technology,” the ATT determined that the stolen cell phone was located inside either 3303 or 3305 Round Road; Detective Jendrek then “eliminated” the possibility that the cell phone was inside 3305 Round Road based upon “the response that he got from the occupant there”; and Detective Jendrek chose to “confirm the electronic information by the use of a ruse at 3303 [Round Road].” The court further found that Detective Jendrek knocked on the door and, when Smith answered, showed him a photograph supposedly depicting a pedophile. Smith said he did not know the man pictured. Detective Jendrek asked Smith for ID, “ostensibly to make sure that [Smith] wasn’t [Leroy] Smalls,” and Smith went upstairs to get his ID. The court found that the police entered the house at that point in time.

Notwithstanding Detective Jendrek’s testimony, the court did not make any finding as to whether Smith expressly consented to the police entering. Once inside the house, the police found Jones inside cooking and used the same pedophile ruse on her. In the meantime, an ATT detective dialed the number of the stolen cell phone and heard it ringing. The court found that neither Smith nor Jones was concerned with the police being inside their home until such time as they were ordered by the police to stay in their living room.

The court concluded that “the consent exception to the warrant requirement applied],” but, even if there only was “mere acquiescence,” and not actual consent, the police lawfully “impound[ed] ... the house ... [based upon] exigent circumstances” until they were able to obtain a search warrant. Specifically, the court found that the police were trying to locate a “dangerous armed robber on the loose”; that “the ¹⁷⁵ only way to find him [was] through a cell phone”: and that the risk that the stolen cell phone might be destroyed or removed from the house before a warrant was secured justified the “narrowly tailored intrusion into Fourth Amendment privacy of the three people in the home.” The court further concluded that, even if the contested averment that the ATT detectives entered the house with “permission of the owners” was excised from the warrant application, the warrant was supported by probable cause and therefore the evidence seized pursuant to the warrant need not be excluded. The appellant was tried by a jury on September 1 and 2, 2010. He was convicted of all charges except wearing and carrying a dangerous weapon.

As mentioned, he was sentenced to a term of 25 years without the possibility of parole. This timely appeal followed. We shall include additional facts in our discussion of the issues. DISCUSSION I. Denial of Motion to Suppress The appellant contends the circuit court erred in denying his motion to suppress because the State failed to present evidence to overcome the presumption that a warrantless entry into a home is per se unreasonable.

He maintains that, even crediting the testimony of Detective Jendrek that Smith told the ATT detectives to “come on in,” the evidence did not support a finding that consent to enter was “freely and voluntarily given.” He argues further that, even if Smith validly consented to the police entering 3303 Round Road while he went upstairs to get his ID, the police exceeded the scope of that consent. The consent encompassed only a search for the fictitious “Leroy Smalls.” The police exceeded that scope by dialing the number of the stolen cell phone and by conducting the “protective sweep.” Finally, the appellant maintains that the search warrant eventually obtained by the police did not remove the taint of the initial illegal entry ¹⁷⁶ because it was based upon information obtained by the police during that entry. The State responds that the circuit court found that Smith voluntarily consented to the police entering the house he shared with his mother, brother, and the appellant and that finding was not clearly erroneous and was legally correct. It argues that Detective Jendrek’s testimony that Smith told him to “come on in,” coupled with Smith’s and Jones’s testimony that they never asked the police to leave, amply supports the court’s finding on this point.

Relying on Brown v. State, 378 Md. 355 , 835 A.2d 1208 (2003), the State asserts, moreover, that the use of a ruse by the police to obtain consent to enter a person’s house does not vitiate the voluntariness of the consent given. Finally, the State maintains that, in any event, the search warrant ultimately obtained by the police was supported by probable cause independent of any constitutionally tainted averments. In reviewing the circuit court’s ruling on the motion to suppress, “[w]e extend great deference to the fact finding of the suppression court and accept the facts as found by that court unless clearly erroneous.” Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086 (2002) (quoting Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001)). We consider the evidence introduced at the suppression hearing and the reasonable inferences drawn therefrom that are most favorable to the prevailing party on the motion.

State v. Ofori, 170 Md.App. 211, 218 , 906 A.2d 1089 (2006). Nevertheless, we review the ultimate question of constitutionality de novo and must “make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.” Bailey v. State, 412 Md. 349, 362 , 987 A.2d 72 (2010) (citations omitted). The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, 12 prohibits “unreasonable searches and seizures.” ¹⁷⁷ “[Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States Dist. Court, 407 U.S. 297, 313 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972).

Thus, “searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980). “Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.” Brigham City v. Stuart, 547 U.S. 398, 403 , 126 S.Ct. 1943 , 164 L.Ed.2d 650 (2006). “Such reasonableness exceptions, however, must be narrow and well-delineated in order to retain their constitutional character.” United States v. Yengel, 711 F.3d 392, 396 (4th Cir.2013). “A search conducted pursuant to valid consent, ie., voluntary and with actual or apparent authority to do so, is a recognized exception to the warrant requirement.” Jones v. State, 407 Md. 33, 51 , 962 A.2d 393 (2008). The voluntariness, vel non, of a consent is a question of fact determined under the totality of the circumstances based upon standards set forth in Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). See also Scott v. State, 366 Md. 121, 140-42 , 782 A.2d 862 (2001) (discussing the Schneckloth analysis). The Schneckloth Court held that to meet its burden of proving valid consent, thus overcoming the presumption of unreasonableness, the government must show “that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.” 412 U.S. at 248 , 93 S.Ct. 2041 .

The “knowledge of a right to refuse is a factor to be taken into account,” but the lack of such knowledge does not make any consent given per se involuntary. Id. at 249 , 93 S.Ct. 2041 . Ordinarily, evidence obtained in violation of the Fourth Amendment is not admissible, under the exclusionary rule. Cox v. State, 194 Md.App. 629, 653 , 5 A.3d 730 (2010), aff'd, 421 Md. 630 , 28 A.3d 687 (2011).

This “ ‘judicially imposed sanction’ ... serves to ‘deter lawless and unwarrant ¹⁷⁸ ed searches and seizures by law enforcement officers.’ ” Id. (quoting Myers v. State, 395 Md. 261, 282 , 909 A.2d 1048 (2006)). A. Voluntariness and Scope of Consent In the case at bar, we first must undertake an independent constitutional appraisal of whether, under the totality of the circumstances, the police obtained valid consent to enter 3303 Round Road and, if so, whether the police exceeded the scope of the consent given by dialing the number of the stolen cell phone and conducting a protective sweep. In making this assessment, we must be cognizant of what the circuit court did and did not find.

The court found that the police obtained consent to enter 3303 Round Road by way of a ruse; specifically, they misrepresented to Smith, and later to Jones, that they were looking for a pedophile named “Leroy Smalls,” going so far as to display a photograph of the supposed suspect. In fact, there was no such wanted pedophile, and no “Leroy Smalls.” The real purpose the police had for entering 3303 Round Road was to search for the stolen cell phone they believed to be inside that house. The court found that neither Smith nor Jones affirmatively told the police not to enter the house and, once the police were inside, neither Smith nor Jones asked them to leave. The court did not find, however, that Smith or Jones agreed to allow the police to “look around” or search the house.

At most, the court found that Smith consented to Detective Jendrek’s entering the house to speak to Smith’s mother (Jones) about the supposedly wanted pedophile and to wait for Smith to get his ID, which the court found was “ostensibly to prove he was not [Leroy Smalls].” 13 The court also did not find that the police told Smith or Jones that they did not have to agree to the police entering. Jones did not know the police ¹⁷⁹ were entering her house until they already were inside. Finally, the court did not find that the police asked Smith or Jones for permission to go upstairs in the house for any reason, including to look around. Two Maryland appellate court decisions have addressed the use of a ruse by law enforcement agents to obtain consent to enter a dwelling: Perkins v. State, 83 Md.App. 341 , 574 A.2d 356 (1990), and Brown v. State, supra.

In Perkins , the defendant was staying in a motel room. The motel desk clerk called the police and told them she had rented a room to the defendant and she thought he was wanted by the police because a few days earlier some police officers had been asking about him. The police responded to the motel. Although they found no active warrants for the defendant, they decided to go to his motel room anyway in an attempt to “verify his identity.” Id. at 347 , 574 A.2d 356 .

One officer knocked on the defendant’s motel room door. A male voice asked, “Who is it?” Id. at 348 , 574 A.2d 356 . The officer replied, “Howard County Police, open the door.” Id. The defendant opened the door.

The officer told the defendant that the police were investigating a noise complaint and asked if he (the officer) could “come in and talk to [the defendant].” Id. at 349 , 574 A.2d 356 . According to the officer, the defendant replied, “sure, come on in.” Id. In fact, there was no noise complaint. The appellant had three guests in his motel room.

Two officers entered the room. Upon doing so, they demanded that the defendant and his guests produce identification. The officers stood over the defendant while he searched through his bag for his ID, and by doing so were able to observe razor blades in the bag. The officers then looked around the room and saw a “blow torch” and a “small glass object” in “plain view.” Id. at 351 , 574 A.2d 356 .

They entered the bathroom, looked around, and saw a bag of cocaine floating in the toilet. Id. at 352 , 574 A.2d 356 . The police seized the blow torch, the small glass object, the razor blades, and the bag of cocaine. The defendant was ¹⁸⁰ charged with possession with intent to distribute cocaine and possession of paraphernalia.

Before trial, he moved to suppress the evidence seized from his motel room. The circuit court denied the motion, and the defendant was convicted of the crimes charged. On appeal, the defendant argued that the police had violated his Fourth Amendment rights by entering his motel room and searching it. We concluded, initially, that the officer’s statement to the defendant to “open the door” was a command, not a request, and therefore the defendant’s opening of the door was not consensual.

We further concluded with respect to whether there was a valid consent for the police to enter the motel room that the affirmative misstatement by the officer about his purpose—to speak to the defendant about a noise complaint—“call[ed] into question the knowing and voluntary quality of the consent.” Id. at 349 , 574 A.2d 356 . Moreover, we reasoned that, even if the defendant voluntarily consented to the police entering the motel room, the scope of the permission given was coextensive with the reason given by the police, i.e., “for the limited purpose of talking about noise.” Id. at 351 , 574 A.2d 356 . The conduct by the police strayed beyond the scope of that consent. Accordingly, we held that the circuit court erred in denying the suppression motion.

By contrast, in Brown v. State, 378 Md. 355 , 835 A.2d 1208 , the Court of Appeals affirmed the denial of a motion to suppress evidence seized from a motel room after the police obtained consent to enter by means of a ruse. There, a Maryland State Trooper received an anonymous tip about possible drug activity in a motel room. In reliance on that tip, which the State acknowledged was not sufficient to establish probable cause to search the motel room, the trooper and two other police officers went to the motel room and knocked on the door. The defendant, one of two occupants of the room, asked who was there.

The trooper replied, “maintenance” and asked to come in to check the thermostat. Id. at 359 , 835 A.2d 1208 . The defendant opened the door. Still standing outside the motel room, the trooper identified himself as a police officer, displayed his badge, and asked if he could come inside ¹⁸¹ and “talk with [the defendant].” Id.

The defendant agreed and stepped back to allow the trooper and one of the other officers to enter. As soon as he walked into the motel room, the trooper smelled the odor of burning marijuana and saw a “burnt marijuana cigarette” in an ashtray. Id. The defendant grabbed the marijuana cigarette, putting it in his mouth “as if to swallow it.” Id.

The trooper told the defendant that he (the trooper) already had seen the marijuana cigarette. The defendant removed the marijuana cigarette from his mouth, placing it back in the ashtray. The trooper asked the defendant whether he had rented the room. The defendant replied that he had.

The trooper then asked if he could search the room and the defendant responded that he could. In the search, the trooper found a digital scale with trace amounts of cocaine on it, a cache of cocaine, and $926 in cash. The defendant and the other occupant of the room were arrested and charged with drug offenses. The defendant moved to suppress the evidence found in the motel room.

He acknowledged at the suppression hearing that the trooper had identified himself as a police officer and had asked for permission to enter the motel room just to talk. He “expressed the belief that he had no right to prevent the officers from entering, so, to avoid a confrontation, he backed away from the door.” Id. at 360 , 835 A.2d 1208 . The trooper testified that the defendant expressly consented both to the police entering the motel room and to their searching it. Finding the trooper’s testimony more credible than that of the defendant, the court denied the motion to suppress.

On appeal after conviction, in reliance on Perkins , the defendant argued that the “deception employed by [the trooper] ... induced him to open the door, and, ... ‘erode[d] the consensual quality of that opening.’ ” Id. (quoting Perkins, 83 Md.App. at 350 , 574 A.2d 356 ). The Court of Appeals disagreed. It emphasized that the United States Supreme Court consistently has held that police use of deception “to obtain entry into Fourth Amendment-protected areas for the purpose of observation does not necessarily contravene any Fourth Amendment rights,” citing cases in which police officers mis ¹⁸² represented their identities for investigative purposes, such as to carry out controlled purchases of drugs.

Id. at 362 , 574 A.2d 356 . The Court explained that, in light of these decisions, state and federal courts have declined to suppress evidence “seen in plain view or discovered pursuant to a consensual search after officers gained entry into motel rooms or other residential areas by various modes of deception— pretending to be persons other than police officers or concealing their purpose.” Id. at 363 , 574 A.2d 356 . The Brown Court distinguished Perkins , explaining: [W]e think the Court of Special Appeals was correct in Perkins in noting that, when deception or ruse directly induces consent for the police to enter an area in which the defendant has a reasonable expectation of privacy, the “quality” of that consent may be regarded as “eroded”—not necessarily destroyed or eliminated, but eroded. That is not an issue here, however.

The principal, and decisive, distinction between this case and Perkins lies in the fact that the deception practiced by [the trooper] in this case—representing himself as a maintenance person desirous of checking the thermostat—induced nothing more than the opening of the door. [The defendant] concededly knew before he allowed [the trooper] and his colleagues to enter that they were police officers. [The trooper] asked for permission to enter and talk; after having identified himself prior to entry, he never misrepresented his purpose for requesting permission to enter. The entry that led to the observation in plain view of the marijuana cigarette and, upon appellant’s ensuing consent, discovery of the scale, the cocaine, and the cash was not induced by deception, either as to [the trooper]’s identity or purpose. The earlier deception that induced appellant to open the door had no erosive effect on the consent to enter or the consent to search. Id. at 365 , 574 A.2d 356 (emphasis added).

Returning to