Simpson v. State

PAUL E. ALPERT, Judge, Specially Assigned. Kevin Simpson, 1 the appellant, was charged with possession with intent to distribute over 28 grams of heroin, possession with intent to distribute heroin in violation of Maryland Code, Article 27, § 286(f)(1)(iv), possession of heroin, conspiracy to distribute heroin, conspiracy to possess with intent to distribute heroin, and conspiracy to possess heroin. Prior to trial, appellant filed a motion to suppress physical evidence, contending that it was obtained by means of an illegal search, and a motion to disclose the identity of the confidential informant. Both motions were heard by The Honorable Albert Matriccia ²⁷¹ ni, Jr., and denied.

Appellant was convicted in a jury trial in the Circuit Court for Baltimore City (Albert Matricciani, Jr., J.) of all charges. He was sentenced to a five-year term of incarceration without the possibility of parole on the charge of possession with intent to distribute over 28 grams of heroin, a fifteen-year term of incarceration for possession with intent to distribute heroin, a fifteen-year term of incarceration for conspiracy to distribute heroin, and a fifteen-year term of incarceration for conspiracy to possess with intent to distribute heroin. All terms were to be served concurrently. No sentence was imposed for appellant’s convictions of possession of and conspiracy to possess heroin.

Appellant presents us with six questions on appeal which we have reordered: I. Did the trial court make insufficient findings of fact on the issue of whether appellant lacked standing to complain of an unlawful search and seizure?

II

Did the trial court err in requiring appellant to testify during the motion to suppress as to whether the heroin was his?

III

Did the trial court err in denying appellant’s motion to disclose the identity of a confidential informant, or in failing to conduct an in-camera hearing on the matter?

IV

Did the trial court impermissibly restrict the cross-examination of the primary investigating officer? V. Did the trial court err in permitting improper prosecutorial closing argument?

VI

Did the trial court err in imposing certain of appellant’s sentences? We agree with appellant that his sentence for possession with intent to distribute heroin and one of his sentences for conspiracy must be vacated. In all other respects, we affirm the judgments of the circuit court. ²⁷² FACTS 1. Facts presented at trial.

Officer Raymond Yost testified that he had learned from a confidential informant that a residence located at 1615 North Longwood Street in Baltimore City was being used as a “stash house” for drugs. As a result of that information, he conducted a covert surveillance of the premises on January 20, 1996, beginning at approximately 8:30 a.m. Officer Yost conducted the surveillance while sitting in an unmarked police car in the 1600 block of North Longwood Street. Other members of his unit were in another car a few blocks away.

According to Officer Yost, at approximately 9:00 a.m., a male in a beige coat approached the house. Appellant exited the house, handed the individual a plastic bag containing small white objects, and accepted currency in return. After the man in the beige coat left the residence, he was stopped by an unidentified uniformed patrol officer. Officer Yost did not know the uniformed officer and did not hear the conversation between the uniformed officer and the man in the beige coat.

He noticed, however, that as a result of the conversation, the man became upset. The man turned around and walked toward the residence under surveillance. Officer Yost believed that the man might warn those in the house that the police were nearby. Concerned that the drugs might be removed from the stash house, Officer Yost decided that, despite the lack of a warrant, the surveillance team should make an immediate entry into the residence. 2 Upon entering the residence, Officer Yost and Officer Sean Kapfhammer, another member of the surveillance team, entered a second floor bedroom.

They encountered appellant and Cherese Rogers in that room. Rogers was in bed, and appellant was standing at the foot of the bed. According to Officer Yost, gel caps and cash were lying on the floor of the room. The officers arrested appellant and Rogers and seized ²⁷³ the gel caps and money.

When the gel caps and money were counted, it was learned that the officers had seized 1,700 gel caps and $2,059 in cash from the room. The gel caps were subsequently tested and found to contain heroin. 2. Facts relating to the Motion to Suppress. Prior to trial, appellant filed a motion to suppress the drugs and money found in the bedroom.

The State contended that appellant did not have standing to contest the lawfulness of the search of the bedroom. A hearing was held on the motion. The following testimony occurred at that hearing. Cherese Rogers testified that she had lived at 1615 North Longwood Street for a couple of months prior to January 20, 1996.

She reported that she shared the room with her boyfriend, who was not appellant. Her uncle, Kenneth Steele, was the owner of the property. On the morning of January 20th she had made an agreement with Antoine “Little Butt” that he could count money in her room. He was going to pay her to let him do so.

Appellant came to her room with a bag of money and drugs pursuant to that agreement. On cross-examination, Rogers acknowledged that her uncle, Kenneth Steele, owned the house and that she did not pay rent for the premises. She reported that appellant did not reside at the premises; that he did not keep property at the premises; that he did not have a key to the premises; that he did not have the right to exclude others from the premises; that he was not allowed to remain in the house when she or Steele were not there; and that January 20th was the first time appellant had been to the residence. She further testified that her room had a door, and that, when the police came into the bedroom, the door was “almost shut.” Rogers testified that the bag appellant had brought was next to a chair when the police entered the room.

The police turned the bag over, and money and drugs fell out. Rogers and appellant were then arrested. Kenneth Steele testified that he was the owner of the house at 1615 North Longwood Street. According to Steele, appel ²⁷⁴ lant had visited Rogers a couple of times previously.

Steele reported that he told appellant that Rogers could not have company after 11:00 p.m. and that no one was permitted to spend the night. Steele testified that appellant did not reside at the property or rent a room at the property; that he did not sleep at the premises; that he did not have a key to the premises; that he did not receive mail or other deliveries at the premises; and that he was not related to anyone who resided at the property. Steele further testified that appellant had no right to exclude others from the premises and that he was not permitted to stay in the premises if no one was at home. According to Steele, appellant “did not have access to [any] of the rooms in the house.” John Gross, appellant’s cousin, testified that appellant and Rogers did not have a “boyfriend and girlfriend” relationship.

He reported that he was present when Rogers asked appellant for some money. Appellant gave her the money she requested. Gross also reported that he had been present on a couple of occasions when she had asked other men in the neighborhood for money. Appellant testified that he had a conversation with Rogers several days before January 20th.

During that conversation, Rogers had approached him and asked for money to buy her daughter diapers. She stated that she would have sex with him in return for the money. On the morning of January 20th, he went to Rogers’s house to have sex with her. He had been there two or three times previously.

Steele let him into the house that morning. He went into Rogers’s room and shut the door. He saw that Rogers was sleeping. He tapped her and waited for her to wake up.

During cross-examination, appellant testified that he had not brought the bag containing drugs and money into Rogers’s room that morning. In fact, he denied any knowledge of the bag. The trial court ruled that appellant had no standing to contest the lawfulness of the search of the premises at 1615 ²⁷⁵ North Longwood Street or of the bag in which the heroin was found. Additional facts will be set out as necessary to our resolution of the questions presented.

DISCUSSION I. We shall first address appellant’s contention that the trial court made insufficient findings of fact to justify his ruling that appellant lacked standing to complain of the search at 1615 North Longwood Street. Appellant filed a motion to suppress the evidence seized from Rogers’s bedroom, based on Officer Yost’s alleged violation of his Fourth Amendment rights. The State asserted that appellant lacked standing to contest the search. The trial court held a hearing to determine whether appellant did have standing.

Appellant put forth six theories to support his position that he had standing to contest the search. After hearing the evidence, the trial court ruled that appellant did not have standing. In his decision, he stated: To the extent that the State was seeking a hearing on standing and citing Thompson versus State, the Court grants [sic] that motion and, in fact, we did go forward and we took testimony from a number of witnesses, including the defendant on the issue of standing. And we heard argument at some length from Mr. Boucher and Ms. Parsons and Mr. Lautz the last time we were in court on that issue, and having considered the defendant’s motion to suppress the evidence which was seized from him on January 20, 1996, the Court must first address the issue of whether or not the defendant has standing to object to the seizure of that evidence.

And the Court is ruling today after reviewing all of that material, that the motion to suppress is denied. The defendant lacks the standing to object to the search and seizure that was performed in this case under the law and my ²⁷⁶ understanding of the.facts as the law should be applied to them here. Appellant contends that the trial court failed to set forth sufficient findings of fact to permit appellate review of his ruling. He asserts that this failure constituted reversible error.

The State counters that, under any version of the facts which the trial court found, appellant lacked standing. It contends that the trial court was, therefore, not required to state his findings. We agree with the State. Maryland Rule 4-252 governs pre-trial motions such as motions to suppress evidence.

Section (f) of that Rule requires that those motions ordinarily be decided prior to trial and states that “[i]f factual findings are involved in determining the motion, the court shall state its findings on the record.” If the trial court fails to make sufficient findings to permit appellate review, we must remand the case to the trial court for the limited purpose of making the necessary findings. McMillian v. State, 325 Md. 272, 296-97 , 600 A.2d 430 (1992) . Where, however, there is no dispute regarding the relevant facts, or if the trial court’s resolution of an essential fact is implicit in its ruling, then no express findings are necessary. Tu v. State, 97 Md.App. 486, 494 , 631 A.2d 110 (1993) , aff'd, 336 Md. 406 , 648 A.2d 993 (1994).

The burden is on the proponent of a motion to suppress evidence allegedly seized as a result of a constitutional violation to establish that he has standing to complain of a constitutional violation. Rawlings v. Kentucky, 448 U.S. 98, 104 , 100 S.Ct. 2556, 2561 , 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 130-31 , 99 S.Ct. 421, 423-24 , 58 L.Ed.2d 387 , N.l (1978); Ricks v. State, 312 Md. 11, 26 , 537 A.2d 612 , cert. denied, 488 U.S. 832 , 109 S.Ct. 90 , 102 L.Ed.2d 66 (1988). In reviewing the trial court’s ruling on standing, we make our own constitutional appraisal by reviewing the law and applying it to the peculiar facts of the particular case. Oken v. State, 327 Md. 628, 650 , 612 A.2d 258 (1992), cert. denied, 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993).

When facts are in dispute, we accept them as found by the trial judge, unless ²⁷⁷ he is clearly erroneous in his judgment on the evidence before him, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. at 650-51, 612 A.2d 258 ; Maryland Rule 8-131(a). In determining the propriety of the trial court’s ruling on standing, we look only to the record of the suppression hearing, not to the evidence presented at trial. Gamble v. State, 318 Md. 120, 125 , 567 A.2d 95 (1989); Joyner v. State, 87 Md.App. 444, 451 , 589 A.2d 1330 (1991).

In order for appellant to establish standing to contest the warrantless search of the premises or the property seized, appellant must show that he had a legitimate expectation of privacy in the premises or the property. Rakas v. Illinois, 439 U.S. at 143 , 99 S.Ct. at 430 . This requires “more than a subjective expectation of not being discovered.” Rakas v. Illinois, 439 U.S. at 143, n. 12 , 99 S.Ct. at 430, n. 12 . Mere presence of a criminal defendant at the site of a search is insufficient to show that his rights were violated.

Rakas v. Illinois, 439 U.S. at 143 , 99 S.Ct. at 430 ; Ricks v. State, 312 Md. at 326 . The individual contending that his expectation of privacy was violated must have had a subjective expectation of privacy, Rawlings v. Kentucky, 448 U.S. at 104 , 100 S.Ct. at 2561 , and that expectation must be one which society was prepared to recognize as reasonable. Rakas v. Illinois, 439 U.S. at 143-44, n. 12 , 99 S.Ct. at 430, n. 12 ; Minnesota v. Olson, 495 U.S. 91 , 110 S.Ct. 1684 , 109 L.Ed.2d 85 (1990). In Joyner v. State, 87 Md.App. at 451 , 589 A.2d 1330 , we discussed the elements that we had considered in determining whether an individual’s expectation of privacy was reasonable.

Those elements include: the appellant’s possessory interest in the premises; appellant’s right to and duration of stay at the searched premises; whether appellant had a right to exclude others from access to the searched area; what precautions he took to maintain his privacy there; appellant’s subjective expectation of privacy in the area searched; the location of the property at the time of the search; [and] ownership of the evidence seized---- ²⁷⁸ (Quoting McMillian v. State, 65 Md.App. 21, 32-33 , 499 A.2d 192 (1985)). In the present case, we conclude that implicit in the trial court’s ruling was his finding that appellant was not the owner of the bag of drugs and money which appellant sought to suppress. Further, regardless of what testimony the trial court believed, we conclude that appellant’s interest in the premises and the evidence seized was insufficient to establish standing to contest the validity of the search. We shall consider each of appellant’s bases for standing in turn. 1.

Appellant was initially charged with maintaining the premises at 1615 North Longwood Street as a common nuisance. This count was nol prossed during the hearing on the motion to suppress. Appellant contends that the fact that the State initially charged appellant with maintaining a common nuisance establishes a relationship between appellant and the searched premises. The State contends that the nol pros of the charge mooted this ground.

We agree with the State. The State also points out, correctly, that a defendant can no longer derive “automatic standing” from the charges against him. United States v. Salvucci, 448 U.S. 83 , 100 S.Ct. 2547 , 65 L.Ed.2d 619 (1980). As noted supra, the burden of proof is on appellant to produce evidence to establish his standing.

Rawlings v. Kentucky, 448 U.S. at 104, 100 S.Ct. at 2561 ; Rakas v. Illinois, 439 U.S. at 130-31, n. 1 , 99 S.Ct. at 424, n. 1 ; Ricks v. State, 312 Md. at 26 , 537 A.2d 612 . The allegations in the State’s pleadings are not evidence. United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir.1995). Accordingly, appellant could not use the State’s having charged him with maintaining a common nuisance as a basis for determining that he had standing. 2.

As a result of her arrest on January 20, 1996, Rogers had pled guilty to conspiracy to distribute heroin prior to the suppression hearing. She had also agreed to testify against appellant as part of the agreement. In the proceeding relative to her guilty plea, Rogers had stated that she and ²⁷⁹ appellant had an agreement that appellant was going to stash drugs in her room. Appellant argues that, by accepting the plea agreement, the State was bound by what Rogers had said during that proceeding.

He asserts that Rogers’s testimony established that he had a reasonable expectation of privacy in the premises. We find no merit in appellant’s argument. We will not consider here whether Rogers’s testimony would support a finding that appellant had a reasonable expectation of privacy in her room. We simply note that we know of no authority that would support appellant’s contention that the State is bound in one proceeding by the testimony that an individual has given in a separate proceeding as part of a plea agreement, and appellant has provided us with none. 3.

Appellant’s next contention is that Rogers’s testimony established that the bag and money were his, thus giving him standing. 3 Appellant himself testified, however, that he was in Rogers’s room only to have sexual relations with her and that he had not brought the bag of drugs with him. Because, as explained below, appellant had no legitimate expectation of privacy with respect to the premises, the only way in which the trial court could find standing was to find that appellant had sufficient possessory interest in the bag to support a reasonable expectation of privacy with respect to its contents. Accordingly, implicit in the trial court’s ruling that appellant did not have standing was his finding that the bag did not belong to appellant. 4 Consequently, the trial court’s decision did not need to be spelled out. Tu v. State, 97 Md.App. at 494 , 631 A.2d 110 . ²⁸⁰ Further, the trial court’s finding that appellant had no reasonable expectation of privacy with respect to the bag was required by appellant’s testimony that he had no knowledge of it.

We will not permit appellant to say now that he had a reasonable expectation of privacy in the bag. “Appellant cannot in one breath disclaim interest in the bag[ ] and in the next breath complain that his rights are infringed by the seizure and search of [that bag].” Lingner v. State, 199 Md. 503, 506-07 , 86 A.2d 888 (1952). See also Eagan v. Calhoun, 347 Md. 72 , 698 A.2d 1097 (1997) (party who conceded in affidavit that he had committed an intentional act would not be permitted to take a contrary position in the same case). 4. Appellant next contends that because he went to Rogers’s room to have sexual relations, and because society believes that sexual relations should be carried out in private, he therefore had a subjective expectation of privacy in Rogers’s bedroom sufficient to confer standing. The State contends that appellant’s connection with the room, even if appellant were to be believed, was insufficient to allow him sufficient expectation of privacy to have standing.

We agree with the State. In the present case, appellant had been to the premises, at most, a few times before the date of the search. Regardless of whether the trial court believed Rogers or appellant, appellant had been in Rogers’s room only a short time before the police entered and was not expected to stay for a prolonged period. Appellant did not store any personal belongings in the room.

He did not have a key to the premises. He had no right to be on the premises without Rogers or Steele present and he had no right to exclude others, including Rogers’s live-in boyfriend, from the room. We do not believe that appellant’s connection to the premises was sufficient to establish a legitimate expectation of privacy. In Owens v. State, 322 Md. 616, 589 A.2d 59 , cert. denied, 502 U.S. 973 , 112 S.Ct. 452 , 116 L.Ed.2d 470 (1991), the Maryland Court of Appeals considered whether an individual who was not a guest of the owner of the premises, who did not ²⁸¹ have a key, could lawfully enter only with the permission of the owner, and could not exclude others, had a legitimate expectation of privacy in the premises.

The Court concluded that he did not. Although the defendant in Owens was not on the premises at the time of the search, cases from other jurisdictions support our conclusion that appellant’s connection with the searched premises are insufficient to establish that he had a legitimate expectation of privacy. See United States v. McNeal, 955 F.2d 1067 (6th Cir.), cert. denied, 505 U.S. 1223 , 112 S.Ct. 3039 , 120 L.Ed.2d 908 (1992)(guest who had no clothes or toothbrush on the premises was no more than a casual, transient visitor); United States v. Garcia, 741 F.2d 363 (11th Cir.l984)(visitor who was not an owner or lessee and who stored no personal belongings on the premises did not have