Smith v. State

JAMES R. EYLER, J. Robert Smith, appellant, was charged in the Circuit Court for Baltimore City with (1) distribution of heroin; (2) possession of heroin with intent to distribute; (3) possession of heroin; and (4) possession of marijuana. On June 4, 2003, the circuit court held a hearing on appellant’s motion to suppress the heroin and marijuana that was seized from his home without a warrant. Following the court’s denial of appellant’s motion, appellant was tried by a jury, on June 5-6, 2003, and convicted on all four counts. On July 11, 2003, appellant was sentenced to 14 years’ imprisonment for the distribution of heroin conviction. 1 The two possession of heroin convictions were merged for sentencing purposes, and the court imposed a one year concurrent sentence for the possession of marijuana conviction.

On appeal, appellant claims that the circuit court erred in denying his motion to suppress the heroin and marijuana seized from his home. In addition, appellant claims that the docket entries and the commitment order should be corrected to reflect the sentence commencement date as determined by the circuit court. ⁶ We hold that the circuit court erred in denying appellant’s motion to suppress and, therefore, reverse and remand for further proceedings. Thus, we need not address appellant’s second issue. Suppression Hearing The following testimony was adduced at appellant’s suppression hearing.

Detective Jornee Barnes of the Baltimore City Police Drug Enforcement Unit testified for the State. On October 11, 2002, Detective Barnes was working undercover, posing as a drug user. At about 1:45 p.m., she was in the 100 block of South Monroe Street and approached a black male, later identified as appellant, standing on the corner. She asked if “dope was out.” Appellant responded, “Yeah.” Detective Barnes walked with him to 114 South Monroe Street, a residence, where he used a key to open the door, and the two entered the house.

Detective Barnes testified that she did not see anyone else in the home at that time. Appellant went to the basement door, opened it, reached down on the floor, and retrieved a plastic bag that contained gelatin capsules. He handed her two gel caps, she paid him with departmental currency (i.e., the serial numbers were pre-recorded), and they both left the house. Detective Barnes left the area in a car driven by her partner.

Detective Barnes testified that, when she got into the car driven by her partner, she notified other officers acting as an arrest team as to what had just transpired. She provided the arrest team with a description of appellant and told them where she had last seen him. Thereafter, the arrest team stopped appellant on the sidewalk near his home, and Detective Barnes drove by to confirm his identity. While outside, the arrest team searched appellant and recovered the departmental currency from appellant’s person.

They then entered appellant’s home and seized a plastic bag from the basement steps, which contained 32 gel caps of suspected heroin, and marijuana, which was laying on a table. Detective Barnes testified that, although she did not witness it firsthand, based on her knowledge from discussions with the ⁷ arresting officers, the officers used a key obtained from appellant to gain entry into his home after they arrested him. The police had no search warrant for this address, and Detective Barnes conceded that she had no information that appellant verbally consented to a search of his home by any member of the arrest team. Detective Matthew Walker, a member of the Narcotics Department for the Baltimore City Police Department and a member of the arrest team, testified that appellant was stopped and arrested on the sidewalk in front of 114 South Monroe Street.

Detective Walker spoke to Detective Barnes by cellular phone, and she informed him that she had purchased drugs inside the home and had observed a stash of drugs in the house. Detective Walker relayed the information to Sergeant Mancuso and then observed Mancuso and Detectives Derek Os-trow and Edgar Allen approach the door to 114 South Monroe Street and enter the house. Detective Walker did not know how the door was opened. 2 Prior to approaching the door, the police were informed by appellant that there was a hearing-impaired woman inside the residence. After the first officers secured the premises, Detective Walker and Detective David Classing entered the house with appellant.

Detective Walker went to the basement steps, where he retrieved two bags containing 32 gel caps of suspected heroin. According to Detective Walker, other detectives located some marijuana on a table in plain view. At the close of all the evidence, the circuit court denied appellant’s motion to suppress. Trial On June 5-6, 2003, appellant was tried by a jury.

Detective Barnes and Detective Walker both testified in a manner ⁸ consistent with their testimony at appellant’s suppression hearing. In addition, several other police officers involved in appellant’s arrest testified for the State. 3 Criminalist Anthony Rumber of the Baltimore City Police Department testified that he chemically analyzed the substances confiscated from appellant’s home and determined that they were heroin and marijuana. Appellant testified in his own defense, denying that he sold heroin to Detective Barnes or that she had ever been inside his home. He testified further with regard to the heroin Detective Walker found in his basement that he had “never seen it a day in [his] life.” Felicia Griffin testified that, on October 11, 2002, she lived at the residence with appellant, that she was hearing-impaired, and that, in addition to appellant and herself, her 24-year old cousin and five children lived in this house.

Following his conviction and sentencing, appellant filed a timely appeal to this Court. • Parties’ Contentions Appellant contends that the circuit court erred in denying his motion to suppress the evidence seized from his home without a warrant, which consisted of heroin and marijuana. He further argues that the docket entries and commitment order must be corrected in order to reflect the sentence commitment date as determined by the circuit court. In response, the State contends that the circuit court properly denied appellant’s motion to suppress evidence, arguing that both Baith v. State, 89 Md.App. 385 , 598 A.2d 762 (1991), and the “consent once removed” doctrine support the circuit court’s findings. Moreover, the State argues that the commitment records accurately reflect appellant’s sentence, and as a ⁹ result, for all practical purposes, appellant’s sentence is correctly recorded.

To the extent that the docket entries are incorrect, the State does not object to an order of correction. Discussion Standard of Review In reviewing the denial of a motion to suppress, this Court must analyze the evidence in a light most favorable to the prevailing party, in this case, the State. See, e.g., White v. State, 374 Md. 232, 250 , 821 A.2d 459 (2003); Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001). The factual findings of the circuit court must be accepted unless they are clearly erroneous.

Wilkes, 364 Md. at 569, 774 A.2d 420 . Important, however, as to the ultimate question of whether the search was valid, this Court must make its own independent de novo appraisal by reviewing the law and applying it to the facts of the instant case. Id.; Handy v. State, 126 Md.App. 548, 552 , 730 A.2d 710 (1999), aff'd, 357 Md. 685 , 745 A.2d 1107 (2000). When we do so, our review of the trial court’s denial of appellant’s motion to suppress is limited to the record of the suppression hearing, and thus, we will not consider any extraneous evidence presented at trial but not presented during the suppression hearing.

Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086 (2002). Merits Appellant contends that the circuit court erroneously denied his motion to suppress the heroin and marijuana seized from his home during the warrantless search. Specifically, appellant claims that the State’s argument that the warrantless search was justified by the “consent once removed doctrine” is unpersuasive. Because the police searched his home without a warrant and no relevant exception applies, appellant argues, the evidence obtained during this search should be suppressed.

The Fourth Amendment of the United States Constitution provides, in pertinent part, “The right of the people to be ¹⁰ 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____” By its plain language, this Amendment protects the public from unreasonable searches and seizures. See Whren v. United States, 517 U.S. 806, 809-10 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). Under the Fourth Amendment, absent a few limited circumstances such as exigent circumstances or consent, warrantless entries into a person’s home are considered patently unreasonable. Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980).

See also Baith v. State, 89 Md.App. 385, 387 , 598 A.2d 762 (1991)(“When a citizen withdraws into the sanctuary of the home, a governmental intrusion into that sanctuary, either to search for evidence or to arrest the homeowner, requires a high level of justification.”) (citations omitted). Nevertheless, as the United States Supreme Court explained in Lewis v. United States, 385 U.S. 206 , 87 S.Ct. 424 , 17 L.Ed.2d 312 (1966), [where] the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. Id. at 211 , 87 S.Ct. 424 (citations omitted).

See also Baith, 89 Md.App. at 388 , 598 A.2d 762 (“when, as here, the home has been debased by the homeowner himself into some sort of criminal emporium, its status as sanctum sanctorum is rudely diminished. The compromising agency in such a case is not the investigative opportunism of the police but the commercial trafficking of the occupant.”). In the instant case, neither party contends that Detective Barnes’s initial entry into appellant’s home was un ¹¹ constitutional. Despite the fact that Detective Barnes used deception to obtain appellant’s consent, under Lewis and its progeny, once appellant consented to Detective Barnes’s entry into his home, she had a legitimate right to be there, and no unconstitutional entry will be found. 385 U.S. at 210-11 , 87 S.Ct. 424 .

Moreover, once the sale of heroin occurred, Detective Barnes had the right to arrest appellant. See Conboy v. State, 155 Md.App. 353, 378, n. 11 , 843 A.2d 216 (2004)(“Under Maryland law, a warrantless arrest may be made for any offense committed in the officer’s presence.”). Detective Barnes did not make an immediate arrest, however. She completed the sale, and she and appellant then left appellant’s home together.

The arrest team subsequently arrested appellant on the sidewalk. This arrest was based on probable cause, resulting from Detective Barnes’s interaction with appellant, and is not challenged on appeal. Conboy, 155 Md.App. at 364 , 843 A.2d 216 (a police officer with probable cause to believe that a suspect has or is committing a felony may arrest the suspect without a warrant). Additionally, the officers were entitled to search appellant incident to his arrest.

See id. (noting that a search incident to a lawful arrest is another exception to the warrant requirement). Thus, the only issue before us is whether the arrest team had the right to enter and search appellant’s home after they arrested appellant. The circuit court held that they did have such a right, based on appellant’s initial consent to Detective Barnes’s entry into his home, sometimes referred to as “consent once removed.” This is an issue of first impression in the State of Maryland.

The circuit court, relying on Baith v. State, supra, and various other authorities, found that because Officer Barnes could have forfeited her undercover status and arrested the Defendant and seized the 30-some bags at the time of the buy, that the fact that she remained undercover and got other officers to do it a short time later, ¹² and they did not go any further than where she went, ... that alone is not subject to the strictures of the Fourth Amendment because the Defendant had violated his expectation of privacy by letting her see his stash. In Baith , the defendant invited a confidential informant, Barbara Walters, onto his property for the purpose of selling her a large quantity of cocaine. While negotiating the transaction, Walters left the building, ostensibly to retrieve purchase money from her car. When she returned to the building a few. moments later, she was accompanied by two police agents, who subsequently arrested Baith and his partner and searched the building.

This Court held that “[t]he critical police intrusion into [Baith’s] constitutionally protected zone of privacy occurred when the police agent, Barbara Walters, by prior arrangement with [Baith] and with immediate consent of [Baith’s partner], first entered the building.” 89 Md.App. at 393 , 598 A.2d 762 . The Court went on to note that the initial invitation or consent to Barbara Walters “extended as well to her reentries. Each reentry was not an independent constitutional phenomenon calling for independent justification but was simply a continuation of the initial entry.” Id at 394, 598 A.2d 762 . The Court then concluded that Baith had lost any expectation of privacy “when he consciously and deliberately invited Barbara Walters into his building[,]” and that “[t]here was no remaining expectation of privacy in what had already been fully exposed.” Id at 395-96, 598 A.2d 762 .

The instant case is distinguishable from Baith , however, because Detective Barnes had no expectation or right of reentry into appellant’s home. Unlike Baith , in which Barbara Walters specifically informed Baith that she was going to her car and would return momentarily with the purchase money, once the drug sale was complete in the instant case, Detective Barnes and appellant left appellant’s home together. There was no indication that either had any intention of returning. Also unlike Baith , appellant was arrested on the ¹³ sidewalk, not inside the home.

Thus, we cannot find that the search of appellant’s home was justified under Baith . Although the Baith Court failed to expressly adopt or reject the “consent once removed” doctrine, and