State v. Alexander

MOYLAN, Judge. The appellees, James Carlon Alexander and Carol Lynn Alexander, husband and wife, were charged by a Calvert County grand jury with 1) the possession of marijuana with intent to distribute and 2) simple possession. At a pretrial hearing, the circuit court granted the appellees’ motion to suppress all physical evidence on the ground that a search warrant was tainted by an antecedent entry into appellees’ home that had violated the Fourth Amendment. The State appealed that suppression ruling pursuant to Md.Code (1995), Cts. & Jud.

Proc. § 12-302. On October 14, 1998, this Court reversed that ruling and remanded the case for further proceedings. We there announced that this opinion would follow. Our decision that the physical evidence should not have been suppressed was easy to reach.

Formulating and articulating the basis for that decision has been more difficult. Whichever of two Fourth Amendment standards might be deemed to apply — 1) probable cause to believe that a burglary had been or was then being committed in the appellees’ home or 2) the general reasonableness of the police response — the Fourth Amendment was not offended and the evidence should not have been suppressed. Because of the non-typical relationship between the appellees and the police in this case, however, it seems advisable to determine the proper framework of analysis for the police behavior and to decide which of those standards needs to be satisfied in circumstances such as these. When the police initially entered the home of the appellees, the appellees were not the target of any police investigation nor were they believed to be harboring fugitives or concealing ²⁶² evidence of crime.

There was, moreover, no remote hint of subterfuge; no narcotics officers were waiting, opportunistically, for an excuse to reconnoiter an otherwise protected asylum. It is undisputed that the police were not pursuing the appellees but were attempting to come to their possible aid. Fourth Amendment justification for seizing the persons of the appellees or for searching their home for evidence of crime, therefore, was not in any way an issue. Probable cause to invade the Fourth Amendment rights of a suspect, as the basis for either a search warrant or for appropriate warrantless activity, was not in any way an issue.

The appellees were not suspects but citizens in possible distress. From the police perspective at all times prior to the ultimate discovery of drugs in the appellees’ home, the appellees were innocent homeowners who were the possible victims of a crime and who were deserving of prompt police intervention and protection. The question before us is the appropriate standard by which to assess the Fourth Amendment reasonableness of such intervention and protection. What is a reasonable basis for coming to the aid of a person who apparently needs help?

The Factual Background The underlying facts are not in dispute. On November 27, 1997, Thanksgiving Day, the Calvert County Sheriffs Department Control Center received a call at approximately 1:00 p.m. The caller, who wished to remain anonymous, nonetheless gave his address as 11626 Deadwood Drive. He informed the control center that his next-door neighbor’s basement door was open and that he believed that the neighbor was away.

The caller then gave the address of the neighbor’s house as 11541 Deadwood Drive. On receiving this information, the control center notified Corporal Brian Koehn, who was on routine patrol, and ordered him to respond to the residence because of a “possible breaking and entering.” Corporal Koehn was given the address of the residence along with a description of the house. ²⁶³ When Corporal Koehn arrived at the house, he noticed a neighbor across the street looking at him. He did not approach the neighbor because he did not want to leave the residence unsecured or to give anyone inside the opportunity to leave. He further explained that he did not attempt to speak with the neighbor because he had been informed by the control center that the caller wished to remain anonymous.

Corporal Koehn did not know that the neighbor who watched him was necessarily the same person who had earlier phoned the control center. Corporal Koehn walked around the house and checked all doors and windows. He noticed that the basement door was “wide open,” but observed no signs of a forcible entry. At that point, he advised Deputy Sheriff Ronald Naughton via radio that the residence had an open door and that he was going to await Deputy Naughton’s arrival before attempting to enter the residence.

At the suppression hearing, he explained that he decided to wait for Naughton because he believed a breaking and entering was in progress and, for his own safety, he did not want to confront any potential burglars alone. When asked at the suppression hearing why he thought that a breaking and entering was in progress, he recited the following reasons: 1) he had been alerted to a possible breaking and entering by the original radio broadcast; 2) he had observed an open basement door; 3) he had been told the homeowners were away; 4) he observed no vehicles in the driveway; and 5) the house was in a residential area that had been the scene of a rash of recent breakings and enterings. Deputy Naughton testified at the suppression hearing and confirmed Corporal Koehn’s statement that that particular neighborhood had been the scene of many recent breakings and enterings. He further testified that the call he received in the instant case was similar to calls he had received in cases of other recent breakings and enterings and that it was unusual to see any signs of forcible entry into a residence other than an open door. ²⁶⁴ While still waiting for his back-up, Corporal Koehn “hollered in the house if anybody is home, Sheriffs Office.” He received no reply.

He then walked around to the front of the house, knocked on the door and rang the doorbell. He heard a dog barking inside but otherwise received no reply. Shortly thereafter, Deputy Naughton arrived at the scene and also observed the open basement door. The two officers then entered the house through that door and began a sweep of the residence to determine if anyone was inside.

They first noticed that the basement was in disarray. While still searching for possible intruders, they opened the door of a walk-in closet in the master bedroom. They there observed marijuana on a shelf in plain view. The officers left the narcotics untouched on the shelf while they completed their search for intruders.

They then secured the house and obtained a search warrant based on their observation of the marijuana. They subsequently executed the warrant and seized the marijuana, along with assorted drug paraphernalia and cash. The Proceedings Below The residents of 11541 Deadwood Drive were the appellees. They were jointly indicted for possession of marijuana and for possession with intent to distribute.

On April 16, 1998, a motion to suppress all physical evidence was heard before the circuit court. At the conclusion of the hearing, the judge explained his rationale for suppressing the evidence: In thinking about this case and in thinking about the search warrant that was presented, I certainly sympathize with the police officers’ perspective, but I also sympathize with the private homeowner that if -anybody calls and says there is a door open that might have been breaking and entering that the police are going to walk in that house without making some inquiry. Hindsight is always 20/20. I think in this case it would have been appropriate for the police officers once the backup unit had gotten there to make an inquiry, minimum ²⁶⁵ inquiry, minimal inquiry to check with a neighbor to find out, number one, are the people away, how long have they been gone, how long has that door been open, have they seen anybody around, what was the reason somebody thought there was a possible B & E, what ... the neighbor said or what the police dispatcher said.

So in this case I find there was not a basis for the ... policemen to go into the house without more.... A Shifting Standard of Review The first-level facts are undisputed and there is, therefore, no fact finding by the trial judge to which to give deference. At issue is simply the constitutional significance of those facts. With respect to such a conclusory fact or mixed question of law and fact, the appellate court makes its own independent appraisal.

Ornelas v. United States, 517 U.S. 690 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990). To make that independent constitutional appraisal, however, we need first to identify the appropriate standard by which to measure the police behavior in question. The touchstone of Fourth Amendment compliance, of course, is reasonableness. Reasonableness, however, differs with its context.

The reasonableness of police behavior is necessarily a function of what the police are doing and why they are doing it. As the Supreme Court observed in New Jersey v. T.L.O., 469 U.S. 325, 337 , 105 S.Ct. 733, 740 , 83 L.Ed.2d 720, 731 (1985): Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place. (Emphasis supplied). The flaw in the appellees’ argument is that it fails to recognize that contexts may shift or, indeed, even to recognize that there may be more than one possible context.

It looks, ²⁶⁶ uncritically, on the initial police entry into 11541 Deadwood Drive as a criminal investigation aimed at discovering evidence against the appellees. It employs, therefore, the familiar tools of analysis — probable cause and exigency — that are traditionally and reflexively used to regulate the adversarial confrontation between the citizen and the criminal investigator. What the appellees conveniently ignore is that the detection of crime is but a part of the larger police mission and that the zeal that may be excessive in building a criminal case against a suspect may be highly commendable in rescuing a child from a possibly burning building or rushing immediate relief to the possibly unconscious victim of a heart attack. In the former situation, we admonish the police to hesitate before acting; in the latter situations, such hesitation might be a tragic dereliction of duty.

The standard of reasonableness obviously shifts as the reason for the intrusion varies and anti-police wariness is not always the appropriate prism through which to view an officer’s conduct. The Community Caretaking Function Generally 3 Wayne R. LaFave, A Treatise on the Fourth Amendment, § 6.6, p. 389-90 (3d ed.1996), noted the distinction between entering a premises for investigative purposes and entering the same premises for other purposes: Preceding sections of this Chapter have been concerned with the entry of private premises by police for the purpose of arresting a person thought to be within or for the purpose of finding the fruits, instrumentalities or evidence of some past crime. Although it is entries for those purposes which most often give rise to a motion to suppress, requiring a ruling upon the validity of the entry and subsequent conduct of the police, quite clearly police have occasion to enter premises without a warrant for a variety of other purposes. (Emphasis supplied).

Professor LaFave also noted the diversity of those other non-investigative purposes: ²⁶⁷ The police have complex and multiple tasks to perform in addition to identifying and apprehending persons committing serious criminal offenses; by design or default, the police are also expected to reduce the opportunities for the commission of some crimes through preventative patrol and other measures, aid individuals who are in danger of physical harm, assist those who cannot care for themselves, resolve conflict, create and maintain a feeling of security in the community, and provide other services on an emergency basis. An entry and search of premises purportedly undertaken for such reasons as these may sometimes result in the discovery of evidence of crime. Id. at 390 (emphasis supplied; footnotes omitted). What has been lacking for those other, non-investigative police functions is a convenient shorthand label.

In the context of the police responsibility to handle vehicular accidents, Cady v. Dombrowski, 413 U.S. 433, 441 , 93 S.Ct. 2523, 2528 , 37 L.Ed.2d 706, 714-15 (1973), chose, as a ready reference, the term “community caretaking function.”: Local police officers ... frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. (Emphasis supplied). 1 In Stanberry v. State, 343 Md. 720 , 684 A.2d 823 (1996), the Court of Appeals placed its seal of approval on the label ²⁶⁸ “community caretaking function” as it recognized the pivotal distinction between assessing police behavior when they are “acting in their criminal investigatory capacity” and assessing police behavior when they are “acting to protect public safety pursuant to their community caretaking function.” 343 Md. at 742-43 , 684 A.2d 823 . Judge Raker there wrote for the Court: [A]lthough we find today that, under the circumstances presented in the instant case, the police search, of Petitioner’s luggage was unlawful, we stress that our holding is limited to the conduct of the police when they are acting in their criminal investigatory capacity. As the Iowa Supreme Court stated in discussing the rationale for the emergency-aid exception to the warrant requirement: In essence police officers function in one of two roles: (1) apprehension of criminals (investigative function); and (2) protecting the public and rescuing those in distress (caretaking function).

Courts have noted that preservation of human life is paramount to the right of privacy protected by the fourth amendment. Thus the emergency-aid exception is justified because the motivation for the intrusion is to preserve life rather than to search for evidence to be used in a criminal investigation. State v. Carlson, 548 N.W.2d 138, 141 (Iowa 1996) (citations omitted). Our holding does not apply to situations in ²⁶⁹ which the police are acting to protect public safety pursuant to their community caretaking function.

Id. (emphasis supplied). Aiding Persons in Need of Assistance Whether labeled a “community caretaking function” or not, one such duty is to aid persons in apparent need of assistance. If when glancing through the window of a home from the public sidewalk, for instance, the police see an elderly man clutch his chest and fall to the floor or even if they only see a prostrate figure already on the floor, their duty is to respond promptly to a possible medical emergency.

Undue concern with Fourth Amendment niceties could yield a dead victim who might otherwise have survived. In Wayne v. United States, 318 F.2d 205 (D.C.Cir.1963), Judge Warren E. Burger (later Chief Justice of the United States) articulated this overarching but often overlooked fact of police life: [A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. Fires or dead bodies are reported to police by cranks where no fires or bodies are to be found.

Acting in response to reports of “dead bodies,” the police may find the “bodies” to be common drunks, diabetics in shock, or distressed cardiac patients. But the business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process. Even the apparently dead often are saved by swift police response.

A myriad of circumstances could fall within the terms “exigent circumstances” * * *, e.g., smoke coming out a window or under a door, the sound of gunfire in the house, threats from the inside to shoot through the ²⁷⁰ door at police, reasonable grounds to believe an injured or seriously ill person is being held within. (Emphasis supplied). See also State v. Hetzko, 283 So.2d 49 (Fla.App.1973) (the question is whether “the officers would have been derelict in their duty had they acted otherwise”); State v. Plant, 236 Neb. 317 , 461 N.W.2d 253 (1990) (entry proper, as “had the police officers failed to enter the home to determine the well-being of the children, they may well have been derelict in their duty”). With abundant case law cited for each example given, Professor LaFave, at 396-400, has listed a large number of the diverse circumstances that would fall within the general category of community caretaking: Doubtless there are an infinite variety of situations in which entry for the purpose of rendering aid is reasonable.

Included are those in which entry is made to thwart an apparent suicide attempt; to rescue people from a burning building; to seek an occupant reliably reported as missing; to seek a person known to have suffered a gunshot or knife wound; to assist a person recently threatened therein to retrieve his effects; to seek possible victims of violence in premises apparently burglarized recently; to assist a person within reported to be ül or injured; to rescue a person being detained therein; to assist unattended small children;to ensure a weapon within does not remain accessible to children there; to respond to what appears to be a fight within; or to check out an occupant’s hysterical telephone call to the police, screams in the dead of the night, or an inexplicably interrupted telephone call from the premises. Entry may be justified even though the endangered persons are not in the premises, as where police entered premises in an attempt to discover what substance might have been eaten by several children who were critically ill. (Emphasis supplied; footnotes omitted). In Mincey v. Arizona, 437 U.S. 385, 392 , 98 S.Ct. 2408, 2413 , 57 L.Ed.2d 290, 300 (1978), the Supreme Court observed: ²⁷¹ We do not question the right of the police to respond to emergency situations.

Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. (Footnotes omitted; emphasis supplied). Cf.

Michigan v. Tyler, 436 U.S. 499, 509-10 , 98 S.Ct. 1942 , 56 L.Ed.2d 486 (1978); Thompson v. Louisiana, 469 U.S. 17, 20-21 , 105 S.Ct. 409, 410-11 , 83 L.Ed.2d 246, 250-51 (1984). The Maryland case law is in complete accord. For an extended analysis of the various situations in which essentially non-investigative police conduct should be judged by the general reasonableness standard, see the excellent opinion by Judge Smith in Lebedun v. State, 283 Md. 257, 259-78 , 390 A.2d 64 (1978). Davis v. State, 236 Md. 389 , 204 A.2d 76 (1964), was also a case in which the Court of Appeals used the general reasonableness standard to assess the propriety of a warrantless entry into a defendant’s home, when the purpose of that entry was to render aid to a possibly stricken victim of violence.

After having discovered one homicide victim in the backyard of the premises, a police lieutenant “walked from the backyard where the deceased had been found to the front of the house, where he knocked on the door. Receiving no response, he looked into the window located to his left as he faced the door and noticed a pair of human feet.” 236 Md. at 393 , 204 A.2d 76 . The lieutenant then entered the house through an unlocked kitchen door. What he found was the defendant sleeping on a couch and other evidence linking the defendant to the homicide.

The Court of Appeals, speaking through Judge Marbury, held that under the circumstances the warrantless entry of the home was reasonable: ²⁷² We find that the entrance of the police officers into the house was reasonable under the circumstances then existing in order to determine whether the feet which were seen therein by Lt. Denell were those of a person in distress, immediate aid to whom might, under similar circumstances, have preserved a human life. Basic humanity required that the officers offer aid to the person within the house on the very distinct possibility that this person had suffered at the hands of the perpetrator of the homicide discovered in the back yard. The delay which would necessarily have resulted from an application for a search warrant might have been the difference between life and death for the person seen exhibiting no signs of life within the house.

The preservation of human life has been considered paramount to the constitutional demand of a search warrant as a condition precedent to the invasion of the privacy of a dwelling house. 236 Md. at 395-96 , 204 A.2d 76 (emphasis supplied). The analysis was not framed in terms of probable cause. In Oken v. State, 327 Md. 628 , 612 A.2d 258 (1992), as in this case, observations made during the initial warrantless entry of the defendant’s home by the police led to the issuance of a search warrant for that home. There, as here, the defendant moved to suppress the evidence on the ground that the warrant, based as it was on the earlier observations, was the fruit of the poisoned tree.

There, as here, the police had come to the appellant’s residence in response to a radio dispatch regarding a “suspicious condition” at the residence. Arriving at the scene, a police sergeant spoke to a woman who reported that she had reason to believe that her sister was “missing,” that harm had come to the sister, and that she (the woman speaking to the sergeant) had come to the defendant’s house to check on her missing sister. She found no one at home, the door to the house “ajar,” and she then entered the house. She found the house in disarray and blood on the floor near the entrance.

There was no apparent inquiry by the sergeant as to why the woman believed her sister might have been in the defendant’s home. Based on that report, the ²⁷³ police warrantlessly entered the house for the primary purpose of locating and attending to a possible victim of violence. In affirming the decision of the trial judge that the warrant was not tainted by observations made during an improper entry, the Court of Appeals held that the initial police “decision to enter Oken’s home was both reasonable and justifiable.” 327 Md. at 646 , 612 A.2d 258 . The analysis was not framed in terms of probable cause. • This Court did not hesitate to hold that police at an accident scene, as part of their community caretaking function, may enter the otherwise constitutionally protected interior of an automobile to come to the aid of an injured occupant.

Ciriago v. State, 57 Md.App. 563, 569-70 , 471 A.2d 320 (1984). In Burks v. State, 96 Md.App. 173, 195-98 , 624 A.2d 1257 , cert. denied, 332 Md. 381 , 631 A.2d 451 (1993), this Court approved, as inherently reasonable, the warrantless entry by the police into a motel room to rescue two kidnapping victims. In a secondary sense, the entry was self-evidently investigative in that the kidnapper was apprehended in flagrante delicto in the motel room that was warrantlessly entered. That, however, did not make the entry the occasion for a probable-cause inquiry.

The primary and “non-investigatory” purpose of the entry, by contrast, was to come to the aid of two endangered victims. At trial, Judge Hollander had “ruled that the police satisfied the Fourth Amendment merits by searching and seizing in a reasonable manner.” (Emphasis supplied). 96 Md.App. at 195 , 624 A.2d 1257 . This Court affirmed that “ruling that the warrantless entry into the motel room was reasonable.” (Emphasis supplied) 96 Md.App. at 198 , 624 A.2d 1257 . Protecting Property A second broad sub-category of the police community care-taking function, frequently overlapping that of coming to the assistance of possible victims, is the protection of property.

The necessity of entering otherwise protected premises in order to protect property occurs most frequently in the context of the police discovery of circumstances indicating that a ²⁷⁴ burglary or a breaking and entering has recently occurred or is then occurring. Professor LaFave, § 6.6(b) at 403-05, well described this aspect of the community caretaking function: Police may also enter private property for the purpose of protecting the property of the owner or occupant or some other person. One possibility is where the police reasonably believe that the premises have recently been or are being burglarized. Thus, police entry is justified on the basis of a breaking and entering call to police plus the discovery of an open door which bore evidence of being pried open, of activation of a burglar alarm at those premises, of the observation of lights on within and strange cars parked about a house whose occupants a neighbor says are on vacation, and of a neighbor’s report that strangers were seen coming from a cabin in an area where many cabins had recently been broken into.

By the same reasoning, it would seem that police entry is justified where persons possibly intent upon vandalism are reported by a neighbor to have entered a vacant house. Indeed, entry would be permissible when commercial premises are found to be unlocked and unattended in the evening hours. (Emphasis supplied). In Commonwealth v. Fiore, 9 Mass.App.Ct. 618 , 403 N.E.2d 953 (1980), the police had a reasonable basis for believing that a burglary had occurred or was then occurring.

In holding legitimate the warrantless entry of a home, the Massachusetts Court of Appeals observed, 403 N.E.2d at 954 -55: It seems clear to us that a house break without more — as set out in the affidavit — raises the possibility of danger to an occupant and of the continued presence of an intruder and indicates the need to secure the premises. In such circumstances “[t]he right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as peace officers.” (Emphasis supplied). In many of the examples provided by the supporting case law, there was, to be sure, some evidence of tampering or ²⁷⁵ breaking included in the police observations. The appellees, indeed, make much of the absence of evidence of such forcible breaking.

In this case, however, that factor can be largely discounted. The expertise of an experienced officer as to the modus operandi of criminals in his neighborhood is entitled to significant weight. In this case, Deputy Sheriff Naughton was familiar with the rash of breakings and enterings that had been occurring in the Ranch Club area where the appellees’ home was located. Deputy Naughton testified that in none of those cases was there any sign of a forced entry other than an open door and that what he observed at the appellees’ home was completely consistent with the other