State v. Rowlett

KRAUSER, J. Charged with assault and drug and handgun offenses in the Circuit Court for Baltimore City, 1 appellee, James Rowlett, filed a motion to suppress the physical evidence supporting those charges: a handgun that was found by police in his bedroom and a “crack pipe” with drug residue that was found on his person. When the circuit court granted appellee’s ³⁹¹ motion, the State noted this interlocutory appeal, challenging that ruling. The State’s challenge is twofold: First, it claims that police seized the gun in question pursuant to a lawful consensual search, asserting that the owner of the house where the search occurred, appellee’s mother, had consented to the search in question and that she had both actual and apparent authority to do so. And second, it claims that the gun was in plain view when it was seized.

Because we agree that the gun was seized pursuant to a lawful consensual search of appellee’s bedroom, we shall reverse the ruling of the circuit court that granted appellee’s motion to suppress. That being our ruling, we need not, and therefore shall not, reach the State’s alternative theory that the gun was in plain view when it was seized by police officers. As for the pipe, which was found upon appellee’s person after his arrest, it should not have been suppressed, regardless of whether the search of appellee’s bedroom was proper or not. The police had probable cause to arrest appellee for assault, before and after the search of his bedroom, and the seizure of the pipe, with its illicit residue, was incidental to that arrest.

SUPPRESSION HEARING The only witness to testify at the suppression hearing was Officer John F. Rager 2 of the Baltimore City Police Department. He testified that on September 6, 2001, at 9:30 a.m., he and Officer Stacey Flatter were in uniform and in a patrol car when Patricia Ann Farley 3 “literally threw herself in front” of their cruiser. “[H]ysterical” and “jumping up and down,” she ³⁹² told the officers that a man had pointed a handgun at her and threatened to kill her. She had met her assailant, whom she later identified as appellee, in the street at 6:30 that morning while she was “jonsing for a hit,” that is to say, “looking for a hit of ... crack cocaine.” Appellee promised to give her the drug in exchange for oral sex. Ms. Farley agreed and accompanied appellee as he walked to a two-story rowhouse, a block away.

When they arrived, they went upstairs to a second floor bedroom, which was “at the top of the stairs.” While appellee smoked cocaine from a pipe, Ms. Farley performed her part of the bargain. When she was done, appellee declined to perform his. Instead, he pointed a gun at her and threatened to kill her. The record is blank as to what occurred next but presumably she fled the house and ultimately flagged down Officers Rager and Flatter.

Insisting that she could identify both the rowhouse and her assailant, she then led the officers around the corner to a rowhouse at 4406 Daytona Avenue. When they arrived at the Daytona Avenue address, they went up to the porch and knocked on the front door. Appellee’s sister, Nicole Rowlett, answered the door. Officer Rager asked her “if she had a brother or a father or if there were any males inside the house at the time.” When Nicole replied that her brother was there, the officer asked if he could speak with him.

Nicole agreed and opened the door. Officer Rager entered the house, while Ms. Farley and Officer Flatter remained outside on the front porch of the house. While the officer was standing in the foyer, appellee approached from the living room. The officer asked him if he knew “the lady [on] the [front] porch.” Glancing at her through the front door, appellee replied that he did not and denied that anything had happened that morning.

When he did, Ms. Farley could be heard by the officer, exclaiming from the porch, “That’s him, that’s him.” Appellee then became, according to the officer, “extremely agitated” and “angry.” The officer asked appellee to step away from the front door, ³⁹³ and Officer Flatter led Ms. Farley from the porch to the sidewalk in front of the house. As appellee moved away from the front door, a woman entered the house, identifying herself as Bernadine Rowlett and appellee’s mother. When the officer informed her that Ms. Farley had accused her son of threatening her with a gun, Mrs. Rowlett stated that appellee “had just got out of jail for doing eight years for a handgun charge.” 4 Officer Rager then informed Mrs. Rowlett that a gun might be in the house and asked her if he could search the front bedroom at the top of the stairs, as that was the room, according to Ms. Farley, where the incident occurred. She agreed and indicated that that room was where her son was staying when her granddaughter, who was “approximately five or six” years old, was not in the house.

The room, she stated, was “primarily” her granddaughter’s, and appellee “was just staying there.” When asked whether appellee was paying any rent, she responded that he was not. After showing police her driver’s license for “identification,” Mrs. Rowlett signed a consent to search form. The consent form gave the police permission “to conduct a complete search of [her] residence.” Appellee was present when his mother signed the consent form, but apparently did not object to her execution of that document. Nor did he, at any time, ask the police to leave or voice any objection to the search of his bedroom.

He did, however, become visibly agitated and angry, prompting Officer Rager to place him in handcuffs, pat him down and call additional police units to the scene. The officer explained: “I handcuffed him for my safety. It was only two of us and he was a large guy.” Although appellee did not say why he was upset, Officer Rager speculated: “I think he was angry at the fact we were there and that the lady was outside and had made the accusation.” When defense counsel asked, ³⁹⁴ “Basically he didn’t want you on the premises did he,” the officer replied, “He never stated that, but he was angry.” After signing the consent form, Mrs. Rowlett escorted Officer Rager upstairs. She entered the bedroom at the top of the stairs while Officer Rager remained in the hall.

Once inside, “she moved [a shoe] box” that was blocking the path into the room. As she did, “the box fell over, and the gun fell out of the box.” Observing what had occurred, Officer Rager entered the room, took possession of the gun, and searched the bed and mattress, but found nothing incriminating. After retrieving the gun, Officer Rager went downstairs and informed appellee that he was under arrest. Another officer then searched appellee.

That officer found on appellee’s person a “crack pipe, a handmade smoking device[,] with white residue” on it. SUPPRESSION COURT’S RULING Although the court found that, because Mrs. Rowlett was “the owner of the property” and “the property [was] not leased to [her] son,” she had “a right to go in and take the police in and consent” to a search of appellee’s bedroom. Her consent did not “trump,” it concluded, appellee’s “opposition to the presence of the police on the premises.” The court therefore held that the search for and seizure of the handgun was improper and suppressed “the gun [and] evidence of the gun.” And, because, in the words of the court, appellee was arrested and searched “based on the finding of the gun,” it also suppressed the “crack pipe” with its drug residue on it. STANDARD OF REVIEW In reviewing either the granting or the denial of a motion to suppress, we accept the findings of fact made by the circuit court, unless they are clearly erroneous.

See Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. 341, 346-47 , 574 A.2d 356 (1990). Our review is based solely upon the record of the suppression hearing. See In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d ³⁹⁵ 691 (1997). And we review that record in the light most favorable to the prevailing party.

See Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Cherry v. State, 86 Md.App. 234, 237 , 586 A.2d 70 (1991). We review de novo, however, all legal conclusions. See Riddick, 319 Md. at 183 , 571 A.2d 1239 . In other words, we make our own independent constitutional determination of whether the search at issue was lawful.

See id.; Perkins, 83 Md.App. at 346 , 574 A.2d 356 . DISCUSSION The State contends that the circuit court erred in granting appellee’s motion to suppress. It claims that the seizure of the gun was lawful because appellee’s mother had actual authority to consent to the search of her son’s room and did. And, even if she did not have such authority, the police reasonably relied upon her apparent authority to authorize such a search.

The State maintains, therefore, that the gun found in appellee’s room and the pipe found on his person should not have been suppressed. The Handgun The Fourth Amendment prohibits unreasonable searches and seizures. See Florida v. Jimeno, 500 U.S. 248, 250 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991); In re Tariq A-R-Y, 347 Md. 484, 489-90 , 701 A.2d 691 (1997). Warrantless searches and seizures are “per se unreasonable.” In re Tariq A-R-Y, 347 Md. at 490 , 701 A.2d 691 .

But, if such a search or seizure “falls within one of a carefully defined set of exceptions, it will be upheld.” Id.; see Gamble v. State, 318 Md. 120, 123 , 567 A.2d 95 (1989); Turner v. State, 133 Md.App. 192, 201 , 754 A.2d 1074 (2000). One such exception—and of particular relevance here—is a search conducted pursuant to the consent of either the owner of the property searched, see e.g. Schneckloth v. Bustamante, 412 U.S. 218, 219 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), or of a third party having common authority with the owner, see e.g. United States v. Matlock, 415 U.S. 164, 171 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974), or apparent authority to consent.

See Illinois v. ³⁹⁶ Rodriguez, 497 U.S. 177, 187-89 , 110 S.Ct. 2793 , 111 L.Ed.2d 148 (1990); accord Matthews v. State, 89 Md.App. 488, 496 , 598 A.2d 813 (1991). Common authority to consent to a search is not derived “from the mere property interest a third party has in the property” searched; rather, such authority rests “on mutual use of the property by persons generally having joint access or control for most purposes.” Matlock, 415 U.S. at 171, n. 7 , 94 S.Ct. 988 . And if a person with common authority over the premises consents to a search of the premises, that consent is “sufficient to validate [the] search.” Waddell v. State, 65 Md.App. 606, 617 , 501 A.2d 865 (1985); accord In re Tariq A-R-Y, 347 Md. at 492 , 701 A.2d 691 ; McDonald v. State, 61 Md.App. 461, 470 , 487 A.2d 306 (1985). In the absence of such authority, the consent of a third party may still be sufficient to validate a warrantless search if that party has “ ‘apparent authority.’” Rodriguez, 497 U.S. at 187 , 110 S.Ct. 2793 (quoting Stoner v. California, 376 U.S. 483 , 84 S.Ct. 889 , 11 L.Ed.2d 856 (1964)).

That is to say, if the facts available to the officer at the time of the search would “ ‘warrant a man of reasonable caution’ ” to believe that “the consenting party had authority over the premises,” then the consenting party has apparent authority over the premises and may lawfully consent to a search of it. Id. at 188, 110 S.Ct. 2793 (quoting Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)); see also United States v. Mitchell, 209 F.3d 319, 324 (4th Cir.2000); Wilkerson v. State, 88 Md.App. 173, 185-86 , 594 A.2d 597 (1991). As the State correctly asserts, State v. Miller, 144 Md.App. 643 , 799 A.2d 462 (2002), is illustrative of both types of authority. In that case, we considered whether a father had common or apparent authority to consent to the search of his adult son’s bedroom in his house.

Miller, 144 Md.App. at 646, 655-57 , 799 A.2d 462 . The father, Rudolph Miller, owned a home that he shared with his son, twenty-six year old Christopher, and his daughter. Id. at 646-47 , 799 A.2d 462 . Christopher’s ³⁹⁷ bedroom was in the basement of the home.

Id. at 647 , 799 A.2d 462 . Receiving a tip that someone was selling drugs out of that basement, two police officers went to the Miller home to investigate. Id. Upon their arrival, the officers were met at the front door by Mr. Miller and invited inside.

Id. An officer explained the purpose of the visit and read the consent to search form to Mr. Miller and his daughter. Id. Although Mr. Miller gave verbal permission, stating that he disapproved of drugs in his home, he declined to sign the consent to search form.

Id. Unclear though it was as to whether Christopher was present when the form was read, he was present during the search of his room. Id. at 652 , 799 A.2d 462 . At no time during the search did he object to that search or challenge his father’s right to consent to it.

Id. The officers proceeded to the basement and entered Christopher’s room. Id. at 647 , 799 A.2d 462 . Although the bedroom door had a lock, id. at 648 , 799 A.2d 462 , the door was, at that time, unlocked and open.

Id. at 647 , 799 A.2d 462 . On his dresser, the police found a bag of marijuana. Id. As to whether Mr. Miller had the right to consent to the search of his son’s bedroom, we opined “that a parent as an owner, absent evidence to the contrary, has control over and possession of his or her home,” including rooms of other family member occupants.

Id. at 654-55 , 799 A.2d 462 (discussing United States v. Block, 590 F.2d 535 (4th Cir.1978)(upholding a mother’s consent to search her 23 year old child’s bedroom because she had access to the room for household purposes); In re Tariq A-R-Y, 347 Md. 484 , 701 A.2d 691 (1997)(upholding parental consent to search personal effects of a minor child because parent’s role as head of the