State v. Zadeh

State of Maryland v. Hussain Ali Zadeh, No. 25, September 2019 Term. Opinion by Hotten, J. CRIMINAL LAW—JOINDER OR SEVERANCE OF CO-DEFENDANTS— LIMITING INSTRUCTIONS AND OTHER REMEDIES The Court of Appeals held that the cumulative effect of the introduction of non- mutually admissible evidence unfairly prejudiced Respondent. The trial court abused its discretion in denying the motion for severance, because the limiting instructions were insufficient to cure the prejudice that resulted from the introduction and admission of the non-mutually admissible evidence. Under Hines, severance is appropriate where (1) non- mutually admissible evidence will be introduced; (2) the admission of the evidence causes unfair prejudice; and (3) such prejudice cannot be cured by other relief, such as limiting introductions or redactions.

Petitioner relied on testimony from witnesses regarding statements the co-defendant, Ms. Pannell-Brown allegedly made, evidence of financial issues she was experiencing with her deceased husband, and other non-mutually admissible evidence. Over the course of the trial, at least nine limiting instructions were given regarding this evidence. The number of limiting instructions effectively rendered the instructions meaningless, because a reasonable juror would not have been able to decipher which evidence was admissible against which defendant. Once the trial court determined that there was far more non-mutually admissible evidence than originally thought, severance was no longer an available remedy.

In that case, a mistrial was the next available remedy and the motion for a mistrial should have been granted. Accordingly, Respondent was prejudiced by the joinder of his trial with his co-defendant and the trial court abused its discretion in denying the respective motions for severance and a mistrial. CONSTITUTIONAL LAW—FOURTH AMENDMENT—SEARCHES AND SEIZURES—SUPPRESSION OF EVIDENCE—WARRANT EXCEPTIONS— PLAIN-FEEL DOCTRINE The Court of Appeals held that the seizure of a cell phone from Respondent was unlawful because (1) the vehicle warrant and the probable cause sufficient for the search of that vehicle did not authorize the seizure of the cell phone from his person, (2) the officer exceeded the parameters of the plain-feel doctrine, and (3) none of the other delineated exceptions to the warrant requirement applied. Accordingly, the cell phone and any evidence obtained from it should have been suppressed, as the seizure of the phone without a warrant or applicable exception to the warrant requirement violated the Fourth Amendment to the United States Constitution and Article 26 of the Maryland Declaration of Rights.

Circuit Court for Montgomery County Case No. 127706C Argued: November 5, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 25 September Term, 2019 __________________________________ STATE OF MARYLAND v. HUSSAIN ALI ZADEH __________________________________ McDonald, Watts, Hotten, Getty, Booth, Battaglia, Lynne A., (Senior Judge, Specially Assigned), Greene, Clayton, Jr. (Senior Judge, Specially Assigned), JJ. __________________________________ Opinion by Hotten, J. Watts, J., joins in judgment only. McDonald and Getty, JJ., dissent in part. __________________________________ Filed: April 3, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-09-09 10:52-04:00 Suzanne C. Johnson, Clerk Respondent, Hussain Ali Zadeh, was tried in the Circuit Court for Montgomery County along with co-defendant, Larlane Pannell-Brown (“Ms. Pannell-Brown”), for the murder of Ms. Pannell-Brown’s husband, Cecil Brown (“Mr. Brown”). Following a three- week jury trial, both defendants were convicted of second-degree murder and sentenced to 30 years in prison. The defendants noted timely appeals to the Court of Special Appeals, which consolidated their cases for argument.

On appeal, Mr. Zadeh argued that his trial should have been severed from that of Ms. Pannell-Brown, since a substantial amount of the evidence against Ms. Pannell-Brown was not admissible against, or even relevant to him, thereby posing a significant risk of prejudice. Mr. Zadeh also contended that the trial court should have suppressed a black T-Mobile cell phone that was seized from his pocket, in violation of the Fourth Amendment of the United States Constitution1 and Article 262 of the Maryland Declaration of Rights.3 1 The Fourth Amendment provides: The right of the people to be 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 2 Article 26 of the Maryland Declaration of Rights provides: That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted. 3 The Court of Special Appeals also considered whether the trial court should have (continued . . .) The Court of Special Appeals, in an unreported opinion, reversed Mr. Zadeh’s conviction and remanded the case to the Circuit Court for Montgomery County, holding that (1) the trials should have been severed because the joint trial unfairly prejudiced Mr. Zadeh and the resulting prejudice could not be cured; and (2) the cell phone should have been suppressed because the officer conducted a warrantless seizure of the cell phone from his person and none of the recognized warrant exceptions applied. The State appealed the decision of the Court of Special Appeals, and this Court granted certiorari to consider the following questions: 1. When a jointly tried defendant claims that there were too many limiting instructions for a jury to effectively follow, should the reviewing court first consider whether the limiting instructions were justified by non-mutually admissible evidence?[4] (…continued) admitted third-party prior bad acts evidence about the victim’s son, Cecil Pannell- Brown, and whether the trial court unfairly limited Mr. Zadeh’s attorney’s closing argument.

This Court denied Mr. Zadeh’s conditional cross-petition to review those issues; thus, they are not before us in the present appeal. 4 The State presented its question in its brief as follows: Did the trial court properly exercise its discretion in denying motions for severance and a mistrial where [Mr.] Zadeh and his co-defendant participated in the same crime, nearly all of the evidence at the joint trial was mutually admissible, and the court’s limiting instructions were more than sufficient to alleviate any potential prejudice? We answer the question for which we granted certiorari. 2 2. When a warrant authorizes the seizure of certain evidence from a car, and an officer, during a lawful frisk of the driver, feels evidence that falls within the warrant, does the plain-feel doctrine permit seizure of that evidence? For reasons discussed infra, we find that non-mutually admissible evidence was introduced and admitted at trial, and the limiting instructions were insufficient to cure the prejudice.

Regarding the seizure of the cell phone, we conclude that seizure of the phone from Mr. Zadeh’s person exceeded the parameters of the Fourth Amendment and Article 26 of the Maryland Declaration of Rights. In the absence of a valid search and seizure warrant for the search of his person or an applicable exception to the warrant requirement, the seizure of the cell phone was unlawful. Accordingly, we shall affirm the judgment of the Court of Special Appeals. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background On August 4, 2014, at approximately 12:30 p.m., officers from the Takoma Park Police Department responded to a 911 disturbance call at the home of Cecil Brown and Larlane Pannell-Brown at 805 Colby Avenue in Takoma Park, Montgomery County, Maryland.

Police were called to the residence after Ms. Pannell-Brown appeared at her neighbor’s back door, screaming and yelling. Ms. Pannell-Brown informed the officers that she had found her husband unconscious in their backyard, bleeding from the back of the head. The police entered the backyard, where they discovered seventy-three-year-old Cecil Brown lying face-down on the ground, deceased. The autopsy report from the medical examiner revealed that he died from injuries consistent with blunt force trauma. 3 The lead investigator, Detective Richard Poole, subsequently interviewed Ms. Pannell-Brown regarding the events leading up to her husband’s murder.

Ms. Pannell- Brown advised Detective Poole that she spoke with Mr. Brown on the phone earlier that morning while he was at work. Ms. Pannell-Brown claimed that she called Mr. Brown on his co-worker’s cell phone number to ask if he could inspect her truck because it had been making a strange noise. After the alleged phone call, she left her truck in the driveway for her husband to work on when he came home. When her husband returned after 10 a.m., she left the family home to make a bank deposit.

Upon her return, she discovered the victim lying dead in the fenced enclosure behind their house. Detective Poole requested that Ms. Pannell-Brown allow him to examine her cell phone to confirm that she placed the call to her husband. Ms. Pannell-Brown agreed. However, Detective Poole was unable to locate the phone number or contact in her call log.

Ms. Pannell-Brown informed Detective Poole that she had recently purchased a new phone and that she may have made the call from the new phone. While looking through her call logs, Detective Poole discovered that one of her cell phones reflected a phone call around 6:41 a.m. to an “Ali.” Ms. Pannell-Brown told the detective that “Ali” was a friend that she engaged to detail her truck when needed, and she called him that morning to determine whether he had time to service her vehicle. She also advised the detective that “Ali” had a wife and baby in Jamaica, and she was helping them immigrate to the United States. 4 The same day, one of the victim’s sons, Cecil Pannell-Brown (“Beanie”),5 informed Detective Poole that Ms. Pannell-Brown had been engaged in a year-long affair with a man named “Ali,” and advised the officer that “Ali” drove a silver Jaguar station wagon and was employed at a nearby car rental facility. Detective Poole again questioned Ms. Pannell-Brown about her relationship with “Ali” and she maintained that the two were merely friends.

Upon receiving this information, Detective Poole obtained Ms. Pannell-Brown’s consent to take both of her cell phones with him and requested that she come to the police station later that day for an interview. She agreed. Thereafter, as part of a “preliminary investigation,” Detective Poole and another detective went to the Enterprise Rent-a-Car on New Hampshire Avenue to question “Ali” about the nature of his relationship with Ms. Pannell-Brown. His manager informed the detectives that the “Ali” they were looking for was Hussain Ali Zadeh (“Mr. Zadeh”).

Mr. Zadeh asked Detective Poole whether he was there to talk about “the lady’s husband that died.” Detective Poole confirmed the purpose of his visit and asked Mr. Zadeh how he became acquainted with Ms. Pannell-Brown. Mr. Zadeh revealed that Ms. Pannell-Brown was a mutual friend that he met through a co- worker, and that she was assisting him with immigration issues. During the interview, Detective Poole also inquired whether Mr. Zadeh owned a vehicle, presumably based on information he received from Beanie about the Jaguar station wagon. Mr. Zadeh advised 5 Cecil Pannell-Brown is referred to in the record below as “Beanie.” We refer to him as Beanie throughout this opinion for consistency and clarity. 5 Detective Poole that he did not.

Mr. Zadeh also informed Detective Poole that he had taken the subway to work, arrived at Enterprise between 12 and 12:30 p.m. for his shift, and that he had not spoken to anyone before he left for work that afternoon. Detective Poole observed Mr. Zadeh’s hand in his pocket and “assumed that he had a phone in there.” Detective Poole subsequently asked Mr. Zadeh for his cell number and for permission to see his cell phone, but Mr. Zadeh repeatedly refused, claiming that the phone in his pocket was not his and his cell phone was at home. Detective Poole and his team then began investigating Ms. Pannell-Brown and Mr. Zadeh as suspects for the murder of Mr. Brown. On August 5, 2014, the Takoma Park detectives observed a 2007 silver Jaguar station wagon in a parking lot near the Enterprise car rental facility.

It was determined that the vehicle was registered to Ms. Pannell-Brown, although it was frequently driven by Mr. Zadeh. Detective Gregory Wolff6 subsequently applied for and was granted a search warrant for the Jaguar.7 The search warrant indicated that the officers were permitted to search the vehicle for evidence of the crime of murder, including “any object which may have been used to cause the victim’s injuries[,]” and “photos, notes, documents, electronic equipment which stores data[.]” That evening 6 The hearing transcript refers to Detective Wolff as “Glen B. Wolf.” The warrant application and oath for the T-Mobile cell phone reflects that his name is Detective Gregory Wolff. 7 As far as we can ascertain, the search warrant application for the Jaguar was not included in the record. Without the application, we are unable to determine the specific information and facts known to the affiant that provided the basis for the search warrant. Unfortunately, in the absence of the warrant application, we can only rely on the officers’ testimony at the suppression hearing. 6 around 9:00 p.m., Detective Poole and the Special Assignment Team (“SAT”)8 that was surveilling the Jaguar stopped the vehicle, which was operated by Mr. Zadeh, to execute the search and seizure warrant.

Detective Poole requested that Mr. Zadeh, the operator of the vehicle, exit the Jaguar and proceeded to pat him down for “officer safety.” During the frisk, Detective Poole felt a cell phone in Mr. Zadeh’s pants pocket and seized it. A subsequent search of the station wagon the following morning9 uncovered eleven other pieces of evidence, including a “swab of suspected blood.” The search warrant inventory report and return listed a twelfth item—“a T-Mobile cell phone belonging to Hussain Ali Zadeh”—as seized from the “pocket of ‘Ali[.]’” The officers did not secure a separate search and seizure warrant for the cell phone they seized on August 5 until August 7, 2014. In the warrant application for that cell phone—specific to its contents—no mention was made of or reference to the frisk of Mr. Zadeh or how the officer came to seize his cell phone.10 Rather, the application for the 8 The SAT is a team of plain clothes officers that assists the investigative section of the Takoma Police Department. The SAT officers were tasked with surveilling the vehicle and the area surrounding the Enterprise car rental.

The SAT observed Mr. Zadeh getting into the Jaguar and followed him to a residence in Silver Spring. They informed Detective Poole that Mr. Zadeh had gotten back into the vehicle and was traveling to another location. At that time, Detective Poole initiated the stop of the vehicle. 9 Detectives Poole and Holmes did not conduct the search of the Jaguar upon stopping the vehicle. It was transported to the Takoma Park Police Department’s property impound, and the following morning, officers executed the warrant and searched the vehicle. 10 Detective Wolff stated that the cell phone was “recovered” from Mr. Zadeh and he was seeking a warrant to search the contents of the cell phone. 7 search warrant cited the aforementioned facts and “numerous inconsistent statements made by Larlane Brown and Hussain Ali Zadeh” as reasons why there may be evidence of the murder connected to his cell phone.

A later search and seizure warrant application for the cell phone records associated with the cell phone number corresponding to the seized cell phone was obtained on August 18, 2014.11 However, the detectives did not obtain a warrant to search Mr. Zadeh—or any cell phones belonging to him—until September 12, 2014. On August 15, 2014, the police executed a search warrant on the Browns’ Takoma Park residence. While searching the premises, police discovered life insurance documents belonging to Ms. Pannell-Brown, that designated Mr. Zadeh as the sole beneficiary of her retirement account and a life insurance policy in her name. Officers also uncovered two pages of undated handwritten-notes referring to homemade poisons, a taser flashlight, and a box for a “tactical stun flashlight.” One of the hand-written notes referenced the following poisons: “Carbon Monoxide,” “Botulin,” “Belladonna,” “Hemlock,” and “Aconite.” The other note included a recipe for the production of cyanide.

The police also recovered a computer in Ms. Pannell-Brown’s bedroom which revealed internet searches for information, such as “what energy drinks are very harmful” and “how harmful are energy drinks for people over 70 years of age?” An earlier search of her cell phones had also revealed web searches for “what causes sudden cardiac arrest” and “what drink cause[s] heart failure?” 11 There was an issue as to whether the warrant for the records corresponding to the seized phone was executed within 15 days. The warrant and facsimile from T-Mobile were ultimately admitted into evidence after Detective Wolff testified to receiving the records via email. 8 On September 18, 2014, Detective Poole arrived at the Enterprise Rent-a-Car business with a warrant for DNA evidence and for any cell phones belonging to Mr. Zadeh. In executing the warrant, the officers seized two other cell phones from Mr. Zadeh, separate from the T-Mobile cell phone seized on August 5. Several months later, in May 2015, Detective Poole discovered that Mr. Zadeh and Ms. Pannell-Brown were renting an apartment together in Takoma Park.

Detectives Poole subsequently obtained a warrant to search the apartment. During the execution of the search warrant, the detectives found prescription medications prescribed to Ms. Pannell-Brown and Mr. Zadeh, and evidence that the apartment was presently occupied by a man and a woman. On May 28, 2015, Ms. Pannell-Brown and Mr. Zadeh were arrested at the Thurgood Marshall Baltimore Washington International Airport (“BWI”) and charged with first-degree murder and conspiracy to commit murder. Additional facts are discussed below as relevant to the issues before this Court.

B. Procedural Background At trial, the State proceeded on the theory that Mr. Zadeh and Ms. Pannell-Brown had conspired to kill Mr. Brown to maintain their romantic relationship. Prior to the trial, defense counsel filed a Motion to Sever the joint trial and a Motion to Suppress the T- Mobile cell phone and any information acquired from it. 1. Pre-Trial Motions Hearings Mr. Zadeh filed a pretrial Motion to Sever his trial from that of Ms. Pannell-Brown, arguing that the State’s evidence against Ms. Pannell-Brown was not admissible against him, and the non-mutually admissible evidence would unfairly prejudice him. During a 9 hearing on the motion, Mr. Zadeh argued that there were three categories of evidence that were not admissible against him: (1) testimonial hearsay evidence, (2) non-testimonial hearsay evidence; and (3) other material that was irrelevant and highly prejudicial to Mr. Zadeh.

In response, the State argued that “the evidence [was] mutually admissible as to both co-defendants,” and if the defendants were to be tried separately, “the exact same evidence [was] going to be used twice.” The trial court found the evidence mutually admissible against each defendant, stating that “there[] [is] really no reason to sever the trials because as long as there[] [is] no Bruton [v. United States][12] problem, then clearly it’s in everyone’s interest, other than maybe the defendants ... to have one trial.” In denying the motion, the court held that joinder was appropriate and presented little risk of prejudice. The court further found that any prejudice that may result from the joinder could be resolved with limiting instructions. Defense counsel filed a motion to reconsider the decision denying the motion to sever, in light of the decision by this Court in State v. Hines. 450 Md. 352 , 148 A.3d 1247 (2016). The trial judge again denied the motion.

At the suppression hearing in April 2016, the trial court denied the motion to suppress the seizure of Mr. Zadeh’s cell phone in light of the search warrant obtained by 12 In Bruton, the Supreme Court held that, when the confession of a non-testifying co-defendant is introduced at a joint trial, the introduction of the confession violates the confrontation clause of the Sixth Amendment, even when a limiting instruction is given. “[W]here the powerfully incriminating extrajudicial statements of a co[-]defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial[,]” the effect of the instructions is limited. 391 U.S. 123 , 135–36, 88 S. Ct. 1620, 1628 (1968). 10 the detectives for the Jaguar that indicated the “search shall be for evidence for the crime of murder, including trace evidence, any torn cloth, any object that may have been used to cause the victim’s death[]” and “[a]ny photos, notes, documents, electronic equipment[,] which stores data.” According to the trial court, “electronic equipment which stores data[]” encompassed the seizure of the cell phone, regardless of the fact that the cell phone was not found in the vehicle. THE COURT: And looking at the search warrant for the Jaguar, it was to search the vehicle, the 2007 Jaguar station wagon bearing so and so tags, VIN [] so and so. The search shall be for evidence for the crime of murder, including trace evidence, any torn cloth, any object that may have been used to cause the victim’s death. And then (d) is: And photos, notes, documents, electronic equipment which stores data.

All right. Well, that one would certainly include a cell phone. The trial court denied the motion to suppress, finding that the officer had a valid search warrant and, in the alternative, that the plain-feel doctrine applied to the search of Mr. Zadeh’s pocket. 2. The Jury Trial At trial, the State introduced a series of text messages and various testimony from individuals connected with Ms. Pannell-Brown to prove that Mr. Zadeh and Ms. Pannell- Brown killed Mr. Brown for financial benefit and the continuance of their affair.

While investigating the murder, police obtained piecemeal phone records from a Verizon cell phone. From those records, it was determined that Mr. Zadeh and Ms. Pannell-Brown were texting each other on the morning of the murder. The following exchange from those text messages was introduced at trial: [MS. PANNELL-BROWN]: When I text you, come out side 11 [MR.

ZADEH]: OK from what door?? [MS. PANNELL-BROWN]: The bed room your friend name is bryan [MR. ZADEH]: OK got u LOL [MS. PANNELL-BROWN]: Come now Over eight days, the State introduced testimony from more than thirty witnesses, including Mr. Brown’s adopted son, Bernard Brown (“Bernard”),13 two of Ms. Pannell- Brown’s neighbors, a real estate attorney who entered into a contract with Ms. Pannell- Brown to sell her Takoma Park home, the custodian of records from the Browns’ mortgage company, Beanie, and his wife, Tahira Pannell.

On the first day of trial, Bernard Brown testified regarding a conversation he had with Ms. Pannell-Brown when she returned from the police station on August 4. Bernard testified that Ms. Pannell-Brown told him that, when she found Mr. Brown in the backyard, she ran over to him and grabbed him, but he noticed that she did not have any blood on her. Defense counsel objected to the testimony as hearsay and following a bench conference on the issue of the limiting instructions, the trial judge instructed the jury not to consider statements made by Ms. Pannell-Brown against Mr. Zadeh and vice versa. One of the neighbors, Miranda Morris, testified that Ms. Pannell-Brown “suggested that she was seeing someone, a boyfriend[.]” Ms. Morris also alluded to tension in the Brown household at that time because the couple seemed to be experiencing financial difficulties: 13 We refer to Bernard Brown by his first name to distinguish references to him from those to his father. 12 [THE STATE]: Did there come a time when you noticed any unusual changes in [Ms. Pannell-Brown’s] behavior? [MS.

MORRIS]: I would say, I want to say a year, year and half before Cecil was killed. [THE STATE]: And can you describe those changes? What[,] if any[,] were there? [MS. MORRIS]: She started kind of confiding in me, I guess, that Cecil was out of work, that they didn’t have any money to pay bills. She was really frustrated with him, like kind of implying that he wasn’t trying.

She asked for some loans, small ones at first, and then larger ones down the line. [THE STATE]: And when you say complaining he wasn’t trying, trying to do what? [MS. MORRIS]: She described him as sitting around the house all day, as opposed to, you know, going out and seeking employment. He was a contractor, right? So, going out and looking for work on current jobs.

She said he just sat all day. *** [THE STATE]: And you mentioned loans. I want to direct your attention to January of 2014. Do you remember loaning Ms. Pannell-Brown money in that month? [MS. MORRIS]: Yes. *** [THE STATE]: What did she say to you? [MS.

MORRIS]: That the, that Cecil’s truck would get repossessed if she didn’t pay, if she didn’t make the payment on it, and that he wouldn’t, really wouldn’t be able to work. Defense counsel argued that the hearsay testimony of Ms. Morris was highly prejudicial to Mr. Zadeh, prompting the court to give a limiting instruction that the evidence was only relevant to Ms. Pannell-Brown. On the same day, the State introduced testimony from 13 Tahira Pannell—Beanie’s wife—alluding to the fact that Ms. Pannell-Brown was having an affair and had been hiding money from her husband. Mr. Zadeh challenged the admissibility of the statements Ms. Pannell-Brown allegedly made to her daughter-in-law regarding her finances, as well as statements encouraging her to “get a friend on the side” too.

One of the most controversial pieces of evidence came in the form of testimony from Beanie, which the State introduced along with the aforementioned text messages regarding a “bedroom door.” While on the stand, the prosecution asked Beanie about a “bedroom door” at the Colby Avenue address. On direct, Beanie testified that his mother referred to the door leading to the backyard as his “father’s bedroom door.” Defense counsel argued that the text messages between Mr. Zadeh and Ms. Pannell-Brown concerning an elusive bedroom door in conjunction with hearsay testimony from Beanie as to what his mother called that door was highly prejudicial. The trial court ultimately struck the statements regarding what Ms. Pannell-Brown supposedly called “any particular door.” The custodian of records from the Browns’ mortgage company also testified that Ms. Pannell-Brown made statements to his colleague during a phone call, in which she inquired about a potential insurance policy on the house or the mortgage. This testimony was determined by the court to be double-hearsay that could not be used against Mr. Zadeh, and a limiting instruction followed.

The real estate attorney testified that, on September 21, 2014, Ms. Pannell-Brown entered into a contract to sell the home she shared with her husband and was set to receive 14 $85,000 from the sale. The trial court again provided a limiting instruction regarding the testimony of the real estate attorney because the evidence was “just being offered as evidence against Defendant Pannell-Brown” and “should only be consider[ed] vis-à-vis her.” To cure any potential prejudice to Mr. Zadeh, the trial judge gave at least nine different limiting instructions14 during the course of the trial, before deciding that he would not give an explicit instruction every time the State introduced a statement by Ms. Pannell- Brown that was only admissible against her.15 Before the close of evidence, defense counsel moved for a mistrial, arguing improper joinder because so much of the evidence presented and the testimony heard from State witnesses was admissible against Ms. Pannell-Brown, but not Mr. Zadeh, and severance was no longer available as a remedy to cure the resulting prejudice. Defense counsel argued, outside the presence of the jury, that the defendants were tried together for “the State’s convenience” and there was no other way to fix the resulting prejudice to Mr. Zadeh than to grant a mistrial. The trial court subsequently denied the motion for the mistrial.

Defense again moved for a mistrial citing 14 The trial judge gave a tenth instruction to “disregard” portions of the testimony regarding what Ms. Pannell-Brown called any particular door and that testimony was not supposed to be considered against either defendant. 15 At a certain point, the trial judge determined that the jury “understood” that statements made by Ms. Pannell-Brown were not admissible against Mr. Zadeh and refused to give the same limiting instruction every time a statement by Ms. Pannell-Brown was introduced. (“All right. Well, okay, but we know this. I’m not going to, I’m not going to give them an instruction every time, you know, there’s some piece of evidence.

They know that anything that she’s saying at this point with regard to him is relevant to her…[a]nd not to Mr. Zadeh.”). 15 the “copious evidence introduced at [the] trial” that would not be admissible in a separate jury trial against Mr. Zadeh alone. The court again denied the motion. C. Opinion of the Court of Special Appeals In noting his appeal before the Court of Special Appeals, Mr. Zadeh asserted that (1) the trial court abused its discretion in denying his motions for severance and a mistrial, (2) the court erred in denying his motion to suppress, (3) the trial court incorrectly excluded third party prior bad acts evidence, and (4) the prosecutor made improper remarks during closing arguments that severely prejudiced him and the trial court abused its discretion in refusing to strike the comments and limiting his counsel’s closing argument. The Court of Special Appeals agreed with Mr. Zadeh regarding the issues of severance and the motion to suppress.

Pannell-Brown v. State, 2019 WL 962812 , ¹. In reviewing the motion to sever, the Court determined that the joint trial unfairly prejudiced Mr. Zadeh under Hines. Id. at ¹⁵ (citing Hines, 450 Md. at 366 ). According to the Court, the introduction and admission of non-mutually admissible evidence prejudiced Mr. Zadeh because the trial court gave too many limiting instructions and the sheer number of limiting instructions over the course of the trial made the instructions ineffective for the purpose of curing the prejudice.

Id. at ²⁰–21. The Court further found that the trial court abused its discretion in denying the motion for a mistrial because no other form of relief would have cured the prejudice to Mr. Zadeh, once the trial court realized how much of the evidence was inadmissible against him. Id. Next, the Court of Special Appeals concluded that the cell phone found on Mr. Zadeh should have been suppressed, because the warrant for the search of the Jaguar did 16 not extend to the search of Mr. Zadeh himself, and that the plain-feel doctrine did not provide justification for the warrantless search and seizure of his cell phone.

Id. at ²²– 23. According to the Court, the officers lacked probable cause to believe that the cell phone confiscated from Mr. Zadeh’s person, and not from inside the vehicle for which the officers had a warrant, was a weapon or that there was evidence on the cell phone that would link Mr. Zadeh to the crime charged. Id. at ²³. “There [was] no indication in the record that Detective Poole knew anything more particularized about the cell phone; the phone itself raised no officer safety concerns, and was obviously a phone, not a weapon.” Id. at ²³- 25. Accordingly, the Court of Special Appeals reversed the conviction and remanded the case to the circuit court with instructions to suppress the seizure of the T-Mobile cell phone.

STANDARD OF REVIEW Maryland Rule 4-253(c) grants the trial court discretion in deciding whether to grant or deny a motion to sever. A denial of severance is an abuse of discretion where (1) non- mutually admissible evidence will be introduced; (2) the admission of the evidence causes unfair prejudice; and (3) such prejudice cannot be cured by other relief. Hines, 450 Md. at 369–70, 148 A.3d at 1263 . Even though “severance determinations are within the sound discretion of the trial court,” that discretion is not to be abused, or “exercised arbitrarily[.]” Id. at 380 , 148 A.3d at 1263 ; Day v. State, 196 Md. 384, 388 , 76 A.2d 729, 730 (1950).

Instead, discretion regarding whether to grant a motion for severance should be exercised “so as to prevent injustice.” Day, 196 Md. at 394 , 76 A.2d at 733 (internal citations omitted). 17 We also review the denial of a motion for a mistrial under an abuse of discretion standard. Although the trial court determines when to grant a mistrial, it is “an extreme sanction” that should only be granted “when no other remedy will suffice to cure the prejudice.” Burks v. State, 96 Md. App. 173, 187 , 624 A.2d 1257, 1265 (1993); see Hunt v. State, 321 Md. 387, 422 (1990), cert. denied, 502 U.S. 835 (1991) (“The declaration of a mistrial is an extraordinary act which should only be granted if necessary to serve the ends of justice.”). In reviewing the denial of a motion to suppress evidence, we accord great deference to the factual findings rendered by the trial judge. Whiting v. State, 389 Md. 334, 345 , 885 A.2d 785, 791 (2005).

On the other hand, in deciding whether a police encounter was unlawful, and suppression was warranted, we review legal conclusions de novo—without deference to the trial court. Id., 885 A.2d at 791 . We engage in “‘our own independent constitutional appraisal’ of whether the Fourth Amendment has been violated by applying the law to the facts of the matter [before us].” McCracken v. State, 429 Md. 507, 515 , 56 A.3d 242, 246 (2012) (citations omitted). In our review, we are limited to the record of the suppression hearing, not the trial, in determining whether the seized evidence should have been suppressed.

Grant v. State, 449 Md. 1, 14 , 141 A.3d 138, 145 (2016) (citing State v. Wallace, 372 Md. 137, 144 , 821 A.2d 291, 295 (2002)). DISCUSSION A. The trial court abused its discretion in denying the Motion for Severance and the Motion for a Mistrial. 1. The Standard for a Motion to Sever a Joint Trial 18 The State contends that the evidence introduced against Ms. Pannell-Brown at trial was mutually admissible against her co-defendant, Mr. Zadeh, and the Court of Special Appeals did not apply the Hines test appropriately because it did not analyze each piece of evidence to determine whether it was non-mutually admissible before making the final determination that Mr. Zadeh would have been prejudiced based on the exhausting number of limiting instructions. The State further argues that the testimony regarding the alleged bedroom door was not actually admitted against either defendant, and the Hines analysis concerns non-mutually admissible evidence that is admitted.

Mr. Zadeh argues that the State’s case-in-chief included 31 witnesses and over 300 exhibits, and none of the evidence presented directly implicated him. In particular, Mr. Zadeh took issue with the presentation of notes and internet searches regarding death by cyanide and other poisons, and a series of indiscernible text messages from around the time of the murder, especially the message to Mr. Zadeh referencing a mysterious “bedroom” door. Mr. Zadeh also objected to the introduction of purported hearsay evidence covering seven different State witnesses. Mr. Zadeh argues that the limiting instructions did not insulate Mr. Zadeh from the prejudice that would and did result from the admission of the non-mutually admissible evidence.

We agree because (1) non-mutually admissible evidence was introduced; (2) the admission of that evidence prejudiced Mr. Zadeh; and (3) the limiting instructions were insufficient to cure the prejudice. Maryland Rule 4-253 contemplates the joinder of defendants and offenses. Regarding the joinder of defendants, a trial court may “order a joint trial for two or more defendants charged in separate charging documents[,] if they are alleged to have 19 participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses[,]” and “most of the evidence admissible at trial is mutually admissible[.]” Hines, 450 Md. at 355 , 148 A.3d at 1248 . Subsection (c) of Rule 4-253 provides, in pertinent part: “[i]f it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials[.]” (emphasis added).

Stated differently, “where joinder will result in prejudice to one or more defendants, a trial judge has discretion under Maryland Rule 4-253 to grant a severance or order other relief as justice requires.” Hines, 450 Md. at 355 , 148 A.3d at 1248 . In the context of both co- defendant and offense joinder, the crux of the severance inquiry is whether the joinder is unduly prejudicial. Hines, 450 Md. at 378 , 148 A.3d at 1262 . “What differs between the two situations is the application of the test—how a trial court determines the existence of prejudice.” Id. (emphasis in original).

A defendant must demonstrate that “non-mutually admissible evidence will be introduced and that the admission of such evidence will result in unfair prejudice.” Id. at 376 , 148 A.3d at 1260 (emphasis in original) (internal citations omitted). Under State v. Hines, the test for determining whether a motion for severance of defendants should be granted is whether (1) non-mutually admissible evidence will be introduced; (2) the admission of that evidence will unfairly prejudice the defendant requesting severance; and (3) any unfair prejudice that results from admitting the non- mutually admissible evidence can be cured either by severance of the defendants or some other relief such as limiting instructions or redactions. Id. at 369–70, 148 A.3d at 1257 . In 20 such cases, where a limiting instruction or other relief is inadequate to cure the prejudice, the denial of severance is an abuse of discretion.

Id. at 370 , 148 Md. at 1257. In Hines, a co-defendant, Tevin Hines, was unfairly prejudiced by the admission of non-mutually admissible evidence. Pre-trial, the attorneys for Mr. Hines argued that the recorded statements of his co-defendant, Dorrien Allen, implicating a man named “Mike,” that police officers believed was actually Mr. Hines, were inadmissible against him at trial. Id. at 357–58, 148 A.3d at 1250 .

Included in the recording was commentary by the police about what they purportedly knew to be true and accusing Mr. Allen of lying about the identity of the other person pictured in the surveillance video with him. Hines, 450 Md. at 383 , 148 A.3d at 1265 . At the pre-trial motions hearing, defense counsel argued that “the only inference that [could] be drawn at that point [was] that it[][was] Mr. Hines [in the video] and that Mr. Allen [was] lying about it[.]” Id. at 358 , 148 A.3d at 1250 . This Court determined that the evidence was unfairly prejudicial because the judge could and should have granted relief, namely the motion for severance, or in the alternative, redacted the statement so that it did not lead the jurors to believe that Mr. Allen was lying about “Mike” and that the other suspect in the video had to have been his co-defendant, Mr. Hines.

Id. at 358 , 148 A.3d at 1250 . This Court found that “Hines was significantly prejudiced by the actual admission of evidence that, although admissible against Allen, was inadmissible against Hines.” Id. We held that, “even as redacted to omit any express reference to ‘Tevin Hines, Allen’s statements implicated Hines in a damaging way, which resulted in prejudice to Hines. Id. at 384 , 148 A.3d at 1265 .

In the Hines case, this Court was clear that, while the trial judge has discretion in determining whether to order severance, there is a 21 considerable interest in protecting defendants against unfair prejudice and that interest should guide the determination of whether severance is appropriate. Id. at 369 , 148 A.3d at 1256 (citing Frazier v. State, 318 Md. 597, 607 , 569 A.2d at 689 (1990)). Here, the Court of Special Appeals was correct in determining that the evidence implicated the Hines test and severance was appropriate because Mr. Zadeh was similarly prejudiced by non-mutually admissible evidence. The heart of the analysis in ascertaining whether severance is warranted is whether undue prejudice will result from the introduction and admission of the non-mutually admissible evidence.

Mr. Zadeh was unduly prejudiced by the non-mutually admissible evidence. The limiting instructions could not cure the prejudice, because a reasonable jury could not have sifted through each piece of non- mutually admissible evidence and the subsequent limiting instructions to determine which evidence was admissible against which defendant. The State argues that Hines requires the court to review each piece of evidence to determine first whether it is non-mutually admissible, but Hines does not set forth any such requirement. The State reads Hines too narrowly.

The premise of limiting instructions in this context is to prevent unfair prejudice, and when there are too many limiting instructions they simply cannot serve that purpose. Id. at 383, 148 A.3d at 1265 (discussing Erman v. State, 49 Md. App. 605 , 434 A.2d 1030 (1981) (“[P]rejudice occurred when non-mutually admissible evidence was introduced in a degree so great as to render the several limiting instructions repetitive, mundane, and meaningless, so as to fall upon deaf ears.”)). In the case at bar, the State mentioned the “bedroom” door issue during closing argument. Although the jury was advised that the testimony from Beanie regarding the 22 bedroom door was inadmissible, the introduction of his statements in conjunction with the obscure text messages referencing a supposed “bedroom” door and the mention of the door at various points throughout the trial posed a substantial risk of prejudice to Mr. Zadeh because it would be nearly impossible for any reasonable juror to disregard these statements when considering the evidence against Mr. Zadeh.

See Hines, 450 Md. at 384 , 148 A.3d at 1265 (“In the present case, it would have been practically impossible for the jurors to dismiss from their minds the statements of [Mr.] Allen when evaluating the evidence against [Mr.] Hines.”). The prejudice resulting from this statement, even though the jury was instructed to strike it entirely, could have been cured with a limiting instruction or a redaction (or in this case being stricken from the record), but throughout the trial, there were several other statements by Ms. Pannell-Brown and evidence admissible against her alone. Taken together, the evidence had the “cumulative effect” of prejudicing Mr. Zadeh. Erman, 49 Md. App. at 616 , 434 A.2d at 1038 .

After all the limiting instructions and categorizing of statements by Ms. Pannell- Brown that the trial judge determined were only admissible against Ms. Pannell-Brown, even the most attentive and intelligent juror would have had a difficult time determining what evidence was admissible against which defendant. So much so that the prosecution acknowledged it would be an “insurmountable task” for the attorneys to classify which evidence was admissible against Mr. Zadeh and which evidence was only admissible against Ms. Pannell-Brown. The prosecutor who tried the case feared she “might miss something” if the attorneys were required to “go back through and [] review the whole trial” to solidify which evidence was admissible against whom. The trial judge remarked 23 that a proposed jury instruction listing what evidence was admissible against which defendant would serve to “create[] confusion if [they] c[ould]n’t agree on what it is that [the jury] need[ed] to consider separately.” This fact is telling.

It would be unreasonable to expect a jury to keep up with all of the limiting instructions, when the attorneys and the court could not do so. As such, the extent of the non-mutually admissible evidence and its impact on Mr. Zadeh could not be cured and the motion for severance should have been granted. We also note that the trial court erred in denying the motion for a mistrial because, once the trial judge determined that there was significantly more non-mutually admissible evidence than he originally thought, the only available and appropriate remedy was a mistrial. While the discretion to grant a mistrial should be exercised with great care, the situation in this case warranted such a remedy.

In analyzing whether severance or, in some cases, a mistrial is appropriate, fairness to the defendant is what guides us. The interest in efficiency and “judicial economy” should not outweigh the interest in ensuring that a defendant is afforded a fair trial. Erman, 49 Md. App. at 616 , 434 A.2d at 1038 . Accordingly, the Court of Special Appeals did not err in holding that the trial judge abused his discretion in denying the motions for severance and a mistrial.

B. The trial court erred in denying the motion to suppress the cell phone seized from Mr. Zadeh’s pants pocket. The State contends that the police lawfully seized the cell phone from Mr. Zadeh’s pants pocket under the plain-feel doctrine because “[Detective Poole] had probable cause to believe that [Mr.] Zadeh’s cell phone contained evidence relevant to the murder 24 investigation.” Mr. Zadeh argues that the Court of Special Appeals correctly held that the trial court erred in denying the motion to suppress because (1) the warrant did not extend to the cell phone, (2) the plain-feel doctrine did not apply to the seized cell phone, and (3) none of the other delineated warrant exceptions were applicable.16 1. The Parameters of the Search Warrant Although the search warrant for the Jaguar could be properly executed to search and seize the vehicle and anything inside of the vehicle, which fit the warrant description, the cell phone on Mr. Zadeh’s person was not implicated in the warrant. It is a fundamental tenet of criminal procedure that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend.

IV; see also Md. Const., Declaration of Rights, Art. 26 (“[A]ll general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.”) (emphasis added). The purpose of the requirement that a valid search warrant describe the place, people, or things to be searched and seized with sufficient particularity is to protect citizens from constitutionally prohibited general warrants, which effectively permit unlimited searches of private residences and 16 The facts do not implicate any of the following warrant exceptions: (1) search incident to a lawful arrest (Arizona v. Gant, 556 U.S. 332 , 129 S. Ct. 1710 (2009)); (2) hot pursuit (Warden v. Hayden, 387 U.S. 294 , 87 S. Ct. 1642 (1967)); (3) the plain view doctrine (Horton v. California, 496 U.S. 128 , 110 S. Ct. 2301 (1990)); (4) the automobile exception (Carroll v. United States, 267 U.S. 132 , 45 S. Ct. 280 (1925)); (5) stop and frisk (Terry v. Ohio, 392 U.S. 1 , 88 S. Ct. 1868 (1968)); (6) consent (Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S. Ct. 2041 (1973)); and (7) exigency (Kentucky v. King, 563 U.S. 452 , 131 S. Ct. 1849 (2011)). See Grant v. State, 449 Md. 1, 16 , 141 A.3d 138 n.3 (2016). 25 places of business. “The particularity requirement ‘ensures that the search will be carefully tailored to its justifications and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.’” Peters v. State, 224 Md. App. 306 , 342–43, 120 A.3d 839, 861 (2015) (quoting Maryland v. Garrison, 480 U.S. 79, 84 , 107 S. Ct. 1013 (1987)). “A particular warrant also ‘assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.’” Groh v. Ramirez, 540 U.S. 551, 561 , 124 S. Ct. 1284, 1292 (2004) (emphasis added) (citing United States v. Chadwick, 433 U.S. 1, 9 , 97 S. Ct. 2476 (1977)). In the case at bar, the search warrant specified a particular “conveyance” to be searched: a 2007 Jaguar station wagon, that was silver in color.

The warrant also included the vehicle identification number (“VIN”) and the corresponding license plate number. The subject of the warrant was clear—the search could not exceed the parameters of the specifically outlined “places to be searched.” The vehicle search warrant allowed for the search of “evidence of the crime of [m]urder” including but not limited to: A: Trace evidence to include but not limited to blood, hairs, and fibers on clothing, shoes, or items/material located therein. B: Any torn cloth dark in color C: Any object which may have been used to cause the victim’s injuries/death . . . the cause of death was determined to be blunt force trauma. D: Any photos, notes, documents, or electronic equipment which stores data F: Anything that is illegal to possess. 26 Probable cause to search and seize electronic equipment in one location cannot be transferred to a person.

See Ybarra v. Illinois, 444 U.S. 85, 91 , 100 S. Ct. 338, 342 (1979) (explaining that “[w]here the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person.”). Holding that the warrant could extend beyond the search of the vehicle contravenes the purpose and premise behind the particularity requirement. “We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.” United States v. Di Re, 332 U.S. 581 , 586–87, 68 S. Ct. 222, 225 (1948). The law recognizes “the unique, significantly heightened protection afforded against searches of one’s person.” Wyoming v. Houghton, 526 U.S. 295, 303 , 119 S. Ct. 1297, 1302 (1999). Therefore, the facts and circumstances that justified probable cause to grant a warrant for the conveyance could not be transferred to a person simply due to his or her presence in the conveyance at the time that the warrant was executed.

Mr. Zadeh was not a person to be searched under the warrant for the vehicle, and the cell phone in his pocket was not an item that could be searched or seized. If the officers had probable cause to believe that Mr. Zadeh had committed a crime or that his cell phone was evidence of crime, the correct avenue would be to obtain a search or arrest warrant for Mr. Zadeh. See Kentucky v. King, 563 U.S. 452, 459 , 131 S. Ct. 1849, 1856 (2011) (“Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured.”); Terry v. Ohio, 392 U.S. 1, 20 , 88 S. Ct. 1868 (1968) ([T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure[.]”). Given that the 27 warrant obtained was limited to the Jaguar, the Court will not contradict the law through speculation and transfers of probable cause.

Although the warrant incorporates the application by reference, the application was not included in the record and the Court’s analysis is limited to the warrant itself. The dissent attempts to piecemeal support for the search of Mr. Zadeh’s person by using the vehicle search warrant language, when it is clear that the warrant and the probable cause sufficient to obtain that warrant does not apply to Mr. Zadeh. As such, the officers were not entitled to conduct a warrantless seizure of Mr. Zadeh’s cell phone. 2. The Officer’s Conduct Amounted to Warrantless Search and Seizure At the suppression hearing, Detective Poole indicated that he asked Mr. Zadeh to exit the vehicle because the officers were “seizing the vehicle and the contents.” He further stated that he “patted [Mr. Zadeh] down for officer safety and removed a cell phone from his pocket.” Detective Poole later testified that he initiated the pat-down because Mr. Zadeh “was [] being investigated for murder” and that he “wanted to [e]nsure the safety of the officers and [himself].” Therefore, we begin our analysis from the point of view that the pat-down was conducted for officer