Torres v. State

SALMON, Judge. This case causes us to interpret sections 2-202(a) and (b) of the Criminal Procedure Article of the Maryland Code (2001), which is declarative of the common law. 1 Sections 2-202(a) ⁸⁶ and (b) 2 read: Warrantless arrests — In general. (a) Crime committed in presence of police officer. — A police officer may arrest without a warrant a person who commits or attempts to commit a felony or misdemeanor in the presence or within the view of the police officer. (b) Probable cause to believe crime committed in presence of officer. — A police officer who has probable cause to believe that a felony or misdemeanor is being committed in the presence or within the view of the police officer may arrest without a warrant any person whom the police officer reasonably believes to have committed the crime.

We interpret sections 2-202(a) and (b) as meaning that if (1) a misdemeanor is committed or attempted in a police officer’s presence or view or (2) if the officer has probable cause to believe that a misdemeanor is being committed in his presence or view, the officer may make a warrant-less arrest only if the arrest is made with reasonable promptness after the offense (or supposed offense) is attempted or committed (“the reasonable promptness rule”). It is important to note, however, that the General Assembly has, by statute, singled out certain misdemeanors for which a police officer may, if certain conditions are met, make a warrantless arrest, even through the misdemeanor (1) has not been committed in the officer’s presence or view and (2) where the officer does not have probable cause to believe that a misdemeanor has been committed in his presence or view. See §§ 2-203 — 2-205. 3 The reasonable promptness rule does not ⁸⁸ apply to misdemeanor arrests, which come within the ambit of sections 2-203 to 2-205, nor does it apply to felonies. In the case at hand, the misdemeanor (trespass) allegedly committed in the presence of the arresting officer was trespass — a crime which comes under the general rule.

Because appellant was not arrested with reasonable promptness after the officer observed the trespass (or supposed trespass) being committed in his presence, we shall hold that appellant’s arrest was illegal. As a consequence, items seized incident to appellant’s arrest must be suppressed under the “fruits of the poisonous tree” doctrine. See Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct 407 , 9 L.Ed.2d 441 (1963). I. FACTUAL AND PROCEDURAL BACKGROUND Appellant was arrested without a warrant on November 6, 2000.

A search incident to his arrest was conducted by Takoma Park Police Officer Frank Webb. The search revealed ⁸⁹ that appellant was carrying over $1,000 in cash, together with a “rock-like” substance that later testing proved to be cocaine. Appellant was indicted for possession of cocaine with the intent to distribute. His counsel filed a timely motion to suppress the evidence seized incident to his arrest.

The motion was denied after a hearing. Appellant waived a jury trial, pled not guilty, and proceeded to trial on an agreed statement of facts. Appellant was found guilty and sentenced to eighteen months imprisonment, with all but seven months suspended. Two questions are raised on appeal: 1.

Where appellant was arrested without a warrant for the misdemeanor of trespass, which had been committed in the officer’s presence thirteen days earlier, did the timing of the arrest, standing alone, demonstrate its illegality? 2. If the answer to Question No. 1 is in the negative, did probable cause exist for the arrest of appellant for trespass?

II

THE MAY 18, 2001, SUPPRESSION HEARING 4 A. Testimony of Officer Frank Webb Located in Takoma Park, Montgomery County, Maryland, 125 Lee Avenue is one of approximately seven “low income apartment buildings,” which are three or four stories high. Posted in the lobby of 125 Lee Avenue, at all times here pertinent, was a conspicuous blue and white sign, reading “no trespassing or loitering.” The sign also notified readers that the police were authorized to act as agents of the owner. The ⁹⁰ apartment building located at 125 Lee Avenue address is owned by one Antonio Samos. On the night of October 24, 2000, Officer Webb, along with two other Takoma Park police officers, received a call from a police dispatcher notifying them that “subjects were smoking and selling CDS” on the parking lot of 125 Lee Avenue.

All three officers immediately responded to the Lee Street address. The officers, who were in uniform, parked their vehicles a short distance from the apartment building and proceeded to walk toward the building. As Officer Webb crossed the parking lot, he saw appellant near the rear of 125 Lee Avenue. The officer, who had known appellant for about a year, recognized him immediately.

When appellant saw Officer Webb, he put “an unknown object” in his mouth and ran into the rear entrance of 125 Lee Avenue. As soon as appellant fled, Officer Webb chased after him. 5 When Officer Webb got inside the apartment building, he did not see appellant. Therefore, he and the other officers knocked on several doors and made inquiry about him, but their efforts to locate appellant were unsuccessful. Officer Webb had previously stopped appellant for an “open-bottle” violation.

As a result of that stop, which did not lead to an arrest, he knew that (1) appellant “lived somewhere in the New Hampshire Avenue area” of Takoma Park, (2) appellant’s full name was Angelo Louis Torres, and (3) appellant “had been barred by other [Takoma Park] officers ... from several locations on Lee Avenue.” On direct examination, the prosecutor, Officer Webb, and the motions judge had the following exchange: Q. [THE PROSECUTOR:] [Y]ou indicated that you chased Mr. Torres. What were you chasing him for? A. To further investigate why he was, first of all, trespassing, find out what he put in his mouth, you know, what his— ⁹¹ THE COURT: Let me just clarify some-thing, had you banned him from this area? THE WITNESS: That — he has been banned by other officers.

I don’t have anything in writing, but he has been banned from several locations on Lee Avenue. BY [THE PROSECUTOR]: Q. Were ... you aware that he had been banned by several other officers at the time that you chased him? A. Yes. Later in Officer Webb’s testimony, he admitted that when he chased after appellant he did not know whether appellant had ever been barred from 125 Lee Avenue.

Therefore, if he had caught appellant, he “was going to conduct an investigative detention to ascertain whether or not he was barred from” 125 Lee Avenue. Following the unsuccessful chase, Officer Webb did not seek an arrest warrant, nor did he document in any way his encounter with appellant. Moreover, he made no further inquiry of Mr. Samos (the owner of the premises) or anyone else to determine whether appellant had, in fact, been barred from entering onto the 125 Lee Avenue premises. On November 6, 2000, which was thirteen days after he had seen appellant at the 125 Lee Avenue address, Officer Webb, while on routine patrol, saw the appellant walking down University Boulevard in the company of a female.

The officer did a U-turn and then saw appellant go into a nail salon. The officer followed appellant into the salon and placed him under arrest for trespassing at 125 Lee Avenue on October 24, 2000. That arrest led to the discovery of the money and cocaine, which appellant sought to suppress. B. Testimony of Meryl Wise Meryl Wise, at the time of the suppression hearing, had resided at 125 Lee Avenue for approximately five years.

He knew appellant well because the latter had formerly dated one of his daughters. According to Mr. Wise, appellant was in the habit of visiting him in his apartment “just about every day.” ⁹² On October 24, 2000, appellant entered his apartment in a normal manner — then walked to one of the rear rooms in the apartment and began talking to one of his children. Shortly after appellant entered the apartment, a police officer knocked at the door. Mr. Wise answered, and the officer inquired if “somebody [had run] into the building!” Mr. Wise replied, “Nobody ran in hére.” The officers gave the areas immediately inside the doorway of the apartment a cursory look and left.

C. The Decision of the Motions Judge In her opinion, the motions judge said, in relevant part: At the time — on October 24, [Officer Webb] did not actually know that the defendant was barred, but he had certain information about people smoking and selling CDS, and we have the fact that the defendant ran. I disagree with you about the fact that presence means that it actually has to be on that day. Only Officer Webb is an eyewitness to this. So he is the only one who saw a misdemeanor maybe being committed — probable cause to believe it had been committed in his mind.

No other officer could have arrested [defendant on] November 6 without a warrant, but since it was Officer Webb, it was he who believed he saw a misdemeanor being committed in his presence. So therefore on November 6, when he did actually see the defendant, I believe that he was authorized to arrest him for trespassing. Now, if it had been another officer, I would agree with the defense that a warrant was necessary but not under these facts or situation, and the fact that maybe he wasn’t trespassing, that is neither here nor there because we are just dealing with the very low standard of probable cause, is it more like[ly] than not? I will say if Mr. Wise had just said that the defendant was in the apartment, maybe it could have all been cleared up because he had permission to be there. ⁹³ III.

DISCUSSION Preliminarily, we shall assume, arguendo, that Officer Webb, on October 24, 2000, had probable cause to arrest appellant for trespassing at 125 Lee Avenue. 6 With that assumption, the question becomes whether Officer Webb, if he chose to make a warrantless arrest, was required to make the arrest promptly after he had probable cause to believe that a misdemeanor had been committed in his presence. Aside from Maryland authority, discussed infra, the overwhelming weight of authority supports the proposition that a warrant-less misdemeanor arrest “must be made promptly, that is, at the time of the offense or as soon thereafter as circumstances permit....” Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 3.5(a), at 155 (2d ed.1999); see also One 1992 Toyota 4-Runner v. State, 721 So.2d 609, 615 (Miss.1998) (“[A]n arrest for a misdemeanor committed in the arresting officer’s presence must be made as quickly as circumstances permit.”); Commonwealth v. Howe, 405 Mass. 332 , 540 N.E.2d 677, 678 (1989) (noting that, at common law, a ⁹⁴ police officer may arrest without a warrant for a misdemeanor which “is still continuing at the time of the arrest or only interrupted, so that the offence and the arrest form parts of one transaction”); State v. Warren, 103 N.M. 472 , 709 P.2d 194, 200 (1985) (“It is a general rule that once an officer has the right to arrest without a warrant for a misdemeanor ... committed in his presence he must do so as soon as he reasonably can, and if he delays for purposes disassociated with the arrest or for such a length of time as to necessarily indicate the interposition of other purposes, he cannot arrest without a warrant.”); People v. Hampton, 164 Cal.App.3d 27 , 209 CaLRptr. 905, 907 (1985) (a warrantless arrest for misdemeanors “must be made at the time of offense or within a reasonable time thereafter.”); State v. Wozniak, 94 Idaho 312 , 486 P.2d 1025, 1029 (1971) (“An arrest without a warrant for a misdemeanor made within a prompt and reasonable time after the offense is valid.”); Carson v. Pape, 15 Wis.2d 300 , 112 N.W.2d 693, 697 (1961) (“[A]n arrest without a warrant for a misdemeanor must be made promptly, either at the time of the offense, or as soon thereafter as the circumstances reasonably permit.”); Oleson v. Pincock, 68 Utah 507 , 251 P. 23, 26 (1926) (“[I]n order to be valid, the arrest must be made at the time the offense is committed, or within a reasonable time thereafter, or upon fresh and immediate pursuit of the offenders.”); Yates v. State, 127 Ga. 813 , 56 S.E. 1017, 1019 (1907) (A warrantless arrest for a misdemeanor “must have been made at the time of, or within a reasonable time after, the commission of the offense....”); Charles E. Torcía, Wharton’s Criminal Procedure § 70 (13th ed. 1989) (If the arresting officer “does not act with reasonable promptness, and if the delay was unnecessary, the arrest without a warrant will be unlawful.”); 5 Am.Jur.2d Arrest § 55 (2001) (“The arrest [for a misdemeanor] must be made at the time the offense, or some part of it, is being committed, or within a prompt and reasonable time after its commission, or upon fresh and immediate pursuit of the offender.”); H.D. Warren, Annotation: Peace Officer’s Delay in Making Arrest Without a Warrant for Misdemeanor or Breach of Peace, 58 A.L.R.2d 1056 , 1063 ⁹⁵ (1958) (“It is a general rule that once an officer has the right to arrest without a warrant for a misdemeanor or breach of the peace committed in his presence he must do so as soon as he reasonably can, and if he delays for purposes disassociated with the arrest or for such a length of time as to necessarily indicate the interposition of other purposes, he cannot arrest without a warrant.”). In the case of Childress v. State, 227 Md. 41, 43 , 175 A.2d 18 (1961), the Court of Appeals, citing inter alia, the annotation last mentioned (i.e., 58 A.L.R.2d 1056 ), recognized the rule that ordinarily a police officer may make an arrest, without a warrant, for misdemeanors committed in his presence only if the arrest is made within a reasonable time after the commission of the misdemeanor (or supposed misdemeanor). In Childress , the appellant, Roy A. Childress, undertook to direct traffic near a busy intersection during rush hour in Baltimore City. 227 Md. at 42-43 , 175 A.2d 18 .

A Baltimore City police officer, who was directing traffic nearby, saw what appellant was doing and was not amused. He walked over “to within five feet of [Childress] and told him he was under arrest.” Id. at 43 , 175 A.2d 18 . Childress walked away and entered a nearby house, where he boarded. Id.

The officer followed Childress into the hallway of the rooming house, “laid a hand on his shoulder and told him he was under arrest.” Childress responded by hitting the officer in the nose and knocking him down. Id. When two other officers were called to the scene, they, too, were attacked by Childress. On appeal, Childress contended, inter alia, that his arrest was illegal, and therefore, he was justified in resisting