Turner v. State

¹⁹⁶ BYRNES, Judge. In this case, we must decide on independent constitutional review whether, on the facts as found by the Circuit Court for Baltimore County, Kim Leon Turner, appellant, impliedly consented to the entry of police officers into his residence. Appellant was charged with possession of cocaine with the . intent to distribute. Before trial, he moved to suppress the cocaine from evidence, arguing that it was the fruit of an illegal police search of his apartment.

The motion was denied, and appellant was tried by the court on an agreed statement of facts. He was found guilty of possession with intent to distribute over fifty grams of cocaine and was sentenced to a term of five years incarceration, to be served without the possibility of parole. On appeal, appellant asks whether the lower court erred in denying his suppression motion. We hold that it did, and shall reverse the judgment and remand the case for further proceedings.

FACTS AND PROCEEDINGS 1 Two witnesses testified at the suppression hearing: Officer Stephen Gillespie and Officer Stephen C. Price, both of the Baltimore County Police Department. They gave the following version of events. On August 18, 1998, at approximately 1:50 a.m., Officer Gillespie was on patrol in his police cruiser when he noticed an older model Chevrolet Caprice being driven westbound on White Marsh Boulevard. Officer Gillespie observed that the Caprice was “faded and dirty” but that its license tags appeared “fairly new.” Thinking that suspicious, he called the ¹⁹⁷ tags in over the police radio, and learned that they were not registered to the Caprice.

Officer Gillespie activated his emergency equipment and attempted to make a traffic stop. The driver of the Caprice sped off, and a chase ensued. It ended when Officer Gillespie pulled his cruiser in front of the Caprice, forcing it to a stop. The driver then “bailed out” of the car and fled. 2 Other officers who had been called to assist during the chase pursued him on foot, to no avail.

In the meantime, Officer Gillespie stayed with the Caprice and ran an MVA check, which revealed that it was registered to appellant and that appellant lived in a nearby apartment complex. Officer Gillespie relayed that information to Officer Price, who went to appellant’s apartment on the third floor of the complex. Appellant’s name was on a sign next to the apartment door. Officer Price knocked on the door.

Appellant responded and opened the door, stepping out of the apartment and onto the third floor landing. As he did so, he pulled the door shut behind him. Officer Price was not able to see into the apartment as appellant stepped out of it. Officer Price noticed that appellant’s breathing was labored, “like he had been through some exertion or something.” He asked appellant for identification and whether he knew where his car was, explaining the circumstances and that he was looking for the person who had “bailed out” of the Caprice.

Appellant responded that he did not know where his identification or his car were. Just then, Corporal Joseph Yeater, Officer Price’s superior, arrived at the first floor of the apartment complex. Officer Price and appellant walked down the steps to the first floor to meet Corporal Yeater and' to await the arrival of Officer Gillespie, who had indicated that he was going to come by to ¹⁹⁸ look at appellant to determine if he was the driver of the Caprice. (After the events relevant to this appeal, it was established that appellant was not the driver of the Caprice and that he had had no involvement in the happenings that had precipitated the police visit to his apartment).

While the officers and appellant were awaiting Officer Gillespie’s arrival, Officer Price once again raised the topic of identification. He and Corporal Yeater both asked appellant whether he had something in his apartment that would confirm his identity. Appellant responded by saying that he had a telephone bill in his apartment that he could show them. Appellant then walked back up the steps to the third floor of the apartment complex.

Officer Price followed close behind him, with Corporal Yeater bringing up the rear. Appellant approached his apartment, opened the door, and entered. Officer Price followed behind him, and Corporal Yeater followed Officer Price. Nothing was said—the officers did not ask permission to enter or tell appellant that they were about to enter, and appellant did not tell them not to enter.

Officer Price testified that because he was responding to a call for “fleeing and eluding a police officer,” he would not have let appellant out of his sight. He stated, however, that if appellant had told him not to enter the apartment, he would have complied. He further testified that when he and Corporal Yeater entered the apartment, appellant did not say or do anything to indicate that he objected to their presence. As soon as Officer Price walked into appellant’s apartment, he saw a gun on the coffee table, in plain view.

He went over to examine it. Appellant told him that it was a cap or starter gun, not a real gun. At that point, Corporal Yeater noticed a “white chunk like” substance on the carpet around the coffee table in plain view. Both officers immediately recognized the substance to be crack cocaine.

They placed appellant under arrest. The officers saw that the apartment had a bedroom and that the door to it was closed. They asked appellant for his consent to search that room, but received a negative response. ¹⁹⁹ On the basis of their plain view observations of contraband in appellant’s apartment, the police applied for and obtained a search warrant for all of the rooms in the apartment. Upon execution of the warrant, they found a .25 caliber semiautomatic pistol, ammunition, numerous white chunks of cocaine lying loosely about and in three baggies, and items of drug packaging paraphernalia.

The cocaine recovered from appellant’s apartment totaled 83.5 grams. At the conclusion of the suppression hearing, the court made the following findings: While waiting on the first floor, the [officers] had additional conversation as to whether or not [appellant] could produce any type of identification. It was at that point that [appellant] mentioned that he thought he had a telephone bill with his name on it upstairs in his third floor apartment. [Appellant] then proceeded to go back up to his apartment with Officer Price following behind him. [Appellant] obviously knew that Officer Price was behind him as they climbed three flights of steps. Once they got to the apartment, [appellant] opened the door to his apartment and entered.

At no time, as they were climbing steps or when they reached the door to the apartment did [appellant] ever tell Officer Price not to come on back up to the apartment or not to come into the apartment or make any objection whatsoever. There was no evidence that that occurred. * ❖ * * So, I find that the consent, it was a consent search ... at no time did [appellant] object to the officer entering the apartment when he certainly had an opportunity to do so as they climbed the stairs to the apartment, for that matter, when they reached the apartment. So, I find that there was no violation of [appellant’s] Fourth Amendment rights____ The court found, ultimately, that appellant had impliedly consented to the entry by the police officers into his apartment, and denied appellant’s suppression motion on that basis. ²⁰⁰ DISCUSSION Appellant contends that the lower court’s first-level factual findings do not support the constitutionally significant second-level factual finding of implied consent. He argues that the police entered his apartment without his consent, that the entry was not otherwise justified, and that the entry therefore constituted an unreasonable search, in violation of the Fourth Amendment.

He further maintains that the evidence obtained in the subsequent warrant-based search of his apartment was tainted by the illegality of the prior warrantless search, and therefore should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 484-87 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963). The State counters that the lower court properly found from the totality of the circumstances that appellant had consented, by his conduct, to the police officers’ entry into his apartment. It argues that for that reason, the warrantless search was reasonable, and thus was not in violation of appellant’s Fourth Amendment rights, and that the evidence found in plain view was seized legally.

Cf. Coolidge v. New Hampshire, 403 U.S. 443, 466, n. 24 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971)(stating that if entry into house is justified based on hot pursuit, and therefore is reasonable, then anything inadvertently in plain view can be seized legally). On that basis, the State maintains that the subsequent warrant-based search was not a product of a prior illegal search, the evidence obtained was not tainted, and the lower court correctly refused to suppress it. The Fourth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Because a search of the house begins with the entry into it, physical entry into the house is considered a search.

Johnson v. United States, 333 U.S. 10, 13 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948). See also Arizona v. Hicks, 480 U.S. 321, 324-35 , 107 S.Ct. 1149 , 94 ²⁰¹ L.Ed.2d 347 (1987)(holding that a search occurs whenever something not previously in plain view becomes exposed to investigating officer). The “‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” Welsh v. Wisconsin, 466 U.S. 740, 748 , 104 S.Ct. 2091 , 80 L.Ed.2d 732 (1984)(quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972)). “ ‘At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusions.’” Payton v. New York, 445 U.S. 573, 589-90 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980)(quoting Silverman v. United States, 365 U.S. 505, 511 , 81 S.Ct. 679 , 5 L.Ed.2d 734 (1961)). “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.” United States v. Gray, 71 F.Supp.2d 1081, 1083 (D.Kan.1999). The Fourth Amendment requires that the government show that the police conduct in question was “objectively reasonable.” Florida v. Jimeno, 500 U.S. 248, 251 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991); Illinois v. Rodriguez, 497 U.S. 177, 183-84 , 110 S.Ct. 2793 , 111 L.Ed.2d 148 (1990).

Warrant-less searches, seizures, and arrests “ ‘are per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.’” McMillian v. State, 325 Md. 272, 281 , 600 A.2d 430 (1992)(quoting Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967)). See also Welsh v. Wisconsin, supra, 466 U.S. at 749 , 104 S.Ct. 2091 (It is a basic tenet of Fourth Amendment law that “searches and seizures inside a home without a warrant are presumptively unreasonable.”). The State bears the burden of proving the existence of an exception to the warrant requirement to justify, and thereby make reasonable, an otherwise presumptively unreasonable search. United States v. Jeffers, 342 U.S. 48, 51 , 72 S.Ct. 93 , 96 L.Ed. 59 (1951); State v. Bell, 334 Md. 178, 191 , ²⁰² 638 A.2d 107 (1994).

Consent is one of those exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). The State bears the burden of proving consent. United States v. Mendenhall, 446 U.S. 544, 557 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980); Doering v. State, 313 Md. 384, 401 , 545 A.2d 1281 (1988); State v. Wilson, 279 Md. 189, 201 , 367 A.2d 1223 (1977)(consent must be proven by a preponderance of the evidence).

This burden cannot be satisfied by showing nothing more than acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-50 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 (1968); Whitman v. State, 25 Md.App. 428, 456 , 336 A.2d 515 (1975). For consent to be effective, it must have been freely and voluntarily given, and not have been the product of explicit or implied coercion. Schneckloth, 412 U.S. at 223, 228 , 93 S.Ct. 2041 ; Bumper v. North Carolina, supra.

Whether consent was voluntarily given is a question of fact to be determined “from the totality of all the circumstances.” Schneckloth, 412 U.S. at 227 , 93 S.Ct. 2041 . When we review the denial of a suppression motion that was based upon an alleged constitutional violation, we give deference to the factual findings of the lower court, unless they are clearly erroneous, but we exercise free review over the lower court’s determination of the constitutional significance of those facts. Cartnail v. State, supra, 359 Md. at 282, 753 A.2d 519 (“If the Fourth Amendment is implicated by State action, [the appellate court] makes an independent determination of whether the State has violated an individual’s constitutional rights by applying the law to the facts.”); Jones v. State, 343 Md. 448, 457 , 682 A.2d 248 (1996); see also Ornelas v. United States, 517 U.S. 690, 696-97 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996). With respect to second-level findings of fact, such as the voluntariness of a consent, Judge Moylan explained, in Walker v. State, 12 Md.App. 684 , 280 A.2d 260 (1971): [W]hen we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is ²⁰³ involved [we mean] that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact—the existence or non-existence of voluntariness.

Id. at 695 , 280 A.2d 260 . See also United States v. Rusher, 966 F.2d 868 , 873 (4th Cir.), cert. denied, 506 U.S. 926 , 113 S.Ct. 351 , 121 L.Ed.2d 266 (1992)(appellate court reviews legal conclusions relating to search and seizure issues de novo ); United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990)(“When we are determining whether as a general rule certain types of actions give rise to an inference of consent, de novo review is appropriate.”). In the case sub judice, the first-level factual findings of the lower court were not clearly erroneous. Thus, on review, we accept them, but we exercise our independent judgment as to what to make of them, “resolving for ourselves the ultimate, second-level fact”: whether appellant’s conduct constituted an implied consent to the entry of the police into his apartment.

Walker, supra, 12 Md.App. at 695 , 280 A.2d 260 . Only three Maryland cases address what actions may properly be found to constitute implied consent to the entry of law enforcement officers into the home. In arguing that the lower court properly concluded that appellant impliedly consented to the police officers’ entry into his apartment, the State relies heavily on Chase v. State, 120 Md.App. 141 , 706 A.2d 613 (1998), the most recent case in the trilogy. In Chase , the police knocked on the door to the defendant’s house.

When his wife answered, they asked her if the defendant was at home and told her that they needed to speak to him. She responded by “opening] the door wider and step[ping] out of the doorway,” thereby allowing the officers to pass her and walk into the house. Chase, 120 Md.App. at 150 , ²⁰⁴ 706 A.2d 613 . We affirmed the lower court’s denial of a motion to suppress evidence that was found in the house, holding that by her gesture, the wife gave consent for the police to enter.

In holding as we did in Chase , we relied upon the Court of Appeals’s opinion In re Anthony F., 293 Md. 146 , 442 A.2d 975 (1982). In that case, police officers went to the house in which the defendant and his sister lived and knocked on the door. When the sister answered, one of the officers requested permission to enter. The defendant’s sister then “stepp[ed] back and open[ed] the door wide so they could enter.” The Court held that the sister’s conduct constituted consent to the entry.

In re Anthony F., 293 Md. at 147-48 , 442 A.2d 975 . Three years before In re Anthony F. was decided, in the first case of the trilogy, the Court upheld the denial of a motion to suppress evidence, reasoning that the defendant had impliedly consented to the police entry into his house and the ensuing search. In Lewis v. State, 285 Md. 705 , 404 A.2d 1073 (1979), the defendant came home to find his wife and child dead, apparently the victims of murder. He cooperated with the police during the initial phase of their investigation.

When he started making preparations to leave the state to attend the victims’ funerals, the police told him that, in his absence, they would need to enter his house to go through his papers and other such items. He did not agree, but did not express any objection. Thereafter, however, he “willingly arranged to leave his house key with a neighbor in order to give the police access to the premises” while he was away. Lewis, 285 Md. at 719 , 404 A.2d 1073 .

The police used the key to enter the house. There they found a poem that he had written, incriminating himself. The police refocused their investigation, and eventually uncovered evidence that the defendant had hired a contract killer to murder his wife and child. On appeal from convictions for accessory before the fact to first degree murder, solicitation to murder, and conspiracy to murder, the defendant argued, inter alia, that the police had ²⁰⁵ entered Ms house in violation of the Fourth Amendment.

The Court of Appeals disagreed, noting that the defendant’s conduct had risen to a level above mere acquiescence in the police officers’ request to enter and search. Rather, he had “affirmatively made arrangements for the police to obtain a house key during his absence,” thereby enabling them to enter the house and search it. Id. (Emphasis supplied.) The Court concluded that the circumstances were “sufficient to demonstrate that the search was freely and voluntarily consented to.” Id.

The Fourth Circuit cases addressing implied consent, either to enter a suspect’s house or to search his automobile or person, also are instructive. In United States v. Smith, 30 F.3d 568 (4th Cir.), cert. denied, 513 U.S. 1028 , 115 S.Ct. 604 , 130 L.Ed.2d 514 (1994), the police were keeping a suspect under surveillance for suspected cocaine distribution. When they saw him walking toward his car, carrying a bag, they stopped him and asked whether they could search the bag. He said yes, and they searched it and found nothing.

The police then asked the suspect whether they could search Ms car. He made no verbal response, but approached the car and unlocked it. The police searched the car and found cocaine. Upholding the lower court’s denial of a motion to suppress the cocaine from evidence, the Fourth Circuit held that the suspect’s act of unlocking his car door in response to the request by police to search it constituted an implied consent to search.

Smith, 30 F.3d at 571 . In United States v. Wilson, 895 F.2d 168 (4th Cir.1990), a DEA agent posted at a Virginia airport observed the defendant deplamng from New York, and noticed that he was looking about nervously. The agent followed the defendant, identified himself, and engaged him in conversation about the DEA’s effort to stop the flow of illegal drugs into the area from New York. When the agent asked the defendant if he could search Ms bag, the defendant replied, “Go ahead.” The agent then asked the defendant whether he could search his ²⁰⁶ person.

The defendant said nothing, but shrugged his shoulders and extended his hands in the air. The agent performed the pat-down search and detected a very hard substance in the defendant’s groin area. The defendant was taken into custody and a body search revealed, inter alia, 131.5 grams of cocaine. The Fourth Circuit held that, under the totality of the circumstances, the defendant’s act of responding to a request for permission to conduct a pat-down search by raising his arms in the air constituted an implied consent. 895 F.2d at 171 ; see also United States v. Haynie, 637 F.2d 227, 230 (4th Cir.1980)(defendant who voluntarily entered airport baggage screening area and presented himself to x-ray scanner operator impliedly consented to search); United States v. DeAngelo, 584 F.2d 46, 47 (4th Cir.1978), cert. denied, 440 U.S. 935 , 99 S.Ct. 1278 , 59 L.Ed.2d 493 (1979)(passenger who voluntarily