Walls v. State

DEBORAH S. EYLER, J. In the Circuit Court for Harford County, Herbert Johnson Walls, the appellant, was charged by indictment with possession with intent to distribute marijuana, possession with intent to distribute cocaine, possession of marijuana, possession of cocaine, two counts of possession with intent to distribute drug paraphernalia, and maintaining a common nuisance, specifically a house used for the purpose of illegally manufacturing, distributing, storing, and concealing cocaine. Before trial, the appellant filed a motion to suppress all items seized from a storage shed on the property where he resided on the ground that the warrant did not authorize a search of the shed or any other outbuilding on the property. After a hearing, the court denied the motion. The appellant was tried by the court on a not-guilty agreed statement of facts on the charge of possession with intent to distribute cocaine.

All other charges were nolle prossed. The court found the appellant guilty. It sentenced him to 40 years’ incarceration, all but 25 years suspended, and two years’ supervised probation upon release. This appeal followed.

The sole issue on appeal is whether the circuit court erred in denying the motion to suppress. Finding no error, we shall affirm the judgment. ²³⁸ FACTS AND PROCEEDINGS The following facts were adduced at the suppression hearing. On October 21, 2005, Detective Sean Marston of the Harford County Sheriffs Office applied for a search warrant for the appellant’s residence at 30 Liberty Street, in Aberdeen. The application and supporting affidavit provided, in relevant part: APPLICATION is herewith made for Search and Seizure Warrant in that there is probable cause to believe the laws relating to ... controlled dangerous substances ... are being violated in and upon a certain premise and vehicles known as: 30 Liberty Street, Aberdeen, Harford County, Maryland 21001 and are being violated by Herbert Johnson Walls, a black male, with a date of birth of 02/05/1954.

Said premise is described as a single story duplex which is tan in color with white trim around the windows, a white storm and front door, and the numerals “30” to the left of the door on a dark colored shutter. There is a wooden porch with three stairs leading up to the door. Furthermore, said premise is known to, and can be identified by your affiant. * * * Your affiant avers that based on the totality of the circumstances and your affiant’s training, knowledge and experience acquired during the aforementioned schools and investigation, that based on the information received from CI-1 that Walls is selling CDS, the controlled purchase of crack cocaine from Walls, the positive field test of the purchased crack cocaine, the surveillance conducted on Walls placing him and his vehicles at 30 Liberty street before the controlled buy and returning to 30 Liberty Street after the controlled buy of crack cocaine, the positive identification of Herbert Walls by CI-1, the four tips received between 2002 and 2005 for Herbert Walls selling CDS at the 30 Liberty Street address, the criminal history of Walls ²³⁹ showing multiple felony arrests for CDS, the recent search warrant conducted at Wallsf] residence of 30 Liberty Street in February 2005 with the subsequent recovery of approximately 19 grams of crack cocaine, the recent traffic stop of Walls in February 2005 with the subsequent recovery of approximately 16 grams of crack cocaine, that there is probable cause to believe and your affiant does believe, that the law relating to the manufacturing, sale and/or possession with intent to distribute controlled dangerous substances, as herein before cited are being violated in and upon the premise herein before described as: 30 Liberty Street, Aberdeen, Now, therefore, pursuant to the provisions of Criminal Law Article Sections 1-203, your affiant prays that a search and seizure warrant be issued authorizing him, with the necessary and proper assistance to: A: Enter and search the person(s) and premises completely described above; B: Search the person(s) and clothing of any and all persons found in or upon said premises who may be participating in violations of the statutes herein before cited; C: Open and search any and all safes, boxes, bags, compartments or things in the nature thereof found in or upon said premises or person(s); (Emphasis in original.) The application and affidavit were attached to the proposed search and seizure warrant, which likewise provided, in part: Whereas it appears to me, ... by written information of the affiant, hereinafter named, that there is probable cause that a crime is being committed, and that the laws relating to the illegal Manufacturing, Distribution, Possession with Intent to Distribute controlled dangerous substances and Possession of controlled dangerous substances, ... including narcotics, hallucinogenic and dangerous drugs, are being violated in and upon a certain premise known as: ²⁴⁰ 30 Liberty Street, Aberdeen, Harford County, Maryland 21001 and is being violated by Herbert Johnson Walls, a black male, with a date of birth of 02/05/1954. Said, premise is described as a single story duplex which is tan in color with white trim around the windows, a white storm and front door, and the numerals “30” to the left of the door on a dark colored shutter.

There is a wooden porch with three stairs leading up to the door. Furthermore, said premise is known to, and can be identified by your affiant. The name of your affiant is Detective Sean Marston, of the Harford County Sheriff’s Office, currently assigned to the Harford County Task Force. The grounds for the search warrant and the basis for probable cause are set forth in the Application and Affidavit which is attached hereto and made part of the Search and Seizure [sic].

Now therefore, pursuant to the provisions of Criminal Law Article Sections 1-203 of the Maryland Criminal Laws Annotated, 2003 edition, as amended or revised, you are hereby commanded, with the necessary and proper assistance to: A: Enter and search the person(s) and premises completely described above; B: Search the person(s) and clothing of all persons found in or upon said premises who may be participating in violations of the statutes herein before cited; C: Open and search any and all safes, boxes, bags, compartments or things in the nature thereof found in or upon said premises or person(s); D: Seize all evidence, paraphernalia and money used in or incidental to the conduct or operation of controlled dangerous substance violations, found in or upon said premise and person(s) in close proximity to contraband, controlled dangerous substances or controlled dangerous substance paraphernalia; ²⁴¹ F: Seize articles of personal property tending to establish or corroborate the identity of the person or persons in control of the premises consisting of and including, but not limited to, utility company receipts, rent receipts, canceled mail, motor vehicle information and keys; H. Arrest all person(s) found in or upon said premise who may be participating in violations of the statutes herein before cited, (Emphasis in original.) The search and seizure warrant was issued on October 21, 2005. Detective Marston testified that, on October 26, 2005, he executed the search and seizure warrant at 30 Liberty Street. The backyard at that location was completely fenced in. There was a shed located in the backyard, about 20 to 25 feet from the house.

The shed was locked with a padlock. According to Detective Marston, a K-9 dog first scanned the shed and, thereafter, the appellant’s key was used to unlock the padlock. 1 Lawn equipment, drugs, and paraphernalia were found in the shed. On cross-examination, Detective Marston acknowledged that the shed was located at the rear of the yard, almost flush with a fence that separated the backyards of the properties on Liberty Street from the Aberdeen Proving Grounds. He also acknowledged that the application for the search and seizure warrant did not contain any specific mention of the shed or anything stored in it.

He explained, however, that, while searching the house, he received information from Detective Webster of the Aberdeen Police Department that the appellant was storing controlled dangerous substances (“CDS”) in the shed behind the residence. Detective Webster made it ²⁴² known that he had received that information from a confidential informant, who had advised that the appellant had begun storing CDS in the shed after a task force had raided his house earlier in 2005. Detective Todd Harmel of the Harford County Task Force similarly testified that the backyard of 30 Liberty Street was completely fenced in, that the shed was located approximately 20 feet from the house and backed up to a portion of the fence dividing the property from the Aberdeen Proving Grounds, and that the padlock on the shed was opened using a key. Defense counsel argued in support of the suppression motion that the search and seizure warrant lacked the particularity and specificity required by the Fourth Amendment.

Specifically, the warrant said “premise” known as 30 Liberty Street, as opposed to “premises,” and failed to mention any other buildings, including the storage shed. He further argued that, even if buildings within the curtilage were implicitly included in the warrant, the shed at issue was not within the curtilage. In addition, defense counsel asserted that the shed was used for the appellant’s lawn care business and not for domestic purposes. The State countered that the shed was within the curtilage of the residence and, therefore, was lawfully searched.

On August 31, 2006, the circuit court issued a written memorandum opinion denying the appellant’s motion to suppress and stating, in part: 30 Liberty Street is a duplex home located on a small lot. The shed in question is in the rear yard of the home and is located between twenty and twenty-five feet from the house. The rear yard is completely fenced. A part of that fencing was erected by the federal government since the property backs up to the Aberdeen Proving Grounds.

One side of the yard is fenced with a privacy fence and the other side is fenced with a chain link type fence. The application for a warrant and the warrant itself was introduced in evidence as State’s Exhibit # 1. On the first page of the warrant, the property is referred to as the “premise” known ²⁴³ as 30 Liberty Street Aberdeen, Harford County, Maryland. However, the authorization to search reads as follows: “Now therefore, pursuant to the provisions of Criminal Law Article Sections 1-203 of the Maryland Criminal Laws Annotated, 2003 edition, as amended or revised, you are hereby commanded, with the necessary and proper assistance to: A: Enter and search the person(s) and premises (emphasis supplied) completely described above; B: Search the person(s) and clothing of all persons found in or upon said premises who may be participating in violations of the statutes herein before cited; C: Open and search any and all safes, boxes, bags, compartments or things in the nature thereof found in or upon said premises or person(s); D: Seize all evidence, paraphernalia and money used in or incidental to the conduct or operation of controlled dangerous substance violations, found in or upon said premise and person(s) in close proximity to contraband, controlled dangerous substances or controlled dangerous substance paraphernalia. ...

F: Seize articles of personal property tending to establish or corroborate the identity of the person or persons in control of the premises consisting of and including, but not limited to, utility company receipts, rent receipts, canceled mail, motor vehicle information and keys---- H: Arrest all person(s) found in or upon said premise who may be participating in violations of the statutes herein before cited, and; ...” By my count, the term “premise” is used in the warrant four times and the term “premises” is used four times. The Merriam-Webster’s Collegiate Dictionary, Tenth Edition, defines the term premise, when used in the plural, i.e. premises, as: “(a) a tract of land with the buildings thereon; (b) a building or part of a building usually with its appurtenances (as grounds).” ²⁴⁴ We conclude that the term “premise” as used in the warrant was a typing error and that the word intended was “premises.” Typist[s], including this writer, frequently rely on Spell Check to locate errors and Spell Check does not highlight such a typing error since both words are correct words. However, the term “premise” simply has no application to the description of property. The use of the term “premise” and “premises” in the same document further convince us that the person drafting the document meant to use the term in the plural, describing a property and its appurtenances located at 30 Liberty Street.

The use of the term “in or upon” the premises, further shows an intent for the warrant to apply to the property of 30 Liberty Street and not just the interior of the house. Certainly, the defendant in this case would not have been immune from arrest because he was standing in the backyard of the property and not inside the house when the police arrived. ^ ^ ^ In the instant case, we conclude that the shed in question was a part of the curtilage of 30 Liberty Street. The shed was within twenty to twenty-five feet of the house. It was in a fully fenced yard.

It was locked so that those passing by could not readily gain entry and it gave no external appearance of being anything other than a utility shed that is commonly found in the rear yard of homes. Defendant makes the argument that the shed was used for his lawn mowing business and therefore was not appurtenant to his home. However, there was nothing external that would give notice that this was a business property. There were no signs advertising a lawn mowing business nor were there any other indicia of business activity.

Normally, the operation of a business in a residential area runs a foul [sic] of the zoning laws unless it is strictly an accessory to the use of the home. ²⁴⁵ In short, we conclude that the words “premise” and “premises” [ ] as used in the warrant, means “premises” and conclude that the warrant clearly directed the search of the property known as 30 Liberty Street and includes the house and its appurtenances, including the storage shed in question. The fact that the defendant ran his lawn mowing business and his CDS distribution business from the shed does not save it from this search. There was no more severe intrusion resulting from the search of the shed than there was from a search of the house. For the reasons set forth above, the motion to suppress the evidence seized f[rom] the storage shed at 30 Liberty Street, Aberdeen, Harford County, Maryland is hereby denied.

(Emphasis in original.) DISCUSSION In considering the denial of a motion to suppress, we are limited to the record of the suppression hearing and do not consider the trial record. Myers v. State, 395 Md. 261, 274 , 909 A.2d 1048 (2006); State v. Green, 375 Md. 595, 607 , 826 A.2d 486 (2003) (citing Dashiell v. State, 374 Md. 85, 93 , 821 A.2d 372 (2003)). We Anew the evidence and all reasonable inferences drawn from that evidence in the light most favorable to the prevailing party, in this case, the State. Myers, 395 Md. at 274 , 909 A.2d 1048 ; Laney v. State, 379 Md. 522, 533 , 842 A.2d 773 (2004); Green, 375 Md. at 607 , 826 A.2d 486 .

We extend great deference to the fact-finding of the suppression court and accept the first-level facts as found, unless clearly erroneous, giving due regard to the court’s opportunity to assess the credibility and demeanor of Avitnesses. Myers, 395 Md. at 274 , 909 A.2d 1048 ; Green, 375 Md. at 607 , 826 A.2d 486 . As to the ultimate determination of whether there was a Fourth Amendment violation, we make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Laney, 379 Md. at 533-34 , 842 A.2d 773 ; Dashiell, 374 Md. at 93-94 , 821 A.2d 372 ; Jones v. State, 111 Md.App. 456, 466 , 681 A.2d 1190 , cert. denied, 344 ²⁴⁶ Md. 117, 685 A.2d 451 (1996) (citing Ornelas v. United States, 517 U.S. 690 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996)).

The appellant contends the evidence seized from the shed behind his house should have been suppressed because the search of the shed was beyond the scope of the warrant. In support, he directs our attention to the Warrant Clause of the Fourth Amendment, which provides 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, and to the analog provision in Article 26 of the Maryland Declaration of Rights that “all general warrants to search suspected places ... without naming or describing the place ... are illegal, and ought not be granted.” Md. Const. art. 26. 2 As the Supreme Court has observed, the warrant particularity requirement guards against general searches by insuring that searches are limited to the places particularly described in the warrants authorizing them: The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one “particularly describing the place to be searched and the persons or things to be seized.” The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the 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.

Thus, the scope of a lawful search is “defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe