Wynn v. State

THIEME, Judge. In two separate trials, appellant James Othel Wynn was convicted by a jury in the Circuit Court for Montgomery County of a total of three counts of daytime housebreaking and three counts of theft. He was sentenced to 12 years in prison and 5 years supervised probation upon release. We summarize the facts necessary to our resolution of the issues raised on appeal.

First Incident of Daytime Housebreaking and Theft Houston Maples left his home on 3 July 1994 and returned home on 4 July 1994. While Maples was away, someone pried open the rear window of Maples’s house with a shovel taken ¹⁴⁰ from Maples’s storage house. After entering the home, the perpetrator took a $600 camcorder, a $20 carrying case, $200 worth of jewelry, a $100 locket, a $100 pin, and a $500 antique bowl. The police recovered Maples’s camcorder after executing a search warrant of appellant’s home almost ten months later.

The camcorder contained a tape showing appellant’s son. Second Incident of Daytime Housebreaking and Theft Charles Garrison left home on the Friday after 4 July 1994 and returned the following Monday. While Garrison was away, someone pried open a rear window and took from Garrison’s house $40-$50 in change, a bag full of pennies, family medals, a $300 antique watch, a gym bag, and a silver frame. After executing the previously mentioned warrant of appellant’s home, police recovered Garrison’s gym bag and the antique watch.

Third Incident of Daytime Housebreaking and Theft Michael Quigley returned home from vacation on 11 July 1994 to find that his home had been burglarized. Two basement windows were open and the door from the basement had been pried open. A pair of bolt cutters that did not belong to Quigley were discovered in the basement. After breaking into Quigley’s home, the perpetrator took a gold Cartier watch, an Omega scuba diving watch, a Swatch watch, an imitation Rolex watch, other watches, coins, jewelry, and a canvas Sierra bag.

The Cartier watch, Omega scuba diving watch, the imitation Rolex watch, and the canvas bag were recovered from appellant’s house during the execution of the warrant. Those items were returned to Quigley. Appellant was charged in a 23-count indictment. He was tried and acquitted on counts one through four, which are unrelated to the instant appeal.

In count five, appellant was charged with the daytime housebreaking of Michael Quigley’s home; count six charged appellant with the theft of Quigley’s property. In count seven, appellant was charged with the daytime housebreaking of the residence of Houston Maples; ¹⁴¹ count eight charged him with the theft of Maples’s property. Appellant was charged with the daytime housebreaking of Charles Garrison’s home in count nine and the theft of Garrison’s property in count ten. Counts 11 through 23 were eventually nol prossed by the State.

Prior to trial, appellant moved to suppress the evidence seized during the execution of the search of his home. He argued that the search violated his Fourth Amendment right against unreasonable search and seizures because police entered his home without first knocking and announcing their presence. The police maintained that they entered appellant’s home unannounced because they were concerned about their safety due to appellant’s extensive criminal record, which included an incident in which he pulled a gun while police officers were attempting to arrest him. Additionally, the concern of the police about their safety was heightened because appellant’s wife, Angela Kenyon, was also believed to be inside the home.

Kenyon had had armed robbery charges in 1989 and 1990, and had an active violation of probation warrant in addition to numerous other charges and convictions. The trial court denied appellant’s motion to suppress. The defense also moved to have the Quigley, Maples, and Garrison counts tried separately. After a hearing on the matter, the trial court ruled that the charges for the thefts and daytime housebreakings of Maples’s and Garrison’s property were to be tried together because the homes were in the same neighborhood and the burglaries occurred over the same weekend.

The charges for the daytime housebreaking and theft of Quigley’s property were tried separately. During appellant’s trial for the crimes that occurred on Maples’s and Garrison’s property, the evidence of the housebreaking and theft of Quigley’s residence was admitted as “other crimes” evidence. Similarly, during the trial for the break-in of Quigley’s home, the break-ins of Maples’s and Garrison’s homes were admitted as “other crimes” evidence. Appellant was convicted on all counts in both trials.

For each housebreaking, he was sentenced to ten years with all ¹⁴² but four suspended; for each theft conviction, he was sentenced to three years, concurrent with the housebreaking sentences. His total time of incarceration was to be 12 years and he was to be placed on five years supervised probation upon release. Appellant noted a timely appeal and raises the following issues, which we have reorganized: 1. Did the trial court err in denying appellant’s Motion to Sever? 2.

Did the trial court err in admitting other crimes evidence at the trial for the Maples and Garrison break-ins? 3. Did the trial court err in admitting other crimes evidence at the trial for the Quigley break-in? 4. Did the trial court err in denying appellant’s Motion to Suppress? 5. Did the trial court err in failing to disclose the contents of a jury note sent to the judge during deliberations? 6.

Was the evidence sufficient to sustain appellant’s convictions? I. Appellant’s first contention is that the trial court erred in joining the trials of the break-ins and thefts of the Garrison and Maples homes. In a jury trial, severance is “absolutely mandated, as a matter of law, when the evidence with respect to the separate charges ... would not be mutually admissible.” Solomon v. State, 101 Md.App. 331, 340 , 646 A.2d 1064 (1994). The trial judge has no discretion to join similar offenses where the evidence as to them was not mutually admissible.

Id. (quoting Graves v. State, 298 Md. 542, 545-46 , 471 A.2d 701 (1984)). Evidence is mutually admissible when evidence of one offense would be admissible in the trial of the other offense and vice versa. This usually involves admissibility under the “other crimes” exception.

The admissibility of “other crimes” evidence is governed by Maryland Rule 5-404(b). That rule reads as follows: ¹⁴³ (b) Other Crimes, Wrongs, or Acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. We summarized this area of the law in Kearney v. State, 86 Md.App. 247, 253 , 586 A.2d 746 (1991).

In that case, we stated: [I]n a jury trial, “a defendant charged with similar, but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials.” Indeed, where the evidence at a joint jury trial is not mutually admissible because of “other crimes” evidence, there is prejudice as a matter of law which compels separate trials. (Citation omitted; emphasis in original.) Kearney, 86 Md.App. at 253 , 586 A.2d 746 . The rationale for severance of trials unless the evidence is mutually admissible was explained by the Court of Appeals in McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977). In that case, the Court explained that joinder of similar offenses may prejudice the defendant in three respects: First, he may become embarrassed, or confounded in presenting separate defenses....

Secondly, the jury may cumulate the evidence of the various crimes charged and find guilt when, if the offenses were considered separately, it would not do so. At the very least, the joinder of multiple charges may produce a latent hostility, which by itself may cause prejudice to the defendant’s case. Thirdly, the jury may use the evidence of one of the crimes charged, or a connected group of them, to infer criminal disposition on the part of the defendant from which he may also be found guilty of other crimes charged. Id. at 609 , 375 A.2d 551 .

As Judge Moylan reminded us in Solomon , however, “the procedural aspects of severance/joinder law do not sub ¹⁴⁴ sume the procedural aspects of ‘other crimes’ evidence law, for the two settings are, procedurally, totally dissimilar.” Solomon, 101 Md. App. at 342 , 646 A.2d 1064 . When analyzing whether evidence at a joint jury trial would be mutually admissible, therefore allowing the joinder of the trials, the first step is the “purely substantive determination of whether evidence of another crime is prima facie admissible, singly or mutually, by virtue of its utility to prove motive, intent, absence of mistake, identity, common scheme or plan, etc.” Id. at 343 , 646 A.2d 1064 . There is a presumption that the evidence should be excluded; in effect, it is fair to say that all relevant “other crimes” evidence stays out unless it is substantially relevant to show something other than criminal propensity. See Harris v. State, 324 Md. 490, 500-501 , 597 A.2d 956 (1991).

The second step is a permissible weighing of the undue prejudice against the defendant with the interests of judicial economy. Id. at 345-47, 646 A.2d 1064 . Thus, we move to a determination of whether, in the instant case, the evidence concerning the housebreaking and theft of Garrison’s and Maples’s property were mutually admissible. In essence, whether the evidence of the crimes joined together in a single trial in the instant case would have been admissible if the two cases were tried separately.

As the Court of Appeals pointed out in Harris and Judge Moylan reemphasized in Solomon , other crimes evidence is not confined to a finite list. Harris, 324 Md. at 497 , 597 A.2d 956 ; Solomon, 101 Md.App. at 353 , 646 A.2d 1064 . In the instant case, the only reasons given by the lower court in joining the charges in a single trial was that the homes were in the same neighborhood and the incidents occurred over the same weekend. The trial court abused its discretion when it joined the trials based solely on proximity in time and location. “Mere proximity in time and location within which several offenses may be committed does not necessarily make one offense intertwine with the others.” State v. Jones, 284 Md. 232, 243 , 395 A.2d 1182 (1979); see also Bussie v. State, 115 Md.App. 324, 335 , 693 A.2d 49 (1997). ¹⁴⁵ The State argues, however, that the trial court was right for the wrong reason.

It argues that evidence of each of the individual burglaries referred to above would be mutually admissible at separate trials to show a common scheme or plan. In the alternative, the State argues that the evidence would be mutually admissible because of the identity exception. We disagree with both of the State’s contentions. “To establish the existence of a common scheme or plan, it is necessary to prove that the various acts constituting the offenses naturally relate to one another by time, location, circumstances and parties so as to give rise to the conclusion that they are several stages of a continuing transaction.” Jones, 284 Md. at 243 , 395 A.2d 1182 . The Court of Appeals has stated that, [a]s a general rule, in order to gain the admission of evidence of other criminal acts under the common scheme or plan exception it is necessary that the crimes, including the crime charged, so relate to each other that proof of one tends to establish the other.

Moreover, there must be “not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” The concurrence of common features under this exception, however, must be more than simply a manner of operation, which is possessed to some extent by most criminal recidivists. A method of operation is not, by itself, a common scheme, but merely a repetitive pattern. Cross v. State, 282 Md. 468, 475-76 , 386 A.2d 757 (1978) (internal citations omitted) (emphasis in original). In the case sub judice, the State relies on the following evidence in support of its claim that the break-ins and thefts were part of a common scheme or plan: (1) the two burglaries occurred in the same neighborhood on the same weekend; (2) both homes were entered through a rear window that was pried open; (3) neither of the homes was ransacked during the burglary; and (4) most importantly, according to the State, ¹⁴⁶ property taken from both residences was later recovered from Wynn’s apartment when police executed a search warrant.

Despite the State’s efforts, we are not persuaded that the break-ins and thefts from the homes of Garrison and Maples were part of a common scheme or plan. As we pointed out earlier, the proximity of time and location does not necessarily make one offense intertwine with the others. Jones, 284 Md. at 243 , 395 A.2d 1182 . There must be additional factors, the sum of which indicates a common scheme or plan.

Thus, the first piece of evidence advanced by the State as indicative of common scheme and plan is, standing alone, unavailing. The second and third pieces of evidence advanced by the State as suggestive of a common scheme or plan are nothing more than a manner of operation, which is possessed to some extent by most criminal recidivists. See Cross, 282 Md. at 475 , 386 A.2d 757 . This is not a common scheme or plan.

We do not believe that it is such a “concurrence of common features” that the thief pried open a rear window and did not ransack the homes. As to the former, it seems that this method of entry would be favored by most petty thieves that desired entry into a home and hardly such a common feature that all acts are naturally explained together. As to the latter, the same reasoning applies: we do not believe that homes are ransacked so consistently when burglarized that the failure to do so suggests a common scheme or plan. The fourth proposition offered by the State, that property taken from both residences was later recovered from Wynn’s apartment when police executed a search warrant (which the State considers to be most important), is also unavailing.

The fact that the offenses were committed by the same person does not qualify them to be admitted under the exception. Jones, 284 Md. at 243 , 395 A.2d 1182 . Additionally, even when considering the sum of all four pieces of evidence together, they still do not indicate a common scheme or plan. We are simply unconvinced that the similarities present common features so that the various acts are naturally to be explained as caused by a general plan. ¹⁴⁷ The State’s argument that the “other crimes” evidence is admissible under the identity exception can be quickly dispensed.

In order for this exception to be applicable, the other crimes must be “so nearly identical in method as to earmark them as the handiwork of the accused.” State v. Faulkner, 314 Md. 630, 638 , 552 A.2d 896 (1989). For the reasons mentioned above, the method of breaking into the rear of a house with an available tool is hardly so unique as to indicate the perpetrator of the crime. Thus, for the purposes of joinder!severance law, the Maples and Garrison offenses were not mutually admissible. The trial court erred in joining the trials of the daytime housebreakings and thefts of the Maples and Garrison homes.

Accordingly, we remand so that the cases can be tried separately.

II

In light of our response to the first issue raised by appellant, we do not reach the issue of whether the trial court erred by admitting other crimes evidence at the joined trial of the housebreaking and thefts of the Garrison and Maples homes. We point out, however, that because the other crimes evidence was not mutually admissible for purposes of joinder of trials, it does not necessarily follow that the other crimes evidence is automatically inadmissible when cases are tried separately. This is the point Judge Moylan made in Solomon, 101 Md.App. at 335-47 , 646 A.2d 1064 : the test for whether “other crimes” evidence is admissible is different for joinder/severance law and evidence law. The test concerning admissibility for evidence law is as follows: (1) the trial judge determines whether evidence of another crime is prima facie admissible, singly or mutually, by virtue of its utility to prove motive, intent, absence of mistake, identity, common scheme or plan, etc., id., 101 Md.App. at 343 , 646 A.2d 1064 ; (2) the trial judge decides whether the accused’s involvement is established by clear and convincing evidence, id.; (3) the trial judge “assesses] the ‘necessity for ¹⁴⁸ and probative value of the other crimes evidence’ and then ‘carefully weigh[s][it] against any undue prejudice likely to result from its admission.’ ” Id. at 345 , 646 A.2d 1064 (quoting Faulkner, 314 Md. at 635 , 552 A.2d 896 ).

III

Appellant next asserts that the trial court erred in admitting evidence of the Garrison and Maples break-ins and thefts as “other crimes” evidence in the trial for the break-in and theft of the Quigley home. The trial court admitted the evidence of the Garrison and Maples break-ins and thefts under the absence of mistake exception. Whether to admit “other crimes” evidence is a legal “call” as to which the trial judge is either right or wrong. Emory v. State, 101 Md.App. 585, 604 , 647 A.2d 1243 (1994).

We extend no deference to a trial judge’s decision to admit “other crimes” evidence. Id. “The starting proposition with respect to ‘other crimes’ evidence is that it should be excluded.” Emory, 101 Md.App. at 601 , 647 A.2d 1243 . In Emory , Judge Moylan stated: Notwithstanding the presumptive exclusion of “other crimes” evidence, such evidence may be admitted, subject to clearing two additional hurdles, if it is “substantially relevant to prove some contested issue” in the case. That initial hurdle, let it be carefully noted, is not simply that the “other crimes” evidence be technically or minimally relevant to some formal issue in the case other than criminal propensity, but further 1) that the relevance be substantial and further still 2) that it be with respect to a genuinely contested issue in the case.

Emory, 101 Md.App. at 602 , 647 A.2d 1243 (emphasis in original). The evidence in the instant case was substantially relevant to a genuinely contested matter in the case. The issue at trial ¹⁴⁹ was whether appellant stole the merchandise from the victim’s house. He claimed to have come to possess the merchandise by purchasing it at a flea market.

Thus, not only was the issue substantially relevant and contested, it was a central issue of the case. From the determination of the theft issue, the housebreaking issue was decided. If appellant had the stolen items, it can be inferred that he was the person that broke into the house. See Grant v. State, 318 Md. 672, 680 , 569 A.2d 1237 (1990).

Thus, the issue was critical to the determination of both counts. Lynn McLain, Maryland Evidence § 404.12, at 368 (1987), discusses the absence of mistake exception: If the defendant admits that he or she took an action, but claims to have done so unintentionally or by mistake, so that allegations of, for example, forgery, fraud, embezzlement, or malice are unfounded, the prosecution may offer evidence of his or her similar prior wrongs, acts, or crimes. This use of the evidence as proof of absence of mistake is merely the obverse of proof of intent. Similarly, the defendant may claim the harm he or she is alleged to have caused was not at his or her hands, but was the result of an independent accident.

Evidence of prior similar acts is then admissible to show lack of mistake or accident. For example, if a defendant charged with child abuse contends that the child’s injuries were caused by an accidental fall, evidence of prior beatings of the child by the defendant will be admissible, (footnotes omitted). In Emory, supra, we held that “other crimes” evidence relating to various narcotics-related activities engaged in by defendants prior to commencement of the time period charged in the indictment was not admissible in a drug conspiracy prosecution for the purpose of showing absence of mistake or accident, since that was not at issue in the latter case; the defendants never argued that their apparent involvement with marijuana was somehow an inadvertent or bizarre mistake, and thus there was no claim, proffer, or theory of mistake that needed to be negated. Id. at 608-09 , 647 A.2d 1243 . ¹⁵⁰ In the trial in the instant case, appellant argued that he came into possession of that stolen merchandise by mistake; he claimed to have innocently purchased it at a flea market.

Carvelas Sellers, a defense witness, testified that she saw appellant at a flea market with several bags of merchandise. Furthermore, appellant extensively questioned Garrison and Maples as to whether the items taken from their houses were unique or simply mass produced. Finally, during closing arguments, appellant argued that he innocently purchased at a flea market the items that were seized from his house. Because appellant argued a defense of mistake or accident, evidence of prior similar acts was admissible to show lack of mistake or accident.

Appellant, however, levels another assertion of error against the “other crimes” evidence in this case. He claims that the State did not satisfy the second prong of the three-prong test that the trial judge undertakes when deciding whether to admit “other crimes” evidence because the evidence was not clear and convincing that the other crimes had ever occurred. Judge Moylan discussed this issue in Emory : When it comes to appellate review, however, the question becomes that of whether the State met its prima facie burden of production with respect to the other crimes. A reviewing court looks only at the legal question of whether there was some competent evidence which, if believed, could persuade the fact finder as to the existence of the fact in issue.

Evidence which is legally sufficient to persuade one fact finder to the bare preponderance level is, ipso facto, legally sufficient to persuade a second fact finder to the clear and convincing level and yet a third fact finder to the beyond-a reasonable-doubt level. The questions of whether and of the degree to which legally sufficient evidence actually persuades is idiosyncratic with the fact finder. Because the weighing of evidence is the exclusive prerogative of the fact finder and does not impact on the purely legal question of whether some competent evidence is present to support a finding, evidence that is legally sufficient to satisfy one burden of persuasion is legally sufficient to satisfy any ¹⁵¹ burden of persuasion. This is the “clearly erroneous” standard of appellate review.

It was explicitly spelled out by State v. Faulkner, 314 Md. at 635 , 552 A.2d 896 :.... Emory, 101 Md.App. at 622 , 647 A.2d 1243 . Vogel v. State, 315 Md. 458 , 554 A.2d 1231 (1989), makes it clear that a trial judge, in that ancillary fact-finding capacity, is not required to spread upon the face of the record the burden of persuasion he employs on this issue when he determines to admit “other crimes” evidence. In the absence of indications to the contrary, it is presumed that the judge knew the applicable law and followed it.

Emory, 101 Md.App. at 623-24 , 647 A.2d 1243 . On only one occasion have the appellate courts of this state ever reversed the admission of “other crimes” evidence on the ground that the evidence was not legally sufficient to permit a finding that the other crimes had ever occurred;.... 101 Md.App. at 623, 647 A.2d 1243 . In the instant case, Michael Quigley, the victim of the “other crime,” testified that when he returned from vacation, his home had been burglarized. The investigating police officer testified that the house was entered through a rear window.

Quigley identified some of the items recovered at appellant’s house as the items stolen from the Quigley home. We see no reason that the testimony was insufficient to persuade the trial judge clearly and convincingly that the “other crime” occurred. Leaving no stones unturned, appellant finally contends that the trial court erred in weighing the probative value of the evidence against the undue prejudice to him. In Faulkner, 314 Md. at 635 , 552 A.2d 896 , the Court of Appeals described this third step: The necessity for and probative value of the “other crimes” evidence is to be carefully weighed against any undue prejudice likely to result from its admission.

This segment ¹⁵² of the analysis implicates the exercise of the trial court’s discretion. (Citations omitted.) In Emory, 101 Md.App. at 624 , 647 A.2d 1243 , we described the abuse of discretion test as “a highly deferential standard of appellate review.” In the instant case, there was great probative value of the evidence but the prejudice to the appellant was also great. The evidence was probative because it was necessary to defeat appellant’s claim that he innocently obtained the items. Having items from three homes that were recently broken into is significantly more probative than possessing some items from the theft of a single home.

On the other hand, the evidence was prejudicial because there was the chance that the jury might cumulate the evidence of the various crimes charged and find guilt when, if the offenses were considered separately, it would not do so. Also, the jury could use the evidence of one of the crimes charged, or a connected group of them, to infer criminal disposition on the part of the defendant, from which he could also be found guilty of other crimes charged. In deciding this difficult matter, we will defer to the wisdom of the trial judge. “The weighing of a strong need against a heavy prejudice would be one of those close calls where an appellate court would be extremely loathe to second-guess the decision of the trial judge, whichever way [he] went.” Emory, 101 Md.App. at 625 , 647 A.2d 1243 . Accordingly, we affirm the decision of the trial court to admit the evidence of the Garrison and Maple break-in and theft as “other crimes” evidence in the Garrison and Quigley case.

IV

Appellant’s fourth assertion of error is that the trial court erred in denying his Motion to Suppress. In 1766, during the debates in Parliament on the legality of general warrants, the Roman maxim nemo de domo sua extrahi debet was brilliantly interpreted by William Pitt in his immortal statement: The poorest man may, in his cottage, bid defiance to all forces of the Crown. It may be frail; its roof may shake; ¹⁵³ the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dare not cross the threshold of the ruined tenement. The next issue before the court is whether, like the King of England, the police must knock before entering.

We will address the issue despite our remand on the first issue in the interest of judicial economy. See generally Maryland Rule 8-131. If we did not discuss the issue, there is a likelihood that the case would be remanded and retried and this same issue would be raised on appeal of the remanded case. -background- In Miller v. United States, 357 U.S. 301 , 78 S.Ct. 1190 , 2 L.Ed.2d 1332 (1958), officers, having neither a search nor arrest warrant, went to arrest Miller. When the officers knocked at Miller’s door, he asked, “Who’s there?” The officers responded, “Police.” Miller opened the door slightly, but did not remove the chain.

Upon seeing the officers, Miller fried to close the door. The officers then forced entry, arrested him, and searched his apartment. Marked money was recovered. Id. at 303-304 , 78 S.Ct. at 1192-93 .

Miller argued that while 18 U.S.C. § 3109 1 sets forth the proper ¹⁵⁴ method of entry under a search warrant, it should also apply' to a case involving an arrest warrant. Id. at 306 , 78 S.Ct. at 1194 . The Supreme Court agreed that § 3109 applied to Miller’s case. Id. at 309, 78 S.Ct. at 1195-96 .

Justice Brennan, writing for the majority, held that at common law, an announcement of both lawful authority and purpose was required before the police could break and enter a home. Id. at 307 , 78 S.Ct. at 1194-95 . Justice Brennan noted that there were exceptions to this knock and announce rule, id. at 309 , 78 S.Ct. at 1195-96 , but rejected, as factually unsupported, the government’s argument that the officers were excused from the requirement because they were virtually certain that Miller already knew their purpose so that an announcement would have been a useless gesture. Id. at 310 , 78 S.Ct. at 1196 .

Although Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963), is popularly recognized as setting forth the “fruit of the poison tree” doctrine, it also interpreted 18 U.S.C. § 3109 . In Wong, an officer posed as a customer to gain entry to a laundry. A man later identified as James Toy opened the door and told the officer the laundry was not yet open and to return later. As Toy started to close the door, an officer took out his badge and identified himself.

Toy slammed the door shut and ran down a hallway which led from the shop to his living quarters. Officers broke open the door, pursued, and arrested Toy. A search of his living quarters uncovered no contraband. Toy subsequently made incriminating statements about Wong Sun, who was later arrested for violations of the federal narcotics laws.

Wong Sun, 371 U.S. at 473-75 , 83 S.Ct. at 409-11 . Justice Brennan, writing for the majority, stated: We noted in ... [.Miller v. United States ] that the lawfulness of an officer’s entry to arrest without a warrant “must be tested by criteria identical with those embodied in 18 U.S.C. § 3109 , which deals with entry to execute a search warrant.” Id. at 482 , 83 S.Ct. at 414 (quoting Miller, 357 U.S. at 306 , 78 S.Ct. at 1194 ). The Supreme Court held that the flight of the ¹⁵⁵ defendant did not justify the unannounced police entry, nor did it create probable cause to arrest or search the defendant. Wong Sun, 371 U.S. at 482-83 , 83 S.Ct. at 414-15 .

Although the officer identified himself, his misrepresentation failed to comply with his duty to knock and announce. Id. at 482-84 , 83 S.Ct. at 414-16 . The majority opinion suggested that there might be some common-law exceptions to the “knock and announce rule,” including “imminent destruction of evidence or to rescue a victim in danger.” Id. at 484 , 83 S.Ct. at 415 . The following year, the Supreme Court decided Ker v. California, 374 U.S. 23, 83 S.Ct. 1623 , 10 L.Ed.2d 726 (1963), which involved the warrantless arrest of George and Diane Ker for possession of marijuana.

After observing what was believed to be a drug transaction, officers entered the Kers’ apartment with a passkey. After entry, one of the officers identified himself and met George and Diane Ker as they were emerging from the kitchen. The officer observed marijuana sitting on a scale in the kitchen. Ker, 374 U.S. at 28-29 , 83 S.Ct. at 1627-28 .

At trial, officers testified that, based on their experience, suspects would flush narcotics down toilets or dispose of drugs in some manner prior to the entrance of the officers. Id. at 28 n. 3, 83 S.Ct. at 1627 n. 3. Justice Clark, writing for one of two four-Justice pluralities, held that under the Fourth Amendment the officers failure to knock and announce prior to entry was justified by exigent circumstances; specifically, to prevent the destruction of contraband. Id. at 25, 40, 83 S.Ct. at 1625, 1633.

Justice Harlan concurred, but on Fourteenth Amendment grounds. Id. at 44-46, 83 S.Ct. at 1635-36. Justice Brennan, writing for the other four-Justice plurality, held that any exceptions to the knock and announce rule were inapplicable and that the arrest was therefore illegal. Id. at 61-64, 83 S.Ct. at 1643^5.

Although the divided Court agreed that certain exceptions to the knock-and-announee rule existed, the Court could not agree upon the formulation and application of those exceptions. Eight justices agreed that the