Peters v. State , 224 Md. App. 306 ( 2015 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1800
September Term, 2013
MARK PETERS
v.
STATE OF MARYLAND
Eyler, Deborah S.,
Arthur,
Moylan, Charles E., Jr.
(Retired, Specially Assigned),
JJ.
Opinion by Eyler, Deborah S., J.
Filed: August 26, 2015
The primary issue in this appeal is whether the police had probable cause to search
an apartment in a multi-unit apartment building to apprehend suspects in a shooting incident.
In the Circuit Court for Baltimore City, Mark Peters, the appellant, was indicted for
attempted murder and numerous other crimes stemming from that incident. Before trial, he
moved to suppress tangible evidence recovered in the search of the apartment, which was
carried out without a warrant. The court denied the motion on the ground that exigent
circumstances justified the warrantless search and, even if it did not, the inevitable discovery
doctrine applied.
A jury convicted Peters of first-degree assault, reckless endangerment, use of a
handgun in the commission of a crime of violence, wearing, carrying, and transporting a
handgun, attempted robbery with a dangerous weapon, and possession of a regulated firearm
by a disqualified person. He was sentenced to an aggregate term of 25 years’ imprisonment.
On appeal, Peters presents three questions for review, which we have reordered and
rephrased:
I. Did the circuit court err in denying his motion to suppress tangible
evidence?
II. Was the evidence legally sufficient to sustain his conviction for
attempted robbery with a dangerous weapon?
III. Did the circuit court err in failing to dismiss for lack of a speedy trial?
We hold that the circuit court erred in denying the motion to suppress, and therefore
shall reverse the judgments of conviction. We find no merit in Peters’s other issues.
Accordingly, we shall remand the case to the circuit court for further proceedings.
I.
(A)
The charges against Peters all concerned the non-fatal shooting of Vaughn Johnson,
on January 27, 2012. Peters filed a pre-trial motion to suppress from evidence two handguns
and a ski mask the police recovered from 5933 Radecke Avenue, Apartment J. He argued
that the items were obtained by the police in a warrantless search in violation of the Fourth
Amendment.
The suppression hearing was held on the day of trial. It was interrupted by hearings
on other motions in the case and by jury selection and was completed on the second day of
trial. Officer Bryan Loiero and Sergeant Lamont Davis of the Baltimore City Police
Department (“BPD”) testified for the State. Officer Zachary Wein, also with the BPD, in
its SWAT Unit, was called by the defense. By agreement, the transcript of a recorded
statement by Janee Gross, Johnson’s girlfriend, was admitted into evidence. The defense
introduced into evidence an “Incident Case Folder” prepared by Sergeant Davis and a search
and seizure warrant for Apartment J, including the warrant application. The evidence at the
suppression hearing showed the following.
On the night in question at 8:55 p.m., Officer Loiero was on routine patrol when a
call went out for a possible shooting in progress at 5925 Radecke Avenue. That address is
one of several apartment buildings that make up the Garden Village apartment complex, in
Baltimore City. Officer Loiero was a block away and arrived at the scene in less than a
2
minute. He entered building 5925 and found Johnson lying on the floor next to the door
to his apartment, bleeding from two gunshot wounds to his torso.
Officer Loiero called for an ambulance, quickly determined that no one was inside
Johnson’s apartment, and asked Johnson who had shot him. Johnson replied that the shooter
was a man he did not know who “was with Ty, he was with Ty.” He described the shooter
as light-skinned, with a mustache, wearing a dark jacket and carrying two guns. He told
Officer Loiero that Ty lived “somewhere on St. Regis,” a street the officer knew to be a
block north of the apartment complex.
After radioing that information to the dispatcher, Officer Loiero spoke with Janee
Gross, who was in the building. She had visited Johnson that night in his apartment. When
she was ready to leave, he walked her to her car, which was in the parking area in front of
his apartment building, and returned to his apartment. She sat in her car, waiting for it to
warm up. Suddenly she saw two men dressed in black and wearing black face masks
running away from Johnson’s apartment building and into one of two other apartment
buildings in the complex. She called Johnson, who did not answer his cell phone. She
entered his apartment building and found him right after he had been shot.1 Gross pointed
out for Officer Loiero the buildings she saw the two men enter. They were buildings 5931
1
There were no facts elicited at the suppression hearing about whether one could enter
any of the apartment buildings without a key or without being buzzed in by an occupant.
Facts adduced at trial showed the apartment buildings required a key or a buzzer response
for entry, and that Gross was able to enter Johnson’s building because a pizza delivery man
had just been buzzed in and he held the door for her.
3
and 5933 Radecke Avenue. She did not know which of the two buildings the men had
entered. She did not see any guns.
Numerous police units converged on the apartment complex, and Officer Loiero
called for additional units to respond to the 5931 and 5933 buildings because “apparently
the suspects had ran into that location.” From past experience, Officer Loiero knew that
each apartment building in the complex was two stories with a single front door for ingress
and egress. He directed all responding officers to form an “inner perimeter” around both
buildings, and not to allow anyone to enter or exit either building. According to Officer
Loiero, the “inner perimeter” was in place within a matter of minutes after he arrived at the
crime scene.
At about 9:15 p.m., a SWAT team arrived and began an apartment-by-apartment
search, first of building 5931 and then of building 5933. Each building had twelve
apartments, designated A through L. The SWAT team took the same approach at every
apartment. A SWAT team member holding a handgun and a ballistic shield, known as a
“bunker,” knocked on the door, announcing police presence. If there was a response, the
team member directed the occupant(s) to exit. If there was no response to repeated
knocking, the SWAT team used a battering ram to force open the door. In both situations,
the SWAT team members swept the apartment, looking for any occupants (or additional
occupants), and if any were found ordered them out. Another SWAT team member, called
the “hands man,” obtained the occupants’ names and information. After being interviewed
4
by the “hands man,” occupants were escorted to buses that had been brought in, where they
were questioned and directed to wait until the entire search operation had been completed.
In entering and searching each apartment, the SWAT team was looking for an
occupant named “Ty.” The team’s apartment-by-apartment search of building 5931 did not
reveal any apartment occupant by that name. The team moved on to building 5933. The
team members searched Apartments A through I in that building without finding an
occupant named “Ty.” At 2:00 a.m., the SWAT team reached Apartment J. Officer Wein
knocked on the door. He was holding his handgun and bunker. A man answered the door;
two other men were with him. The men were ordered to show their hands and exit the
apartment. The “hands man” spoke to them and learned that their names were Tyreze
Braxton, Tyrell Braxton, and Mark Peters (the appellant). They were handcuffed.
Officer Wein, followed by other SWAT team members, entered Apartment J and
proceeded to clear it, “making sure there was nobody else that wasn’t at the front door, that
may have been armed or dangerous in that location.” Officer Wein entered the bathroom
and pulled back the shower curtain. He testified that, as he did so, his bunker hit a grate
covering a vent on the shower wall, knocking the grate to the floor. After determining that
the bathroom was clear, he cleared the rest of the apartment, finding no other occupants. He
returned to the bathroom to place the grate back over the vent. He noticed a black object
inside the vent that looked like a T-shirt or a hat. There appeared to be objects inside it, but
he could not see what they were. Officer Wein did not touch anything in the vent. He
notified his superior officer about his discovery.
5
Sergeant Davis had taken charge of the crime scene shortly after Officer Loiero called
for units to form a perimeter around buildings 5931 and 5933. At around 3:15 a.m.,
Sergeant Davis was notified that the SWAT team had found a person named “Ty” in
Apartment J of the 5933 building. Sergeant Davis went to that apartment. One of the
SWAT team members told him there was something in the vent in the bathroom. Sergeant
Davis looked inside the bathroom vent and saw what “looked like a black towel or
something, it was bulky.” He “removed it and it was a ski mask and inside the ski mask
were two handguns.” He “folded it back, . . . placed it back inside the vent.” Although
Sergeant Davis clearly testified on direct and cross-examination that he could not see what
was inside the “bulky” towel-like item in the vent until he removed it from the vent, his
testimony changed somewhat when the court pressed him as to why he did not obtain a
search warrant before seizing the items from the vent. He claimed that when he looked in
the vent he could see “what looked to be the handle of a gun wrapped up in what I believed
was a towel,” but he was “[n]ot 100 percent” certain that he could identify the object as a
gun and that was why he removed the entire thing from the vent.2
While another officer secured Apartment J, Sergeant Davis prepared an application
for a search and seizure warrant for that apartment. His affidavit in support of the warrant
application reads, in pertinent part:
As other patrol officers arrived at the scene they were advised by concerned
citizens that approximately 2-3 unidentified black males fled from the location
2
Officer Wein, who first saw the object in the vent, did not testify that he saw the
handle of a gun when he looked in the vent.
6
of 5925 Radecke Avenue where the Attempted Murder of Mr. Vaughn
Johnson occurred and ran into the apartment building of 5933 Radecke
Avenue.[3] Northeast District Patrol officers began to set up a perimeter due
to the fact that there were no rear exits from the apartment building. The
Baltimore City Police Departments [sic] SWAT Team was contacted and
dispatched to the area at which time a command post was assumed.
The Baltimore City Police Department’s SWAT Team began to
conduct an orderly and methodical security search of each apartment within
the building of 5933 Radecke Avenue for the safety of the residents within.[4]
Upon reaching 5933 Radecke Avenue Apartment J., the Baltimore City Police
Department’s SWAT Team accosted three unidentified black males within the
apartment. While clearing the apartment, the SWAT Team noticed an open
air vent within the bathroom without the cover attached to it. For Officer
Safety issues the SWAT Team observed the butt of what they believed to be
a handgun.[5] At that point the Baltimore City Swat [sic] Team secured the
unidentified males along with the apartment of 5933 Radecke Avenue
Apartment J for the purposes of obtaining a Search & Seizure warrant to
recover any and all ballistic evidence that may be related to the Attempted
Murder of Mr. Vaughn Johnson and the fruits of any other crime.
According to Sergeant Davis, at about 8:30 a.m., the police reentered Apartment J to
execute the warrant; and they left at around 9:30 a.m. He acknowledged that the crime lab
report shows that the two guns were removed from Apartment J at 8:17 a.m. Sergeant Davis
3
This information is incorrect. The only information received about the men seen
running from Johnson’s apartment building was obtained from Gross, who reported seeing
two men (not two or three men) and who reported that they fled into either the 5931 building
or the 5933 building.
4
This inaccurately omits that the police searched the 5931 building before searching
the 5933 building.
5
This information also is incorrect. The vent was not open when Officer Wein
entered the bathroom; neither he nor any other member of the SWAT team “observed the
butt of what they believed to be a handgun.” Officer Wein testified that this information was
not correct.
7
maintained that the guns only were removed after the warrant issued, and pointed out that
the return for the warrant shows that it was executed at 10:00 a.m.
The circuit court denied Peter’s motion to suppress. It ruled that the warrantless
search of Apartment J of building 5933 was justified by exigent circumstances and, even if
it was not, the guns and ski mask were admissible under the inevitable discovery doctrine:
The police arrived moments after a shooting. There was . . . two bullet holes
in the victim, so they knew that it was a gun. Ms. Gross reports that she saw
two people run into either 5933, 5931. SWAT is called almost immediately.
The building – the two buildings are secured. There’s a systematic search of
the apartments. I’m satisfied that these are exigent circumstances which
would permit the entry into Apartment J.
Once inside the apartment, Officer Wein testifies that a vent falls open.
He sees what appears to him as a black material, which is a small enough
place to hide guns. And I am satisfied that he would have had a sufficient
exigency at that time to search the vent. But even if he – when he did not
search the vent, eventually it was searched. And even if there was not a
sufficient exigency, I find that since the search warrant was obtained soon
after that, that the State had . . . used proper and predictable investigatory
procedures and that those procedures would have inevitably have resulted in
the discovery of the evidence in question.
There was no testimony at the suppression hearing about the connection, if any, the
two “Tys” and Peters had to Apartment J. At one point the prosecutor attempted to elicit
evidence about Peters’s address. The court interrupted, saying that the State had waived its
right to challenge standing.6 The prosecutor did not proffer what the evidence would have
shown.
6
The prosecutor was not making a standing argument at the time the court interjected.
No standing argument was made below, and there is no standing argument advanced on
appeal.
8
The evidence on this point was adduced on the second day of trial (which was the
first day testimony was taken) and was not disputed. We add it for the sake of completeness,
and also because it is evidence the court should not have disallowed. Apartment J in
building 5933 was leased by Tyreze Braxton, who lived there alone.7 Tyrell Braxton, his
twin brother, was living on St. Regis Avenue. On the evening in question, soon after Tyreze
got home from a work event, Tyrell and Peters arrived at his apartment. The Braxton twins
had known Peters for many years, as they had mutual relatives. After awhile, Tyrell asked
Tyreze if he would drive them to their aunt’s house. Tyreze agreed, but discovered that the
police had surrounded the building and would not let anyone leave. The men remained in
Tyreze’s apartment. They fell asleep and later were awoken by the SWAT team.
Tyrell and Peters were charged with crimes arising out of the shooting of Johnson.
The charges against Tyrell were nol prossed. Tyreze was not charged with any crime.
(B)
Peters contends the circuit court erred by denying his motion to suppress because
there was no exigency to justify the police entering Apartment J without a warrant to search
for the suspects in the Vaughn Johnson shooting.
The well-established standard of review is as follows:
“In reviewing a circuit court’s grant or denial of a motion to suppress
evidence, we ordinarily consider only the evidence contained in the record of
the suppression hearing. The factual findings of the suppression court and its
7
At the time of the shooting, Tyreze was a cadet in training with the Maryland State
Police. At trial, he testified for the State. By then, he was a member of the Maryland State
Police.
9
conclusions regarding the credibility of testimony are accepted unless clearly
erroneous. We review the evidence and the inferences that may be reasonably
drawn in the light most favorable to the prevailing party. We undertake our
own constitutional appraisal of the record by reviewing the law and applying
it to the facts of the present case.”
McFarlin v. State, 409 Md. 391, 403 (2009) (quoting Rush v. State, 403 Md. 68, 82-83
(2008) (citations and footnote omitted)).
“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside
a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S.
573, 586 (1980) (citation omitted). See also Brigham City v. Stuart, 547 U.S. 398, 403
(2006). As the Supreme Court has explained: “[T]he Fourth Amendment has drawn a firm
line at the entrance to the house. Absent exigent circumstances, that threshold may not
reasonably be crossed without a warrant.” Payton, at 590. See also Kentucky v. King, ___
U.S. ___, 131 S. Ct. 1849, 1856 (2011) (stating that a search of a home without a warrant
may be justified when “‘“the exigencies of the situation’” make the needs of law
enforcement so compelling that [a] warrantless search is objectively reasonable under the
Fourth Amendment’” (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978))).
The exigent circumstances exception to the warrant requirement “is a narrow one[,]”
Williams v. State, 372 Md. 386, 402 (2002) (citations omitted), and the State bears a “‘heavy
burden,’” id. at 407 (citation omitted), of proving “‘specific and articulable facts to justify
the finding of exigent circumstances.’” Id. (quoting United States v. Shephard, 21 F.3d 933,
938 (9th Cir. 1994)). Its burden “may not be satisfied ‘by leading a court to speculate about
what may or might have been the circumstances.’” Id. (quoting United States v. Driver, 776
10
F.2d 807, 810 (9th Cir. 1985)). The facts are to be considered as they appeared to the police
officers at the time of the warrantless entry. Id. at 403. The extent of the warrantless entry
is “‘strictly circumscribed by the exigencies which justify its initiation.’” Mincey, 437 U.S.
at 393 (quoting Terry v. Ohio, 392 U.S. 1, 25-26 (1968)).
The two most common exigent circumstances are hot pursuit of a fleeing felon, see,
e.g., United States v. Santana, 427 U.S. 38, 42-43 (1976), and imminent destruction of
evidence, see, e.g., Schmerber v. California, 384 U.S. 757, 770-71 (1966). In the case at bar,
the circuit court’s exigency finding was based solely upon “hot pursuit.” The parties focus
their arguments on that type of exigency, and do not argue that imminent destruction of
evidence or any other type of exigency existed or was found.8
Exigent circumstances, standing alone, will not justify police entry into a home
without a warrant. Exigency only has meaning as an exception to the warrant requirement.
Therefore, for exigency to justify police entry into a home without a warrant, the police must
have probable cause that would support the issuance of a warrant. Kirk v. Louisiana, 536
U.S. 635, 638 (2002) (stating that to make a lawful entry into a house, the police “need either
a warrant or probable cause plus exigent circumstances[.]”); Llaguno v. Mingey, 763 F.2d
1560, 1565 (7th Cir. 1985) (en banc) (“[e]mergency is not enough”; police only may enter
a house without a warrant or consent of the homeowner if they have probable cause to
believe that a search of that house will produce evidence fruitful to the criminal
8
The State did not argue below and does not argue on appeal that destruction of
evidence was an exigency in this case. In his brief, Peters argues that destruction of evidence
was not an exigency here.
11
investigation); Fisher v. Volz, 496 F.2d 333, 339 (3d Cir. 1974) (observing that the Supreme
Court “has been quite clear that [exceptions to the warrant requirement], based on ‘exigent
circumstances,’ do not dispense with the requirement of probable cause”).
The threshold question in the case at bar is whether the police had probable cause to
support their entry into Apartment J in building 5933. Only then would exigent
circumstances make their entry lawful.
The objective the police were seeking to accomplish in systematically entering and
searching all the apartments in buildings 5931 and 5933 was to find and arrest the men
responsible for shooting Johnson. “Probable cause [to arrest] exists where the facts and
circumstances within the officers’ knowledge and of which they had reasonably trustworthy
information are sufficient in themselves to warrant a man of reasonable caution in the belief
that an offense has been or is being committed by the person to be arrested.” Longshore v.
State, 399 Md. 486, 501 (2007) (quotations and alterations omitted).
The facts and circumstances known to Officer Loiero, and communicated to the
SWAT team members, were that Johnson was accosted by two men, one known to him and
named “Ty.” The other man, who was not known to him except that he was a friend of “Ty,”
was carrying two guns and was wearing a dark jacket. That man shot Johnson. Immediately
after the shooting two men dressed in black and wearing black masks were seen running
away from Johnson’s apartment building and into either apartment building 5931 or 5933.
Johnson and Gross were the sources of these facts, and the facts were based on their very
recent firsthand observations.
12
These facts were reasonably reliable and supported a rational inference that the two
men that Gross saw run out of Johnson’s apartment building and into building 5931 or 5933
were “Ty” and the shooter. See generally 2 Wayne R. LaFave, Search and Seizure, A
Treatise on the Fourth Amendment, § 3.4(a), at 265 (5th ed. 2012) (hereinafter “LaFave”)
(reliability of victims and eyewitnesses to a crime is presumed, and collecting cases). They
thus created probable cause to believe that “Ty” and the man with him were the people who
had committed the offenses against Johnson. If the police had been on the scene when “Ty”
and the shooter ran out of Johnson’s apartment building, they would have had probable cause
to arrest them.
In the circumstances here, however, probable cause to arrest was necessary but not
sufficient. See 3 LaFave, § 6.1(a) at 350-51 (if police enter “private premises for the purpose
of making an arrest,” they must “at a minimum” have probable cause to believe the suspect
has committed a criminal offense). The police also had to have probable cause to search, i.e.,
knowledge of facts and circumstances giving rise to a reasonable belief that “the legitimate
object of a search is located in a particular place.” United States v. Steagald, 451 U.S. 204,
213 (1981).
In two cases, Maryland appellate courts have examined whether the police had
probable cause to make a warrantless entry into a unit in a multi-unit building, in a claimed
exigency situation. In Nilson v. State, 272 Md. 179 (1974), three armed African-American
males, wearing ski masks, robbed a bank of about $3,000, including $200 in “bait” money.
The assistant bank manager gave the police detailed physical descriptions of the robbers.
13
Witnesses saw men matching the robbers’ descriptions use and discard several vehicles in
the process of getting away, and then board a bus and take a taxi to an area near Callow
Avenue. The police found one of the getaway cars, determined that it had been stolen, and
found inside it a one-hour dry cleaning ticket bearing the name “McCoy” and the address
“2458 Callow.” Id. at 181. They quickly responded to that address, which was a three-story,
15-unit apartment building, and saw another getaway car parked near the building. A records
check revealed that that car was registered to apartment 12. The police learned from
residents in the building that three African-American men were living in that apartment. The
resident of apartment 10 told the police that the three men had left the apartment building at
around 8:00 a.m., in the getaway car found nearby, and had returned at around 11:00 to 11:30
a.m. (The robbery was committed at 9:40 a.m.) A fourth man entered the apartment shortly
thereafter.
At 12:45 p.m., a police officer knocked on the door to apartment 12. A man named
Campbell answered, but refused to let the officer in without a warrant. While the officer was
standing at the door, he heard noise coming from the back room. He pushed the door open
and entered the apartment. Nilson and Campbell were arrested in the front area of the
apartment. Three other men, including McCoy, were arrested in the rear area. Inside the
apartment, in plain view, were weapons similar to those described as being used in the
robbery. Some of the bait money was found on one of the men inside the apartment. The
police proceeded to search the apartment. They seized two ski masks and a loaded revolver
14
from underneath a mattress in the rear bedroom, and a boot containing $970 from inside a
cupboard in the middle bedroom.
After being charged in the robbery, Nilson moved to suppress all the evidence
recovered from apartment 12. The trial court ruled that the warrantless entry was justified
by exigent circumstances and denied the motion as to the weapons and bait money. (It
granted the motion to suppress as to the ski masks, revolver, and the $970 in currency.)
Nilson was convicted, and, ultimately, his case came before the Court of Appeals.
The Court rejected Nilson’s argument that exigent circumstances did not exist because
the police waited over an hour after they arrived at the apartment complex before attempting
to enter apartment 12. The Court observed that “during much of this period the police were
conducting an on-the-scene investigation at the apartment building, and were carefully
assembling evidence of the probable involvement in the crime of the persons in apartment
12.” Id. at 191. The Court affirmed, holding there were exigent circumstances that justified
the warrantless entry into apartment 12 “upon probable cause.” Id.In Dent v. State, 33 Md. App. 547, 548 (1976), this Court held that the police did not
have probable cause to support a warrantless entry into a residence to search for a crime
suspect. Two men broke into a couple’s house and robbed them at gunpoint, taking among
other things an Admiral television set. From a photograph, the wife identified Dent as one
of the robbers. In their haste, the robbers left several items at the couple’s house, including
a jacket in which there was a note bearing a woman’s name, address, and telephone number.
15
The police contacted her and she told them she recently had met a man named Leon (Dent’s
first name) who was living at a particular address on Midwood Avenue, in Baltimore City.
The police went to that address, which was a house in which there were at least two
apartment units.
One officer knocked on the door of the second floor apartment. No one answered, but
he heard a “scuffling” noise coming from inside. At that point, other officers told him that
Dent had been apprehended and arrested outside, while he was trying to run away from the
building. Thinking the second robber might be in the second floor apartment, the officer
arranged for other officers to use a ladder from an emergency vehicle to climb in the
apartment through an open window and unlock the door from inside. The officer entered and
found no one in the apartment. He did find an Admiral television set, however. The officer
applied for and obtained a search and seizure warrant for the second floor apartment,
determined that the television set bore the serial number of the television stolen from the
couple, and seized it.
On appeal after conviction, Dent argued that the original warrantless entry into the
second floor apartment was illegal and the television set seized from the apartment pursuant
to the later-issued warrant was tainted by the illegal entry and search. The State maintained
that the entry was justified by exigent circumstances. We reversed, holding that the facts
known to the police at the time of their warrantless entry into the second floor apartment did
not constitute probable cause to believe that the second robber was inside that apartment:
Only [Dent] had been tentatively identified as a participant in the robberies; the
identity of the second robber was unknown; the information from the female
16
informant placed [Dent] in the house on Midwood Avenue, but there was no
designation of the second floor apartment as being the apartment of [Dent].
[Dent] was arrested outside the house and there was no information at that
time suggesting that he had been in the second floor apartment; there was no
evidence that a second person was in the apartment other than a “scuffling
noise” allegedly heard by [the police officer] and his own “feeling” that
someone was there; there was no information to indicate that a second person,
if present, was involved in the robberies committed more than 30 hours
previously.
Id. at 555-56.
We further agreed with Dent that the fact that the television set was found inside the
second floor apartment could not form a basis for the affidavit in support of the search
warrant, because the television set was the fruit of the illegal search. Nor was there an
independent source showing the presence of the television set in that apartment. Without the
information about the television set, “no probable cause was stated which would justify the
issuance of the warrant for the second floor apartment at this address.” Id. at 557.
Several federal and out-of-state cases have addressed what constitutes probable cause
for the police to search apartments and hotel rooms for a crime suspect. In United States v.
Scott, 520 F.2d 697 (9th Cir. 1975), cert. denied, 423 U.S. 1056 (1976), four African-
American males robbed a bank at gunpoint. They were seen speeding away from the bank
in a car the police soon located. Tire marks nearby led police to conclude that the men had
switched cars. Witnesses in the area described seeing a car traveling away from the area at
a high rate of speed. They provided a description of the car and a partial license plate
number. The second car was located in the parking lot of an apartment complex. It still was
warm to the touch. There were 20 apartments in the complex. From information they already
17
knew and additional information they obtained from the apartment manager, the police
figured out that seven of the apartments were leased to African-American males. They
entered and searched six of those apartments, finding nothing. They knocked on the door of
the last apartment of interest–apartment 7–but there was no response. They obtained the
manager’s pass key and gained entry. The defendants were found inside, as was evidence
connecting them to the robbery. They were charged and convicted of bank robbery.
On appeal, a divided panel of the Ninth Circuit held that the district court properly
denied a motion to suppress evidence found in apartment 7. All three panel members agreed
that there were exigent circumstances.
Had the officers delayed their entry to apartment 7 to secure a search warrant
for that apartment, the suspects might well have escaped or concealed
evidence, and the risk of armed confrontation would have been increased.
Id. at 700. They disagreed on the issue of probable cause to believe the suspects were inside
apartment 7. The majority held that by focusing only on the seven apartments leased by
African-Americans, and then eliminating six of them, the police came to have probable cause
to believe the robbers were inside apartment 7:
Accepting that pursuit here had brought the officers to the apartment house,
this did not render each apartment in it subject to search. The occupants of
each apartment had their independent right to be free from unreasonable
search. No apartment was subject to entry in the absence of probable cause to
believe that the robbers were present in that particular apartment.
The question, then, is whether the officers at apartment 7 had, at the
time of entry, probable cause to believe that the fugitives they sought were
there; whether, with action frozen at that moment, a warrant could properly
have been issued for search of the apartment. In our judgment it could. There
was reasonable cause to believe that the fugitives had entered the apartment
complex. There was knowledge that they were not present in 6 of the 7 units
18
most likely to be their objectives. Apartment 7 then remained as the most
likely choice. There was cause to believe that it was occupied and that the
occupant or occupants did not wish to admit their presence.
Id. (footnote omitted). In a footnote, the majority commented that the record did not reveal
how the police had entered the other six apartments, but,
even assuming impropriety, [the defendants] lack standing to complain of the
intrusion. Such would have been the rule had incriminating evidence been
seized [from the other apartments]. See Brown v. United States, 411 U.S. 223,
93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973). In our judgment no broader rule of
standing should apply where violations of the rights of third parties merely
contribute to the existence of probable cause.
Id.The dissenting judge took issue with this, observing that the majority was
perhaps acting precipitously in assuming that the criteria used for determining
standing to challenge an illegal seizure of goods also govern the standing to
challenge a series of general searches without probable cause, the results of
which are then used to find probable cause for arresting the one now making
the challenge.
Id. at 703.
A little over a decade later, the Ninth Circuit decided United States v. Winsor, 846
F.2d 1569 (9th Cir. 1988) (en banc), which involved a systematic search of a multiple
dwelling building, similar to the search in the case at bar. A bank robber fled the scene of
the crime, with the police in pursuit. Officers saw him enter a two story residential hotel.
They surrounded the hotel and obtained permission from the hotel manager to search for the
suspect. One of the officers involved in the search had a surveillance photograph from a
prior bank robbery, thought to have been committed by the same man, that showed the robber
and an accomplice who was acting as a “look-out.”
19
The police carried out a room-by-room search of the hotel. At each room, with guns
drawn, they knocked on the door and announced, “Police. Open the door.” After searching
all the rooms on the first floor and some on the second floor (about 15 to 25 total), the police
knocked on the door to room 213. The defendant’s brother opened it. The police officer
with the surveillance photo immediately recognized him as the robber and held him at
gunpoint while the other officers entered the room and searched it. There, they found the
defendant, who was the “look-out” in the surveillance photo, and evidence of the robbery.
Before trial, the defendant challenged, without success, the police entry into room
213, on Fourth Amendment grounds. He was convicted of possessing proceeds from a bank
robbery. On appeal, a panel of the Ninth Circuit affirmed. It explained that “hot pursuit”
alone could not justify the police entry into room 213 because, while “‘[h]ot pursuit may
excuse police from the Fourth Amendment’s warrant requirement,’” it may not “‘excuse the
absence of the requisite degree of suspicion before effecting a search.’” Id. at 1571 (quoting
United States v. Winsor, 816 F.2d 1394, 1396 (1987)). The government conceded that the
police did not have probable cause to believe that the bank robbery suspect was inside room
213 when they entered that room. It argued, however, that the police had “reasonable
suspicion . . . to believe that the suspect would be in . . . one of the rooms that had not yet
been searched” and that reasonable suspicion (as opposed to probable cause), coupled with
the “important law enforcement interests,” outweighed the “minimal intrusion on [the
defendant’s] privacy rights.” Id.20
In a rehearing en banc, the Ninth Circuit disagreed. It held that to lawfully conduct
a warrantless search of a dwelling based on exigent circumstances the police must have
probable cause to believe the suspect is inside that dwelling; reasonable suspicion that the
suspect is inside the dwelling is not enough. The en banc court concluded that the
suppression motion should have been granted, and reversed the conviction.
In Winsor, the defendant lived in the hotel room that was illegally entered and
searched. In Fisher v. Volz, 496 F.2d at 338, the Third Circuit held that exigency will not
justify a warrantless police entry into the home of a third party to search for a crime suspect
unless the police have “probable cause to believe that the named suspect is present within
[the premises].” Fisher was a civil action for damages brought pursuant to 42 U.S.C. section
1983 by six African-American citizens of Newark, New Jersey. They alleged that the
Newark Police Department (“NPD”) had violated their Fourth Amendment rights by
searching their homes without a warrant or probable cause in an effort to find suspects in a
bank robbery.
Bernice Bass was one of the plaintiffs in Fisher. In the aftermath of the bank robbery,
the FBI identified suspects and obtained arrest warrants for them. Five days after the
robbery, during an interview at the home of the mother of one of the suspects, an FBI agent
noticed a piece of paper with a phone number for another of the suspects. A check of that
phone number linked it to an individual by the name of “B. Bass.” Police investigated and
determined that Bass previously had paid a bail bond for one of the suspects in an unrelated
matter.
21
That afternoon, FBI agents and NPD officers went to an address identified for Bass
and discovered that it was a six-story apartment house. The superintendent of the apartment
house gave the officers a key to an apartment for “B. Bass.” The police entered the
apartment, searched for a few minutes, and, finding no one there, left. When Bass returned
home, she learned from neighbors that the police had searched her apartment.
Bass’s 1983 action against a particular detective in the NPD was tried to a jury, which
returned a defense verdict. On appeal, Bass argued that the trial court improperly instructed
the jurors that if they found exigent circumstances they could find that the police entry into
her apartment was not unreasonable. She also argued that the court erred in instructing the
jurors that they could consider eleven factors in deciding exigency, including whether the
police had “strong reason to believe that the suspect was in the premises being entered.” Id.The Third Circuit reversed, holding that the jury instructions were legally incorrect
because they permitted the jurors to “return a verdict against plaintiff Bass if [the jurors]
found the existence of some of the factors enumerated by the trial court created ‘exigent
circumstances’ which justified the entry into her apartment, even though there might not have
been probable cause to enter.” Id. The Court explained that “police officers may not
constitutionally enter the home of an innocent citizen in search of a suspected offender for
whom they have a valid arrest warrant, even under exigent circumstances, unless they also
have probable cause to believe that the suspect will be found on the premises.” Id. at 341-42(emphasis added) (footnotes omitted).
22
In Llaguno v. Mingey, 763 F.2d at 1560, the Seventh Circuit held that the police must
have probable cause to believe a suspect is inside the home of a third party before entering
that home without a warrant, even when the exigency involved is a serious and imminent
threat to public safety. There, police in Chicago were conducting a massive manhunt for a
suspect who, along with an accomplice, had committed two robberies, killed four people,
wounded three others (including a police officer), and abducted a young girl. The police
captured the accomplice after he crashed his getaway car. That car was registered to Vilma
Llaguno and had not been reported stolen. With this information, several police officers
went to the Llaguno home armed with a shotgun and a sledgehammer. They did not have a
warrant. They banged on the door and ordered the woman who responded, Gloria Llaguno,
to open it. They ran inside with guns drawn and herded the ten occupants of the home into
the living room. Gloria’s son, David Llaguno, was arrested and held for more than 40 hours.
No charges were filed against him. The person who actually committed the crimes later was
shot and killed by the police. He was another of Gloria’s sons, but did not live with her.
Gloria, David, and other residents of the Llaguno house brought a section 1983 action
against the police officers who entered their home without a warrant. A jury returned a
verdict in favor of the police officers and the plaintiffs appealed. In a rehearing en banc, the
Seventh Circuit reversed and remanded on the ground of an improper jury instruction on
probable cause. The court found that the danger to the public was so great as to have
constituted exigent circumstances. In addition to exigency, however, the police had to have
probable cause, i.e., knowledge of facts giving rise to a reasonable belief that “the search of
23
this house [i.e., the Llaguno house] would prove fruitful in the criminal investigation.” Id.
at 1565 (emphasis in original). “Emergency is not enough.” Id. Even under these extreme
circumstances, the police could not have “search[ed] every house in Chicago or even every
house on the Llagunos’ block.” Id. The court concluded that the jury instruction on probable
cause erroneously permitted the jurors to find that the warrantless entry into the Llaguno
home was lawful without any consideration of whether the police reasonably should have
“act[ed] so hastily on the basis of their very limited knowledge without investigating further.”
Id. at 1568.
In Vasquez v. Snow, 616 F.2d 217 (5th Cir. 1980), also a section 1983 case, an arrest
warrant was issued for a robbery suspect the police knew only as “Sotelo.” The police could
not find Sotelo because he had “too many friends, and he was staying with all of them.” Id.
at 218. He moved from house to house, staying a night or two, at most, before moving on.
During the investigation, a police detective received a tip that “Sotelo ‘had been seen’ with
some frequency” at Vasquez’s house and that he “‘maybe . . . was staying there part of the
time.’” Id. A few days later, several police officers conducted warrantless searches of three
houses, without success. They then surrounded Bertha Vasquez’s house, and an officer
knocked on the door and identified himself. Vasquez’s sister answered the door. The officer
informed her that he had a warrant for Sotelo’s arrest and believed that Sotelo was inside.
She refused him entry. When the officer threatened to enter by force, she “capitulated” and
let him inside. Id. at 219. The police searched the house for Sotelo, but did not find him.
Vasquez sued two of the police officers who searched her house, alleging that their
24
warrantless entry into her home violated her Fourth Amendment rights. The trial court
granted summary judgment in favor of the officers, ruling, as pertinent, that the search was
lawful.
The Fifth Circuit reversed. It explained that a police officer with an arrest warrant for
a suspect may search the premises of a third party for the suspect if the police officer has a
probable cause that the suspect is inside. Specifically, the officer must have “knowledge and
trustworthy information [of the type that] would cause a man of reasonable caution to believe
that the suspect” is in the particular place to be searched. Id. at 220.
The court held that the facts known to the police officer who knocked on Vasquez’s
door did not give rise to a reasonable belief that Sotelo was inside Vasquez’s house. The
court emphasized that Sotelo was evading arrest; had been moving from place to place; that
the tip stated that Sotelo had been seen at the Vasquez house a few days prior to the search;
and that there was “a substantial likelihood that [Sotelo] [was] at a location other than the
target.” Id. Characterizing the search of Vasquez’s house as “at best a shot in the dark,” id.
at 219, the court pointed out that the conduct of the police on the same day, but before the
search, showed that they simply were guessing as to where Sotelo would be found.
Vasquez’s house was the fourth one searched that day “sans search warrant.” Id. “[The
police] obviously thought that Sotelo might just as easily have been hiding in these other
places.” Id. “The fourth amendment plainly forbids such wholesale intrusions.” Id.No case better illustrates the perversity of “wholesale intrusions” than Lankford v.
Gelston, 364 F.2d 197 (4th Cir. 1966). The searches in Lankford were the notorious “Veney
25
raids” in Baltimore City, which stemmed from an armed robbery of a liquor store committed
by multiple men on Christmas Eve in 1964. One of the robbers shot and seriously wounded
a police lieutenant. Several suspects immediately were identified and a widespread manhunt
commenced. On Christmas Day, a police sergeant aiding in the search for the suspects was
shot and killed. Several arrests were made, but the two primary suspects, brothers Samuel
and Earl Veney, remained at large.
Arrest warrants issued for the Veney brothers charging them with the armed robbery
and the shooting of the lieutenant. The BPD Commissioner authorized the formation of a
special police squad to search for the Veney brothers. Over the next 19 days, the BPD
received hundreds of unverified anonymous tips and, in reliance upon them, conducted “turn
ups” of more than 300 houses. A “turn up” is “an investigation of a location and usually
includes a search of the premises.” Id. at 199. The police did not seek or obtain a search
warrant for any of the premises. The searches proceeded as follows:
A police emergency vehicle carrying shotguns, submachine guns, tear
gas apparatus, and bulletproof vests accompanied the men on every search.
Before each turn-up a surveillance team of plainclothesmen would drive past
the building to locate exits, alleyways, etc., but there were no inquiries in the
neighborhoods about the houses to be searched nor was there any other
investigation of the tips, except to observe the character of the neighborhood.
Four officers carrying shotguns or submachine guns and wearing
bulletproof vests would go to the front door and knock. They would be
accompanied or followed by supervising officers, a sergeant or lieutenant.
Other men would surround the house, training their weapons on windows and
doors. “As soon as an occupant opened the door, the first man would enter the
house to look for any immediate danger, and the supervising officer would
then talk to the person who had answered the door.”
Id. (quoting Lankford v. Schmidt, 240 F.Supp. 550, 554 (D. Md. 1965)).
26
The plaintiffs in Lankford were four African-American families, on behalf of other
similarly situated persons, whose homes were subjected to warrantless police searches
during the Veney raids.9 They brought a section 1983 action against the BPD Commissioner,
seeking injunctive relief to prevent further warrantless intrusions. The Fourth Circuit held
that the plaintiffs’ homes had been searched without probable cause, in violation of the
Fourth Amendment. It opined:
This case reveals a series of the most flagrant invasions of privacy ever
to come under the scrutiny of a federal court. The undisputed testimony
indicates that the police in conducting the wholesale Veney raids were
engaging in a practice which on a smaller scale has routinely attended efforts
to apprehend persons accused of serious crime. . . . . The parties seeking
redress have committed no acts warranting violation of the privacy of their
homes; there has never been any suspicion concerning them or their
associations.
Id. at 201-02. The court held that the plaintiffs were entitled to injunctive relief. It
emphasized that every member of the BPD should be “familiar with the principle that if the
police intend to conduct a search of a man’s home for a suspect, they must at least have
probable cause to believe that he is on the premises.” Id. at 202-03.
9
The Veney brothers were not found during the 19-day manhunt. In March of 1965,
they were found working at a zipper factory in Long Island, New York. They were charged
with numerous offenses, and the trials in their cases were removed to Frederick County.
Samuel Veney was convicted of first degree murder and was sentenced to death. His
sentence was commuted to life in prison in 1973, pursuant to Furman v. Georgia, 408 U.S.
238 (1972). In 1993, he briefly escaped from prison but was found and returned. He remains
in prison. Earl Veney was convicted of armed robbery and was sentenced to 30 years’
imprisonment. He was found hanged in prison in 1976. See generally David M. Ettlin &
Michael James, Murderer of Officer in ‘64 Flees While on Family Visit, Balt. Sun, Apr. 21,
1993, at 1A; Joe Nawrozki, Until Monday, 1964 Manhunt for Veneys was City’s Largest,
Balt. Sun, Jan. 20, 1993, at 13A; Veney v. State, 251 Md. 182 (1968).
27
The court admonished the BPD that wholesale raids on the homes of African-
Americans in poor neighborhoods would lead those citizens to believe, justifiably, that they
were not entitled to the same protections as the rest of society; and that, in turn, would expose
Baltimore City to the “agony and brutality of the riots” experienced in other large cities that
Baltimore had “escaped thus far.” Id. at 203. The court opined:
The police department is society’s instrumentality to maintain law and
order, and to be fully effective it must have public confidence and cooperation.
Confidence can exist only if it is generally recognized that the department uses
its enforcement procedures with integrity and zeal, according to law and
without resort to oppressive measures. Law observance by the police cannot
be divorced from law enforcement. When official conduct feeds a sense of
injustice, raises barriers between the department and segments of the
community, and breeds disrespect for the law, the difficulties of law
enforcement are multiplied.
Id. at 204 (footnote omitted).
We return to the case at bar. Under the holdings in the cases just discussed, even in
the face of exigent circumstances the police could not enter Apartment J, without a warrant,
to search for the suspects in the Vaughn Johnson shooting unless they had probable cause to
believe that the suspects were in that apartment. To be sure, the police had knowledge of
facts and circumstances that made it reasonable to believe that the suspects were inside an
apartment in either building 5931 or 5933. That was not sufficient, however.10
As the holding and underlying facts in Nilson make clear, probable cause to believe
that a suspect is inside a particular apartment unit in a multi-unit building need not be
10
Of course, the police could have entered Apartment J or any of the other apartments
with consent. Consent was not sought or given, however.
28
established by direct evidence, that is, evidence that the suspect was seen entering the
apartment, either by the police or by a witness. Circumstantial evidence that eliminates other
apartments and points strongly toward a suspect being present in a particular apartment is
sufficient to generate probable cause.
Here, there was no direct evidence that the two suspects had entered Apartment J, nor
was there circumstantial evidence, such as that gathered by the police in Nilson, connecting
the suspects to Apartment J so as to make it probable that they were inside that particular
apartment. As the holdings and underlying facts in Dent, Winsor, Fisher, Llaguno, Vasquez,
and Lankford make clear, an educated guess or reasonable suspicion that a suspect is in one
of two or one of several apartments in the same building, or in one of a series of houses in
a given location, will not substitute for the probable cause necessary to search a particular
apartment without a warrant, notwithstanding exigent circumstances.
We also are guided by federal and state cases that make clear that, had Officer Loiero
applied for and obtained a search warrant to search for “Ty” and the shooter in buildings
5931 and 5933, the warrant would have been void for lack of particularity. The Fourth
Amendment 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 (emphasis added). 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.” Maryland v. Garrison, 480 U.S. 79, 84 (1987) (footnote omitted). The general rule
29
is that a warrant to search a multi-unit building is void unless it specifies the unit to be
searched. See United States v. Hinton, 219 F.2d 324 (7th Cir. 1955).11
Three cases decided by the Seventh Circuit under the particularity clause are
instructive. In Hinton, 219 F.2d at 325, the police obtained a search warrant for “the
basement and three floors” of a residential apartment building in Chicago. There was one
apartment unit on each floor and one in the basement. An informant had told police that she
had witnessed heroin being sold on the premises of the apartment building by four women,
all of whom she knew by their aliases. The affidavit in support of the warrant application
stated that one woman was known as Savannah White and another as Sue. The affidavit did
not identify the four women as residents of the apartment building or otherwise identify any
of the apartments as being the location of the heroin sales or the locus of any other illegal
activity.
The police searched all four apartment units, seized narcotics evidence,12 and arrested
two women: Savannah Hinton and Susie Powers. Hinton and Powers were charged with
federal narcotics crimes. They moved to suppress the evidence seized from the apartment
building. The district court denied their motions and both were convicted.
On appeal, the Seventh Circuit reversed. It reasoned that although, ordinarily, the
“showing of probable cause and the particularity of the description of the place to be
11
That general rule does not apply, however, if “the defendant was in control of the
whole premises or they were occupied in common[;] if the entire premises were suspect[;]
or if the multiunit character of the premises was not known to the officers.” United States
v. Gilman, 684 F.2d 616, 618 (9th Cir. 1982). None of those exceptions apply here.
12
The location of the seizure of the narcotics evidence is not clear.
30
searched” are separate issues, here, they were intertwined because the “scope of the warrant
to search is dependent upon the extent of the showing of probable cause.” Id. at 325. This
was so because “[t]he command to search can never include more than is covered by the
showing of probable cause to search.” Id. The court concluded that the warrant was fatally
deficient because the application failed to specify probable cause as to any particular
apartment, much less all of them. The court emphasized that “searching two or more
apartments in the same building is no different than searching two or more completely
separate houses.” Id. at 325-26.
Fifteen years later, the Seventh Circuit revisited this issue in United States v. Higgins,
428 F.2d 232 (7th Cir. 1970). There, the police received a tip from an informant that Higgins
was selling heroin from a basement apartment in Chicago. The apartment building was three
stories and had four apartments on each floor, plus three in the basement. The basement
apartments were rented by Higgins, Morris Jones, and the Barfield family, respectively. The
police obtained a search warrant for the entire basement of the apartment building. They
went to the building and entered the Barfield apartment first. They asked Mr. Barfield if he
knew a man named “Sonny” and then left. Id. at 234. Police then “kicked open” Jones’s
“partially closed” door and entered his apartment. Id. After searching for about five
minutes, they left. Finally, police kicked in the door to Higgins’s apartment, seized drug
evidence, and arrested him.
Higgins moved to quash the affidavit for the search warrant and the search warrant
itself and to suppress the evidence seized from his apartment. His motion initially was
31
denied, but on reconsideration was granted. The government took an interlocutory appeal
and the Seventh Circuit affirmed. It held that the search warrant was deficient for lack of
probable cause because the informant’s tip was not sufficiently reliable and, as relevant here,
the warrant did not “describe with particularity the place to be searched.” Id. Relying on
Hinton, the court reasoned that the police “could not determine from the warrant which
apartment was to be searched and that they made that determination by searching all [three
basement] apartments until they discovered the one they were looking for.” Id. at 234-35.
Finally, in 1994, the Seventh Circuit decided United States v. Johnson, 26 F.3d 669(7th Cir. 1994), cert. denied, 513 U.S. 940 (1994). There, five co-defendants were convicted
of federal drug crimes. One co-defendant, Reginald Johnson, argued on appeal that a gun
and cocaine seized from the bedroom and kitchen of his upstairs unit in a duplex should have
been suppressed because the search warrant was overbroad. He relied primarily on Hinton
and Higgins. The Seventh Circuit concluded that those cases were distinguishable and
upheld the denial of the motion to suppress. It explained as follows the holding in Hinton:
[T]he affiant (law enforcement officer) who sought the warrant in Hinton, did
not have probable cause to search any particular apartment unit in the
apartment building. He only knew that illegal activity was occurring
somewhere in the four-floor, four-unit building, i.e., in one of the units. Such
a generalized search violated the Fourth Amendment because the officer
was in effect playing a “shell game” searching for the one apartment out
of four where the illegal activity was occurring.
Id. at 692 (bolded emphasis added). Similarly, in Higgins, the warrant was overbroad
because it did not specify which of the three basement apartments was the locus of the
alleged drug activity.
32
In contrast, in Johnson, the police officer who swore out the affidavit in support of
the search warrant had probable cause to believe that the upper and lower units of the duplex
both were being used for illegal drug activity. On that basis, the court affirmed. In United
States v. Busk, 693 F.2d 28 (3d Cir. 1982), the Third Circuit addressed the particularity
requirement with respect to a warrant to search a multi-unit dwelling. The warrant
authorized the search of 3123 Richmond Street, a property Busk was alleged to “own[],
occup[y], or possess[],” for evidence of suspected illegal gambling activity. Id. at 29. That
address was for a 3-story attached row house with three apartments, one on each floor. Each
apartment had its own keyed lock and a separate doorbell outside the front door of the row
house. The police had determined from gas and electric records that the apartment on the
second floor was occupied by an associate of Busk. When police arrived to execute the
warrant, they observed Busk leaving 3123 Richmond Street. They frisked him and found
$16,000 and a set of keys on his person. They directed him to accompany them back to the
apartment building. The police mistakenly entered 3119 Richmond Street, however, which
also was a multi-unit dwelling. In that building, they searched the second and third floor
apartments, but found no evidence of illegal gambling. At that point, the police realized they
were in the wrong building and went to 3123 Richmond Street, where they entered the
second floor apartment using Busk’s keys, and seized gambling paraphernalia.
The Third Circuit held that the warrant was facially defective because it identified the
entire premises of a multi-unit building even though there only was probable cause to search
the apartment on the second floor. The court reasoned that the police plainly understood the
33
warrant to authorize them to search all three apartments, given that, when they mistakenly
entered the building at 3119 Richmond Street, they searched the second floor and third floor
apartments. On these bases, the court ruled that it was error to deny Busk’s motion to
suppress, and reversed his convictions and remanded for a new trial.13
As Hinton, Higgins, Johnson, and Busk make plain, the search of individual apartment
units within a multi-unit apartment building is no different from the search of individual
homes within a neighborhood or town. Probable cause to believe that the object of the
search–here a suspected shooter and his accomplice–will be within a particular apartment
unit is a necessary prerequisite to search that apartment absent consent. The generalized,
though reasonable, belief that the target of a search is somewhere within a multi-unit building
13
See also United States v. Bedford, 519 F.2d 650, 654-55 (3d Cir. 1975) (stating the
general rule that a warrant “directed against an apartment house will usually be held invalid
if it fails to describe the particular apartment to be searched with sufficient definiteness to
preclude a search of other units located in the building and occupied by innocent persons,”
but holding that the warrant in that case identified the apartment of the defendant with
sufficient particularity); Jacobs v. City of Chicago, 215 F.3d 758 (7th Cir. 2000) (reversing
dismissal of section 1983 action and holding that police acted unreasonably and in violation
of the Fourth Amendment if, when they discovered that a building named in an otherwise
valid search warrant contained multiple units, they failed to cease the search to determine
which apartment unit properly was the subject of the warrant); United States v. Parmenter,
531 F.Supp. 975 (D. Mass. 1982) (search warrant authorizing the search of an eight-
apartment, three-story duplex void for lack of particularity where the police lacked probable
cause as to all of the units); State v. Jackson, 756 N.W.2d 623 (Wis. App. 2008) (warrant
authorizing search of a duplex was void because it did not specify probable cause to search
a particular side of the duplex, nor did it state probable cause to search the entire building);
State v. Marshall, 974 A.2d 1038 (N.J. 2009) (search warrant for a two-unit apartment
building lacked sufficient particularity where affidavit made clear that police did not know
in which of two units the asserted criminal activity took place).
34
does not give rise to probable cause to search every unit in the building. As the Johnson
Court aptly stated, such a police tactic amounts to a “shell game.”
In the case at bar, Officer Loiero and the other officers involved in the search did not
have knowledge of facts giving rise to a reasonable belief that “Ty” and the shooter were
inside Apartment J in building 5933. This would be true if it had been the first apartment
searched and remained true when it was the third to last apartment searched. See Vasquez,
supra (search of the fourth of four houses amounted to a “shot in the dark”). Even in Scott,
supra, where the majority held that the search of the seventh of seven apartments was
supported by probable cause because the other six apartments had been eliminated, the court
implied that the search of the prior six apartments may not have been supported by probable
cause. See 520 F.2d at 700 (noting that the probable cause inquiry turned on the police
officers’ reasonable belief at the time of the search of the seventh apartment, “with action
frozen at that moment,” and that the propriety of the prior six searches was not properly
raised by the defendant).
There was no evidence before the circuit court that Officer Loiero or any other officer
involved in the search made an attempt to investigate to determine which apartment the
suspects had entered. They did not speak to residents of either building to learn whether they
had seen two men matching the description of the suspects enter a particular building and a
particular apartment. They did not investigate whether residents knew of a person named
“Ty” who was connected to a particular apartment. They did not take steps to follow up on
the information that Johnson provided them: that “Ty” lived on St. Regis Avenue, which was
35
just blocks away from the apartment complex. They did not contact apartment management,
or any utility company, to try to ascertain whether a person named “Ty” was living in one of
the buildings.
Instead of developing information by investigation, the police proceeded to search the
apartments in buildings 5931 and 5933 one by one, for almost six hours, ordering occupants
out of their homes at gunpoint, and opening apartment doors with a battering ram if
necessary. All the apartment occupants were made to leave their homes and wait in a bus
outside. Before the search of Apartment J in building 5933, the police had searched 21
apartments in this manner. The police only stopped when they happened upon an apartment
with an occupant named “Ty.”
The Fourth Amendment is designed to prevent such generalized, wholesale searches.
See Garrison, 480 U.S. at 84 (in adopting the Fourth Amendment, the Framers intended to
prevent “wide-ranging exploratory searches”); Scott, 520 F.2d at 703 (Ferguson, J.,
dissenting) (“The majority position puts this court in the position of condoning–or, at the
least, relying upon–[general] searches of the very kind intended to be prohibited by the
Fourth Amendment” to support a finding of probable cause); Parmenter, 531 F.Supp. at 982(Fourth Amendment’s particularity clause designed to prevent “unlawful intrusion by police
officials into the homes of innocent persons”). The police lacked probable cause to believe
that the suspects in this case were in any particular apartment in either building; and they did
not obtain probable cause to believe that the suspects were in Apartment J at any time before
they entered Apartment J without consent. The warrantless entry into 5933 Radecke Avenue,
36
Apartment J, without probable cause to believe the suspects were inside that apartment, was
illegal under the Fourth Amendment.
(C)
Peters also contends the circuit court erred in its alternative ruling that the inevitable
discovery doctrine applied. The State disagrees, and adds that the guns found in Apartment
J were in plain view.
Under Fourth Amendment jurisprudence, “evidence seized during an unlawful search
could not constitute proof against the victim of the search. The exclusionary prohibition
extends as well to the indirect as the direct products of such invasions.” Wong Sun v. United
States, 371 U.S. 471, 484 (1963) (internal citation omitted). “‘Whether the exclusionary
sanction is appropriately imposed in a particular case . . . is “an issue separate from the
question whether the Fourth Amendment rights of the party seeking to invoke the rule were
violated by police conduct.”’” Hudson v. Michigan, 547 U.S. 586, 591-92 (2006) (quoting
United States v. Leon, 468 U.S. 897, 906 (1984), in turn quoting Illinois v. Gates, 462 U.S.
213, 223 (1983)) (alteration omitted). The Supreme Court has “‘never held that evidence is
“fruit of the poisonous tree” simply because “it would not have come to light but for the
illegal actions of the police.”’” Id. at 592 (quoting Segura v. United States, 468 U.S. 796,
815 (1984)).
Under the inevitable discovery doctrine, “evidence obtained after initial unlawful
governmental activity will be purged of its taint if it was inevitable that the police would
have discovered the evidence.” Miles v. State, 365 Md. 488, 520-21 (2001) (citing Nix v.
37
Williams, 467 U.S. 431, 444 (1984)). The inevitable discovery doctrine is an “exception
[that] permits the government to cleanse the fruit of poison by demonstrating that the
evidence acquired through improper exploitation would have been discovered by law
enforcement officials by utilization of legal means independent of the improper method
employed.” Stokes v. State, 289 Md. 155, 162-63 (1980). As the Court of Appeals explained
in Williams, supra:
In sum, the State has the burden of proving, by a preponderance of the
evidence, that the evidence in question inevitably would have been found
through lawful means. This standard embodies two ideas – that there was a
lawful method for acquiring the evidence and that the evidence inevitability
would have been discovered. When challenged evidence inevitably would
have been discovered lawfully regardless of police misconduct, the deterrence
effect of exclusion is minimal, and exclusion of the evidence would put police
in a worse position than they would have been without any illegal conduct.
The inevitable discovery doctrine necessarily involves an analysis of what
would have happened if a lawful investigation had proceeded, not what
actually happened. The analysis of what would have happened had a lawful
search proceeded should focus on historical facts capable of easy verification,
not on speculation.
372 Md. at 417-18 (citations omitted, emphasis in original); see also Stokes, 289 Md. at 166(observing that the State must meet “the basic requirement . . . by competent evidence that
there was a prescribed and utilized department procedure which would have, in fact, absent
the [illegality] . . . uncovered the disputed evidence”); Hatcher v. State, 177 Md. App. 359,
397 (2007) (“The State must show, by a preponderance of the evidence, that the lawful
means which made discovery inevitable were being actively pursued prior to the illegal
conduct.”).
38
Peters relies upon Stokes, supra, in arguing that the inevitable discovery doctrine did
not apply. In that case, police executed a warrant to search the defendant’s residence for
controlled dangerous substances.
Following an unsuccessful exploration lasting about five minutes, the officers
terminated their quest, turned to Stokes and informed him “that if he would
produce the narcotics, his wife would not be arrested.” As a result of this
assurance, [Stokes] revealed to the officers that drugs were hidden in a “drop
ceiling” on the left side of the room. The officers then seized the contraband,
heroin, and charged Stokes with its possession.
289 Md. at 157 (footnote omitted).
The Court of Appeals held that Stokes’s statement was involuntary because it was
“induced by [an] official promise which redounds to the benefit or desire of the defendant[,]”
and therefore the search was improper. Id. at 160. It rejected the State’s inevitable discovery
argument because “the State ha[d] failed to meet even the most minimal requirements of [the
inevitable discovery] doctrine.” Id. at 165. According to the Court, “the prosecution,
seeking to invoke inevitable discovery, bears the burden of establishing the admissibility of
otherwise tainted evidence [and] the [S]tate’s attorney here made no effort in the trial court
to demonstrate compliance with either prerequisite to admissibility under this exception to
the exclusionary rule.” Id. (citation omitted). Although “the State avow[ed] . . . that the
police, absent Stokes’ statement, ‘would’ have searched the ceiling above petitioner’s
bedroom,” the Court found that the State’s “unsupported assertion” was “no substitute for
evidentiary proof.” Id.In the case at bar, the guns and ski mask were found in the vent during the initial,
unlawful, search of Apartment J. The police applied for a search warrant after the guns and
39
mask were found in the vent, and there was no evidence that they were in the process of
applying for a warrant at or near the time of discovery. See United States v. Antone, 479 F.
Supp. 2d 255, 267 n.11 (D.R.I. 2007) (“The government concedes that the inevitable
discovery doctrine would not apply if the entry were unlawful because there is no evidence
that the . . . police would have sought a warrant without the knowledge gained from the
entry”); see also Davis v. State, 422 S.E.2d 546, 551 (Ga. 1992) (rejecting inevitable
discovery when there was no evidence that the State would have applied for a search warrant
based on a tip from a 10-year-old child that drugs were in the house).
Of course, a search warrant was issued in this case and was executed. The affidavit
in support of the warrant application listed the discovery of the handguns in support. There
is precedent that “[t]ainted information in a warrant affidavit does not vitiate an otherwise
valid warrant issued upon probable cause set out in an affidavit.” Williams, 372 Md. at 419.
Yet, without the facts asserted about the guns, there was not probable cause to support the
issuance of a search warrant at all, for the reasons we have explained. We are unable to
conclude that the evidence in question would have been inevitably discovered but for the
illegal entry into Apartment J. Thus, the motions court erred in denying the motion to
suppress the guns and the mask seized from the vent in the bathroom in Apartment J based
on the inevitable discovery doctrine.
Finally, there is no merit to the State’s plain view doctrine argument. That doctrine
is an exception to the warrant requirement that permits a police officer to seize an item in
plain view when the officer has probable cause to believe that the item is contraband or
40
evidence of a crime. See Horton v. California, 496 U.S. 128, 133-37 (1990); Arizona v.
Hicks, 480 U.S. 321 (1987) (holding that, when warrantless entry into apartment to search
for shooter was justified based on exigent circumstances, seizure of stereo equipment in plain
view in the apartment was illegal because police did not have probable cause to believe the
stereo equipment was evidence of a crime). Significantly, however, the plain view doctrine
only will apply if the officer “ha[s] not violated the Fourth Amendment in arriving at the spot
from which the observation of the evidence is made.” Kentucky v. King, 131 S. Ct. at 1858.
See also Sinclair v. State, Md. , No. 43, slip op at 29, Sept. Term 2014 (filed July 27,
2015); Wengert v. State, 364 Md. 76, 88-89 (2001); Dent, 33 Md. App. at 557 (holding that
the plain view doctrine only applies when “the observation made by police (is) the result of
a prior valid intrusion and the discovery of the evidence in plain view [is] inadvertent”).
It is debatable whether the guns and ski mask were in plain view. Even if they were,
the plain view exception does not apply, because the police entry into Apartment J was not
legal.
II.
Peters contends the evidence was legally insufficient to support his conviction for
attempted armed robbery. Specifically, he argues that there was no evidence that he intended
to steal from Johnson. The State responds that this issue is not preserved for review and
lacks merit in any event.
Under Rule 4-324(a), a criminal defendant who moves for judgment of acquittal must
“‘state with particularity all reasons why the motion should be granted’ and is not entitled to
41
appellate review of reasons stated for the first time on appeal.” Starr v. State, 405 Md. 293,
302 (2008) (quoting Md. Rule 4-324(a)). “The language of the rule is mandatory, and review
of a claim of insufficiency is available only for the reasons given by [the defendant] in his
motion for judgment of acquittal.” Whiting v. State, 160 Md. App. 285, 308 (2004) (citations
omitted). Choosing to “submit” without articulating reasons to support acquittal is a waiver
of any appellate challenge to the sufficiency of the evidence. Garrison v. State, 88 Md. App.
475, 478 (1991).
Here, at the conclusion of the State’s case-in-chief, Peters moved for judgment of
acquittal on the charge of attempted first degree murder. He did not address the attempted
robbery with a dangerous weapon charge. After the court denied the motion, the defense
rested its case without calling any witnesses. Then, at the close of all the evidence, Peters
simply renewed his earlier motion, without additional argument, and that motion was denied.
Because Peters did not move for judgment of acquittal on the ground that the evidence was
legally insufficient to show that he had the requisite intent to steal, that issue is not preserved
for review on appeal.
We agree with the State that the issue lacks merit in any event. The standard of
review is “whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original);
accord State v. Smith, 374 Md. 527, 533 (2003); “[A]ll of the evidence is to be considered
in the light most favorable to the prosecution.” Jackson, 443 U.S. at 319 (emphasis in
42
original, footnote omitted); accord Bible v. State, 411 Md. 138, 156 (2009). This standard
gives “full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.” Jackson, 443 U.S. at 319. Further, “[a] valid conviction may be based solely
on circumstantial evidence.” Smith, 374 Md. at 534. Additionally, “[w]eighing the
credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the
fact finder.” Id. at 533-34; see also Bible, 411 Md. at 156 (stating “[the appellate court] must
give deference to all reasonable inferences [that] the fact-finder draws, regardless of whether
[the appellate court] would have chosen a different reasonable inference” (citation omitted));
Sifrit v. State, 383 Md. 116, 135 (2004) (the jury is “free to believe some, all, or none of the
evidence presented”).
“An attempt to commit a crime is, in itself, a crime. A person is guilty of an attempt
when, with intent to commit a crime, he engages in conduct which constitutes a substantial
step toward the commission of that crime.” Townes v. State, 314 Md. 71, 75 (1988) (citing
Cox v. State, 311 Md. 326, 329-31 (1988), and Young v. State, 303 Md. 298, 311 (1985)).
“Robbery in Maryland is governed by a common law standard.” Spencer v. State, 422 Md.
422, 428 (2011). Its judicially determined meaning is “the felonious taking and carrying
away of the personal property of another, from his person or in his presence, by violence, or
by putting him in fear.” Coles v. State, 374 Md. 114, 123 (2003) (citation omitted). “‘The
crime . . . however, is not committed unless there is an intention to deprive the owner
43
permanently of his property or the property of another lawfully in his possession.’” State v.
Gover, 267 Md. 602, 606 (1973) (quoting Hadder v. State, 238 Md. 341, 354 (1965)).
The evidence adduced at trial, viewed most favorably to the State, showed that, on
the night in question, Johnson was entering his apartment when he encountered the
appellant and a person named “Ty.” Johnson knew Ty because he had sold him marijuana.
Ty asked Johnson whether he was “good,” which Johnson understood to mean whether he
had marijuana on his person. In fact, Johnson had two or three $20 bags of marijuana in his
possession at the time. Johnson responded to Ty’s question by saying, “yeah” and “[l]ike
you already know,” indicating that he did have marijuana in his possession. At that point,
Peters pulled out two guns. Johnson testified that he thought that Peters and Ty were trying
to rob him of marijuana and/or money. He attempted to flee, but Peters shot him.
From this evidence, reasonable jurors reasonably could infer that Peters and Ty were
attempting to rob Johnson at gunpoint and that each of them had the requisite intent to
permanently deprive him of his marijuana, his money, or both. Accordingly, the evidence
was legally sufficient to support the conviction for attempted armed robbery.
III.
Finally, Peters contends the circuit court erred by denying his motions to dismiss
based on violation of the 180-day Hicks rule and on the denial of his constitutional right to
speedy trial.14
14
State v. Hicks, 285 Md. 310 (1979); see also Md. Rule 4-271; Md. Code (2001,
2008 Repl. Vol.), § 6-103 of the Criminal Procedure (“CP”) Article.
44
The record establishes the following chronology:
January 27, 2012 Arrest.
February 24, 2012 Indictment for Attempted First Degree Murder and related
charges.
March 27, 2012 Defense counsel enters appearance.
March 27, 2012 Defense files omnibus motion requesting speedy trial.
April 13, 2012 Arraignment.
June 6, 2012 First Trial Date - State requests postponement because
prosecutor is in another trial. Defense objects and demands
speedy trial. Court postpones trial.
August 1, 2012 Second Trial Date - State requests postponement because DNA
evidence is not available. (Although test results are complete,
the results were being reviewed.) Court finds good cause to
postpone the trial beyond Hicks date.
September 24, 2012 Hicks date.
September 25, 2012 Third Trial Date - State requests postponement because DNA
evidence was not complete. (Although test results were
complete, the results still were being reviewed.) Defense
objects. Court postpones the trial, noting that defense will need
adequate time to review and analyze evidence.
November 27, 2012 Fourth Trial Date - State requests postponement because
prosecutor is in another trial. Defense objects, and notes it still
has not received DNA report. Defense moves to dismiss for
failure to grant a speedy trial. Court denies motion and
postpones trial.
January 8, 2013 State supplements discovery with CD-R containing DNA
results; CD-R containing Baltimore Police Standard Operating
Procedures re DNA; identification of two related expert
witnesses.
45
February 6, 2013 Fifth Trial Date - State requests postponement because
prosecutor is unavailable due to death in family. Defense
objects, notes that DNA results were not received in a timely
fashion, and demands speedy trial. Court postpones trial, noting
both that discovery was just provided by the State and the
prosecutor is unavailable.
April 11, 2013 Sixth Trial Date - State requests postponement because: (a) new
prosecutor assigned to the case and not prepared for trial; and,
(b) witness unavailable. Defense objects and demands a speedy
trial. Court finds good cause to postpone trial because
prosecutor needs additional time, and not because of witness
unavailability.
June 11, 2013 Seventh Trial Date - State requests postponement because
prosecutor is in another trial. Defense objects and demands
speedy trial. Court postpones trial.
August 19, 2013 Court hears and denies Motion to Dismiss for Lack of Speedy
Trial. Jury Trial commences.
(A)
Pursuant to Md. Code (2001, 2008 Repl. Vol.), section 6-103(a) of the Criminal
Procedure Article (“CP”), and Rule 4-271(a)(1), “the trial in a circuit court criminal
prosecution must begin no later than 180 days after the earlier of (1) the entry of the
appearance of the defendant’s counsel or (2) the first appearance of the defendant before the
circuit court.” State v. Huntley, 411 Md. 288, 290 (2009); accord Choate v. State, 214 Md.
App. 118, 139, cert. denied, 436 Md. 328 (2013). However, “[o]n motion of a party, or on
the court’s initiative, and for good cause shown, the county administrative judge or that
judge’s designee may grant a change of a circuit court trial date.” Md. Rule 4-271(a)(1).
“[A] determination of what constitutes good cause is dependent upon the facts and
46
circumstances of each case as the administrative judge, in the exercise of his discretion, finds
them to be.” State v. Toney, 315 Md. 122, 132 (1989) (footnote omitted).
In State v. Brown, 355 Md. 89 (1999), the Court of Appeals explained:
[T]he critical postponement for purposes of Rule 4-271 is the one that carries
the case beyond the 180 day deadline [the Hicks date]. It is that postponement
to which a reviewing court looks, and, when deciding whether to dismiss a
case for inordinate delay, it is the length of the delay between the postponed
trial date and the rescheduled date that is significant.
Id. at 108-09.
In this case, the Hicks date was September 24, 2012. The critical postponement that
took the case beyond that date was granted on August 1, 2012. Trial was rescheduled for
September 25, 2012. The stated reason for that postponement was that the DNA results still
were under review. The administrative court found good cause to postpone the case for this
reason. The motions court agreed, observing that the administrative judge “has wide latitude
and he found that there was good cause to postpone the case to get the DNA evidence . . . .”
The administrative court did not abuse its discretion in postponing the trial beyond the
Hicks date. It rationally could find that awaiting the results of DNA testing in this attempted
murder case amounted to good cause. See, e.g., Choate, 214 Md. App. at 139-40 (holding
that there was no abuse of discretion in granting a postponement under Hicks when a DNA
expert and the prosecutor both were unavailable). And, where there was no inordinate delay
in rescheduling the trial, the motions court properly denied the motion to dismiss for an
alleged Hicks violation.
(B)
47
The Sixth Amendment to the United States Constitution, and Article 21 of the
Maryland Declaration of Rights, guarantee a criminal defendant the right to a speedy trial.
In assessing whether a defendant was denied this constitutional right, we make our own
independent examination of the record. Glover v. State, 368 Md. 211, 220 (2002); accord
Howard v. State, 440 Md. 427, 446-47 (2014). We defer to the circuit court’s first-level
findings of fact, unless clearly erroneous. Our constitutional appraisal is de novo, and is
conducted “in light of the particular facts of the case at hand.” Glover, 368 Md. at 221.
Appellate review “should be ‘practical, not illusionary, realistic, not theoretical, and tightly
prescribed, not reaching beyond the peculiar facts of the particular case.’” Brown v. State,
153 Md. App. 544, 556 (2003) (quoting State v. Bailey, 319 Md. 392, 415 (1990)).
A claim of a Sixth Amendment speedy trial violation is assessed under the balancing
test announced in Barker v. Wingo, 407 U.S. 514, 530 (1972). See State v. Kanneh, 403 Md.
678, 687 (2008). In Barker, the Supreme Court “rejected a bright-line rule to determine
whether a defendant’s right to a speedy trial had been violated, and instead adopted ‘a
balancing test, in which the conduct of both the prosecution and the defendant are weighed.’”
Kanneh, 403 Md. at 687-88 (quoting Barker, 407 U.S. at 530). Four factors are to be
assessed in determining whether a defendant’s right to a speedy trial has been violated:
“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and
prejudice to the defendant.” Id. at 688. “None of these factors are ‘“either a necessary or
sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they
48
are related factors and must be considered together with such other circumstances as may be
relevant.”’” Id. (quoting Bailey, 319 Md. at 413-14, in turn quoting Barker, 407 U.S. at 533).
1) Length of delay
“[T]he length of the delay, is a ‘double enquiry,’ because a delay of sufficient length
is first required to trigger a speedy trial analysis, and the length of the delay is then
considered as one of the factors within that analysis.” Kanneh, 403 Md. at 688. “For speedy
trial purposes the length of delay is measured from the date of arrest or filing of indictment,
information, or other formal charges to the date of trial.” Divver v. State, 356 Md. 379, 388-
89 (1999).
Here, Peters was arrested on January 27, 2012, and was tried on August 19, 2013,
approximately 19 months later. The circuit court observed that the delay was
very troubling but the reality in Baltimore City is that people wait for their trial
upwards to two or three years which is shameful in this Court’s view but that’s
the reality. So I don’t think a 16 month delay in Baltimore City would weigh
against or in favor of either party, it’s sort of a sad statement on the condition
of the criminal justice system, but it is the reality and it’s on the short side of
the reality.
The delay was of a constitutional dimension. See Doggett v. United States, 505 U.S.
647, 652 n.1 (1992) (delays approaching one year are often deemed “presumptively
prejudicial”). However, the length of delay that can be tolerated depends, to some extent, on
the crime charged. Barker, 407 U.S. at 531 (explaining that “the delay that can be tolerated
for an ordinary street crime is considerably less than for a serious, complex conspiracy
charge”). For example, in Divver, the Court of Appeals found that a delay of 12 months and
16 days for a charge of driving under the influence of alcohol was “of uniquely inordinate
49
length for a relatively run-of-the-mill District Court case” that “presented little, if any,
complexity” because the sole witness for the State was a police officer and the sole witness
for the defense was the accused. 356 Md. at 390-391. In contrast, in Glover, the Court found
that a delay of 14 months “was not an inordinate delay for a murder case involving complex
DNA evidence.” 368 Md. at 224. See also Bailey, 319 Md. at 411 (drug charges,
independent of the other factors, did not justify a two- year delay); Kanneh, 403 Md. at 689(complex child abuse case involving the presentation of DNA evidence may allow for a
lengthier period of delay).
The case at bar was not “run-of-the-mill.” Divver, 356 Md. at 390. There were
numerous charges arising out of the shooting of Johnson, including attempted murder, and
there was crucial evidence that needed to be tested for the presence of DNA. Under the
circumstances, a 19-month delay was not inordinate. Cf. Barker, 407 U.S. at 516-18, 533-36(concluding that a delay in excess of five (5) years did not violate Sixth Amendment speedy
trial right).
2) Reasons for delay
All reasons for delay are not considered the same. Some carry greater weight than
others:
Closely related to length of delay is the reason the government assigns to
justify the delay. Here, too, different weights should be assigned to different
reasons. A deliberate attempt to delay the trial in order to hamper the defense
should be weighed more heavily against the government. A more neutral
reason such as negligence or overcrowded courts should be weighed less
heavily but nevertheless should be considered since the ultimate responsibility
for such circumstances must rest with the government rather than with the
defendant.
50
Barker, 407 U.S. at 531 (footnote omitted); see also Doggett, 505 U.S. at 652 (according
“considerable deference” to trial court’s findings regarding reasons for delay).
The initial delay from Peters’s arrest on January 27, 2012, until the first trial date, on
June 6, 2012, or 4 months and 10 days, is regarded as necessary for pretrial preparation and
will be accorded neutral status. See Howell v. State, 87 Md. App. 57, 82 (1991) (“[t]he span
of time from charging to the first scheduled trial date is necessary for the orderly
administration of justice, and is accorded neutral status”).
The next delay, from June 6, 2012, until August 1, 2012 (1 month and 26 days) was
due to the prosecutor’s being unavailable, as he was in another trial. The Supreme Court has
observed:
Unintentional delays caused by overcrowded court dockets or understaffed
prosecutors are among the factors to be weighed less heavily than intentional
delay, calculated to hamper the defense, in determining whether the Sixth
Amendment has been violated but, as we noted in Barker v. Wingo, 407 U.S.
514, 531 (1972), they must
nevertheless . . . be considered since the ultimate responsibility
for such circumstances must rest with the government rather
than with the defendant.
Strunk v. United States, 412 U.S. 434, 436 (1973); see also Wilson v. State, 281 Md. 640, 654
(1978) (concluding that delays caused by crowded court dockets and understaffed
prosecutors are chargeable to the State, but are weighed less heavily than intentional delay);
Henry v. State, 204 Md. App. 509, 551 (2012) (observing that the lack of availability of the
prosecutor is chargeable to the State, but is weighed less heavily than an intentional delay).
51
The next delay(s), from August 1, 2012, until September 25, 2012, and again until
November 27, 2012, totaling 3 months and 19 days, was due to the unavailability of DNA
evidence. More specifically, although the DNA tests had been completed, the results still
were under review.
In Glover, the Court of Appeals explained that “DNA evidence is highly technical,
often requiring courts to allow more time for completion of the tests and review, by both
parties, of the results. This is not to say, however, that we will permit the State to act in a
lackadaisical fashion.” 368 Md. at 226. The Court concluded that, “while minor delays in
obtaining DNA evidence will not be weighed heavily against the State, nor against a
defendant seeking his or her own DNA analysis, delays likely will not be tolerated upon clear
demonstrations of a failure to monitor or aggressively pursue the attainment of these results.”
Id. at 227. When “a postponement is the result of the unavailability of DNA evidence, and
there is no evidence that the State failed to act in a diligent manner, the grounds for
postponement are essentially neutral and justified.” Kanneh, 403 Md. at 690 (citing Glover,
368 Md. at 226); accord Howard, 440 Md. at 448-49. Accordingly, the delays caused by the
unavailability of the DNA test results and by the DNA test results being under review is
attributable to the State but does not weigh heavily in our analysis of Peters’s speedy trial
claim.
Thereafter, trial was postponed from November 27, 2012, until February 6, 2013, once
again because the prosecutor was in another trial. Ordinarily, prosecutors are not treated as
52
interchangeable; therefore, we are persuaded that this two month and ten day delay, charged
to the State, does not weigh heavily in the speedy trial analysis.
The two month and five day delay from February 6, 2013, until April 11, 2013,
because the prosecutor was unavailable due to a death in the family, also weighs against the
State, but not heavily. Likewise, the delays from April 11, 2013, to June 11, 2013, and June
11, 2013, to the actual trial date on August 19, 2013, which were due to a new prosecutor
being assigned to the case, and that prosecutor’s later unavailability because he was in
another trial, do not weigh heavily against the State. Another reason cited for the April 11,
2013 postponement was that a witness for the State was not available. See Howard, 440 Md.
at 448 (a missing witness justifies an appropriate delay). Thus, these delays of two months,
and two months and eight days, do not weigh heavily in our analysis.
3) Assertion of right
The third Barker factor concerns the “defendant’s responsibility to assert his right.”
Barker, 407 U.S. at 531. This factor is “closely related” to the other three, and “failure to
assert the right will make it difficult for a defendant to prove that he was denied a speedy
trial.” Id. at 531-32. In the case at bar, Peters consistently asserted his right to a speedy trial.
This factor weighs in his favor.
4) Prejudice
Finally, the most important factor in the Barker analysis is whether the defendant has
suffered actual prejudice. Henry, 204 Md. App. at 554. The Barker Court identified three
interests to be protected:
53
(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the defense will be
impaired. Of these, the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness of the entire
system.
Barker, 407 U.S. at 532 (footnote omitted).
Here, during argument on the motion to dismiss, Peters informed the court that he had
been held without bail at the Baltimore City Detention Center, that he had lost touch with his
family and believed they had been evicted from their home, and that he had lost his job.
Additionally, the court heard from the State that DNA was tested on the two firearms
and the black ski mask. There was no DNA recovered from one firearm and the DNA from
another firearm was inconclusive. The DNA recovered from the ski mask was positive as
to Peters, however. Based, in part, on this proffer, as well as defense counsel’s suggestion
that Peters suffered actual prejudice awaiting trial, the court observed as follows:
With regard to actual prejudice, I have not heard other than the
prejudice of being locked up pre-trial which creates a certain amount of
anxiety in the defendant, in fact it appears that the State’s pursuit of the DNA
evidence may have in some small way served to weaken the State’s case and
strengthen the defense’s case, although I understand [defense counsel’s]
comments that he doesn’t feel that it strengthened his case in any way.
But on balance, I believe the factors weigh against granting the motion
so I will deny the motion to dismiss for lack of speedy trial.
We are unable to conclude that in this Baltimore City attempted murder case Peters
suffered actual prejudice because his trial did not take place until approximately 19 months
after he was arrested.
Balancing
54
The specific facts of each case will determine the balancing of the four factors.
Glover, 368 Md. at 231. As the Court of Appeals has explained, “we are mindful that our
task is to ensure that the petitioner’s right to a speedy trial has not been violated; we are also
mindful, however, that delay is often the result of efforts to ensure the highest qualify of
fairness during a trial.” Id. at 231-32. Under the circumstances here, upon assessing and
balancing the Barker factors, we are persuaded that Peters’s constitutional speedy trial right
was not violated. Accordingly, the circuit court properly denied the motion to dismiss.
JUDGMENTS REVERSED. CASE REMANDED
TO THE CIRCUIT COURT FOR BALTIMORE
CITY FOR FURTHER PROCEEDINGS NOT
INCONSISTENT WITH THIS OPINION. COSTS
TO BE PAID ONE-HALF BY THE APPELLANT
AND ONE-HALF BY THE MAYOR AND CITY
COUNCIL OF BALTIMORE.
55