531 A.2d 1290 (Md.App. 1987), 100, Buie v. State

Docket Nº:100
Citation:531 A.2d 1290, 72 Md.App. 562
Opinion Judge:[10] Bloom
Party Name:Jerome Edward BUIE v. STATE of Maryland.
Attorney:[7] John L. Kopolow, Assistant
Case Date:October 09, 1987
Court:Court of Special Appeals of Maryland
 
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Page 1290

531 A.2d 1290 (Md.App. 1987)

72 Md.App. 562

Jerome Edward BUIE

v.

STATE of Maryland.

No. 100

Court of Special Appeals of Maryland.

October 9, 1987

Page 1291

[72 Md.App. 564] John L. Kopolow, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief) Baltimore, for appellant.

Norman L. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Alexander Williams, Jr., State's Atty. and Joseph B. Chazen, Asst. State's Atty., for Prince George's County, on the brief, Upper Marlboro), for appellee.

Argued before WILNER, ALPERT and BLOOM, JJ.

BLOOM, Judge.

A jury in the Circuit Court for Prince George's County, presided over by Judge Jacob S. Levin, convicted appellant, [72 Md.App. 565] Jerome Edward Buie, of robbery with a deadly weapon and the use of a handgun in the commission of a felony. Judge Levin sentenced appellant to consecutive sentences of twenty years for the robbery with a deadly weapon and fifteen years for the use of a handgun.

In this appeal from those judgments, appellant asserts that the trial court erred when it denied his motion to suppress evidence seized at the time of his arrest. He also contends that the trial court erred when it called his cousin, Antonio Buie, as its witness. We disagree with appellant's assertions of error and will affirm the judgments.

Page 1292

I Motion to Suppress

Evidence produced at the pre-trial hearing on appellant's motion to suppress disclosed that on 5 February 1980 seven police officers arrived at appellant's home with a valid warrant for his arrest. The police also had a warrant for the arrest of Lloyd Allan. Based on eyewitness identifications, both suspects were charged with the robbery of a pizza shop, which had taken place two days earlier.

While two of the officers remained outside to secure the exits, the other five entered appellant's home. Corporal Rozar, one of those five, stood at the entrance to a flight of stairs leading down to a basement. Corporal Rozar called down the stairs several times, identifying himself and commanding everyone in the basement to come out with hands raised. Eventually appellant emerged from the basement and was promptly arrested, handcuffed, and searched. After appellant's arrest, Detective Frolich went into the basement where he saw, in plain view, a red jogging suit. He seized the jogging suit because it matched a description of the clothing worn by the armed robber at the scene of the crime for which appellant was arrested.

Cross-examining Detective Frolich at the suppression hearing, defense counsel elicited the following with respect to the officer's entry into the basement:

Q. You observed the officer search [appellant]?

A. Yes, sir. [72 Md.App. 566]

Q. And did he find anything on him?

A. I don't recall.

Q. And you observed the officer handcuff [appellant]?

A. Yes, sir.

Q. And then place him under arrest?

A. Yes, sir.

Q. What did the officer do with [appellant] at that point?

A. I don't know.

Q. Took him out, whatever. At this point, you decided to go into the basement?

A. Yes, sir.

Q. Did you know what you were looking for?

A. I just went down there in case there was someone around.

* * *

Q. Did you have any reason to believe that anyone else was in the house besides Mr. Buie?

A. I had no idea who lived there

* * *

Q. But, was there any particular knowledge that allowed you to know that [appellant] was at home at that time?

A. Yes, sir.

Q. What was that?

A. I had a secretary in my office call his residence and ask to speak to him.

Q. And who answered the phone?

A. I don't know who answered the phone. But, I think it was female and then she had a conversation with Mr. Buie.

Q. So you knew there was a girl and a man in the house?

A. Yes, sir.

At the close of the suppression hearing, Judge Levin overruled appellant's motion to suppress, stating that Detective Frolich's search of the basement was reasonable to insure [72 Md.App. 567] the officers' safety because appellant was charged with a serious offense involving a handgun and because the police did not know who else was in the basement following appellant's arrest.

During the course of trial, before offering the jogging suit in evidence, the State's Attorney asked the trial judge to reopen the suppression hearing in order to clarify the facts and circumstances surrounding the basement search. The trial judge reopened the suppression hearing over appellant's objection. The jury left the courtroom and Detective Frolich once again took the stand. Detective Frolich reiterated that warrants were sworn out for both appellant and his suspected accomplice and stated, for the first time, that the officers who arrived at appellant's home on 5 February 1986 were armed with both warrants. Further questioning of Detective Frolich produced the following:

Page 1293

Q. Now, at the time you arrested [appellant], had an arrest of [appellant's accomplice] been made?

A. No, sir.

* * *

Q. And did you have any knowledge or information concerning how [appellant] and [the accomplice] were related as far as--in any fashion?

* * *

A. They had been arrested prior, in November, for an armed robbery.

* * *

Q. Did you know whether they knew each other any way?

A. I had information, or the information from the other robbery, that they were running together.

Q. Okay. And at the time you went down to the basement, why did you go there?

A. To see if [appellant's accomplice] may be in the basement.

A. Okay. At that point, you didn't know whether [appellant's accomplice] would be there or not? [72 Md.App. 568]

A. No, sir.

Judge Levin found no cause to change his previous ruling based on the second hearing, and again overruled the motion to suppress. Appellant challenges Judge Levin's reopening of the hearing as well as the denial of the motion to suppress.

We note, initially, that the State bears the burden of proving circumstances which justify a warrantless search. Stackhouse v. State, 298 Md. 203, 220, 468 A.2d 333 (1983) (citing Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, 64 (1951); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153, 158...

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