550 A.2d 79 (Md. 1988), 161, Buie v. State

Docket Nº:161,
Citation:550 A.2d 79, 314 Md. 151
Opinion Judge:[10] Adkins
Party Name:Jerome Edward BUIE v. STATE of Maryland.
Attorney:[7] John L. Kopolow, Assistant Public Defender, Alan H. Murrell, Public Defender, both on brief, both of Baltimore, Maryland, for appellant.
Case Date:November 28, 1988
Court:Court of Appeals of Maryland

Page 79

550 A.2d 79 (Md. 1988)

314 Md. 151

Jerome Edward BUIE


STATE of Maryland.

No. 161,

Court of Appeals of Maryland.

November 28, 1988

Page 80

[314 Md. 153] John L. Kopolow, Asst. Public Defender, Alan H. Murrell, Public Defender, on brief, Baltimore, for appellant.

Norman L. Smith, Asst. Atty. Gen., J. Joseph Curran, Jr., Atty. Gen., both on brief, Baltimore, for appellee.


ADKINS, Judge.

The warrantless search and seizure of a residential basement produced a red running suit that was instrumental in the conviction of petitioner, Jerome Edward Buie (Buie), of armed robbery and the use of a handgun in the commission of a felony. We shall hold that the search and seizure were unconstitutional because they violated rights established by the fourth amendment to the United States Constitution. The warrantless search of the basement was not supported by probable cause to believe that the requisite exigent circumstances existed.

At Buie's jury trial in the Circuit Court for Prince George's County (Jacob S. Levin, J., presiding) part of the evidence produced by the State was the red running suit. A witness to the robbery identified Buie as one of two robbers, and more specifically, as the one who wielded a handgun and wore a red running suit. The red suit had [314 Md. 154] been seized from Buie's basement under circumstances explained at his unsuccessful motion to suppress that damning piece of evidence.

Facts before Judge Levin at the suppression hearing established that two men had robbed a Godfather's Pizza Restaurant on 3 February 1986. On that same date the police obtained arrest warrants for Buie and his alleged accomplice, Lloyd Allen (Allen). Buie lived at 5400 67th Avenue, Riverdale, Prince George's County. That dwelling was under police surveillance, apparently from the time of the issuance of the arrest warrant. On 5 February, around mid-afternoon, the police, it seems, satisfied themselves that Buie was at home. They did this by arranging to have a telephone call made to Buie's dwelling; the call verified Buie's presence, and that of a young woman, at that location.

Arrest warrant in hand, the police went to 5400 67th Avenue. They had no search warrant. The party numbered six or seven officers. They entered the home and began to look for Buie on the first and second floors. A Corporal Rozar arrived; he ascertained that the other officers had not yet "cleared the basement" of the house. Rozar undertook to "freeze the basement" by standing at the top of the basement stairs so anyone who might be there could not come up behind the other officers. With service revolver drawn, Rozar twice "yelled down to the basement for anyone down there to come out." When a voice inquired as to who was calling, Rozar said it was the police. Eventually, Buie emerged from the basement, ascended the stairs, and was searched, handcuffed, and arrested by Rozar.

At that point Detective Frolich entered the basement; he noticed, in plain view, a red running suit "that fitted the description

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... as being a jumpsuit worn by one of [the robbery suspects];" he seized it. It bears repeating that the police had no search warrant. To the best of their knowledge, Buie and an unidentified girl or woman were the only occupants of the dwelling. Rozar testified that he [314 Md. 155] was not concerned about any danger. Frolich testified that he entered the basement "in case there was someone else [there]."

Based on this evidence, Judge Levin decided

they had a right to search and they had a right to seize, based on the facts of this case. The man comes out from a basement, the police don't know how many people are down there. He is charged with a serious offense.

I think the police acted reasonably in this case and if they had gone back to get a [search] warrant, that wouldn't have been there. 1

He denied the motion to suppress. 2 [314 Md. 156]

The Court of Special Appeals affirmed the trial court's denial of the motion to suppress the running suit, holding that the warrantless search and seizure were reasonable because "if there is reason to believe that the arrestee had accomplices who are still at large, something less than probable cause--reasonable suspicion--should be sufficient to justify a limited additional intrusion to investigate the possibility of their presence." Buie v. State, 72 Md.App. 562, 576, 531 A.2d 1290, 1297 (1987) [emphasis in original]. We granted certiorari to decide the important issue involved.

The fourth amendment provides that "[t]he right of the people to be secure in their ... houses ... against unreasonable searches and seizures shall not be violated...." U.S. Const. amend. IV. See also Steagald v. United States, 451 U.S. 204, 212, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38, 45 (1981) (" '[T]he Fourth Amendment has drawn a firm line at the entrance to the house.' "); Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374-1375, 63 L.Ed.2d 639, 644 (1980) (police may not make a warrantless entry into a suspect's home in order to make a routine felony arrest); Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734, 739 (1961) ("At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."); United States v. Winsor, 846 F.2d 1569, 1574 (9th Cir.1988) ("[T]he expectation of privacy in one's home is ... most jealously guarded by the Fourth Amendment...."). Police are, whenever practicable, required to obtain a search warrant, supported by probable cause,

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from a neutral and detached magistrate. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 862, 43 L.Ed.2d 54, 64 (1975).

Upon the arrest of an individual, in his home and when there is no search warrant, the police ordinarily may only search the area of the house within his immediate control. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). And there is generally "no ... [314 Md. 157] justification ... for routinely searching any room other than that in which the arrest occurs...." Id. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694. Many federal and state courts have held, however, that the scope of a search incident to arrest may exceed the suspect's "wingspan" when exigent circumstances exist. See generally 2 W. LaFave, Search and Seizure §§ 6.4(b)-(c) (2d ed. 1987); 1 W. Ringel, Searches & Seizures, Arrests and Confessions § 12.6(a) (1979); Joseph, The Protective Sweep Doctrine: Protecting Arresting Officers From Attack by Persons Other Than the Arrestee, 33 Cath.U.L.Rev. 95 (1983); Kelder & Statman,The Protective Sweep Doctrine: Recurrent Questions Regarding the Propriety of Searches Conducted Contemporaneously With an Arrest On or Near Private Premises, 30 Syracuse L.Rev. 973 (1979); Project, Seventeenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1986-1987, 76 Geo.L.J. 521, 587-588 (1988). The burden to show the existence of exigent circumstances rests with the government. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409, 413 (1970); Stackhouse v. State, 298 Md. 203, 217, 468 A.2d 333, 341 (1983). These exigent circumstances often are claimed in the guise of a protective sweep of the premises. 3

A protective sweep consists of a brief cursory search, in most cases, intended to secure the premises, [314 Md. 158] protect the police from any persons hiding or remaining on the premises, or to find accomplices of the arrestee for whom the police also have arrest warrants. See, e.g., United States v. Caraza, 843 F.2d 432, 435 (11th Cir.1988) (per curiam); United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir.) (per curiam), cert. denied, 481 U.S. 1072, 107 S.Ct. 2468, 95 L.Ed.2d 877 (1987); United States v. Bernard, 757 F.2d 1439, 1443 (4th Cir.1985); United States v. Apker, 705 F.2d 293, 306 (8th Cir.1983), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 538 (1984), 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984); United States v. Gardner, 627 F.2d 906, 909-910 (9th Cir.1980); United States v. Christophe, 470 F.2d 865, 869 (2d Cir.1972), cert. denied, 411 U.S. 964, 93 S.Ct. 2140, 2162, 36 L.Ed.2d 684 (1973); see generally 2 W. LaFave, supra, §§ 6.4(b)-(c). 4

In United States v. Briddle, 436 F.2d 4 (8th Cir.1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 824 (1971), the

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court distinguished Chimel from those cases where a cursory search is necessary. Briddle, 436 F.2d at 8. The court noted that the police officers in Chimel, armed with an arrest warrant, were at Chimel's home, with his wife, waiting for him to arrive home. Id. Further, Chimel "was arrested under circumstances that did not occasion the officers to conduct a cursory viewing of the house premises concurrently with the arrest as a security measure." Id. See also Payton, 445 U.S. at 589, 100 S.Ct. at 1381, 63 L.Ed.2d at 652 (recognizing that, upon the [314 Md. 159] execution of an arrest warrant, there may be a need to check the premises for safety reasons). If the police have justifiably carried out...

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