Bellamy v. State

• Decision Date: 01 September 1995
• Docket Number: No. 1990,1990
• Citation: 682 A.2d 1185,111 Md.App. 529
• Parties: Artis BELLAMY v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 529

111 Md.App. 529

682 A.2d 1185

Artis BELLAMY v. STATE of Maryland.

No. 1990, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Sept. 26, 1996.

John L. Kopolow, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Betty Stemley Sconion, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, and Patricia Jessamy, State's Attorney for Baltimore City, on the brief), Baltimore, for Appellee.

Submitted before WENNER and HOLLANDER, JJ., and JOHN J. BISHOP, Judge (retired), Specially Assigned.

HOLLANDER, Judge.

At a bench trial in the Circuit Court for Baltimore City, Artis Bellamy, the appellant, was convicted of possession of cocaine with intent to distribute, based on an agreed statement of facts. The court sentenced appellant to seven years imprisonment, and appellant filed this appeal. He argues that the trial court erred by denying his motion to suppress evidence seized during a search of his home, because the search was conducted in violation of the Fourth Amendment. We find no merit in this argument and shall affirm the judgment of the trial court.

Factual Summary

Officer William Cheuvront was the sole witness at the hearing on appellant's motion to suppress. The officer was a member of the Central District Drug Enforcement Unit of the Baltimore City Police Department. The parties stipulated that he was an expert in the areas of controlled dangerous substances and firearms.

Officer Cheuvront testified that, in early November of 1994, he met with a registered confidential informant known to the police as CD-271. On three separate occasions in the past, CD-271 had supplied information that had led to the seizure of narcotics and firearms. Based on the information supplied by CD-271 during the early November meeting, Officer Cheuvront ran a check on a particular apartment and learned that it was rented to appellant.

Shortly thereafter, Officer Cheuvront arranged for another registered confidential informant known as CD-130 to enter appellant's apartment and make a controlled buy of cocaine. CD-130 had previously made more than 25 controlled buys for the police, and those buys had led to the issuance of 25 search and seizure warrants. CD-130 entered appellant's apartment and made a controlled buy on November 6, 1994. The substance that was purchased proved to be 82% pure cocaine.

At 6:00 P.M. on December 4, 1994, CD-271 contacted Officer Cheuvront and informed him that a man named Woodrow Peterson was using appellant's apartment and had just stashed an AK-47 assault rifle and a large amount of cocaine there. Based on this information, Officer Cheuvront began to prepare an application for a search warrant. At 8:00 P.M., however, before the application was completed, CD-271 again contacted Officer Cheuvront and informed him that Peterson was preparing to move the assault rifle and the cocaine out of appellant's apartment. Officer Cheuvront gathered together other members of the Drug Enforcement Unit and proceeded to appellant's apartment, intending to enter it without a warrant. The officer explained that the apartment building had three different entrances and four stairwells. He stated: "It's next to impossible to try to secure that situation without entering the apartment, based on my view and my sergeant's view." The officer added: "Once they exited that apartment with the AK-47 in their hand, it [would become] a very dangerous situation for the police and the other tenants in that building."

Once outside the apartment door, Officer Cheuvront shouted "Police," and the team of officers entered the apartment using a battering ram. Officer Cheuvront heard the sound of glass breaking, and a window was later found to be broken. The officers rounded up the several persons inside the apartment, including appellant. Another person was captured outside, after having jumped from a window. The officers handcuffed all of the persons who had been inside the apartment and seated them in "one centralized location." They observed, in plain view in the living room, a brown bag containing a large amount of suspected cocaine. Officer Cheuvront then returned to the station and completed the application for the search warrant. In the application, he relied on the cocaine in plain view in appellant's living room to help establish probable cause to support the warrant. The warrant was signed by a judge at 11:00 P.M., and Officer Cheuvront then notified the officers at the apartment to begin their search.

On this evidence, the trial court concluded:

We clearly have an exigent circumstance when at eight o'clock the informant advised the police officer that the gun and the narcotics were going to be moved to another location. The officer acted as expeditiously as he possibly could.

But it would have been foolhearted for him to enter into a premises where there was such a potentially lethal weapon without adequate manpower and physical protection, that being body armor.

So the officer acted as expeditiously as possible to get prepared to enter upon the premises. And with that we do have an exigent circumstance because, as the Court has implicitly entered a weighing of brevity of public concern issues. Here we have a very dangerous item.

It's not a midnight special or simple revolver. But we have an AK-47, which is extremely more lethal and potentially [more] dangerous than the other weapons that I had just made reference to.

So, I have no difficulty at all. When you have an impoundment situation, you've got to either have a consent given by the person who has actual standing and who has a[n] expectation of privacy on the premises or you have to have the exigent circumstance.

Here, consent is not an issue at all and has no bearing on this case. But exigent circumstance, as a matter of fact, it has to be established and I do find that the State has met its burden of establishing that there was an exigent circumstance by the informant's advisement that the weapon and the narcotics were going to be transported to another location.

Discussion

In McMillian v. State, 325 Md. 272, 281-82, 600 A.2d 430 (1992), the Court of Appeals made clear that,

in assessing whether ... police conduct ... was reasonable under the Fourth Amendment, we make our own independent constitutional appraisal.... The factual predicate for this appraisal is that evidence adduced at the suppression hearing that is most favorable to the State as the prevailing party on the motion.... The trial court's findings as to disputed facts are accepted by this Court unless found to be clearly erroneous after having given due regard to the lower court's opportunity to assess the credibility of the witnesses....

(Citations omitted.) See also Ornelas v. United States, 517 U.S. ----, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (holding that appellate court should conduct independent de novo review of ultimate question of probable cause to make warrantless search; findings of historical fact are reviewed only for clear error); Jones v. State, 111 Md.App. 456, 466-467, 681 A.2d 1190 (1996) (reviewing court "must make its own de novo determination of whether probable cause existed in light of the not clearly erroneous first-level findings of fact and assessments of credibility").

Appellant contends that the trial court erred in determining that the warrantless entry was justified by exigent circumstances. The agreed statement of facts revealed that an AK-47 assault rifle, two handguns, approximately 175 grams of crack cocaine, and nearly $2200.00 in cash, among other things, were seized during the search. Appellant posits that the evidence was the fruit of the warrantless entry into his apartment.

The Supreme Court has said:

Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," ... for the Constitution requires "that the deliberate, impartial judgment of a judicial officer * * * be interposed between the citizen and the police * * * ." ... "Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," ... and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.

Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (citations omitted). Those exceptions include: a consent to search; an emergency that requires immediate response; hot pursuit of a fleeing felon; and imminent destruction or removal of evidence. See Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct. 1969, 1972-73, 26 L.Ed.2d 409 (1970). Although the instant case involves the warrantless entry into--and impoundment of--appellant's apartment, the analysis is the same. The United States Court of Appeals for the Fourth Circuit has explained:

Warrantless entries into a residence are presumptively unreasonable.... However, an exception to the warrant requirement is made where certain exigent circumstances exist. Where police officers have probable cause to believe that evidence of illegal activity is present and reasonably believe that it may be destroyed or removed before they can secure a warrant, exigent circumstances exist to justify a warrantless entry.... Exigent circumstances, therefore, means that there is insufficient time to obtain a warrant.

United States v. Campbell, 945 F.2d 713 (4th Cir.1991) (citations omitted).

"The meaning of exigent circumstances is that the police are confronted with an emergency--circumstances so imminent that they present an urgent and compelling need for police action." Stackhouse v. State, 298 Md. 203, 219-20, 468 A.2d 333 (1983). "The burden to establish that exigent circumstances justified [a] warrantless entry ... rests with the State.... To determine...