Brewer v. State

• Decision Date: 29 October 2014
• Docket Number: No. 1325, Sept. Term, 2013.,1325, Sept. Term, 2013.
• Parties: Joshua P. BREWER, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

220 Md.App. 89

102 A.3d 850

Joshua P. BREWER, Jr.

v.STATE of Maryland.

No. 1325, Sept. Term, 2013.

Court of Special Appeals of Maryland.

Oct. 29, 2014.

Peter F. Rose (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.

Christopher Mason (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: KRAUSER, C.J., ZARNOCH, and IRMA S. RAKER (Retired, Specially Assigned), JJ.

Opinion

ZARNOCH, J.

The facts of this case invite us to revisit the doctrines of “ plain view” and “open view” in the context of a warrantless seizure of drugs in the vestibule of a Baltimore City rowhouse.

Appellant Joshua P. Brewer, Jr. was charged in the Circuit Court for Baltimore City with possession of cocaine with intent to distribute and possession of heroin with intent to distribute. On May 14, 2013, the trial court denied appellant's pre-trial motion to suppress, and two days later the jury convicted him of both distribution offenses. After denying appellant's motion for new trial, the court, on July 31, 2013, imposed two concurrent 20–year sentences. In this Court, appellant presents the following questions:

1. Did the trial court err in denying the motion to suppress?

2. Did the trial court err in denying Appellant's motion in limine to exclude his prior convictions and/or in denying Appellant's motion for new trial because of the admission of his prior convictions?

3. Did the trial court err in denying the motion for a new trial due to the prosecutor's improper closing argument?

For reasons discussed below, we answer each of these questions in the negative and affirm.

BACKGROUND

Detective Vincent Lash, narcotics investigator for the Baltimore City Police Department, testified that during the early evening of November 5, 2011, he was on plain clothes duty with two other officers in the vicinity of 14 North Gilmor Street in Baltimore City. Upon receipt of a confidential report regarding suspected drug activity by a certain individual, he covertly observed appellant engaged in suspected drug sales. With binoculars, Detective Lash observed appellant running back and forth from and in and out of the residence at 14 North Gilmor and out across the street where individuals were waiting. Appellant handed small items in exchange for cash to a total of at least 14 people. Based on Detective Lash's expertise as a drug investigator, after observing these acts he believed that narcotic sales were taking place.

Detective Lash and two colleagues entered the block to arrest appellant, who looked up as he saw them approaching. Appellant then dropped some small objects to the ground and proceeded to stomp upon them. However, his feet missed a red-topped vial of cocaine. The officers arrested appellant and recovered the red-topped vial, but could not recover the gel caps that appellant had stepped upon.

Detective Lash testified that he then walked over to 14 North Gilmor Street, where the clear storm door was unlocked, open and ajar. He approached the door of the property by walking up a stoop of four steps. Looking through the glass storm door from outside, Detective Lash could see a large amount of drugs on top of a ledge above the interior door. By going through the unlocked, open storm door, he entered this part of the building and recovered the drugs.

At the time he entered this area, Detective Lash was unaware of whether it was part of an apartment building or a single family residence. However, he believed it to be open to the public because the exterior door was “just an open storm door,” and there was no working doorbell, so anyone who wished to knock on the main front door would have to pass through the storm door and enter the area where the front door was located. Detective Lash testified:

I went to the location I saw him come out of. At that point, I didn't know if it was a—an apartment building, because it's a three story. I didn't know if the drugs—if we were going to have to seize the location and get a warrant.

But from walking up to the location, I could see that it was an exterior door in a vestibule area.^{[ 1 ]} And that's why—and when I saw ... the drugs, that ['s] when I received the drugs—obtained the drugs.

Detective Lash then knocked on the main front door, spoke with appellant's father, Joshua Brewer, Sr., who confirmed that appellant lived there. Detective Lash informed the father that his son was being arrested.²

During his testimony, appellant's father confirmed that anyone wishing to knock on “the main door, the only door” would have to pass through the open storm door into the vestibule area to do so. There was no working doorbell, and mail deliveries were simply tossed into the vestibule area. The solid main door was the one that he “locked at night ... that was the real door.” Anyone could enter or toss deliveries into the vestibule area without knocking on the screen door. Photographs of the vestibule introduced as exhibits at the suppression hearing displayed a short, narrow, uncarpeted corridor with no objects on the floor or walls. The corridor led to a door with double locks topped by a palladian window. The interior door sat on a raised step.

Appellant also testified that the storm door was not locked. When asked whether unexpected visitors would simply open the storm door and enter the vestibule, appellant answered: “If they wanted to, of course they could. It's not locked.”

At the suppression hearing, the appellant contended that the vestibule was part of the curtilage, a protected area. The prosecution argued that it was not curtilage. The trial judge denied appellant's motion to suppress the recovered drugs ruling as follows:

I have listened to the testimony of all the parties involved. And I find the testimony of Detective Lash to be credible about what happened, specifically that he had gotten information from a CI that a person matching the defendant's description was selling drugs like crazy in the area of 14 North Gilmor Street, right where we're talking about.

The officers were able, with their binoculars, to observe similar activity to that, someone, what Detective Lash referred to as “serving customers” approaching people and taking money and giving small objects sufficient that they felt they had corroborated the CI sufficient that they rolled quickly up to the scene with the intention of arresting the defendant.

Even before they got out of the car, the defendant dropped whatever was in his hand and danced upon those items, missing only one of them, a redtop vial. The Detective Lash saw that and then went to the place where he had seen the defendant come.

Now, there are three different areas here. We have the stoop, as this is Baltimore City. We have what is referred to as the “vestibule.” And I think it is truly a vestibule. And we have the interior of the house.

No one contends that the police did not have the legal right to go up on the stoop. Everybody who comes, even the defendant said that Jehovah's Witnesses go up on the stoop and bang on the door. Everybody has that right.

What is the legal significance of the vestibule. And I think that it is acceptable to include that in the—in the concept of curtilage. And then the interior door, which is the defendant's father said was open a little bit, the detective said was closed, is the demarcation of the private area of the home.

Those are our three spots; stoop, public area, vestibule, curtilage. The area beyond the interior door is private area.

The Fourth Amendment looks at all of those areas quite differently. As to the stoop, if anyone can go there, so can a police officer. As to the curtilage, that is an area protected by the Fourth Amendment unless what is in the curtilage is observable from the public area.

Just as if I happen to have a marijuana plant growing on my patio, my patio is protected area, but looking at my marijuana plant growing on my patio might be something that could be seen from the front street or the alley behind my home, an area where the police have a right to be.

So this entire analysis comes down to whether Detective Lash, upon going up to the steps, could in fact see a bag atop the door in what used to be a transom area above the front door.

It is his testimony he saw it from that distance which he would be looking through a glass panel or crack in the door—I think there is no significance between either looking through the glass panel or any crack in the door—seems to be maybe five or six feet away by the pictures.

He looked in. He saw it, he recognized it as the same thing that the CI had been talking about that he had seen on the street dropped by the defendant and missed in his stomping; that when he sees it, he recognizes it as evidence.

I think here we are clearly in the Plain View Doctrine. The police officer has a right to be where he is, sees something he recognizes as evidence, and we should also point out that this is a—an exigent circumstance to this extent. If a warrant is needed for the vestibule, then the items in the vestibule could be moved or disposed of by anyone inside the house.

If the vestibule is not covered by the Fourth Amendment protections in need of a search warrant, the officer can go in and take it.

When he sees it, given the exigency, I believe he is allowed to go in and pick it up and seize it only. They did not proceed further with a warrant to search the rest of the house. Rather they arrested the defendant and recovered the drug on the street, the bag from the transom. And I find that to be in plain view and within the rights of the police to seize upon seeing it.... The motion to suppress the drugs is denied.

DISCUSSION

I. Trial court's denial of motion to suppress

A. Introduction—Standard of Review

Appellant's first argument is based upon the Fourth Amendment's protection against unreasonable searches and seizures. He contends that the circuit court erred by failing to grant his motion to suppress the seized drugs because Detective Lash lacked permission, failed to...