Brown v. State

• Decision Date: 14 April 1988
• Docket Number: No. 1222,1222
• Citation: 540 A.2d 143,75 Md.App. 22
• Parties: Robert Leslie BROWN v. STATE of Maryland. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 22

75 Md.App. 22

540 A.2d 143

Robert Leslie BROWN v. STATE of Maryland.

No. 1222 Sept. Term 1987.

Court of Special Appeals of Maryland.

April 14, 1988.

Certiorari Denied June 27, 1988.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Beverly Peyton Griffity, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Warren F. Sengstack, State's Atty. for Calvert County, Prince Frederick, on the brief), for appellee.

Argued before GILBERT, C.J., BISHOP, J., and W. ALBERT MENCHINE, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

BISHOP, Judge.

On June 10, 1987, a jury in the Circuit Court for Calvert County (Bowen, J.) convicted Robert Brown, appellant, of possession of a controlled dangerous substance, PCP, with the intent to distribute and simple possession pursuant to MD.ANN.CODE, art. 27 §§ 286 and 287, respectively. On August 25, 1987, the trial court merged the offenses and sentenced Brown to forty years, ¹ twenty-six years suspended, for possession of PCP with the intent to distribute, and fined him $20,000.00.

Brown raises one issue:

Whether the trial court erred in failing to suppress the evidence.

FACTS ²

In early November, by way of a call from a confidential informant, Deputy Leslie Myers of the Calvert County Sheriff's Department was informed that Brown was a "heavy dealer in PCP" and that Brown was "dealing and processing PCP in his townhouse." ³ Although Deputy Myers observed the traffic in and out of Brown's townhouse for the next two nights, he was unable to verify the informant's tip because the traffic was insufficient to establish a pattern of drug dealing. Nevertheless, on November 19, 1986, Deputy Myers and two other Calvert County deputies made an unsuccessful attempt to purchase PCP from Brown at the townhouse.

On November 24, 1986, at approximately 11:30 p.m., Deputy Myers received another call from the confidential informant who told him that Brown had PCP in his townhouse and that he was "spraying or applying it to parsley flakes." Deputy Myers testified that information from the confidential informant had, on prior occasions, proven reliable. At approximately 12:00 midnight, another officer received an anonymous call from a "concerned citizen" who said that "a party of some type" was occurring in Brown's residence, that two white females were in the townhouse, that he was concerned about what was going on inside and that there was a possibility of illicit drug activity. Soon thereafter, Deputy Myers, Deputy Elliott and Sergeant Garner went to Brown's residence to investigate.

Because it is crucial to this appeal, we will describe in detail the area adjoining Brown's townhouse. ⁴ Brown lived in a community of two-story duplex townhouses.

When facing the front of Brown's townhouse, immediately to its left is a stockade type fence six feet high which extends out from the side of the townhouse approximately eight to ten feet. In this portion of the fence is a gate. The fence then continues about sixty feet, parallel to the side wall of the house, down a slight embankment, where it joins another section of the fence which runs parallel to the rear of the townhouse until it joins with a common fence dividing the back yards of the adjoining townhouses. This fence completely encloses the back yard of Brown's townhouse. Inside the enclosed area of Brown's back yard were a grill, a picnic table and a clothes line.

Deputy Myers testified that

[m]yself and Sgt. Garner went to the front door, and I began knocking on the front door and announced our presence. Deputy Elliott remained to the side of the apartment, and I again knocked on the door and announced my presence and requested somebody come to the door, we would like to speak to them. We could hear a lot of running inside the apartment, people running up and down the steps, a lot of commotion going on inside.

* * *

After about five (5) minutes or so of knocking, Deputy Elliott went to the rear of the residence, and I again announced ourselves as being the Sheriff's Department, and requested to speak to someone inside. At that time I heard a female state, "Robert, do you want me to let them in now." I couldn't hear the reply. So I again knocked and advised as we needed to speak to someone inside. They still would not open the door. So I then went to the rear of the apartment where Deputy Elliott was located.

Deputy Myers estimated that he knocked on Brown's front door for "a good eight minutes". Although Myers testified that he was unsure whether Brown's fence had a gate, (clearly, the photograph shows a gate) he unequivocally stated that "the side yard was open" and that "there was nothing stopping free access to the rear of the residence."

Deputy Elliott testified that

I was out front with Sgt. Garner and Deputy Myers initially. They knocked on the door, nobody came to the door. We then--I heard rustling inside so I went around back to observe the back. Approximately ten (10) minutes went by and I heard a toilet--what I took to be a toilet, flush. I stood outside the window. I was on the left hand side--if you are facing the front of the house, I went around the left hand side of the house. * * * I went around and stood on the back left hand corner, approximately ten (10) feet out from the house. I observed a white male, ... raise the window [and] slit the screen with some object. I didn't see the object. [He] stuck his hand through the screen and threw a package or objects out. I couldn't see how many. I saw something leave his hand. There was light coming from the window that illuminated that I then went around the front of the house and got Deputy Myers. I showed him where approximately I heard the object land. We searched the area....

When asked why he initially went from the front of the house Elliott testified

Because I heard rustling in the house, and it sounded like everybody was running in the house. I went around back to insure our safety, more or less.

He also testified that he did not have to open any gates and that he "freely walked through" to the backyard.

With their flashlights, Deputies Myers and Elliott located the objects that had been thrown from the window. Deputy Myers testified that he picked up one of the objects and "[i]t was a small aluminum foil packet. I opened the packet up, and it had parsley flakes containing PCP". Deputy Elliott testified that based on his knowledge and experience he believed that the packets contained "[p]arsley flakes laced with PCP." Deputy Myers picked up another foil packet, opened it and noted that the packet "appeared to be very wet like it had been rinsed off...." Deputy Elliott testified that based on his knowledge and experience that one way of disposing of controlled dangerous substances, such as PCP, is to "[f]lush [the substance] down the commode." The deputies recovered a total of nineteen foil packets. Both deputies returned to the front door area where Sergeant Garner and two other deputies, who had just arrived, were talking with Brown and two women. ⁵ At that time, the deputies neither searched Brown's residence nor arrested anyone.

Brown argues that the area enclosed by his stockade type fence is a "curtilage" entitled to Fourth Amendment ⁶ protection and that the deputies' warrantless search of the "curtilage" and subsequent seizure of the aluminum foil packets were unreasonable.

In determining whether Brown's Fourth Amendment rights were violated we will discuss the following sub-issues:

I. Whether Brown's yard is curtilage under the Fourth Amendment.

II. If it is curtilage, whether there was a warrantless "search" within the meaning of the Fourth Amendment.

III. If it is curtilage, whether Brown abandoned his property rights and privacy interests in the foil packets.

IV. If it is curtilage, whether the deputies' warrantless entry into Brown's back yard was a per se violation of the Fourth Amendment.

I. The Curtilage

The Fourth Amendment protects a person's home from unreasonable searches and seizures. The Court in United States v. Dunn, --- U.S. ----, 107 S.Ct. 1134, 1139 94 L.Ed.2d 326 (1987) stated that "the Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself." The curtilage is defined as those areas near the residence which harbor the "intimate activity associated with the 'sanctity of a man's home and the privacies of life.' " Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)). ⁷

In Dunn, supra, the Court said,

we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

* * *

We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a "correct" answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration--whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection.

Id. 107 S.Ct. at 1139 (citations omitted).

The State argues that Brown's fully fenced back yard, where the foil packets were recovered, is not within the curtilage and is, therefore, not entitled to Fourth Amendment protection. See Oliver v. United States, 466...