Brown v. State, 140

• Decision Date: 19 November 2003
• Docket Number: No. 140,140
• Parties: Roger BROWN v. STATE of Maryland.
• Court: Maryland Court of Appeals

835 A.2d 1208

378 Md. 355

Roger BROWN v. STATE of Maryland.

No. 140, Sept. Term, 2002.

Court of Appeals of Maryland.

November 19, 2003.

Nancy S. Forster, Deputy Public Defender (Stephen E. Harris, Public Defender, Geraldine K. Sweeney, Asst. Public Defender, on brief), Baltimore, for appellant.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Argued before BELL, C.J., ELDRIDGE,¹ RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.

WILNER, J.

Based largely on evidence found by police officers in his motel room, appellant was convicted in the Circuit Court for Harford County of possession with intent to distribute cocaine and sentenced to prison for ten years, all but five years suspended. His sole complaint in this appeal is that his consent to allow the police officers to enter and search the motel room was involuntary and that, as a result, the contraband they discovered should have been suppressed as evidence. We find no merit in that complaint and shall affirm.

BACKGROUND

With two exceptions, one of which appellant claims is critical, this case mirrors what occurred in Scott v. State, 366 Md. 121, 782 A.2d 862 (2001). We dealt there, for the first time, with a police technique known as "knock and talk." That technique, we noted, had become a popular one with police agencies, particularly in drug enforcement activities. We described the procedure as follows:

"[P]olice officers, lacking a warrant or other legal justification for entering or searching a dwelling place, approach the dwelling, knock on the door, identify themselves as law enforcement officers, request entry in order to ask questions concerning unlawful activity in the area, and, upon entry, eventually ask permission to search the premises. Permission is often given, and, if the police then find contraband or other evidence of illegal activity, the issue is raised of whether the procedure has in some way contravened the occupant's Fourth Amendment rights."

Id. at 129, 782 A.2d at 867.

We made three holdings in Scott. The knock on the motel door in that case occurred at night—around 11:37 p.m. That is one of the distinctions between Scott and this case. Scott argued that the very act of the police knocking on one's door late at night, without probable cause or even reasonable articulable suspicion, constitutes a "seizure" within the meaning of the Fourth Amendment. Based on the Supreme Court's declaration in Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991) that "a seizure does not occur simply because a police officer approaches an individual and asks a few questions," and our own conclusion in Ferris v. State, 355 Md. 356, 374-75, 735 A.2d 491, 500-01 (1999) that "[t]his is so even if the police lack any suspicion, reasonable or otherwise, that an individual has committed a crime or is involved in criminal activity," and in conformance with the view of most of the courts that had addressed the "knock and talk" issue in the context of the Fourth Amendment, we rejected that claim and held that a nighttime "knock and talk" does not constitute a seizure.

Scott also contended that, even if a "knock and talk" operation does not constitute a seizure, it necessarily vitiates any actual consent given to enter and search the room, at least in the absence of affirmative advice by the police that the occupant may refuse entry, may refuse consent to a search, and may terminate any consent that is given at any time. Consistently with the prevailing view of other courts that had addressed the issue in the context of the Fourth Amendment, we rejected that argument as well. Our second holding was that the proper test for determining the validity of any consent given to enter and search was that stated by the Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) and later confirmed in Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996):

"[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent."

Scott v. State, at 141-42, 782 A.2d at 874, quoting from Schneckloth v. Bustamonte, 412 U.S. at 248-49, 93 S.Ct. at 2059, 36 L.Ed.2d at 875 (emphasis added in Scott).

Finally, applying the Schneckloth test to the facts in Scott, we affirmed the trial court's ruling that the consent given was valid.

In this case, Maryland State Trooper George Wooden, who had been assigned to work with a Drug Enforcement Administration interdiction group, received anonymous information on January 31, 2001, about possible drug activity in Room 109 at the Super Eight Motel in Aberdeen. There is no claim by the State that the quality or quantity of that information rose to the level of probable cause or even reasonable articulable suspicion. At around 10:00 that morning, accompanied by two other officers, Wooden went to the motel and knocked on the door to Room 109. When appellant, one of the two occupants of the room, asked who was there, Wooden responded "maintenance" and asked to come in to check the thermostat. Appellant opened the door. As soon as the door was opened, Wooden, who was in plain clothes, displayed his police badge, identified himself as a police officer, and asked if he could come in and talk with appellant. Wooden also said that, upon the opening of the door, he detected the odor of burnt marijuana, but he did not enter the room based on that information. Appellant orally agreed to let Wooden in and backed away from the door in order to allow Wooden and one of his colleagues to enter. The third officer remained outside.

As Wooden entered, the smell of marijuana became stronger. The second occupant was in one of the two beds in the room, and appellant proceeded to lie down on the other one. Wooden observed a burnt marijuana cigarette sitting in an ashtray on the night table between the two beds. Appellant grabbed the cigarette and put it in his mouth, as if to swallow it. Wooden said that he had already seen the cigarette, whereupon appellant took it out of his mouth and placed it back in the ashtray. When appellant acknowledged that he had rented the room, Wooden asked if the officers could search the room and, according to Wooden, appellant consented. Wooden said that appellant was cooperative and that no force or coercion was used. Under a shirt lying on the dresser, Wooden found a digital scale with white powder on it, and in a dresser drawer he discovered a cache of cocaine. In the night table the police found $926 in cash. Upon discovery of the cocaine, appellant and his roommate were placed under arrest.

This information came out at a hearing on appellant's motion to suppress the evidence found in the motel room. Appellant also testified at that hearing. He acknowledged that Wooden had identified himself as a police officer before asking permission to enter, but appellant expressed the belief that he had no right to prevent the officers from entering, so, to avoid a confrontation, he backed away from the door. He said that he felt "apprehended" once Wooden observed the marijuana cigarette in the ashtray, which was after he had entered the room.

The suppression hearing occurred in September, 2001, before our opinion in Scott was filed. Nonetheless, declaring the testimony of Trooper Wooden to be more credible than that of appellant, the court found that there was "an express consent to enter, an express consent to search" and, on that basis, denied the motion to suppress.

Appellant does not ask us to overrule Scott. He focuses, instead, on the deception employed by Trooper Wooden that induced him to open the door, and, borrowing language from Perkins v. State, 83 Md.App. 341, 350, 574 A.2d 356, 360 (1990), argues that "[t]he use of deception to obtain the opening of a door erodes the consensual quality of that opening."

DISCUSSION

As appellant relies heavily on Perkins, we shall begin, and end, with that case. Around 1:00 in the morning, Perkins and a number of friends checked into a motel. The desk clerk apparently called the police, and, when an officer responded, she said that she thought that Perkins might be "wanted," because another officer had been inquiring about him a few days earlier.² A computer check revealed no outstanding warrants. Concerned that there might be a recently issued warrant not yet in the computer, however, the officer decided to investigate. He obtained a passkey for the room and, at about 2:30 a.m., went to the room with another officer. They listened at the door for a few minutes and heard only two males talking quietly. The officer banged on the door with his metal flashlight, and, when someone inside asked who was present, he announced "Howard County Police, open the door." The Court of Special Appeals quite correctly viewed that as a command, not a request, and in response to that command, Perkins opened the door.

There was some disagreement as what occurred next. Perkins said that, when he opened the door, the officer asked for identification and that, when he turned to get it, the officer walked into the room, uninvited. The officer's police report corroborated that statement—"[a] black male opened the door and this officer entered telling the subject he was there to investigate a noise complaint." The officer's testimony was different. He acknowledged telling Perkins that he was there to investigate a noise complaint but said that he merely...