Chase v. State

• Decision Date: 01 September 1985
• Docket Number: No. 1616,1616
• Citation: 68 Md.App. 413,511 A.2d 1128
• Parties: Jerome Edwin CHASE, Jr. v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 413

68 Md.App. 413

511 A.2d 1128

Jerome Edwin CHASE, Jr. v. STATE of Maryland.

No. 1616, Sept. Term, 1985.

Court of Special Appeals of Maryland.

July 15, 1986.

John L. Kopolow, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Ronald M. Levitan, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty. for Prince George's County and William T. Shockley, Asst. State's Atty. for Prince George's County, on brief, Upper Marlboro), for appellee.

Argued before WILNER, ROBERT M. BELL and WENNER, JJ.

WILNER, Judge.

Under current Constitutional doctrine, evidence seized by a policeman without a warrant and in violation of a person's Fourth Amendment rights ordinarily may not be used by the State to convict the person of a criminal offense. The principal question in this appeal is whether such evidence may be used in a probation revocation proceeding for the purpose of showing that the person has violated a condition of his probation. We are also asked to consider whether the record fails to show that appellant was present at his revocation hearing and that he waived certain fundamental rights, whether the proceeding itself was fundamentally unfair, and whether the new sentence order by the court was illegal.

I. The Facts

On May 17, 1983, appellant was convicted by the Circuit Court for Prince George's County of robbery. He was sentenced to ten years in prison, all but 55 days of which were suspended in favor of five years probation. A year later, he was found to have violated certain conditions of his probation, whereupon the court "reimposed" the ten-year sentence, gave credit for 250 days served, and again suspended execution of the balance in favor of five years probation.

On January 9, 1985, appellant was arrested and charged with possession with intent to distribute marijuana and simple possession of that substance. The circumstances of the arrest, as summarized in appellant's brief, were as follows:

"Officers Pappas and Anderson were in an area of considerable drug trafficking when they saw Appellant signal to a motorist. The car stopped, and Appellant gave something to the driver who gave something back to him. The officers arrested Appellant, searched him, and recovered about 60 grams of marijuana, 125 small manila envelop[e]s, and $171 in cash. Officer Anderson did not know Appellant or his probationary status at the time of the arrest. The reason for the arrest was prosecution of Appellant for the apparent drug transaction."

In February, while the criminal case was pending, the State filed a petition to revoke appellant's probation, alleging a failure to "obey all laws." In June, the court in the criminal case found appellant's arrest to be unlawful-- without probable cause--and therefore suppressed the evidence recovered from him, whereupon, in August, the State dismissed the charges. It did not dismiss its petition to revoke appellant's probation, however.

Appellant appeared in court in the revocation case on September 13, 1985, and immediately moved to suppress the evidence taken at the time of his arrest or to dismiss the entire proceeding. ¹ Applying a kind of balancing test, the court ultimately denied the motion, finding that "the probation process and community safety interests far outweigh any deterrent effect [of the exclusionary rule]" and thus concluding that "the exclusionary rule is not applicable to this violation of probation proceeding." Upon that ruling, appellant ultimately conceded that marijuana had indeed been taken from him. The court thereupon revoked his probation, once again "reimposed" the ten-year sentence, suspended all but four years, gave credit for 580 days of previous incarceration, and placed appellant on five years probation commencing upon his release from prison.

As noted, appellant raises four issues in this appeal. We shall deal with them in a slightly different order than presented:

II. Appellant's Presence

There were two court proceedings in this case--one on September 13, 1985, which dealt almost exclusively with the suppression/dismissal issue, and one on December 5, 1985, which followed the court's ruling on that issue and dealt with the merits of the case. We are concerned here with the latter proceeding.

It is clear that appellant was not present in the courtroom at the very outset, his counsel indicating that he was in the lock-up but had been summoned. It is also clear that at some undefined point in the brief proceeding appellant indeed was brought to the courtroom, for, on page six of the transcript, he responded to a question from the court. Unfortunately, it was between pages one and six that (1) counsel conceded that marijuana had been taken from appellant, (2) based on that concession the court found appellant in violation of his probation, and (3) argument was made as to disposition.

We start with the proposition that, as part of the minimal due process applicable to probation revocation proceedings, appellant had a right to be present at the hearing, to present evidence, and to confront witnesses against him. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Those rights can, of course, be waived. Even in an actual criminal trial, to which the full panoply of due process requirements pertain,

"an effective waiver of the defendant's right to be present at every stage of the trial will not always require a personal waiver by the defendant. Where the right of confrontation is not implicated, and where there is involved no other right requiring intelligent and knowing action by the defendant himself for an effective waiver, a defendant will ordinarily be bound by the action or inaction of his attorney."

Williams v. State, 292 Md. 201, 219, 438 A.2d 1301 (1981).

No objection was made by counsel, and no objection was made by appellant himself, to the commencement of the proceeding without appellant being present. Indeed, as noted, it is not clear when appellant actually arrived, and it is therefore not clear that anything of significance occurred in his absence. His right of confrontation was certainly not transgressed, for no witnesses testified against him. It had already been determined that the evidence taken from him was admissible, and the most damaging thing that occurred was his counsel's stipulation that the substance seized was, in fact, marijuana. But that was never in dispute; indeed at the September 13 hearing, appellant stipulated that a bag containing 58.6 grams of marijuana had been seized. On this record, we cannot find any basis for concluding that, to the extent appellant was, in fact, not present, his right of presence was not effectively waived. He is free, of course, to establish a more persuasive record in post-conviction proceedings, if there is any basis for doing so. See Haley v. State, 40 Md.App. 349, 392 A.2d 551, cert. denied 284 Md. 744 (1978).

III. Suppression

We turn now to the main issue: did the court err in permitting the State to use the evidence unlawfully taken from appellant? Preliminarily, it is important to note that, unlike Cook v. State, 281 Md. 665, 381 A.2d 671, cert. denied 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed.2d 136 (1978), we are not dealing here with a situation in which the trial judge disagreed with an earlier ruling that the evidence was unlawfully taken. The State and the court in this case accepted the earlier conclusion; the issue, then, is not the correctness of the ruling or whether it is even open to reexamination, but simply whether the exclusionary rule flowing from it is or should be extended to this proceeding.

(a)

When, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the Supreme Court discarded Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), and made the exclusionary rule fashioned in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), a Constitutional doctrine applicable to the States, it spoke in rather dogmatic terms. Without the sanction of the exclusionary rule, it said, "the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom 'implicit in the concept of ordered liberty.' " 367 U.S. at 643, 81 S.Ct. at 1685. Thus it held that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." Id.

The law, of course, has not been static in this area since 1961. Even before Mapp, the Court had viewed the exclusionary rule as a deterrent, rather than a redressive measure. In Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960), it said that the purpose of the rule "is to deter--to compel respect for the constitutional guaranty in the only effective available way--by removing the incentive to disregard it." Upon that rationale, and despite the broad doctrinal language in Mapp, the Court, while periodically reaffirming the need for and continued existence of the exclusionary rule in Fourth Amendment cases, eventually began to open some holes in the Constitutional net it had thrown over improperly seized evidence. Thus, in United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974), the Court observed:

"Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served."

Two years later, the Court began to subject the rule--or at least proposed extensions of it beyond the criminal trial itself--to a kind of...