Cook v. State

• Decision Date: 06 April 1977
• Docket Number: No. 385,385
• Citation: 371 A.2d 433,35 Md.App. 430
• Parties: Bruce Alton COOK v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 430

35 Md.App. 430

371 A.2d 433

Bruce Alton COOK v. STATE of Maryland.

No. 385.

Court of Special Appeals of Maryland.

April 6, 1977.

Certiorari Granted June 29, 1977.

Michael E. Marr, Assigned Public Defender, Baltimore, for appellant.

Francis B. Burch, Atty. Gen., Arrie W. Davis, Asst. Atty. Gen., Edwin H. W. Harlan Jr., State's Atty., and John A. Goodman, Asst. State's Atty., for Harford County, for appellee.

Submitted to THOMPSON, DAVIDSON and MASON, JJ.

MASON, Judge.

The appellant, Bruce Alton Cook, was convicted at a bench trial in the Circuit Court for Harford County of robbery with a dangerous and deadly weapon. He was sentenced to a term of fourteen years.

On appeal the appellant contends:

I. That the evidence seized from his apartment should have been suppressed because the warrantless search was illegal.

II. That the evidence seized from his apartment should have been suppressed under the doctrine of res judicata or collateral estoppel.

III. That the appellant was denied due process of law because the trial judge refused to disqualify himself.

I.

According to the evidence adduced, an unnamed informant told a Baltimore City Police officer that Cook and Roger Wolfe were involved in robberies that occurred in Baltimore County on the 8th and 10th of November, 1973. Having previously used the informant in clearing up several other cases, the officer transmitted the information to the Baltimore County Police. They, in turn, obtained search and seizure warrants for Cook's residence on Broening Highway and Wolfe's residence on Bonsal Street in Baltimore City. On November 16, 1973, armed with these warrants, a squad of policemen from baltimore County and Baltimore City searched both premises, but neither the appellant nor Wolfe was found. Wolfe's parents, however, told Sergeant Zero of the Baltimore County Police that Wolfe was staying at 126 South Chester Street. The police then proceeded to that address, placed Wolfe under arrest and searched the premises. During subsequent interrogation at the police station, Wolfe admitted his involvement in the robberies and implicated Cook. In addition, Wolfe told the police that Cook also had an apartment at 126 South Chester Street, and that Diane Jorgenson and Roland Bauer, who were involved in the robberies, could probably be found there. Acting on this information and the outstanding arrest warrant for Diane Jorgenson, an escapee from Montrose School for Girls, the police returned to 126 South Chester Street.

The trial judge found the following facts:

Upon their arrival, Sergeant Zero and a few other officers went to Cook's apartment and knocked on the door. Benjamin Moose opened the door. While the door was open, Sergeant Zero saw a young woman standing in the kitchen who fit the general description of Diana Jorgenson, given in the Montrose report. Moose then tried to close the door but was prevented from doing so when an officer put his foot in the doorway. Sergeant Zero and other officers then entered the apartment and Sergeant Zero went directly to the young woman while other officers began to check the other rooms for other persons. In the course of checking the rooms, various items of evidence relevant to this proceeding were found, including two guns, a quantity of jewelry and Defendant Cook's wallet. According to the testimony, all items were out in open areas and no probing was necessary to find them other than the checking of rooms for other persons. All items seen were pointed out to the Baltimore City officers present and were then seized by them. Defendant Bauer was present at the time and was taken into custody. Defendant Cook was also then present but escaped before his identity was known to the officers.

The trial judge ruled the entry into Cook's apartment and the seizure of the stolen property were valid because they were based on an arrest warrant for Diane Jorgenson probable cause, exigent circumstances, and the plain view doctrine. We agree.

In the case of Nilson v. State, 272 Md. 179, 321 A.2d 301 (1974), the Court of Appeals similarly held that a warrantless entry into an apartment and seizure of stolen property were legal because of probable cause, exigent circumstances and the plain view doctrine. In that case a building and loan association was held up at gunpoint by three men wearing ski masks around 9:40 a. m. The police were given a description of the robbers and of the getaway car. Shortly before 11:00 a. m. the police located the abandoned vehicle. A search of the car uncovered a dry cleaning ticket in the name of 'McCoy' with an address listed at '2458 Callow'. This information was immediately broadcast and a large contingent of police and FBI agents converged on the three-story, multiple dwelling apartment house at that address. Police investigation of the apartment building revealed that three men lived in apartment 12 on the third floor; that they left the apartment at 8:00 a. m. and returned between 11:00 and 11:30 a. m. At 12:45 p. m. the police proceeded to apartment 12 to arrest McCoy or any other person who fit the description of the robbers. The police knocked on the door but were refused admittance without a search warrant. Upon observing that the man who opened the door resembled one of the suspects and on hearing noises from the back room, the police pushed open the door and arrested the occupants of the apartment, all of whom fitted the general descriptions of the suspects. The police also seized a carbine rifle seen in an open cupboard approximately four feet from the men and a shotgun sticking out of a plaid clothing bag in the rear bedroom that was visible from the middle bedroom.

Like the appellant here, Nilson argued that the warrantless entry and search of the apartment were illegal due to the lack of probable cause and exigent circumstances.

As to probable cause, the Court of Appeals said:

. . . that at the time the police entered apartment 12, they had probable cause to believe that the robbery had been committed by persons then located on the premises. Indeed, as the evidence so dramatically reveals, within minutes after the crime was committed, the police were closely monitoring the movements of the suspected felons and the information which they received led unmistakably to the apartment house at Callow Avenue, and particularly to apartment 12. The police had general descriptions of the three robbers. They knew that at least three men were then in apartment 12-the same three that earlier that morning had driven off in the white Peugeot, a vehicle previously identified as having been used by the robbers. That one of the robbers was named McCoy was deemed likely because a ticket bearing his name and his Callow Avenue address was found in the stolen Pontiac which was used as the getaway car. Sergeant Shriner's observation upon requesting entry to apartment 12 that Campbell fit the general description of one of the robbers added materially to the probable cause then possessed by the police. Id. at 184-85, 321 A.2d at 304.

As to exigent circumstances to justify a warrantless entry into a house to arrest a suspected felon, the Nilson Court cited with approval Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (Cir.1970); United States v. Harris, 140 U.S.App.D.C. 270, 435 F.2d 74 (1970) and enumerated the considerations material to assessing the existence of exigent circumstances as set forth in Dorman, supra.

First, that a grave offense is involved, particularly one that is a crime of violence. See, e. g., Warden v. Hayden, supra; McDonald v. United States, 335 U.S. 451, 459, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (concurring opinion of Justice Jackson). Contrariwise the restrictive requirement for a warrant is more likely to be retained, and the need for proceeding without a warrant found lacking when the offense is what has been sometimes referred to as one of the 'complacent' crimes, like gambling.

Second, and obviously inter-related, that the suspect is reasonably believed to be armed. Delay in arrest of an armed felon may well increase danger in the community meanwhile, or to the officers at time of arrest. This consideration bears materially on the justification for a warrantless entry.

Third, that there exists not merely the minimum of probable cause, that is requisite even when a warrant has been issued, but beyond that a clear showing of probable cause, including 'reasonably trustworthy information,' to believe that the suspect committed the crime involved.

Fourth, strong reason to believe that the suspect is in the premises being entered.

Fifth, a likelihood that the suspect will escape if not swiftly apprehended.

Sixth, the circumstance that the entry, though not consented, is made peaceably. Forcible entry may in some instances be justified. But the fact that entry was not forcible aids in showing reasonableness of police attitude and conduct. The police, by identifying their mission, give the person an opportunity to surrender himself without a struggle and thus to avoid the invasion of privacy involved in entry into the home. 435 F.2d at 392-93. Id. at 188-89, 321 A.2d at 306.

The Nilson Court further stated:

In the present case, contrary to appellants' contention, the primary mission of the officers in entering the apartment was to arrest the robbers; the arrests were not a mere pretext to conduct a warrantless search of the premises for the fruits and instrumentalities of the crime. Assuming that exigent circumstances are constitutionally prerequisite to a forcible entry into a dwelling by police to make a warrantless arrest upon probable cause, we think that the evidence in this case, as heretofore related, plainly demonstrates the existence of such circumstances consistent with the principles outlined in the cited cases. That the police waited for well over an hour before attempting to...