Cotton v. State

• Decision Date: 11 April 2005
• Docket Number: No. 29,29
• Citation: 386 Md. 249,872 A.2d 87
• Parties: Steven Terry COTTON v. STATE of Maryland.
• Court: Maryland Court of Appeals

872 A.2d 87

386 Md. 249

Steven Terry COTTON v. STATE of Maryland.

No. 29, September Term, 2004.

Court of Appeals of Maryland.

April 11, 2005.

Eve L. Brensike, Asst. Public Defender (Nancy S. Forster, Public Defender, Michael R. Braudes, Asst. Public Defender, on brief), for petitioner.

Devy Patterson Russell, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.

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

WILNER, J.

On an agreed statement of facts, petitioner, Steven Cotton, was convicted in the Circuit Court for Caroline County of possession of marijuana, for which, as a repeat offender, he was sentenced to two years in prison. That judgment was affirmed by the Court of Special Appeals. The marijuana that formed the basis of his conviction was taken from him by Caroline County Detective James Henning when Cotton, after receiving Miranda warnings, admitted to Henning that he had the drug in his possession. Cotton's only complaint is that, at the time of this encounter with Detective Henning, he was under an unlawful arrest and that both his admission and the ensuing search, as the fruit of that unlawful arrest, were inadmissible in evidence. We find no merit in that argument and shall therefore affirm the judgment of the Court of Special Appeals.

BACKGROUND

An extensive four-year investigation by the Caroline County Sheriff's Office established that Don Antonio Jones, his grandfather, Calvin Edgar Bolden, and his mother, Calvileen Bolden, were operating an open-air drug market from and around their home at 329 Brooklyn Avenue, in Federalsburg. The investigation revealed that (1) significant quantities of drugs were brought into the house by Jones, (2) the drugs were being sold not only in the house but around it as well, from the front porch and within what we would regard as the curtilage, (3) many of the individuals observed in the trafficking, including Jones and Calvin Bolden, had extensive drug-crime records, and some of them had a record of violent crimes, and (4) Jones, in particular, (i) associated with individuals who had extensive backgrounds in assaults, attempted murders, and handgun violations, (ii) had established an elaborate counter-surveillance network around the vicinity of the house, and (iii) had threatened that "a member of the police department is going to get `shot' if the police do not back off with patrols in the Brooklyn, Federalsburg area."

Based on this and a great deal more, all carefully set forth in a 68-page verified application, a District Court judge found probable cause to believe that violations of the controlled dangerous substance laws were occurring "in and upon" 329 Brooklyn Avenue—not just the residence but outbuildings and motor vehicles on the property as well. Upon that finding, the court issued a warrant that authorized the police to enter and search, without the need for a knock or announcement of police presence, the residence and any outbuildings and motor vehicles located "on said property." The warrant empowered the police to search the persons and clothing of Jones, Calvileen and Calvin Bolden, and "any other persons found in or upon said premises who may be participating in violations of [those statutes] and who may be concealing evidence, paraphernalia, and Controlled Dangerous Substances," to seize all evidence "found in or upon said premises," and to arrest "all persons found in or upon said premises ... who are participating in violations of [those statutes]."

Although only three persons were named in the warrant—Jones and the two Boldens—the affidavit established that several other people with a history of criminal and violent conduct were involved, and the warrant clearly anticipated that some of them may be on or about the property when the warrant was executed. Hence, the authorization to enter the house without knocking or announcing the police presence and to arrest "all persons" found in or upon the premises who may be participating in violations of the drug laws.¹

Given that they were dealing with an open-air drug market, that an unknown number of people might be present when the warrant was executed, and that some of those people might be violent and likely to resist or flee, the police understandably arrived in force. Some twenty to twenty-five officers participated.² When the police arrived, they found at least four people, including Jones and Cotton, in the front yard near the porch—an area in which much of the drug activity described in the application for the warrant had taken place. Jones immediately fled, requiring two officers to pursue and ultimately capture him. The other people were handcuffed and detained under guard. There was no evidence that they were held at gunpoint. Cotton was allowed to sit on a bucket or log. Detective Henning explained:

"That is standard procedure based on being in an open air drug market and doing this type of no knock warrant, we had—everyone is detained, placed on the ground for our safety and detained at that position where they're at while the rest of the place is secured, and securing a residence doesn't just take two minutes, three minutes, it probably would take about ten to fifteen minutes to make sure that all the rooms, attics, crawl spaces, everything is secured before anyone does anything else."

The detective added that it was not just a matter of securing the house itself:

"Basically we set up a perimeter as they are securing the house, we're setting up a perimeter, making sure no one doubles back around on us or anything to that effect, so yes, after I would say [ten to fifteen] minutes. However long it took to get the house totally secured is when I start making my rounds to people."

The detective explained that, once the house was secured, which took about ten to fifteen minutes, he began to interview the people who had previously been detained. He began with Steven Aldredge, who was on or near the porch with Cotton and Jones when the police arrived. Henning had what he said was a "brief conversation" with Aldredge. As Henning was talking to him, a police dog alerted to Aldredge's car. Henning requested and obtained permission to search both Aldredge and the car, and, when no contraband was found, Aldredge was promptly released. Henning then turned immediately to Cotton. He testified:

"I approached the Defendant, I told him what was going on, a search and seizure warrant was being executed. I immediately advised him of his Miranda rights, I asked him if he had anything on him, he said, `All I've got is a bag of weed, that's all I got.' At that point I said okay, that's fine. I got all the pertinent information, he was subsequently searched behind the residence further, to determine if he had anything else and he just remained in the scene until we were able to get a transport unit there."

Henning said that he asked the question, after giving the Miranda warnings, to determine whether Cotton had any weapons or needles that might jeopardize Henning's safety, and that he patted Cotton down after Cotton's admission that he was in possession of marijuana. Henning regarded the pat-down as a Terry v. Ohio frisk. The marijuana that was found on Cotton is what led to his conviction for possession of the substance.

Cotton looks on this procedure as transgressing his Constitutional rights. He urges that so far as the police were concerned, he was a mere bystander who happened to be on the scene when they came to execute the warrant for the Bolden—Jones home, that they had no probable cause to believe that he had committed any crime or had any contraband in his possession, and that they therefore had no lawful authority to detain him. The detention, he avers, constituted an unlawful arrest, and the interrogation and search that followed it were, as a result, equally unlawful. The de facto arrest, he says, arose from the fact that he was detained for upwards of twenty minutes, during which time he was handcuffed, kept under guard, and given the Miranda warnings.

DISCUSSION

The Fourth Amendment does not prohibit all searches and seizures, but only those that are unreasonable. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605, 613 (1985); Maryland v. Buie, 494 U.S. 325, 331, 110 S.Ct. 1093,1096, 108 L.Ed.2d 276, 284 (1990). The starting point for a proper analysis of reasonableness is Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981).

As the police were about to execute a warrant to search a house for narcotics, they observed Summers coming down the front steps. The police detained him while they searched the house and, after finding narcotics in the basement and learning that Summers owned the house, they arrested and searched him, finding heroin in his coat pocket. Clearly at that point they had probable cause to make the arrest, but the question before the Court—just like the question before us in this case—was the legality of the initial detention: was it an arrest that required probable cause or was it an investigative seizure that could be justified on less than probable cause?

Examining earlier cases, in particular Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its extensive progeny, the Court confirmed that "some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as the police have an articulable basis for suspecting criminal activity" and that "the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry and Adams [v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)]."

Of...