Day v. State
| Decision Date | 26 January 2017 |
| Docket Number | No. 2111,2111 |
| Parties | ERIC G. DAY v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Woodward, Graeff, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ.
Opinion by Thieme, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
The Supreme Court has observed that, absent exigent circumstances, "[a]s a practical matter, officers who have probable cause and who are in the process of obtaining a warrant have no reason to enter the premises before the warrant issues." Segura v. United States, 468 U.S. 796, 812, 104 S. Ct. 3380, 3389 (1984). Yet that is what happened in this case, when a police officer, rather than waiting on a pending arrest warrant application, proceeded to make a warrantless and unannounced entry into a motel room occupied by Eric G. Day, appellant, then to conduct a warrantless "whole room" search for evidence and to seize a gun found in that search.
After the Circuit Court for Prince George's County denied his motion to suppress that evidence, a jury convicted Day of attempted voluntary manslaughter and associated crimes stemming from a shooting.1 Day's appeal from those convictions returns to this Court after his successful first appeal, in which we remanded for a de novo suppression hearing because Day, as an overnight guest of a registered occupant of the motel room, had standing to assert a Fourth Amendment challenge. See Eric G. Day v. State, No. 1638, Sept. Term, 2013 (Md. App., filed Feb. 6, 2015) (unreported). On remand, the court again denied Day's motion to suppress evidence regarding the gun used in the shooting, which was seized in the motel room. The motion court ruled that the gun evidence was admissible under the exigent circumstances, plain view, and search incidentto arrest exceptions to the warrant requirement of the Fourth Amendment. In light of that ruling, judgment was entered based on the previous convictions.
In this second appeal, Day again challenges the denial of his motion to suppress the evidence obtained as a result of the warrantless entry and search of his motel room. Because we conclude that such evidence should have been excluded as "poisoned fruit," tainted by that unlawful entry and search, Day's convictions must be reversed.
In Day's first appeal, we summarized the underlying facts to provide context for our consideration of the Fourth Amendment standing issue, as follows:
Day, supra, slip op. at 1-2 (footnote omitted).
Appealing that decision, Day argued that under federal and state precedent, he had standing to assert the protections of the Fourth Amendment against unreasonable searches and seizures, "as an overnight guest legitimately on the premises" of the motel room. Id., slip op. at 3-4. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 1688 (1990); Torres v. State, 95 Md. App. 126, 129 (1993). The State, conceding that point of law, joined "in urging . . . remand to the circuit court for a new hearing on Day's motion to suppress." Day, supra, slip op. at 2-3. We agreed and "remand[ed] to the circuit court pursuant to Md. Rule 8-604(d), without affirmance or reversal, for that court to conduct a new suppression hearing consistent with [that] opinion." Id., slip op. at 4.
On remand, the court conducted a de novo suppression hearing, at which the State presented two witnesses. Because this suppression record is the sole source of evidence that we consider in determining whether the gun evidence was admissible, we shall summarize it in detail. See Lee v. State, 418 Md. 136, 148 (2011).
In doing so, we preliminarily note that the evidence presented at the remanded suppression hearing contradicted our statement in Day's first appeal that the police entered his motel room with "arrest warrant in hand." Id., slip op. at 2. Instead, as detailed below, it was undisputed at the de novo suppression hearing that at the time police entered Day's motel room, a warrant application containing sufficient evidence to establish probable cause for Day's arrest had been submitted, but the resulting warrant was not issued until approximately 45 minutes after Day's arrest.
Prince George's County Police Detective Travis Kelly testified that on the evening of May 18, 2013, he and a partner investigated a shooting reported at 11:07 p.m. Meetingwith Detective Kelly at the Maryland State Police Barracks, the victim, Ronnie Livatt, claimed that minutes earlier, "he was shot at while he was driving in his car, by an associate of his that he knew through the Army."2 Mr. Livatt described the incident and identified the shooter as Eric Day. Livatt's truck had multiple bullet holes on the driver's side, near the gas tank.
As Detective Kelly was transporting Mr. Livatt to a Prince George's police station to continue the investigation, Livatt's cell phone rang. Livatt said the caller was a "girl he was supposed to meet that night," whom he believed had "set him up to . . . get shot at." Detective Kelly "told him to put it on speaker phone so [he] could hear the conversation." The detective first heard a female voice and then a male voice, which Livatt identified as Mr. Day's. Day stated: "those were just warning shots mother fucker next time I won't miss." When the call concluded, Mr. Livatt advised the detective that Day "knew where his wife was living on Fort Myer" and that he "felt in fear for his wife's safety . . . because the suspect at that point was not in custody."
Detective Kelly "relayed that information to [his] peers that the suspect in [the] shooting called [the] victim from a certain phone number." He also contacted the military police "at Fort Myer to go past our victim's residence to ensure her safety." Mr. Livatt and the detective arrived at the police station at 11:30 p.m.
Detective Kelly testified that "an exigency" was requested and obtained, so that police could track Day's phone through his cellular provider, "to find out the suspect'swhereabouts." The detective explained that the shooting "would qualify" as "a serious offense where someone's life can be in danger" and that "[i]t can take some time for the exigency request to come back."
Although police had Day's name and birth date, they had to confirm, through photo identification by the victim, that Eric G. Day was the individual suspected of shooting at Mr. Livatt. Detective Kelly requested a photograph, but there was some difficulty in obtaining one. At "maybe 1:00, 1:30 a.m.," a photo arrived, and Livatt, after completing his interview and written statement, made the "photo confirmation" at "approximately 2:45 a.m."
With the victim's statement and photo identification now finished, Detective Kelly "relayed that information to [his] partners" and was then able to "work on the arrest warrant[.]" "When everything was completed," Detective Sujkhjit Batth was given "a general location of the suspect's cell phone," as well as the photograph identified by Livatt, "at which point he went and attempt[ed] to locate . . . Mr. Day." Detective Batth was accompanied by Detective Harvey.
While Detectives Batth and Harvey were looking for Day, Detective Kelly was not in communication with them. Kelly completed an application for statement of charges, drove ten to fifteen minutes to the commissioner's office in Hyattsville, and submitted the application around 4:00 a.m. The review was completed at 5:03 a.m., and an arrest warrant was issued at 5:18 a.m. While Detective Kelly was returning to the police station with the warrant, he learned that Day had been apprehended. By the time he arrived, Day was at the police station.
While Detective Kelly was securing the arrest warrant, Detective Batth, having applied for and obtained "the exigency" on Day's phone in "less than an hour," had left the police station with the photograph of Day and information about his registered vehicle. Detective Batth testified at the suppression hearing that according to the cellular phone company, Day's phone "was pinging" near the intersection of Crane's Highway and Brandywine Avenue, which took the detectives 35 to 40 minutes to reach. After "canvassing the area for" Day's vehicle, they spotted it, "parked in the front parking lot of the Cadillac Motel[,]" which is "a single story motel" in a "secluded" area.
Batth requested "additional units" because Day was known "to be armed with some kind of weapon." Between 3:45 and 4:15 a.m. he and Detective Harvey "did a drive by," then "set it up like a little bit further away" so they did not "give away that the police [were] in the parking lot[.]" At...
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