Doering v. State, 113

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before MURPHY; McAULIFFE; Fader
Citation313 Md. 384,545 A.2d 1281
PartiesAl Wayne DOERING v. STATE of Maryland. ,
Docket NumberNo. 113,113
Decision Date01 September 1987

Melissa M. Moore and George E. Burns, Jr., Asst. Public Defenders (Alan H. Murrell, Public Defender, all on brief), Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Cathleen C. Brockmeyer, Asst. Atty. Gen., all on brief), Baltimore, for appellee.



Al Wayne Doering appeals from his convictions of murder in the first degree, robbery, burglary, and related offenses, and from a sentence of death. We shall affirm the convictions but vacate the sentence and remand the case for a new sentencing proceeding.

I Facts

At about 1:00 a.m. on October 3, 1986, Doering and David Reinhardt, dressed in camouflage clothing and armed with knives and rifles, broke into the home of Harry Riepe, located on Jones Road in Baltimore County. 1 Mr. Riepe, who was 89 years of age, lived alone in the two and one-half story home, which, together with its surrounding 110 acres, was known as Mt. Peru Farm. After searching the first floor of the home and gathering any valuables they wished to steal, Doering and Reinhardt proceeded to the second floor to search for additional valuables, and apparently to search for the "old man" they knew lived there. Under circumstances which will be more fully described as we discuss the sufficiency of the evidence to show premeditation, they confronted the victim, and Doering killed him with a single shot from the .30-.30 rifle he was carrying. They then gathered additional property and left, returning to a bus in which they both lived at the time, and which was parked in an area containing discarded construction equipment approximately one-quarter to one-half mile from the Riepe home.

At about 7:30 that morning, Brandon Moffett visited Doering at the bus, apparently to see Doering's collection of guns. Doering told Moffett that he had shot and killed an old man. Doering then took Moffett to the Riepe home, so that Moffett could view the scene. As they were leaving the home, but were still in the driveway which led from the residence to Jones Road, they were seen by Mary Holt, granddaughter-in-law of the victim. 2 Mrs. Holt lived nearby, and had driven by her grandfather's home on her way to work. She became concerned when she saw two men, whom she described as white males, very dirty, with greasy hair, wearing blue jeans and dark shirts, both wearing glasses, and one or both carrying knives in sheaths on their belts. 3 After passing them, Mrs. Holt observed in her rear view mirror that they walked slowly out of the driveway and a short distance away from her on Jones Road, after which they stopped and turned to look at her car. She stopped, backed into the driveway to get a better look at them, and then returned to her home to report to her husband what she had seen. Mr. Holt took his wife back to the scene, and then to a nearby parking area, a truck stop, and a bar, in an unsuccessful attempt to locate the individuals she had seen. He then returned to his home, and, when he was unable to reach his grandfather by telephone, reported what had transpired to the police. He then went to his grandfather's home, where he met the police and discovered that his grandfather had been shot and killed.

In response to a police broadcast relating the homicide and giving Mrs. Holt's description of the two men who had been seen acting suspiciously on the victim's property, Lieutenant Nugent and Corporal Foracappa of the Baltimore County Police Department began a search of the area. While searching sheds in the nearby Gunpowder Business Park, the officers were told by a manager or proprietor of the park that there were a couple of people living in a bus in a wooded area to the rear of the park. That individual also advised the police that "they were shooting back there often and to be careful if [you go] back there." The officers drove on an unpaved road which led from Jones Road, through an area of discarded construction equipment on a lot owned by B & B Construction Company, to a point just short of the location of the bus. Approaching on foot, they observed near the bus two men who fit the description given earlier by Mrs. Holt. As they approached with their service revolvers drawn, both officers noted shell casings on the ground, some of which Lieutenant Nugent described as not being tarnished, indicating that weapons had recently been fired there. Additionally, Lieutenant Nugent observed a third person entering the bus and closing the door behind him, and Corporal Foracappo saw the bus door close, although he did not see anyone enter the bus. The bus was described as a small, 30-foot school bus, apparently converted for use as a mobile home or camper.

Moffett, who had been standing next to a bicycle at the front of the bus, and Doering, who had been seated on a stack of old tires more to the side of the bus, were directed to place their hands on the front of the bus, and were subjected to a pat-down search for weapons. A bayonet knife and buck knife were taken from Moffett and a buck knife and three shotgun shells were taken from Doering.

The officers then asked Moffett and Doering who had gotten onto the bus, and were told "no one." Although the officers told them that they had seen the door close behind someone, Moffett and Doering again denied there was anyone else on the bus. The officers then called out instructions to anyone on the bus to come out, but there was no response. Then, after either Doering or Moffett said "come on out, Dave," Reinhardt exited the bus.

After Reinhardt had been patted down for weapons, the officers asked who owned the bus, and were told by Reinhardt or Doering that they lived on the bus. The officers again inquired as to whether anyone else was on the bus, and were told by Reinhardt to "go check for yourselves." Lieutenant Nugent entered the bus, which he found to be very dark because the windows were covered, and called out to anyone who might be inside. Receiving no reply, he took one or two steps and encountered a rifle. Backing out of the bus with the rifle, he found it was loaded, with a round in the chamber. After removing the bullets from the rifle, Lieutenant Nugent again entered the bus and called out to any possible occupants. Again, receiving no reply, he allowed his eyes to adjust to the dim light, and then observed "weapons everywhere," including rifles, shotguns, swords, knives, and bayonets. He removed the rifles and shotguns from the front area of the bus, finding all but two of them to be loaded. He could not see beyond, and did not go past, a curtain that concealed the rear portion of the bus. As Lieutenant Nugent explained it, he intended to call in police dogs to search beyond the curtain, but "I got as many weapons as I could reach and made them all safe."

Shortly thereafter, other police officers brought Mrs. Holt to the bus, and she identified Doering and Moffett as the two men she had seen on her grandfather's property earlier that morning. Moffett, Doering, and Reinhardt were then placed under arrest, advised of their rights, and taken to police headquarters, where Doering made a full confession.

Doering elected a court trial on the issue of guilt or innocence, and was found guilty of first degree murder, robbery, burglary, and related offenses. He elected a jury trial on the issue of punishment for the murder, and the jury found the appropriate sentence to be death. An appeal was taken to this Court in accordance with Maryland Rule 898 and Article 27, § 414 of the Code (1957, 1987 Repl.Vol.).

II Suppression of Evidence

Doering contends that the evidence relating to the guns taken from the bus by Lieutenant Nugent should have been suppressed as the product of an illegal search and seizure, and that evidence of his confession should have been suppressed because it was the product of an illegal arrest. We divide these contentions into three parts, and discuss each separately.

A Entry onto the Land

Doering contends that because he made his home in the bus, and because the police came within the curtilage of his "home" without his permission, any search or seizure that followed was in violation of the Fourth Amendment. He is wrong for several reasons. First, as we shall discuss more fully in Part II-B, we find that under all the circumstances of this case the bus was properly treated as a vehicle for purposes of the Fourth Amendment, and thus it had no curtilage. Second, even assuming that the bus had sufficient characteristics of a residence to justify consideration of the curtilage concept, 4 there was no definable curtilage in this case. The bus was on, and at the terminus of an unpaved road that traversed the B & B Construction Company lot. There was no enclosure of any kind, nor any other physical characteristics that could signal the existence of a discrete area contiguous to the bus and reserved for adjunct residential use. Doering seems to suggest that the entire B & B lot must be treated as curtilage to the bus, but offers neither legal nor factual justification for that rather extraordinary proposition. Finally, even if we assume that Doering was within the protected curtilage when the police approached, we find no violation of Fourth Amendment protections. The police entered the property by way of a private road from a public street, in the course of a legitimate investigation of a serious crime. They encountered no obstacles or warnings as they entered, and under these circumstances we find that they had a right to be there. As the Oregon Court of Appeals said in State v. Corbett, 15 Or.App. 470, 516 P.2d 487, 490 (1983), "[c]riminal investigation is as legitimate a societal purpose as is census taking or mail...

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