Dunnuck v. State

• Decision Date: 14 December 2001
• Docket Number: No. 36,36
• Citation: 367 Md. 198,786 A.2d 695
• Parties: Marion Fransisca DUNNUCK v. STATE of Maryland.
• Court: Maryland Court of Appeals

786 A.2d 695

367 Md. 198

Marion Fransisca DUNNUCK v. STATE of Maryland.

No. 36, Sept. Term, 2001.

Court of Appeals of Maryland.

December 14, 2001.

Nancy S. Forster, Deputy Public Defender (Stephen E. Harris, Public Defender, on brief) of Baltimore, for petitioner/cross-respondent.

Devy Patterson Russell, Asst. Atty. Gen., (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief) of Baltimore, for respondent/cross-petitioner.

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

BELL, Chief Judge.

In this case, the issue that we must decide involves the interplay between Maryland Code (1957, 2000 Repl.Vol.) Article 27, § 594B and the limitations that the Fourth Amendment to the United States Constitution places on the right of the police to effect a warrantless arrest in a defendant's home. We shall hold that § 594B did not authorize the arrest at issue in this case and, so, reverse the judgment of the Court of Special Appeals.

The Supreme Court of the United States has considered and discussed, at length, the permissible limits of warrantless arrests.¹See Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)

; Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Payton, the Court reversed convictions in companion cases in which the police, who had ample time to have obtained a warrant, entered private residences without a warrant and, in the absence of exigent circumstances justifying the entry, in one case, Riddick v. New York, 445 U.S. at 578, 100 S.Ct. at 1375, 63 L.Ed.2d at 646, effected an arrest of the accused. Explaining that "the warrantless arrest of a person is a species of seizure required by the [Fourth] Amendment to be reasonable" and that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," the Court held: "it is a `basic principle of Fourth Amendment Law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Id.,

445 U.S. at 585, 586,

100 S.Ct. at 1379, 1380,

63 L.Ed.2d at 650, 651 (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972)).

"The Fourth Amendment," the Court further elaborated, "has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." 445 U.S. at 590, 100 S.Ct. at 1382, 63 L.Ed.2d at 653. Payton, therefore, stands firmly for the proposition that the Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." 445 U.S. at 576, 100 S.Ct. at 1375, 63 L.Ed.2d at 645. See also Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948)

("The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent"); Taylor v. United States, 286 U.S. 1, 6, 52 S.Ct. 466, 467, 76 L.Ed. 951, 953 (1932) ("Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guaranties (Const.Amend. 4) against unreasonable search"); Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145, 149 (1925) ("Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches of that place are held unlawful notwithstanding facts unquestionably showing probable cause"); United States v. McCool, 526 F.Supp. 1206, 1208 (M.D.Tenn.1981).

The principles announced in Payton were applied and elucidated in Welsh, supra.

In that case, the issue for the Court's resolution was the propriety of the accused's arrest for non-criminal traffic charges by officers who entered his home in the nighttime without a warrant. Acknowledging that the gravity of the offense for which the accused is arrested is an important factor in the determination of whether exigency exits, 466 U.S. at 753,

104 S.Ct. at 2099,

80 L.Ed.2d at 745, the Court concluded that the arrest in that case was not justified by any exigency in light of the minor nature of the offense involved. 466 U.S. at 753-54,

104 S.Ct. at 2099-2100,

80 L.Ed.2d at 745-46. Moreover, in discussing the applicable principles, the Court made clear that "[b]efore agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." 466 U.S. at 750,

104 S.Ct. at 2098,

80 L.Ed.2d at 743. The Court stated explicitly that "no exigency is created simply because there is probable cause to believe that a serious crime has been committed," 466 U.S. at 753,

104 S.Ct. at 2099,

80 L.Ed.2d at 745, and, further, that

"[E]xceptions to the warrant requirement are `few in number and carefully delineated,' United States v. United States District Court, supra, [407 U.S.], at 318 [, 92 S.Ct. at 2137, 32 L.Ed.2d at 767], and that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Indeed, the Court has recognized only a few such emergency conditions, see, e.g., United States v. Santana, 427 U.S. 38, 42-43 [, 96 S.Ct. 2406, 2409-2410, 49 L.Ed.2d 300] (1976)

(hot pursuit of a fleeing felon);²

Warden v. Hayden, 387 U.S. 294, 298-299 [, 87 S.Ct. 1642, 1645-1646, 18 L.Ed.2d 782] (1967) (same); Schmerber v. California, 384 U.S. 757, 770-771 [, 86 S.Ct. 1826, 1835-1836, 16 L.Ed.2d 908] (1966) (destruction of evidence); Michigan v. Tyler, 436 U.S. 499, 509 [, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486] (1978) (ongoing fire), and has actually applied only the `hot pursuit' doctrine to arrests in the home, see Santana, supra."

Id., 466 U.S. at 749-50, 104 S.Ct. at 2097, 80 L.Ed.2d at 743.

Thus, it is well settled that the Fourth Amendment to the United States Constitution is not infringed when a warrantless search and seizure of a dwelling is conducted pursuant to exigent circumstances. Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486, 498 (1978); United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300, 305-06 (1976); Warden v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782, 787-88 (1967); Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908, 919-20 (1966); Ker v. California, 374 U.S. 23, 37-41, 83 S.Ct. 1623, 1632-34, 10 L.Ed.2d 726, 740-42 (1963). Our cases, see e.g., Carroll v. State, 335 Md. 723, 729, 646 A.2d 376, 379 (1994)

; Oken v. State, 327 Md. 628, 646, 612 A.2d 258, 267 (1992); McMillian v. State, 325 Md. 272, 281, 600 A.2d 430, 434 (1992); Stackhouse v. State, 298 Md. 203, 211-12, 468 A.2d 333, 338 (1983); Lebedun v. State, 283 Md. 257, 278, 390 A.2d 64, 73 (1978); Nilson v. State, 272 Md. 179, 191, 321 A.2d 301, 307 (1974); Davis v. State, 236 Md. 389, 395, 204 A.2d 76, 80 (1964),cert. denied, 380 U.S. 966, 85 S.Ct. 1113, 14 L.Ed.2d 156 (1965), and those of the Court of Special Appeals, e.g. Bellamy v. State, 111 Md.App. 529, 534-35, 682 A.2d 1185, 1187-88 (1996)

; Torres v. State, 95 Md.App. 126, 129, 619 A.2d 566, 568 (1993); Smith v. State, 72 Md.App. 450, 456-60, 531 A.2d 302, 305-07 (1987); Lett v. State, 51 Md.App. 668, 672-73, 445 A.2d 1050, 1053-54 (1982), are in accord.

The "exigent circumstances" exception is a narrow one; "exigency' implies urgency, immediacy, and compelling need.'" Stackhouse, 298 Md. at 212, 468 A.2d at 338. Thus, we have explained, see Carroll, 335 Md. at 729,

646 A.2d at 379 (quoting Michigan v. Tyler, 436 U.S. at 509, 98 S.Ct. at 1949, 56 L.Ed.2d at 498), that, whenever a "compelling need for official action and no time to secure a warrant" converge, exigent circumstances exist. Stated differently, "[e]xigent circumstances are `those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search until a warrant could be obtained.'" Wengert v. State, 364 Md. 76, 85, 771 A.2d 389, 394 (2001) (quoting United States v. Robertson, 606 F.2d 853, 859 (9th Cir.1979)). See McDonald v. United States, 335 U.S. at 459-460, 69 S.Ct. 191 (Jackson, J. concurring) ("When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant"). Relevant to the determination of whether exigent circumstances justifying a warrantless arrest effected in a private residence are present is the opportunity of the police to have obtained a warrant. See Payton, 445 U.S. at 583,

100 S.Ct. at 1378,

63 L.Ed.2d at 648-49; Welsh, 466 U.S. at 749-50,

104 S.Ct. at 2097,

80 L.Ed.2d at 743. See also Smith v. State, 72 Md.App. 450, 464, 531 A.2d 302, 309 (1987) ("in reviewing the legality of a warrantless arrest effected in a private residence, the presence or absence of exigent circumstances, which necessarily involves an assessment of the opportunity of the police to have obtained a warrant prior to invading the residence to make the warrantless arrest, is a highly relevant factor to be considered by a reviewing court and, indeed, is critical, analytically, to that determination."), citing United States v. McCool, 526 F.Supp. 1206, 1209 (M.D.Tenn.1981). We have found exigent circumstances where there is reason for the police to believe that a burglary recently had occurred, Wengert,...