Ford v. State

Decision Date09 March 2009
Docket NumberNo. 2912, September Term, 2007.,2912, September Term, 2007.
PartiesMaurice Lewis FORD v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Sara F. Teich (Williams & Connolly, LLP on the brief), Washington, DC, for Appellant.

Brian S. Kleinbord (Douglas F. Gansler, Atty. General on the brief), Baltimore, for Appellee.

Panel: SALMON, MEREDITH, ZARNOCH, JJ.

SALMON, Judge.

Maurice Ford was convicted by a jury in the Circuit Court for Baltimore County of possession of heroin with intent to distribute and possession of that substance. The jury acquitted Ford of illegal possession of a registered firearm. After sentencing, Ford filed this appeal in which he makes two major arguments:

(1) That the motions judge erred when he ruled that he (Ford) did not have standing to contest a warrantless search of a Chevrolet Cavalier automobile that he drove regularly;

(2) That the motions judge erred when he denied a motion to suppress evidence seized from appellant's home by police officers who entered the home without first knocking or announcing.

I

Ford does not contest the sufficiency of the evidence produced by the State to convict him. Nor does he contend that the trial judge committed any error. According to appellant, the motions judge alone erred. As a consequence, only a brief outline of the background facts is necessary.

Ford lived at 2212 Firethorn Road in Baltimore County with his fiancé, Althea Fisher, at all times here relevant. Ms. Fisher's four children also live at that address. The Baltimore County police received an anonymous tip in February 2007 advising that drug related activities were taking place at 2212 Firethorn Road. As a result of that tip, the police began surveillance of the house and its occupants. Police officers also began retrieving and inspecting garbage from the house "at the place of normal [trash] collection." As a result of three of these trash inspections, the police retrieved a total of thirty-four empty gel capsules containing heroin powder residue; also recovered from the trash were marijuana stems.

Two detectives, who were members of the Baltimore County Police Department, applied for a search and seizure warrant for Ford's house. The application for the warrant detailed what had been seized during the trash inspections and set forth Ford's past criminal arrest history, which dated back to 1989. According to the application, Ford's criminal history included two convictions for drug-related crimes and numerous charges that had been nolle prossed by the prosecuting authorities. The application requested that the judge issue a "no knock" warrant based on the risk to police officers that (purportedly) existed because of: 1) a check of Ford's background that revealed he had prior "guns or weapon charges" filed against him and 2) "training, knowledge and experience ... [leading the officers who applied for the warrant to believe] that drug dealers commonly have in their possession, on their persons, in their cars, or in their residence's firearms...."

A "no knock" search warrant was issued on May 23, 2007, by a District Court judge. In addition to allowing the police officers to enter the home without knocking, the warrant permitted the police officers to search the property located at 2212 Firethorn Road as well as Ms. Fisher and Ford. The warrant did not permit the search of any automobile owned or operated by Ford or Ms. Fisher.

On June 6, 2007, at approximately 8:56 p.m., the "no knock" warrant was executed by members of the Baltimore County Police Department. Once inside the house, the officers located Ford in the living room and secured him. Detective Glenn Wagner then asked Ford if there were any drugs in the house. Ford responded in the negative. Disbelieving that answer, the officers began to search the house. Detective Frank Masson recovered baggies and empty gel capsules with white powder residue from the pocket of a leather jacket hanging inside a basement closet. Detective Wagner also searched a closet on the main floor of the residence and found, in the pocket of a coat, 43 gel caps filled with white powder that was later determined to be heroin.

Officer Jeff Newell went outside the house to search a Chevrolet Cavalier that the police had seen Ford driving before the search commenced. When, in relation to the recovery of the drugs from the house, the search of the car commenced is not shown in the trial record or the record in the suppression court.

Officer Newell searched the passenger compartment of the Chevrolet Cavalier and found no incriminating evidence. He next opened the trunk, where he found a beige coat. In the pocket of that coat, Officer Newell found a small digital scale and a loaded 25 caliber handgun.

II

Ford filed pre-trial motions to suppress several items of evidence. Only two of those motions are here relevant. One motion was to suppress the evidence recovered as a result of the search of the Chevrolet Cavalier. Another motion sought to suppress the evidence seized from Ford's home on the grounds that the police entered that home without first knocking or otherwise announcing their presence.

A. The Search of the Chevrolet Cavalier

At the outset of the suppression hearing, the prosecutor announced that he did not concede that appellant had standing to challenge the search by Baltimore County police officers of the Chevrolet Cavalier. The State and Ford then stipulated: 1) that the vehicle searched was titled in the name of Althea Fisher, and 2) that Ford was seen, shortly before the execution of the search warrant, parking the Chevrolet Cavalier.

Ford testified at the suppression hearing that he and Ms. Fisher had "been together" for seven years and that she was the mother of his two-year old child. In 2001, while Ford was in prison, Ms. Fisher purchased the 2001 Chevrolet Cavalier that was later searched by the police. Ford started driving the Cavalier after he got out of prison in 2002. In his words, he drove "the car all the time." Ms. Fisher also drove the car but Ford drove it more than she did. To Ford's knowledge, no one else drove the Chevrolet Cavalier.

While living together from 2002 until the time of his arrest on June 6, 2007, Ford and Ms. Fisher pooled monies from their paychecks in order to pay expenses. The bills that were paid out of that pool of money included car payments on the Chevrolet Cavalier.

In 2006, Ms. Fisher purchased a Dodge van. Thereafter, Ford continued to regularly drive the Cavalier while Ms. Fisher usually drove the van. On cross-examination, the prosecutor asked Ford if he considered the Chevrolet Cavalier to be his car. Ford answered: "I can't consider it my car because it's not mine."

Ms. Fisher left the house driving the Dodge Caravan on the date the search warrant was executed. She was arrested by the police not long after she left. Prior to leaving, the van had been parked in front of the house. In order to save the parking spot for his fiancé, Ford got in the Cavalier and drove it from the rear of the residence to the front and parked it where Ms. Fisher's van had been parked. The search of Ford's house took place within one hour thereafter.

The motions judge ruled that Ford did not have standing to challenge the search of the Chevrolet Cavalier because the car belonged to Ms. Fisher. According to the motions judge, although Ford had an "expectation of privacy" while driving the automobile with Ms. Fisher's permission, he did not have such an expectation when he was not driving because Ms. Fisher could say to any third party that he or she also had permission to drive the car.

B. The "No Knock" Entry

At the hearing to suppress the evidence seized from Ford's home, no witnesses testified. The prosecutor and defense attorneys agreed, in response to the motions judge's questions, that the police entered Ford's home without knocking or otherwise giving Ford any notice that they were about to enter.

The court admitted into evidence, as State's exhibit No. 1, the search and seizure warrant that allowed the police to search the premises. Also admitted was the application for the warrant, which was signed by Detective Wagner and his colleague, Detective H. L. Ellingson. In the application for the search warrant, the detectives stated that the police had received an anonymous tip in February 2007, advising that "heroin is being used and sold" at 2212 Firethorn Road. The application also said that heroin and marijuana residue had been found through inspections of the trash at Ford's home. It also spelled out, in detail, Ford's criminal record.

According to the application for the warrant, appellant had been arrested fourteen times between June 4, 1989, and April 22, 2004. In Baltimore City he had been convicted of felony theft (10/11/91); unlawful manufacturing of controlled dangerous substances (10/8/97); felony theft (9/14/98); and unlawful possession of a controlled dangerous substance. In Baltimore County, he had been convicted of unauthorized use of an automobile in September 19, 1991. Furthermore, he had been arrested for numerous other charges, such as third-degree burglary, second-degree assault, carrying a deadly weapon with the intent to injure, and possession of controlled dangerous substances with intent to distribute. All of the last mentioned charges were nolle prossed or otherwise dismissed prior to trial. In the application for the search warrant, the affiants also said "that guns and violence are commonly associated with narcotics and narcotic dealers ...." and that "[d]ue to the background check and information reflecting criminal involvement pertaining to guns or weapons charges [against] ... [Ford], your affiants request that a `No Knock' Search and Seizure Warrant be issued for officer safety purposes."

At the suppression hearing, defense counsel acknowledged that one of the reasons that often justify the issuance of a "no knock" warrant is...

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