Fromm v. State

• Decision Date: 01 September 1992
• Docket Number: No. 1224,1224
• Citation: 624 A.2d 1296,96 Md.App. 249
• Parties: , 62 USLW 2031 Howard Edward Gregory FROMM v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 249

96 Md.App. 249

624 A.2d 1296, 62 USLW 2031

Howard Edward Gregory FROMM v.STATE of Maryland.

No. 1224, Sept. Term, 1992.

Court of Special Appeals of Maryland.

May 27, 1993.

George McDowell, Baltimore, for appellant.

Mary O'Malley Lunden, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Frank R. Weathersbee, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Submitted before WILNER, C.J., and MOYLAN and WENNER, JJ.

ON MOTION FOR RECONSIDERATION

WILNER, Chief Judge.

The principal issue in this appeal is whether the trial court erred by denying appellant's motion to suppress inculpatory statements.Appellant argues that he was illegally detained by police officers when they arrived at his apartment building to execute a search warrant and that his subsequently obtained statements were therefore tainted.The illegality of the detention, he asserts, arises from the fact that he was not in his apartment when the officers seized him, but was walking out of the building next door, headed toward a parking lot.

On March 22, 1992, we filed a per curiam, unreported Opinion affirming the judgment of the trial court.We assumed arguendo that appellant was correct in his assertion that, under the circumstances, the warrant to search his home did not carry with it the authority to detain him while the search was being conducted and that the State was incorrect in its assertion that the detention was authorized under the rule of Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340(1981).We determined, however, that the detention was lawful and that the statements obtained as a result of it were not suppressible because the police had probable cause to arrest appellant.

On April 5, 1992, appellant filed the motion for reconsideration that is now before us.He contends, in essence, that (1) the record is devoid of evidence indicating that, at the time of his initial seizure, there was probable cause for his arrest and that, in any event, (2)this Court's determination was improper because the State did not argue below that there was probable cause for appellant's arrest at the time he was initially detained and the trial court did not make any findings in that regard.Appellant is indeed correct in his observation that the issue of probable cause for his arrest at the time of his initial seizure was not raised or decided below, and we therefore grant his motion for reconsideration.We do note, however, that had the State argued below that there was probable cause for appellant's arrest at the time he was seized, we would have found sufficient support for the argument in the record.We now determine whether appellant's initial argument to this Court--that the warrant to search his home did not carry with it the authority to detain him while the search was being conducted--has merit.

As we observed in our March 22 Opinion:

"The record of the suppression hearing establishes that in early January of 1992, appellant was the subject of a police investigation into illegal drug activities.The investigation culminated in the execution of a search and seizure warrant upon appellant's apartment.As the police officers were approaching appellant's apartment building to execute the warrant, they saw appellant walk out of the apartment building next door and head toward the parking lot.Some of the officers continued on toward appellant's apartment, while two others[, who recognized appellant from a picture they had been shown, turned back and stopped him].The two officers [took appellant to his apartment and detained him outside the door] while the other officers forced open the door.Appellant was then taken inside the apartment and a search of the apartment was conducted.At some point during the process, appellant was placed in handcuffs."

The officers recovered both cocaine and paraphernalia from the apartment.Appellant asserts that he was questioned and made his first statement "immediately upon the conclusion of the execution of the warrant.He was questioned again some four hours later at the police station after his booking procedures."

The Supreme Court held in Michigan v. Summers, 452 U.S. at 705, 101 S.Ct. at 2595-96, that "for Fourth Amendment purposes, ... a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted."(Footnote omitted.)In that case, police officers arriving at the defendant's home to execute a search warrant found him outside, descending the front steps.The officers requested that the defendant reenter the house and then detained him while they conducted the search.They arrested the defendant upon finding narcotics in the basement.The Court explained that, in light of the defendant's connection to the home, the existence of the search warrant provided an articulable and individualized suspicion which justified his detention.Id. at 703-04, 101 S.Ct. at 2594-95.The Court further noted that a detention pursuant to the execution of a search warrant promotes important law enforcement interests, such as preventing flight, protecting the safety of the officers, and, by requiring that the defendant be present, facilitating the orderly completion of the search.Id. at 702-03, 101 S.Ct. at 2594.

Appellant observes that the rule of Michigan v. Summers applies only to "occupants" of the premises to be searched.In his view, only "persons who are on the premises to be searched at the time those premises are to be searched" can properly be considered occupants.¹Appellant suggests that because he was walking toward his car from a neighboring apartment building when police arrived to execute the search warrant, "he was not an 'occupant' of the targeted apartment[ ] under the definition of 'occupant' implicitly used by the Supreme Court in Summers."²Appellant does not suggest in this appeal that his detention was in any way more intrusive than the type of detention contemplated by Michigan v. Summers.We therefore restrict our inquiry to whether the detention of appellant was proper even though he was not on the premises to be searched when police arrived.See generallyLangworthy v. State, 284 Md. 588, 596, 399 A.2d 578(1979), cert. denied, 450 U.S. 960, 101 S.Ct. 1419, 67 L.Ed.2d 384(1981).

When faced with factually similar situations, courts in other jurisdictions have consistently upheld detentions of persons found outside of dwellings to be searched.In U.S. v. Cochran, 939 F.2d 337(6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1166, 117 L.Ed.2d 413(1992), police with a warrant to search the defendant's residence watched the residence until they saw the defendant leave it and drive off in his car.The officers followed the car a short distance and stopped it with the intention of asking the defendant to accompany them back to his home to assist them in entering it.At a hearing on a motion to suppress evidence seized from the residence, the State established that the officers did not wish to force entry into the dwelling while the defendant was inside it because they believed he carried a firearm.The defendant pointed out that the Summers defendant was on the front steps of his home when he was detained, and argued that his case was distinguishable from Summers in that he had driven a short distance away when he was stopped by police.In affirming the denial of the motion to suppress, the United States Court of Appeals for the Sixth Circuit explained:

"We do not find this distinction significant....Summers does not impose upon police a duty based on geographic proximity (i.e., defendant must be detained while still on his premises); rather, the focus is upon police performance, that is, whether the police detained defendant as soon as practicable after departing from his residence.Of course, this performance-based duty will normally, but not necessarily, result in detention of an individual in close proximity to his residence."

939 F.2d at 339(footnote omitted).

Similarly, in Com. v. Reicherter, 317 Pa.Super. 256, 463 A.2d 1183(1983), the Superior Court of Pennsylvania held that police with a warrant to search the defendant's apartment properly stopped the defendant just after he left the building, as he was riding in a friend's truck several blocks away.The Court observed:

"Although Reicherter was initially stopped by the police while several blocks from his apartment while the defendant in Michigan v. Summers ... was stopped on the front steps of his residence, this is not a difference such as would require a different result: in both cases some transportation of relatively short duration was required to return the defendant to the residence to be searched."

Id. at 1185.See generallyState v. Thomas, 603 So.2d 1382, 1383(Fla.Dist.Ct.App.1992)(where the defendant...