Groves v. State
| Decision Date | 21 December 2018 |
| Docket Number | No. 2146,2146 |
| Parties | CURTIS LEE GROVES v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
THE PROTECTIVE SWEEP INCIDENT TO ARREST: A HOMEGROWN PRODUCT - A. A NATIONAL PHENOMENON WITH A LOCAL PROVENANCE - B. THE PROTECTIVE SWEEP AS A "PRIOR VALID INTRUSION" - C. THE MEASURE OF CERTAINTY - D. THE MEASURE OF JUSTIFICATION IS REASONABLE SUSPICION - E. THE PURPOSE OF A SWEEP IS OFFICER PROTECTION - F. THE DEFINITION OF A PROTECTIVE SWEEP - G. THE GEOGRAPHY OF A PROTECTIVE SWEEP - H. THE SCOPE LIMITATIONS OF A PROTECTIVE SWEEP - I. REASONABLE SUSPICION IS OBJECTIVELY ASSESSED - J. THE TRIGGERING JUSTIFICATION NEED NOT END AT THE DOORSTEP - THE PROTECTIVE SWEEP IN THIS CASE
Circuit Court for Washington County
Case No. 21-K-17-053429
REPORTED
Reed, Friedman, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.
Opinion by Moylan, J.
Our primary focus on this appeal is on the protective sweep as an incident of lawful arrest. The appeal is a primer of Fourth Amendment law because of the plenitude of issues it raises. On December 14, 2017, the appellant, Curtis Groves, entered conditional guilty pleas to 1) the possession of heroin with intent to distribute and 2) the possession of a firearm in a drug trafficking crime before Judge Mark K. Boyer in the Circuit Court for Washington County. On the two convictions, the appellant was sentenced to an aggregate term of 32 years of incarceration with all but 26 years suspended. The guilty pleas were conditioned upon the appellant's reserving his right to appeal from an adverse ruling at a pre-trial suppression hearing. Maryland Rule of Procedure 4-242(d)(2). Our chronology in this case looks backward from that point.
Looking backward to the suppression hearing, the appellant moved pre-trial to suppress various contraband and instrumentalities of crime (to wit, drugs, a quantity of ammunition, and a handgun) seized by the police during a warranted search on January 25, 2017, of 43 Charles Street in Hagerstown, a residence shared by the appellant with his girlfriend, Sidrease Morgan. A hearing was conducted on the motion on November 29, 2017, before Judge Boyer. In an order of December 8, 2017, Judge Boyer denied the motion to suppress.
The key issue before the suppression hearing was the constitutionality of the search and seizure warrant for 43 Charles Street issued by Judge Daniel Dwyer on January 25, 2017. There was no question but that the detailed, eight-page warrant application submitted by Agent Tammy Jurado of the Washington County Narcotics Task Force faciallyfurnished abundant probable cause for the issuance of the warrant. The nub of the appellant's contention, however, was that the police had made an earlier entry into 43 Charles Street on that very day, to wit, when they first arrested the appellant, and had at that time made a number of visual observations which, in turn, became the essential core of the warrant application. The warrant application recited:
(Emphasis supplied).
The appellant's argument is that the unreasonable extent and duration of that earlier intrusion in the course of which the police made those observations violated the Fourth Amendment. The argument followed that if those unconstitutional observations, as fruit ofthe poisonous tree, were excised from the warrant application, what then remained would not have been enough to justify the issuance of the warrant. With respect to that conditional quantitative assessment, the appellant is on solid ground. With respect to the constitutionality of the initial intrusion, however, we must look backward to the facts of that earlier event.
The Protective Sweep Incident To Arrest:
A Homegrown Product
Before turning to the application of protective sweep law to the specific facts of this case, however, it behooves us to examine protective sweep law in the abstract. It also is gratifying to remember that this now universally recognized constitutional principle grew from strong native roots. It was the 1987 opinion of Judge Theodore Bloom for the Court of Special Appeals of Maryland that found expression in the Supreme Court's first recognition of the protective sweep phenomenon in terms essentially indistinguishable from those first enunciated by Judge Bloom.
In Buie v. State, 72 Md. App. 562, 531 A.2d 1290 (1987), seven officers went to Buie's home in Prince George's County with an arrest warrant and arrested him for armed robbery. One officer called down basement stairs for everyone in the basement to come up with hands raised. After some discernible delay, Buie came up and was immediately arrested, handcuffed, and searched. As Buie was being led from the house, another officer went down into the basement "in case there was someone around." Id. at 566.
What the officer found was a red jogging suit matching a description of the clothing worn by the armed robber. Pursuant to the Plain View Doctrine, it was seized and admitted into evidence. If the police entrance into the basement to conduct the protective sweep was reasonable, there was no disputing the fact that the warrantless seizure of the red jogging suit was also reasonable. The sweep into the basement was the Plain View Doctrine's "prior valid intrusion." The police had probable cause to believe that the red jogging suit, spotted in plain view, had been worn by the robber and was evidence of crime. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Arizona v. Hicks, 480 U.S. 321, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987).
The Task Force did not immediately or warrantlessly seize the contraband or other evidence which they observed in the course of the protective sweep. They simply included these observations in their application for a search warrant. In the meantime they placed a guard on 43 Charles Street, effectively seizing the property while they obtained the warrant. Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001); Segura v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).
The key issue before this Court was one of first impression.
Maryland has not previously determined whether, following the execution of an arrest warrant, officers may make a cursory inspection of the premises where the arrest took place to search for other known suspects[.]
72 Md. App. at 572 (emphasis supplied).
Holding that only reasonable suspicion and not probable cause is the measure of certainty that must be satisfied, Judge Bloom concluded:
[I]f there is reason to believe that the arrestee had accomplices who are still at large, something less than probable cause—reasonable suspicion—should be sufficient to justify a limited additional intrusion to investigate the possibility of their presence.
72 Md. App. at 576 (some emphasis supplied).
A splintered Court of Appeals, by a four-to-three vote, reversed the decision of this Court and held that probable cause rather than reasonable suspicion was the appropriate measure of certainty required. Buie v. State, 314 Md. 151, 550 A.2d 79 (1988). The only difference between the conclusion of the Court of Appeals and that of the Court of Special Appeals was with respect to the measure of certainty—probable cause versus reasonable suspicion—required to justify a protective sweep. The Supreme Court granted certiorari and reversed the Court of Appeals's decision. Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990).
That measurement became, in turn, the primary focus of the Supreme Court.
In this case we must decide what level of justification is required by the Fourth and Fourteenth Amendments before police officers, while effecting the arrest of a suspect in his home pursuant to an arrest warrant, may conduct a warrantless protective sweep of all or part of the premises.
494 U.S. at 327 (emphasis supplied).
After analogizing the question for decision to that before the Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and Michigan v. Long, 463 U.S.1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), the Supreme Court articulated both the standard and the test:
We conclude that by requiring a protective sweep to be justified by probable cause to believe that a serious and demonstrable potentiality for danger existed, the Court of Appeals of...
To continue reading
Request your trial