Kamara v. State

• Decision Date: 07 June 2012
• Docket Number: No. 650,Sept. Term, 2011.,650
• Parties: Abraham KAMARA v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

205 Md.App. 607

45 A.3d 948

Abraham KAMARA

v.STATE of Maryland.

No. 650, Sept. Term, 2011.

Court of Special Appeals of Maryland.

June 7, 2012.

John Severt, Rockville, MD, for appellant.

Jessica V. Carter (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: WOODWARD, GRAEFF and KEHOE, JJ.

GRAEFF, J.

Abraham Kamara, appellant, was convicted in the Circuit Court for Montgomery County, pursuant to an agreed statement of facts, of possession of marijuana with the intent to distribute. The court imposed a sentence of three years, all but nine months suspended, with five years unsupervised probation.¹

On appeal, appellant raises two questions for our review, which we have rephrased as follows:

1. Where the police illegally enter a home and secure the premises while they obtain a search warrant, is evidence subsequently seized pursuant to a lawful search warrant admissible under the independent source doctrine or the inevitable discovery doctrine?

2. Was the evidence sufficient to support appellant's conviction of possession of marijuana with the intent to distribute?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

I.Suppression Hearing

On March 17, 2011, the court held a hearing on appellant's motion to suppress evidence. Counsel for the State introduced into evidence, as State Exhibits 1 and 2, a search warrant and the search inventory identifying the evidence the police seized from appellant's home pursuant to the warrant.

Detective George Witherington prepared the application and affidavit for the search warrant on November 19, 2010. The application detailed Detective Witherington's experience with controlled dangerous substances and then set forth the following:

3. On November 19th, 2010, your affiant was in the vicinity of Flower Avenue and Piney Branch Road, Silver Spring, Montgomery County, Maryland, conducting undercover narcotics operations, due to complaints of drug activity in the area. Your affiant met with an individual, later identified as Ryan Lackonsingh,² and engaged him in conversation. Your affiant asked to purchase marijuana and Lackonsingh advised that he knew where to obtain marijuana and that he would obtain marijuana for your affiant. Lackonsingh then entered the writer's undercover vehicle and directed him to the area of Chickasaw Drive and Osage Street, Silver Spring, Montgomery County, Maryland and instructed your affiant to park on the side of the street. Lackonsingh advised that he would go purchase the marijuana at a nearby house and would be right back. Your affiant then provided Lackonsingh with $120.00 in pre recorded drug enforcement funds to purchase marijuana and Lackonsingh exited the vehicle. Detective Oaks, of the Montgomery County Police, Special Investigations Division, Tactical Narcotics Unit, then observed Lackonsingh walk to 1015 Osage Street, Silver Spring, Montgomery County, Maryland. This address will hereafter be referred to as “the residence.” Oaks observed Lackonsingh knock on the front door, observed the front door open and observed Lackonsingh enter. After approximately 2 minutes, Oaks observed the front door of the residence open and observed Lackonsingh walking away from the residence, back in the direction of your affiant. Lackonsingh then arrived at and reentered the writer's vehicle. Lackonsingh the[n] handed your affiant a baggie containing green, leafy, vegetable matter, which your affiant recognized through training and experience to be marijuana, a controlled dangerous substance of schedule I. At this time other members of the Tactical Narcotics Unit converged on the area and placed Lackonsingh under arrest. Detective Chmiel, of the Montgomery County Police, Special Investigations Division, Tactical Narcotics Unit, searched Lackonsingh incident to his arrest and located two baggies containing green, leafy vegetable matter in Lackonsingh's right, front coin pocket. Chmiel recognized through training and experience that this green, leafy matter was marijuana, a controlled dangerous substance of schedule I. Additionally, Chmiel located $20.00 U.S. currency in Lackonsingh's left, front pants pocket. Detective Sergeant Carafano of the Montgomery County Police, Special Investigations Division, Tactical Narcotics Unit, confirmed that this$20.00 was a portion of the same $120.00 that your affiant had provided Lackonsingh to purchase marijuana.

4. Upon arrest of Lackonsingh, Oaks responded to the residence to conduct a “knock and talk” investigation with the occupants. Upon approaching the residence, Oaks encountered t[w]o unidentified males who exited the residence and met Oaks in front of the residence. Oaks explained that he was at the residence to conduct an investigation and both individuals immediately became argumentative and began asking Oaks for a warrant. Carafano responded to the scene at this time and explained to the two males and an additional female inside the residence that the residence was being seized, pending further investigation. Carafano explained that your affiant would be applying for a search and seizure warrant. Oaks conducted a protective sweep of the residence in order to verify that no additional individuals were located within the residence and during this sweep, Oaks detected a strong odor of marijuana within the residence. Oaks observed approximately 1/4 pound of suspected marijuana laying in plain view on a bed within the residence, and a jar containing suspected marijuana and a digital scale, also in plain view, on a dresser within the residence. Once Oaks was confident that no additional individuals were in the residence, the house was secured pending a search warrant.

The search warrant inventory, which was introduced as State's Exhibit 2, lists the following evidence seized during the execution of the warrant:

1. Marijuana and baggies found on bed in upstairs bedroom.

2. Mail with name Abraham Kamara found on top of dresser in upstairs bedroom.

3. Marijuana scale found on top of dresser in upstairs bedroom.

4. Small bag of marijuana in blue jeans found in blue bin in downstairs bedroom.

At the hearing on the motion to suppress, Detectives Donnie Oaks and Michael Paul, members of the Montgomery County Police Department, testified regarding the events that occurred on November 19, 2010. Detective Oaks testified that Detective Witherington was working undercover, wired for audio, and he had arranged to purchase marijuana from Mr. Lackonsingh in Silver Spring. Mr. Lackonsingh entered Detective Witherington's unmarked vehicle and directed Detective Witherington to drive toward Osage Street. Detective Witherington gave Mr. Lackonsingh “pre-marked drug enforcement money,” requiring Mr. Lackonsingh to leave his jacket in the car for collateral. ³ Mr. Lackonsingh left the vehicle and walked up Osage Street. He knocked on the door at 1015 Osage Street, and an unidentified person opened the door. Mr. Lackonsingh then entered the residence. Approximately five minutes later, Mr. Lackonsingh left the house and walked back to Detective Witherington's car. After Mr. Lackonsingh entered the car and gave the detective marijuana, he was arrested.

Detective Oaks testified that, several minutes after Mr. Lackonsingh exited appellant's house, he observed another man approach the residence, whereupon a male, whom Detective Oaks identified as appellant, exited. Detective Oaks observed appellant participate in a “hand to hand drug transaction” at the bottom of the front steps.

After approximately 15 minutes, Detective Oaks decided to approach the house in order to conduct a “knock and talk.” He explained: “I believed I could talk to him, and, and ask him, you know, what, what's going on in the residence. And I believed I could talk him in, you know, talk him into turning over any more marijuana he had or, and ask him who was living in the residence.”

Detective Oaks and two other detectives, who were all wearing police bulletproof vests, armbands, and badges, approachedthe front door. Appellant opened the door while the detectives were walking up the front steps. He stood in the threshold of the door, with both the storm door and the “main wooden door” open, and Detective Oaks observed a “large fold of money in [an] open pocket in [appellant's] sweater.” A few seconds later, appellant's brother, Kenneth Kamara, and a female came to the door. Detective Oaks took identification from each of the three individuals. He described appellant as “cooperative,” but his brother was “agitated,” “confrontational,” and “loud.” The female had a young child with her who was loud and crying.

Detective Oaks gave the identification to Detective Spellman to run a “wanted check,” which indicated that that both appellant and Kenneth Kamara “had cautions for being drug dealers, users and ... there was a caution for Kenneth being possibly armed.” He refused Kenneth Kamara's request to return his identification, stating that he was waiting for Sergeant Carafano.

When Sergeant Carafano arrived, he advised that he was going to get a search warrant for the residence. He stated that the police were going to detain appellant and his brother while they sought a search warrant. He handcuffed the two men, and the police then conducted a pat down of appellant and his brother for weapons and had them sit on a couch “approximately four feet away from the front door.” ⁴

Detective Oaks and another officer performed a protective sweep of the residence to make sure no one else was present. He explained that a sweep of a home involved “walking through all the rooms, making sure no one is hiding in the closets, under beds. You know, you have your guns out, make sure, just for your safety, and you just check the house for individuals.” He did not open drawers or move anything during the sweep because he was “looking for persons.” During the sweep, he saw marijuana in a bedroom...