Mcgurk v. State

• Decision Date: 07 September 2011
• Docket Number: Sept. Term,2010.,No. 00501,00501
• Citation: 201 Md.App. 23,28 A.3d 720
• Parties: Carrie McGURKv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

201 Md.App. 23

28 A.3d 720

Carrie McGURK

v.STATE of Maryland.

No. 00501

Sept. Term

2010.

Court of Special Appeals of Maryland.

Sept. 7, 2011.

George Harper, Upper Marlboro, MD, for appellant.Edward J. Kelley (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: EYLER, DEBORAH S., HOTTEN, and JAMES P. SALMON (Retired, Specially Assigned), JJ.JAMES P. SALMON (Retired, Specially Assigned), J.

At approximately 3:15 a.m. on June 29, 2009, Carrie McGurk and a male companion were on the second floor balcony of a house located at 608 Philadelphia Avenue, Ocean City, Maryland. An Ocean City police officer, who was passing by on his bicycle, saw the couple. He parked his bike, and, uninvited, walked up one flight of stairs and entered onto the balcony. The officer was later joined on the balcony by one of his police colleagues, who was also uninvited. Based upon what the police officers saw on the balcony, Ms. McGurk was arrested and twice searched. As a result of what was found in the searches incident to her arrest, she was charged with possession of marijuana, and possession of cocaine with the intent to distribute, and various other drug offenses.

Ms. McGurk filed a motion to suppress the evidence that was taken from her by the police, as a result of the searches. After a hearing was held, the motions judge, without comment, denied the suppression motion.

Ms. McGurk elected a bench trial and proceeded on a not-guilty agreed statement of facts as to the charge of possession with the intent to distribute cocaine. The trial judge found her guilty of that offense and sentenced her to three-years incarceration but suspended all that sentence in favor of a period of probation.¹

In this appeal, Ms. McGurk contends, for various reasons, that the motions judge erred in denying her motion to suppress. The most important issue raised is whether the police officers, who entered onto the second story balcony, physically intruded into a “constitutionally protected area” i.e., an area in which Ms. McGurk had a reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The issue is important because if the intrusion was into a “constitutionally protected area,” all the evidence seized by the police incident to the arrest should have been suppressed based on the “fruits of the poisonous tree doctrine.” Wong Sun v. Untied States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

I.Facts Established At The Suppression Hearing²

Philadelphia Avenue is a two-way street in Ocean City, Maryland, that runs north and south. The place where Ms. McGurk was arrested, 608 Philadelphia Avenue, is approximately 13 blocks north of the inlet, which is the southern most part of Ocean City. That address is on the east side of Philadelphia Avenue and has a front porch and a balcony. The floor of the balcony is 10 feet above ground. A waist high wooden railing is on the west and a portion of the north side of the balcony. Both the front porch and the balcony face Philadelphia Avenue. A person on the balcony can gain entrance into the living quarters of the dwelling by accessing a door at the rear (east side) of the balcony.

At the time Ms. McGurk was arrested, the balcony was decorated with flowers and plants. A glass table was positioned towards the south-end of the balcony. Additionally there was “a two-person style rocking chair” and at least one other chair on the balcony. Below the balcony, on the west side of the front porch, there is a very narrow lawn that is adjacent to the sidewalk that borders on Philadelphia Avenue. The first step on the staircase that leads to the balcony is very close to the sidewalk. From the stairs, the entrance onto the balcony is on the north side.

On June 29, 2009, Carrie McGurk was on the second-floor balcony of 608 Philadelphia Avenue, as was Roberto Villagra. According to Ms. McGurk's uncontradicted testimony, on the date of her arrest she was an overnight guest of one Brady Cox, who leased the Philadelphia Avenue premises. She had brought with her an overnight bag and planned to stay for the night at 608 Philadelphia Avenue.

At approximately 3:15 a.m. on the morning in question, Ocean City police officer Michael Valerio, while in uniform, was riding his patrol bicycle south-bound (i.e., towards the inlet) on Philadelphia Avenue when he smelled the odor of burnt marijuana. He turned his bicycle around and peddled approximately 60 feet north of 608 Philadelphia Avenue in an attempt to locate the source of the odor. He then looked back towards the south and saw two people sitting on a balcony. Officer Valerio approached the staircase that led to the second-floor balcony at 608 Philadelphia Avenue and “radioed for additional officers to help [him] locate the source of the marijuana.”

Before any of his fellow officers arrived, Officer Valerio, uninvited, walked up the stairway to the second-floor balcony. Once on the balcony, Officer Valerio identified himself as a police officer and asked the porch occupants “what are you up to tonight” or “what are you doing tonight?” Mr. Villagra replied that they were “just watching traffic.” Officer Valerio then inquired “were you doing anything else?” As he asked the last question the officer “got closer to” Mr. Villagra and smelled “the odor of burnt marijuana, THC, which [he] knew through [his] training and knowledge and experience” was coming from Villagra. This led Officer Valerio to believe “that there had been other things going on that night.”

Officer Valerio asked Villagra “if he had any marijuana on him.” Villagra said that he did not. Officer Valerio next asked “is it a little bit, or did you just have a lot more on you?” That awkwardly phrased inquiry was repeated by the officer “one or more times” whereupon Villagra said that he had smoked a “roach” but had thrown the “roach” off the balcony. By the time Officer Valerio obtained that admission, two “back-up officers” (PFC. Kelley and Officer Perry) had arrived to assist him.

Officer Valerio then went down the stairwell and found, in the front yard, a small marijuana “roach” that was still warm. He collected that evidence, brought it back up to the balcony, held it in his hand and asked Villagra if the “roach” that he had found was the marijuana cigarette that Villagra had thrown away. Villagra admitted that it was. Officer Valerio then placed Villagra under arrest.

Officer Charles Kelley arrived at 608 Philadelphia Avenue approximately 5 minutes after Officer Valerio's arrival. Officer Kelley climbed the steps to the second-floor balcony to assist Officer Valerio who by that time had already made a “custodial arrest” of Villagra.

Officer Kelley initiated a conversation with Ms. McGurk. He asked her what her relationship was to Villagra, how she knew him, how long she was staying in Ocean City, and whether she was on vacation. While he made those inquiries, he stood only 2 1/2 feet away from Ms. McGurk. His proximity to her allowed Kelley to “immediately detect an overwhelming odor of burnt marijuana coming from her person.” After smelling marijuana, he asked if he could see Ms. McGurk's identification. When she opened her purse to get her identification, Officer Kelley observed a “prescription style” orange bottle with a white lid. The bottle was transparent which allowed him to see, “in plain view” that inside the bottle was a “glassine cellophane type baggie” that contained a “greenish-brownish leafy vegetable like substance.” He recognized through his “training, knowledge and experience as a police officer” that the leafy substance was marijuana.

Officer Kelley ordered Ms. McGurk to give him the prescription bottle. She did not comply with that command but instead tried to conceal the bottle in her hand. She also attempted to remove other objects from her purse and to “shove them towards her front pocket....” He then advised Officer Valerio, who was standing nearby, that Ms. McGurk was under arrest. The arrest occurred at 3:27 a.m., approximately seven minutes after Officer Kelley arrived at 608 Philadelphia Avenue.

After Ms. McGurk was handcuffed and placed under arrest, she was removed to a “safer area on the sidewalk” and searched by Officer Valerio, who found $813.00 in the rear pocket of her pants.

Officer Valerio described how he searched the upper part of Ms. McGurk's body, which was covered by both a tank top and a bathing suit top, as follows:

I used my index finger and thumb of my right hand and grabbed the middle area between the swim suit and pulled that away from her body and still underneath the tank top to see if there was any illegal drugs or evidence that was concealed....

When he pulled the swim suit away from appellant's body, six “cream colored rocks” of cocaine fell to the ground.³

II.

Appellant contends that the second-floor balcony where she was seated when the Ocean City police officers arrived, was part of the curtilage of the dwelling house located at 608 Philadelphia Avenue, and was therefore a constitutionally protected area that police officers were not entitled to enter without permission. An area is considered to be part of the curtilage of a dwelling house if it “is so intimately tied to the home itself that it should be placed under the home's umbrella of Fourth Amendment protection.” United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). In response, the State makes three arguments: 1) McGurk never had standing to argue that she was in a constitutionally protected area; 2) even assuming that McGurk had standing, the second-floor balcony was not part of the curtilage of 608 Philadelphia Avenue, and 3) even if the second-floor balcony was a part of the curtilage, entry by the Ocean City police officers was still lawful based on “extigent circumstances.”

A. Standing

Immediately prior to the hearing on McGurk's motion to suppress, defense counsel...