McMillian v. State, 260
| Citation | 85 Md.App. 367,584 A.2d 88 |
| Decision Date | 01 September 1990 |
| Docket Number | No. 260,260 |
| Parties | , 59 USLW 2495 Robert Lee McMILLIAN v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.
Argued before WILNER, C.J., and BISHOP and ALPERT, JJ.
In Ciriago v. State, 57 Md.App. 563, 574, 471 A.2d 320 (1984), cert. denied, 300 Md. 152, 476 A.2d 721 (1984), we met the "Taj Mahal of blurts"; here, we are visited with the Gibraltar of consent searches. Robert Lee McMillian appeals to us from his conviction of maintaining a common nuisance building and conspiracy to distribute cocaine. He asks us to decide, inter alia, the question of whether a consent to search, which the police obtained after they illegally entered a private social club, was sufficiently purged of the taint of that prior warrantless entry and subsequent seizure of the premises and its occupants for us to consider the consent voluntary, and not an exploitation of that prior illegality.
This case arose from the Baltimore City Police Department's investigation of the Foxes and Vixens Club (the Club), a private social club located at 1601 West Lexington Street, Baltimore, Maryland. The facts herein came to light during a three-day hearing on McMillian's motion to suppress the evidence that the police found during a consent search which followed their warrantless entry and seizure of the Club and its occupants.
At approximately 3 p.m. on December 29, 1988, Baltimore City Police Officer Thomas Rood spoke with a "reliable source" who told him that someone at the Club was selling drugs. The Western District Drug Enforcement Unit previously had received numerous complaints about the sale of controlled dangerous substances from the Club's location. Officer Rood proceeded to the Club to investigate.
The owner of a construction trailer, which was located nearby, gave Rood permission to use the trailer for covert surveillance of the Club. Officer Rood observed activities outside the Club and then radioed other officers to stop and arrest individuals who left the Club if Rood suspected them of criminal activity. Officer Rood initially observed eight or nine people standing outside the Club. He saw a black female exit the Club and give small objects, which he believed to be controlled dangerous substances, to five or six people. Rood ordered the other officers to stop those who had received the packages. When police officers stopped and arrested one of the recipients, LaTanya Lee, they recovered one glassine bag of a white powder substance.
Rood next testified that he saw numerous people go to and from the Club. He said that Rood saw such transactions occur twenty or thirty times.
As a result of these observations, he ordered the stop and arrest of two men as they walked away from the Club. The police recovered two glassine bags of cocaine from Bryant Livers and a glass vial containing a white powder substance from Darryl Lightner.
During this time, Rood also observed the people who stayed in and around the Club. At the suppression hearing, Rood identified McMillian and Curley Jackson as two men whom he had seen standing outside the Club. Rood did not see either of these men deal drugs, but considered them to be "players" because they stood outside the Club and directed people to the door, and could see the transactions take place from that vantage point. Rood further identified Arthur Lee Carter as the person who sold drugs to LaTanya Lee. Rood did not see Carter's face, but did see the arm of the person who gave the drugs to Lee. When Rood later entered the Club, he found Carter wearing the clothes that Rood earlier had seen on the arm of the person who delivered the drugs to Lee. No one else was wearing such clothing.
Throughout the surveillance period, Officer Rood was in radio contact with his supervisor, Sergeant Bert Ricassa, as well as Agent Timothy Devine, Sergeant John Slawinski, and Officers Clarence Smith and Clifton Mazer. The transcript of their conversations, which was introduced into evidence, showed extensive deliberation about the course of action that the officers should undertake based on their observations of the Club. They discussed the following options: (1) obtain a search and seizure warrant, (2) enter the Club and request that the owner or manager submit to a consent search, or (3) secure the premises while an officer obtained a search and seizure warrant. Rood's concern with the first option was that those involved would have concluded their drug sales or have vacated the Club by the time that the police obtained the warrant. He likewise vetoed the second option, believing that those inside the Club would "flush" the drugs before the police could enter.
Sergeant Ricassa then decided that it was "safe to write a paper" (search warrant) and instructed the officers to meet him at the police station. Agent Devine expressed concern that the officers would have to enter the Club that evening because those arrested had overheard the radio communications among the officers and might alert the others involved After discussing the case with his officers, Sergeant Ricassa decided that they would return to the Club and "secure the place, hold everybody there until we could type up a search and seizure warrant, ... unless we [could] get a consent to search form signed by either the manager or the people, person in charge of the premises." Although Ricassa believed that he had probable cause for a warrant to issue, he did not pursue a warrant prior to entry because he believed that "these dealers or these main players ... [would not be there] three to four hours or the next day after we ... [had] a search and seizure signed ... by a Judge." Rood testified that the officers also decided to "slip in" when one of the patrons knocked on the door and someone inside opened up the Club door.
in illicit activities at the Club. The officers convened their meeting at the police station at approximately 5:50 p.m., and it appears as though all of the officers withdrew from the surveillance for that hour-long meeting
At 7:05 p.m., a uniformed police officer, Officer Mazer, approached the Club door, waited until a patron rang the bell, and then, when the door opened, stepped in front of the patron and entered the Club. McMillian yelled "police" when he saw Officer Mazer and tried to close the door on him. Because the other officers were unable to make radio contact with Officer Mazer, they entered the Club. The officers found between twenty and twenty-five people rather than the three to five that they had expected to find. The officers detained these people and patted them down.
Although those in the Club were not under arrest, neither were they free to leave. The police determined that McMillian was the Club manager. McMillian then inquired whether Rood had a search warrant. Officer Rood advised McMillian that the officers had had the Club under surveillance for several hours and that they believed he was involved with drug transactions. McMillian stated that "he knew ... [the police] were coming. Rood explained that "[he] had come in to try to obtain a consent search from [McMillian]. If [McMillian] didn't want to give me a consent Rood testified that he neither threatened McMillian nor promised him anything when he requested the consent to search. McMillian signed a consent form five to ten minutes after the police entered the Club. The form included a statement that McMillian knew that he had the right to refuse the search.
search, that the officers would stay there and secure the premises. I would go into the station, type up a search and seizure warrant, and try to have--either a Judge would sign it or wouldn't sign it." When Rood asked McMillian why an elderly man like himself was involved with drugs, McMillian replied that he had to make a living somehow
The police then searched the Club, which consisted of a large room with a game board, pool table, and several poker machines; a second room with a large wooden picnic table; and a back room that appeared to serve as a small office in which untaxed liquor and cash was stored. The police found the following items during their search: (1) 9 glassine bags of cocaine in a garbage can, (2) 25 glassine bags of cocaine inside a Kool cigarette pack in the back room near a box of tiles, and (3) 25 glassine bags of cocaine in a manilla envelope located in the center of the room where people played cards. Officer Rood's expertise in narcotics law enforcement led him to conclude that the Club was a front for the distribution of controlled dangerous substances.
On March 1, 1989, the Grand Jury for Baltimore City charged McMillian with the following crimes: possession with intent to distribute cocaine, possession of cocaine, maintaining a common nuisance building, conspiracy to distribute cocaine, and conspiracy to possess cocaine with intent to distribute. The Grand Jury also charged co-defendants Curley Jackson and Arthur E. Carter with narcotics-related offenses, including conspiracy, 1 that related to the same course of criminal conduct alleged against McMillian.
McMillian filed a motion...
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