McMillian v. State

Decision Date01 September 1991
Docket NumberNo. 13,13
PartiesRobert Lee McMILLIAN v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Edward Smith, Jr. (Cummings and Smith, P.A., on brief), Baltimore, for petitioner.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.



Robert Lee McMillian was convicted by a jury in the Circuit Court for Baltimore City of conspiracy to distribute cocaine and maintaining a building as a common nuisance. He was sentenced to concurrent terms of ten years imprisonment. The Court of Special Appeals affirmed those judgments. McMillian v. State, 85 Md.App. 367, 584 A.2d 88 (1991). We granted certiorari to consider the following issues: (1) whether the police acted reasonably under the Fourth Amendment when they entered the social club managed by McMillian without a warrant and thereafter searched the club pursuant to McMillian's consent; and (2) whether the evidence was sufficient to support McMillian's convictions.


This case originated from an investigation by the Baltimore City Police Department of the Foxes & Vixens Club (the Club), a private social club 1 located at 1601 West Lexington Street in Baltimore City. At a pre-trial hearing on McMillian's motion to suppress the cocaine seized at the Club, the State offered the following evidence to justify the warrantless search of that premises on December 29, 1988. On that day, at approximately 3:00 p.m., Baltimore City Police Officer James Rood spoke to a "reliable source" who informed him that someone at the Club was selling drugs. The Western District Drug Enforcement Unit, of which Rood was a member, had previously received numerous complaints about the sale of controlled dangerous substances from that location.

After receiving this information from his source, Officer Rood proceeded to the vicinity of the Club to investigate. He had previously obtained permission from the owner of a construction trailer located fifty to sixty feet from the Club to use the trailer for covert surveillance of the premises. Officer Rood made observations from the trailer and communicated by radio with fellow officers who were stationed out of the line of sight of people at the Club. These officers planned to arrest people designated by Rood who were seen leaving the Club and suspected of illegal activity.

Initially, Officer Rood observed eight or nine people standing outside the Club's entrance. He saw a black female exit the Club and disperse small objects, which Rood believed to be controlled dangerous substances, to five or six people outside the Club. Officer Rood ordered that the people receiving these packages be stopped. Thereafter, police stopped and arrested LaTanya Lee who was in possession of one glassine bag of cocaine.

Officer Rood also observed people engaging in conversation outside the Club. He noticed these people handing currency to an unidentified person inside the Club, and receiving, from that unidentified person, a small object. Officer Rood watched this type of transaction occur between 20 and 30 times. As a result of his observations Officer Rood ordered the stop and arrest of Bryant Livers and Darryl Lightner as they walked away from the Club. From Livers, police recovered two glassine bags of cocaine; from Lightner, police recovered a glass vial containing a white powder, which later was determined not to be a controlled dangerous substance.

At approximately 4:40 p.m., the police also stopped a woman driving an automobile who had briefly entered the Club. The woman immediately told the police that she had just stopped inside the Club to see a friend, that she did not have anything, and that she had not done anything. Concerned that this woman might jeopardize their operation by revealing their covert surveillance, the police told the woman that they had not known that she had been at the Club and that they had stopped her for another reason.

Rood identified McMillian and Curley Jackson as two men whom he saw standing outside the Club and directing people to the door of the Club. Rood never saw either of these men distribute drugs, but he did see them watch drug transactions occur. Rood also identified Arthur Lee Carter as the person who delivered drugs to LaTanya Lee. Rood also observed a man dressed in black clothing who had a key to the apartment that adjoined the Club. This person was seen going in and out of the Club, talking to people who were waiting outside the Club, and was seen observing drug transactions occur. Rood suspected that this man was involved in the drug transactions.

Throughout his surveillance, Officer Rood was in radio contact with Sergeant Bert Ricassa, his superior, and the officer in charge of the investigation, Agent Timothy Devine, as well as Sergeant John Slawinski and Officers Clarence Smith and Clifton Mazer. A transcript of the conversations between these police officers was introduced into evidence. That transcript recorded ongoing conversations between the officers regarding what measures they should and could take in light of Rood's observations of the Club. Consideration was given to obtaining a search and seizure warrant, but Officer Rood was concerned that by the time police applied for and obtained a warrant the drug distributors would have vacated the Club or the drug sales would have concluded. Alternatively, consideration was given to securing the premises and either seeking consent to search from the owner or manager of the Club or obtaining a search warrant.

At approximately 5:50 p.m., Rood left his observation post and returned to the Western District police station for about one hour to meet with Ricassa and other officers involved in the investigation of the Club. No direct observation was made by the police from 5:50 p.m. to 6:48 p.m., although Rood advised Ricassa that "I'm gonna have somebody watch this place for me. And if everybody leaves they're gonna notify us."

Once at the station, Ricassa decided that rather than attempt to get a search and seizure warrant in the first instance, the officers would return to the Club and secure the place, holding everybody there while they attempted to obtain a consent to search the premises. If they could not obtain such a consent, the police intended to detain those inside the Club until they could obtain a search and seizure warrant. Ricassa was concerned that if the premises were not immediately secured, that Club patrons might learn of the police surveillance by overhearing the radio communications between him and the other officers and that the drug distributors might leave the premises before a search and seizure warrant could be obtained. It was also decided that Officer Mazer would "slip in" with a patron rather than knocking on the door of the Club.

The police returned to the vicinity of the Club at approximately 6:48 p.m. Officer Mazer, wearing a police uniform, gained entry at approximately 7:05 p.m. by waiting until a patron went to the door of the Club and sought to enter. The door to the Club was opened by McMillian, who upon seeing Mazer began yelling "police" and tried, unsuccessfully, to shut the door to bar Mazer's entry. Unable to make radio contact with Officer Mazer, Rood ordered the other officers at the scene to enter the Club.

Inside the Club, the officers found approximately 20 to 25 people, including McMillian, who were detained and patted down for weapons. The police determined that McMillian was the manager of the Club. McMillian inquired whether the police had a search warrant. Rood testified that he and McMillian, who appeared to Rood to be about fifty-five years of age, discussed the issue of consent to search in the back room of the Club. Two or three people, both officers and civilians, were standing in the doorway. No guns were drawn by the police officers, and although not free to leave, McMillian was not formally placed under arrest or handcuffed.

Rood advised McMillian of the police surveillance of the Club that had occurred during the afternoon and that the authorities believed that he was involved with drug transactions. McMillian responded that he knew that the police "were coming and that he had to make a living somehow." Officer Rood explained that the police wished to obtain McMillian's consent to search the premises. If McMillian opted not to provide consent, Officer Rood explained that the officers would remain at the premises and that he would return to the station to apply for a search and seizure warrant, which he may or may not be able to obtain from a judge. No threats or promises were made to him. McMillian signed the consent form five to ten minutes after the police entered the Club. The form that McMillian signed stated that he was aware of his right to refuse the search. The form also stated that "[t]his written permission is being given by me to the above-named officer voluntarily and without threats or promises of any kind."

The ensuing search resulted in the seizure of a total of 59 glassine bags of cocaine: nine bags were found in a garbage can, 25 bags were found inside a Kool cigarette pack in the back room, and a manila pack of 25 bags was located in the center room where cards were being played. Also, a vial of white powder was found near the telephone.

The trial court denied McMillian's motion to suppress, concluding that the entry of the Club without a warrant was justified by the exigencies confronting the police. The court further found that McMillian voluntarily consented to the search of the Club.


After the denial of McMillian's motion to suppress evidence, the case was tried on the merits before a jury. Arthur Carter and Curley Jackson, who also had been indicted for narcotics offenses and conspiracy with McMillian, each other, and "with...

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