Murphy v. State

• Decision Date: 27 May 2010
• Citation: 995 A.2d 783,192 Md. App. 504
• Parties: Branden S. MURPHY a/k/a Jawaun Antonio Fussell v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

995 A.2d 783

192 Md. App. 504

Branden S. MURPHY a/k/a Jawaun Antonio Fussell v.STATE of Maryland.

No. 2905 September Term, 2007.

Court of Special Appeals of Maryland.

May 27, 2010.

COPYRIGHT MATERIAL OMITTED

Nancy S. Forster and Martha Weisheit, Baltimore, MD, for Appellant.

Jeremy M. McCoy(Douglas F. Gansler, on the brief), Baltimore, MD, for Appellee.

Panel: ZARNOCH, GRAEFF, and JAMES S. GETTY(Retired, Specially Assigned), JJ.

GRAEFF, Judge.

After a bench trial in the Circuit Court for Baltimore County, appellant, Jawaun Antonio Fussell, also known as Branden S. Murphy,¹ was convicted of robbery with a dangerous and deadly weapon, simple robbery, first degree assault, theft less than $100, two counts of use of a handgun in the commission of a crime of violence, false imprisonment, false imprisonment in a vehicle, kidnapping, and giving a false statement to a police officer.On appeal, appellant presents one question for our review, which we have rephrased: Did the circuit court err in denying his motion to suppress the gun found in his apartment?

For the reasons set forth below, we answer that question in the negative.Accordingly, we shall affirm the judgment of the circuit court.

FACTS AND PROCEDURAL BACKGROUND

In the spring of 2007, Sirronn Shell met appellant, and for a period of several months, he"hung out" with appellant and appellant's friends at appellant's apartment.In April 2007, Shell was at appellant's apartment with a couple of other people, and a handgun belonging to a man named Brandon "went missing."

Two weeks later, on May 6, 2007, Shell went to appellant's apartment to celebrate the birthday of a man named Petey.Shell, appellant, and several other men, including Brandon, Byrd, Mike, and Tayvon, left the apartment in two cars "to go get some girls."They stopped their cars behind a "Bill's Carpet" store because Byrd said that he had to urinate.Shell and Mike waited by one of the cars, and then several members of the group "ran up on" Shell and grabbed him.Shell struggled until he heard a "shotgun pop," and Byrd handcuffed him.Shell turned around and saw appellant holding a shotgun.A couple of the other members of the group passed around a nine millimeter handgun.Byrd removed Shell's wallet from his back pocket, passed it to Tayvon, and then returned it to Shell's pocket.²

Appellant put the shotgun to Shell's chest, twisted it into Shell's shirt, and accused Shell of stealing Brandon's gun two weeks earlier.Shell denied taking the gun, and someone in the group replied: "We'll kill you right here or whatever, just say you got it and it is over."Shell again denied taking the gun, and appellant struck Shell twice in his left jaw.

Shell then got back into the car, at gunpoint, and the group drove to Shell's residence to look for the missing gun.When they did not find the missing gun at Shell's residence, they removed Shell's handcuffs and told him that there were "no hard feelings, but it was like you are the new person around here, we have got to find out ... where this gun is at."The group departed, and Shell called the police.

At approximately 3:40 a.m., Baltimore County Police OfficerRodney Speights responded to Shell's residence.Shell told Officer Speights that he had been assaulted by five men, and he gave Officer Speights information about the men's names and physical descriptions.Officer Speights observed, consistent with Shell's statement, that Shell's cheeks and wrists were swollen and red.Shell told Officer Speights that he had been "hanging out from time to time at"appellant's apartment, that appellant had several friends that frequented the apartment with him, that appellant carried a shotgun when he answered the apartment door, and that Byrd sometimes would answer the door while carrying his nine millimeter handgun.Officer Speights, accompanied by Shell and Corporal Walter Clipper, went to the area where the assault took place and found Shell's earrings.

Officer Speights and Corporal Clipper, along with several patrol officers, then went to appellant's second floor apartment.They knocked on the door, and a person who identified himself as Brandon, and who "matched a description of one of the suspects involved in" the assault and robbery of Shell, opened the door.The police removed Brandon from the apartment, and they called into the apartment "announcing ourselves for everybody else to exit the apartment."At that point, a woman and two men, appellant and a man named Michael Dobbins, exited the apartment.They were detained "on the landing."The officers "verbally challenged the apartment again," and they then conducted a protective sweep of the apartment.

Officer Speights testified that they conducted a protective sweep "because of the nature of the incident and because these subjects are known to have weapons in the apartment."He further explained that they had been told that five male subjects were involved in the incident, but they had only three males in custody.

Corporal Clipper similarly explained why they conducted a protective sweep of appellant's apartment:

We were looking for weapons, people that are armed.We have two more suspects still out.I was told there were four suspects.At this point we basically have three suspects.I still have another suspect out there.

And it very well—the other three are there, they could have come back and partied.That person could have been in there, even though the apartment seemed empty.

Corporal Clipper further explained:

We don't know who is going to pop out of a closet, basement, or anywhere else, or in this case a bedroom.The protective sweep was done for my protection.If you went and—say while I got a search warrant, while I have an officer sitting in the living room and securing the building, somebody could have come out if we don't do a protective sweep.Also, as I said, I'm still looking for a suspect and other weapons.

During the protective sweep, Corporal Clipper found a shotgun leaning against a dresser in the rear bedroom of the apartment.

Appellant moved to suppress the shotgun on the ground that there was no emergency requiring a protective sweep of his apartment, arguing that police had time to obtain a warrant for a search of the apartment.³The State, relying upon Maryland v. Buie,494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276(1990), countered that, because the police "had every reason to believe the other two suspects could have been inside"appellant's apartment, and because they"had concern about the existence of weapons," the police were permitted to make a protective sweep.

The circuit court denied the motion to suppress, stating:

I am not only familiar with ... Buie, the evidence I've heard in this case thus far is that the point in time when the officers arrived at the subject property, it was within the ambit of their knowledge that there were five, total of five suspects, all five being males.Three suspects had been identified as alighting from the apartment, along with one female.And so it seems reasonable—and there would have been a reasonable suspicion and a reasonable premise upon which to act with these officers.There were still two males who needed to be apprehended.Under those circumstances, I think it fits squarely within the rationale of the Buie decision, that those officers are permitted under an exigency principle to enter the confines of the apartment and perform a so-called protective sweep.First of all, to look for the other two people for whom they were looking, and secondly, it was still again within the universe or ambit of their knowledge, there was information that they had that there were weapons.I believe that the officers were justified under Fourth Amendment principles in crossing the threshold of the apartment to perform this sweep.

The plain view doctrine comes into play from the standpoint of the evidence that I have heard that the shotgun was sitting in the open within the confines of the back bedroom of the apartment, and I don't have any reason to think that the officers' search, once they got into the apartment, exceeded the reasonableness scope.

So under the circumstances....I shall respectfully deny the motion to suppress evidence.

This timely appeal followed.

STANDARD OF REVIEW

In reviewing a circuit court's denial of a motion to suppress evidence, "we view the evidence adduced at the suppression hearing, and the inferences fairly deducible therefrom, in the light most favorable to the party that prevailed on the motion."Williamson v. State,413 Md. 521, 531-32, 993 A.2d 626(2010).We accept "the factual findings of the suppression court and its conclusions regarding the credibility of testimony ... unless clearly erroneous."Rush v. State,403 Md. 68, 83, 939 A.2d 689(2008)(citations omitted).With respect to the ultimate issue of constitutionality, however, we"make our own independent constitutional appraisal `by reviewing the law and applying it to the facts of the case.'"Williamson,413 Md. at 532, 993 A.2d 626(quotingBailey v. State,412 Md. 349, 362, 987 A.2d 72(2010)).

DISCUSSION

The Fourth Amendment to the United States Constitution protects against "unreasonable searches and seizures."U.S. CONST. amend. IV.A search of a person's home without a warrant is "presumptively unreasonable."Payton v. New York,445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639(1980).AccordWilliams v. State,372 Md. 386, 402, 813 A.2d 231(2002).There are exceptions, however, to this general rule.One of these exceptions was set forth by the United States Supreme Court in Buie, authorizing a protective sweep of a residence, in certain circumstances, when the police conduct an arrest inside the residence.494 U.S. at 334, 110 S.Ct. 1093.

In Buie,the Court defined a "protective sweep" as "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or...