Perkins v. State, No. 1541

• Court: Court of Special Appeals of Maryland
• Writing for the Court: MOYLAN; In dealing with the precise issue now before us, the voluntariness of consent; Because we are reversing the conviction and remanding for a new trial, it is necessary to address briefly the appellant's first contention. The short answer to it
• Citation: 83 Md.App. 341,574 A.2d 356
• Parties: Ravon PERKINS v. STATE of Maryland. ,
• Docket Number: No. 1541
• Decision Date: 01 September 1989

Page 341

83 Md.App. 341 574 A.2d 356 Ravon PERKINS
v.
STATE of Maryland. No. 1541, Sept. Term, 1989. Court of Special Appeals of Maryland. June 6, 1990.

[574 A.2d 357]

Page 342

Matt P. Lavine, Assigned Public Defender of College Park (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

M. Jennifer Landis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and William R. Hymes, State's Atty. for Howard County, Ellicott City, on the brief), for appellee.

Argued before MOYLAN, WILNER and CATHELL, JJ.

MOYLAN, Judge.

The appellant, Ravon Perkins, was convicted by a Howard County jury of possession of cocaine with intent to distribute and of possession of narcotics paraphernalia. Upon this appeal, he raises the following four contentions:

1. That the charges against him should have been dismissed because of the failure of the State to bring him to trial within 180 days;

2. That the physical evidence should have been suppressed as violative of the Fourth Amendment;

3. That the prosecutor's rebuttal argument was improper; and

4. That he was denied the opportunity to present an effective Challenge to the Array.

Because we are compelled to reverse the convictions on the basis of a Fourth Amendment violation, the third and fourth contentions are moot.

At approximately 1 A.M. on the morning of August 30, 1988, the appellant checked into the Red Carpet Inn in Laurel. At 2:30 A.M., two uniformed Howard County policemen entered his room and ultimately seized the evidence upon which the charges were based. At issue is the constitutional propriety of both the initial entry and the conduct of the police in the room following that entry.

For the period of its use and occupancy, a hotel or motel room becomes, for Fourth Amendment purposes, the equivalent of the occupant's home. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949). Involved is what has come to be called "the core value" of the Fourth Amendment. Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). Whereas in many areas of Fourth Amendment litigation, the so-called "centrality of the warrant requirement" with its limited list of jealously guarded and tightly circumscribed exceptions (the approach to the Fourth Amendment

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championed by the Warren Court during the 1960's) has in the later case law yielded to the so-called "general reasonableness" or balancing approach, the earlier attitude of guaranteeing more maximal protection has continued to prevail when the search intrudes into a citizen's place of residence. It was of this core value that the Supreme Court spoke in Welsh v. Wisconsin, supra, 466 at U.S. 748-749, 104 S.Ct. at 2096-2097:

"It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' ... And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest.... It is not surprising, therefore, that the Court has recognized as 'a "basic principle of Fourth Amendment law[,]" that searches and seizures inside a home without a warrant are presumptively unreasonable.' " (Citations omitted).

It was of this same "core value" that Judge McAuliffe spoke in Doering v. State, 313 Md. 384, 397, 545 A.2d 1281 (1988):

[574 A.2d 358] "In assessing the gravity of an intrusion, we consider the objective expectation of privacy that reasonably existed, and the extent to which it was invaded. When the expectation of privacy is legitimately high, only the most exigent circumstances will justify a warrantless intrusion. Thus, when the sanctity of the home is involved, the exceptions to the warrant requirement are few."

The exemption from the warrant requirement that the State relies upon in this case is that of first-party consent. There is no question that the appellant was the person authorized to grant or to withhold consent to the search of his hotel room. At issue is the quality of his alleged consent. On that subject, the allocation of the burden of proof is clear. As the Supreme Court stated in Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 802 (1968):

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"When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." (Footnote omitted).

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), made clear that the same voluntariness standard will be used to judge consent that has traditionally been used to assess the voluntariness of a confession under the Due Process Clause. The Supreme Court spoke of the efficacy of this standard to accommodate the legitimate needs of law enforcement with the legitimate protection of the citizenry from coercion:

"The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity. Just as was true with confessions, the requirement of a 'voluntary' consent reflects a fair accommodation of the constitutional requirements involved."

412 U.S. at 229, 93 S.Ct. at 2048. In assessing voluntariness, it is necessary to be alert not only to heavy-handed and overtly coercive investigative techniques but also to "subtly coercive police questions" and to "the possibly vulnerable subjective state of the person who consented":

"In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. Those searches that are the product of police coercion can thus be filtered out without undermining the continuing validity of consent searches. In sum, there is no reason for us to depart in the area of consent

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searches, from the traditional definition of 'voluntariness.' "

Id.

As we are called upon to review the constitutionality of an allegedly consensual search, our standard of review is clear. We extend great deference to the fact finding of the suppression hearing judge with respect to determining the credibilities of contradicting witnesses and to weighing and determining first-level facts. With respect to the ultimate, conclusionary fact of whether the act of consent was truly voluntary, however, we are called upon to make our own independent, reflective constitutional judgment. In dealing with the precisely analogous question of voluntariness in the context of confession law, we observed in Walker v. State, 12 Md.App. 684, 695, 280 A.2d 260 (1971):

"What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was...