Peters v. State
| Decision Date | 26 August 2015 |
| Docket Number | No. 1800, Sept. Term, 2013.,1800, Sept. Term, 2013. |
| Citation | 224 Md.App. 306,120 A.3d 839 |
| Parties | Mark PETERS v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Julia C. Schiller (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
Brenda Gruss (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Panel: DEBORAH S. EYLER, ARTHUR, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.
The primary issue in this appeal is whether the police had probable cause to search an apartment in a multi-unit apartment building to apprehend suspects in a shooting incident.
In the Circuit Court for Baltimore City, Mark Peters, the appellant, was indicted for attempted murder and numerous other crimes stemming from that incident. Before trial, he moved to suppress tangible evidence recovered in the search of the apartment, which was carried out without a warrant. The court denied the motion on the ground that exigent circumstances justified the warrantless search and, even if it did not, the inevitable discovery doctrine applied.
A jury convicted Peters of first-degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, wearing, carrying, and transporting a handgun, attempted robbery with a dangerous weapon, and possession of a regulated firearm by a disqualified person. He was sentenced to an aggregate term of 25 years' imprisonment.
On appeal, Peters presents three questions for review, which we have reordered and rephrased:
We hold that the circuit court erred in denying the motion to suppress, and therefore shall reverse the judgments of conviction. We find no merit in Peters's other issues. Accordingly, we shall remand the case to the circuit court for further proceedings.
The charges against Peters all concerned the non-fatal shooting of Vaughn Johnson, on January 27, 2012. Peters filed a pre-trial motion to suppress from evidence two handguns and a ski mask the police recovered from 5933 Radecke Avenue, Apartment J. He argued that the items were obtained by the police in a warrantless search in violation of the Fourth Amendment.
The suppression hearing was held on the day of trial. It was interrupted by hearings on other motions in the case and by jury selection and was completed on the second day of trial. Officer Bryan Loiero and Sergeant Lamont Davis of the Baltimore City Police Department (“BPD”) testified for the State. Officer Zachary Wein, also with the BPD, in its SWAT Unit, was called by the defense. By agreement, the transcript of a recorded statement by Janee Gross, Johnson's girlfriend, was admitted into evidence. The defense introduced into evidence an “Incident Case Folder” prepared by Sergeant Davis and a search and seizure warrant for Apartment J, including the warrant application. The evidence at the suppression hearing showed the following.
On the night in question at 8:55 p.m., Officer Loiero was on routine patrol when a call went out for a possible shooting in progress at 5925 Radecke Avenue. That address is one of several apartment buildings that make up the Garden Village apartment complex, in Baltimore City. Officer Loiero was a block away and arrived at the scene in less than a minute. He entered building 5925 and found Johnson lying on the floor next to the door to his apartment, bleeding from two gunshot wounds to his torso.
Officer Loiero called for an ambulance, quickly determined that no one was inside Johnson's apartment, and asked Johnson who had shot him. Johnson replied that the shooter was a man he did not know who “ was with Ty, he was with Ty.” He described the shooter as light-skinned, with a mustache, wearing a dark jacket and carrying two guns. He told Officer Loiero that Ty lived “somewhere on St. Regis,” a street the officer knew to be a block north of the apartment complex.
After radioing that information to the dispatcher, Officer Loiero spoke with Janee Gross, who was in the building. She had visited Johnson that night in his apartment. When she was ready to leave, he walked her to her car, which was in the parking area in front of his apartment building, and returned to his apartment. She sat in her car, waiting for it to warm up. Suddenly she saw two men dressed in black and wearing black face masks running away from Johnson's apartment building and into one of two other apartment buildings in the complex. She called Johnson, who did not answer his cell phone. She entered his apartment building and found him right after he had been shot.1 Gross pointed out for Officer Loiero the buildings she saw the two men enter. They were buildings 5931 and 5933 Radecke Avenue. She did not know which of the two buildings the men had entered. She did not see any guns.
Numerous police units converged on the apartment complex, and Officer Loiero called for additional units to respond to the 5931 and 5933 buildings because “apparently the suspects had ran into that location.” From past experience, Officer Loiero knew that each apartment building in the complex was two stories with a single front door for ingress and egress. He directed all responding officers to form an “inner perimeter” around both buildings, and not to allow anyone to enter or exit either building. According to Officer Loiero, the “inner perimeter” was in place within a matter of minutes after he arrived at the crime scene.
At about 9:15 p.m., a SWAT team arrived and began an apartment-by-apartment search, first of building 5931 and then of building 5933. Each building had twelve apartments, designated A through L. The SWAT team took the same approach at every apartment. A SWAT team member holding a handgun and a ballistic shield, known as a “bunker,” knocked on the door, announcing police presence. If there was a response, the team member directed the occupant(s) to exit. If there was no response to repeated knocking, the SWAT team used a battering ram to force open the door. In both situations, the SWAT team members swept the apartment, looking for any occupants (or additional occupants), and if any were found ordered them out. Another SWAT team member, called the “hands man,” obtained the occupants' names and information. After being interviewed by the “hands man,” occupants were escorted to buses that had been brought in, where they were questioned and directed to wait until the entire search operation had been completed.
In entering and searching each apartment, the SWAT team was looking for an occupant named “Ty.” The team's apartment-by-apartment search of building 5931 did not reveal any apartment occupant by that name. The team moved on to building 5933. The team members searched Apartments A through I in that building without finding an occupant named “Ty.” At 2:00 a.m., the SWAT team reached Apartment J. Officer Wein knocked on the door. He was holding his handgun and bunker. A man answered the door; two other men were with him. The men were ordered to show their hands and exit the apartment. The “hands man” spoke to them and learned that their names were Tyreze Braxton, Tyrell Braxton, and Mark Peters (the appellant). They were handcuffed.
Officer Wein, followed by other SWAT team members, entered Apartment J and proceeded to clear it, “making sure there was nobody else that wasn't at the front door, that may have been armed or dangerous in that location.” Officer Wein entered the bathroom and pulled back the shower curtain. He testified that, as he did so, his bunker hit a grate covering a vent on the shower wall, knocking the grate to the floor. After determining that the bathroom was clear, he cleared the rest of the apartment, finding no other occupants. He returned to the bathroom to place the grate back over the vent. He noticed a black object inside the vent that looked like a T-shirt or a hat. There appeared to be objects inside it, but he could not see what they were. Officer Wein did not touch anything in the vent. He notified his superior officer about his discovery.
Sergeant Davis had taken charge of the crime scene shortly after Officer Loiero called for units to form a perimeter around buildings 5931 and 5933. At around 3:15 a.m., Sergeant Davis was notified that the SWAT team had found a person named “Ty” in Apartment J of the 5933 building. Sergeant Davis went to that apartment. One of the SWAT team members told him there was something in the vent in the bathroom. Sergeant Davis looked inside the bathroom vent and saw what “looked like a black towel or something, it was bulky.” He “removed it and it was a ski mask and inside the ski mask were two handguns.” He “folded it back, ... placed it back inside the vent.” Although Sergeant Davis clearly testified on direct and cross-examination that he could not see what was inside the “bulky” towel-like item in the vent until he removed it from the vent, his testimony changed somewhat when the court pressed him as to why he did not obtain a search warrant before seizing the items from the vent. He claimed that when he looked in the vent he could see “what looked to be the handle of a gun wrapped up in what I believed was a towel,” but he was “[n]ot 100 percent” certain that he could identify the object as a gun and that was why he removed the entire thing from the vent.2
While another officer secured Apartment J, Sergeant Davis prepared an application for a search and seizure warrant for that apartment. His affidavit in support of the warrant application reads, in pertinent part:
To continue reading
Request your trial
-
State v. Zadeh
... ... "The particularity requirement ensures that the search will be carefully tailored to its justifications and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. " Peters v. State , 224 Md. App. 306, 34243, 120 A.3d 839, 861 (2015) (quoting Maryland v. Garrison , 480 U.S. 79, 84, 107 S. Ct. 1013, 94 L.Ed.2d 72 (1987) ). "A particular warrant also assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need ... ...
-
Muscolino v. State
... ... We undertake our own constitutional appraisal of the record by reviewing the law and applying it to the facts of the present case.["] Id ... at 403 (quoting Rush v ... State , 403 Md. 68, 82-83 (2008) (citations and internal quotation marks omitted in McFarlin )); accord Peters v ... State , 224 Md. App. 306, 325 (2015). In this case, appellant moved to suppress the surveillance video downloaded from the Nest Drop Cam that was located in the appellant's living room. This camera was not discovered when the house was searched by police on the night of the shooting, but it ... ...
-
State v. Zadeh
...and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.'" Peters v. State, 224 Md. App. 306, 342-43, 120 A.3d 839, 861 (2015) (quoting Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013 (1987)). "A particular warrant also 'assures th......
-
Vaise v. State
...realistic, not theoretical, and tightly prescribed, not reaching beyond the peculiar facts of the particular case." Peters v. State , 224 Md. App. 306, 359, 120 A.3d 839 (2015) (quoting Brown v. State , 153 Md. App. 544, 556, 837 A.2d 956 (2003), and State v. Bailey , 319 Md. 392, 415, 572 ......