Redmond v. State

• Decision Date: 29 August 2013
• Docket Number: Sept. Term, 2010.,No. 2281,2281
• Parties: Kenneth REDMOND v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

213 Md.App. 163

73 A.3d 385

Kenneth REDMOND

v.STATE of Maryland.

No. 2281, Sept. Term, 2010.

Court of Special Appeals of Maryland.

Aug. 29, 2013.

Amanda D. Frizzelle (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

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

Panel: EYLER, DEBORAH S., MEREDITH, JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.

EYLER, DEBORAH S., J.

In the Circuit Court for Baltimore City, Kenneth Redmond, the appellant, was convicted by a jury of robbery with a deadly weapon, robbery, second-degree assault, and theft of less than $1,000. He was sentenced as a repeat offender to a term of 25 years without parole. He appeals, posing three questions for our review, which we have rephrased slightly:

I. Did the trial court err in denying his motion to suppress?

II. Did the trial court err by permitting the State to reopen its case-in-chief?

III. Did the trial court impose an illegal sentence?

For the reasons to follow, we answer the first question in the affirmative and shall reverse the judgments of the circuit court and remand the case for further proceedings. We need not reach the second and third questions.

FACTS AND PROCEEDINGS¹

On March 1, 2010, around 6:30 p.m., the victim, a high school junior, was on her way home from school in Baltimore City. As she was sitting at a bus stop at the corner of Franklin and Gilmor Streets talking on her cell phone, a man approached her from behind. He demanded: “Gimme all your stuff or I'll cut you.” The victim turned around and saw a man holding a knife. He touched the victim's forearm with the knife and took her school bag, wallet, and cell phone and ran away.

The victim returned to her school, where she called 911. Officer Hassan Rodriguez from the Baltimore City Police Department (“BCPD”) Western District responded to the school and transported the victim to the police station. Detective George Cannida interviewed her. She described her assailant as a black male with a salt and pepper beard, wearing gold rimless glasses, a skullcap, and a brown or black jacket. She also gave Detective Cannida her cell phone number and a description of the phone.

Officer Rodriguez faxed a copy of the police report to BCPD's Advanced Technology Team (“ATT”), a unit in the Criminal Investigations Division that specializes in locating stolen cell phones.

The next morning, March 2, 2010, detectives with the ATT obtained a wiretap warrant, contacted the victim's mobile service provider, learned that the cell phone remained active, and, by triangulating the signal from cell phone towers in the area, determined that the stolen cell phone was in the proximity of 3303 Round Road in Baltimore City's Cherry Hill neighborhood.

Later that day, at about 4:00 p.m., six ATT detectives, including Detective John Jendrek,² drove in two sport utility vehicles to the 3300 block of Round Road. They pulled up on the grass in front of 3305 Round Road. The officers walked to the door of 3305 Round Road and, using a ruse that we shall discuss infra, entered that house and spoke to the residents. ³ They did not locate the stolen cell phone or any other evidence.

Detective Jendrek then approached 3303 Round Road, a two-story brick house. The other five ATT detectives surrounded the house. Detective Jendrek knocked on the door. Devon Smith opened the door. Detective Jendrek identified himself as a police officer and, using the same ruse he had employed at 3305 Round Road, told Smith he was looking for a pedophile named “Leroy Smalls” who was wanted for child molestation. In fact, Leroy Smalls was “a completely fictitious person” invented by the detectives. Detective Jendrek showed Smith a photograph of a man who supposedly was “Leroy Smalls.” ⁴ Smith looked at the picture and said, “Leroy doesn't live here.”

Detective Jendrek then asked Smith if he lived at 3303 Round Road and whether he had identification. He also asked if anyone else lived in the house who could take a look at the photograph. According to Detective Jendrek, Smith replied, “Yeah, come on in.” ⁵ Smith walked upstairs to get his ID. When he came back downstairs, Detective Jendrek and five other police officers (the ATT detectives) were inside his house.

Also inside the house was Smith's mother, Linda Jones, who lived there as well.⁶ Jones was in the kitchen making dinner when she saw the police officers inside her house.⁷ Some of them were walking upstairs. Jones asked what was going on. A detective replied that they were looking for a pedophile. He showed her the photograph of “Leroy Smalls” and asked if she had seen him. She responded that she had not seen the man pictured.

In the meantime, once inside the house, an ATT detective surreptitiously dialed the victim's cell phone number. Immediately thereafter, Detective Jendrek heard a cell phone ringing inside the house. The ringing sound was coming from the second floor. Jones told Detective Jendrek that the cell phone that was ringing had been given to her by her “boyfriend.” ⁸ Detective Jendrek and other ATT detectives went upstairs and observed a ringing cell phone on a dresser in a front bedroom. Detective Jendrek did not touch the cell phone.

Without saying anything more to Smith or Jones, Detective Jendrek and another ATT detective proceeded to conduct a “protective sweep” of the house to “make sure there [were] no other persons” inside. The two officers walked through the entire house, opening closet doors and checking under beds. Smith followed behind them. He “assume[d] they [were] looking for this pedo[ph]ile.”

The ATT detectives ordered Smith and Jones to go to the living room of the house and stay there. It was only then that Smith and Jones learned that the police were not in their house to look for a pedophile, but to investigate them. Detective Jendrek contacted Sergeant Santos,⁹ at the Western District, and told him that the stolen cell phone had been located inside 3303 Round Road. Sergeant Santos conveyed this information to Detective Cannida.

Detective Cannida prepared a search warrant application. In it, he averred that he had probable cause to believe that the items stolen from the victim, including her cell phone, and the knife used in the robbery were concealed inside 3303 Round Road. He further averred that,

On March 2, 2010 at approximately 4:00 pm, members of the [ATT] utilized sophisticated mobile and/or portable surveillance equipment to locate the ... cellular telephone taken from the victim. The aforementioned equipment indicated that the target phone was in the house located at 3303 Round Road.... Members of the [ATT] entered the location with the permission of the owners of the dwelling. Once inside the dwelling [Smith and Jones] [were] found to be the only individuals inside the dwelling.

The target phone was located at this address by Det. Jend[rek] using cellular site location data and received signal strength from the specific cellular telephone; advanced electronic directional finding equipment was able to pinpoint the precise location of the aforementioned handset.

In the meantime, Smith and Jones continued to be detained in their living room, first by the ATT detectives and later by two uniformed officers from the Western District. Smith was handcuffed for much of this time.¹⁰ While Smith and Jones were being held in the living room, the appellant, who was Jones's boyfriend and was living in the house as well, came home, using his key to let himself in through the back door. He stayed in the living room with Smith and Jones.

The search warrant was executed around 8:35 p.m., four and one-half hours after the ATT detectives located the stolen cell phone. The officers seized numerous items, including the stolen cell phone and two knives. ¹¹ The cell phone was recovered from Jones's bedroom.

Smith, Jones, and the appellant all were advised of their Miranda rights and were interviewed by the police. Jones told the police that the appellant had given her the cell phone the day before, after she got off work.

On March 3, 2010, the appellant was arrested and charged.

On May 6, 2010, the appellant moved to suppress the evidence seized from 3303 Round Road on the basis that the police had conducted a warrantless search of his house and that none of the exceptions to the warrant requirement were applicable. A hearing on his motion was held on August 30, 2010. The State called Detective Jendrek as its sole witness. The appellant called Detective Cannida, Smith, and Jones.

The State argued that the ATT had been able to determine that the stolen cell phone was “in the area [of] 3[3]03 Round Road,” but could “not be positive that the phone was [in that particular house] until they actually entered 3303.” So, to determine whether the stolen cell phone was inside 3303 Round Road, they used the pedophile ruse to gain consent to enter the house and, once inside, dialed the number for the stolen cell phone. After hearing the phone ring, the ATT confirmed that the stolen cell phone was inside 3303 Round Road and conducted a protective sweep for officer safety. The full blown search of the house and the seizure of the cell phone happened only after the warrant had been secured.

Defense counsel argued that Smith's and Jones's testimony made plain that neither had consented to a warrantless entry into 3303 Round Road by the ATT detectives. Moreover, he maintained that the ruse employed by Detective Jendrek rendered any consent given coerced and therefore not voluntary. Defense counsel further asserted that, because the ATT knew that the cell phone was located inside either 3303 or [213 Md.App. 174]3305 Round Road based on the triangulation data, the warrantless entry was particularly egregious as the police could have and should have sought a search warrant before making any entry into the house. Because the police chose to enter the house without a warrant and...