Smith v. State, 2764, September Term, 2007.

CourtCourt of Special Appeals of Maryland
Citation186 Md. App. 498,974 A.2d 991
Docket NumberNo. 2764, September Term, 2007.,2764, September Term, 2007.
PartiesThomas SMITH v. STATE of Maryland.
Decision Date06 July 2009

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

Panel: SALMON, GRAEFF, and CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.


The problem is a simple one of proper conceptualization. At a surface level, the tactical issue in the case is that of whether Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), applies to the investigative event on which the appellant focuses. At the strategic level, the issue is that of whether the Fifth Amendment privilege against compelled self-incrimination applies to that investigative event. If, for any reason, that strategic protection should not apply, then any tactical minutiae generated by Miranda v. Arizona would be beside the point. The subordination of the tactical conceptualization to the strategic conceptualization is our central theme.

The appellant, Thomas Smith, was convicted by a Carroll County jury, presided over by Judge Michael M. Galloway, of the possession of crack cocaine with the intent to distribute it. Upon this appeal, he raises the single contention that at a pretrial suppression hearing, Judge Galloway erroneously failed to suppress an inculpatory admission which, he claims, was elicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The Suppression Hearing

Our only concern, therefore, is with the suppression hearing and the evidence produced thereat. Judge Galloway conducted the hearing on March 15, 2007. It was established that at approximately 7:45 P.M. on June 7, 2006, four members of the Westminster City Police Department executed a search and seizure warrant at 16 Pennsylvania Avenue, Apartment 13, in Westminster. The apartment belonged to the appellant. Recovered from the appellant's chest of drawers in the appellant's bedroom was a plastic bag containing approximately one ounce of crack cocaine.

At the suppression hearing, the appellant attacked, secondarily, the validity of the search warrant. Judge Galloway ruled that the application for the warrant had, indeed, furnished Judge Luke Burns with a substantial basis for issuing the warrant. He accordingly denied the motion to suppress in that regard. The appellant no longer challenges that ruling.

The primary thrust of the appellant's challenge was, and is, to the admissibility of his exclamation, "It is all mine," repeated twice, as one of the searching officers walked from the bedroom of the apartment into the living room holding the plastic bag of crack cocaine. The appellant's argument, in a nutshell, is that that inculpatory exclamation was made in response to the functional equivalent of interrogation, to which he had been subjected by the police without the benefit of his constitutionally required Miranda advisements.

The Harmless Error We Need Not Consider

To keep the whole issue in realistic perspective, the exclamation, "It is all mine," amounted to little more than a self-evident truism. The apartment that was searched belonged to the appellant and was apparently not shared by anyone else. The bedroom that was searched belonged to the appellant. The chest of drawers that was searched belonged to the appellant and contained his clothing. The drawer that contained the crack cocaine was a small drawer which the cocaine shared with the appellant's socks. Corporal Scott Peter, the lead investigator who recovered the cocaine, took the possessory connection for granted: "I didn't ask him if it was his. It was in a sock drawer. I just assumed that it was his." It is unnecessary, however, to speculate about the hypothetical possibility of harmless error in view of our firm conclusion that there was no error in the first place. If no error exists, there would be only a vacuum to assess in terms of either harmlessness or harmfulness. Forgoing that "arguendo exercise," we will confine ourselves to the merits of the Miranda issue.

The Appellant's Exclamation and Its Antecedents

At the suppression hearing, only two witnesses were called upon to testify. One was Corporal Scott Peter, the lead investigator in the case and the officer who had applied for and been issued the search and seizure warrant that was being executed. The other witness was Corporal James Pullen, of the Criminal Investigation Bureau of the Westminster City Police Department, who was assisting Corporal Peter in executing the warrant. We find it curious, and not without some significance, that the appellant himself did not testify. His sole appellate contention is that the combination of his detention and some ambiguous police conduct that he claims was the functional equivalent of interrogation somehow compelled him to exclaim the words, "It is all mine." In terms of why he spoke and of what made him speak, he was the only person who truly knew the answer, but he chose to say nothing. The notion that the appellant chose to take all the blame on himself in order to exonerate one of the other arrestees, who may have been his girlfriend, simply has no testimonial predicate. The appellant might have told us about such matters, but he did not.1

On the preliminary issue of suppressing his inculpatory exclamation, he was, of course, free to testify with the full protection of use immunity so that nothing he said at the pretrial hearing could later have been used against him on the merits of guilt or innocence. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

It was Corporal Pullen who, a few minutes into the search, discovered in the appellant's bedroom the plastic bag containing a quarter of an ounce of what turned out to be cocaine. Corporal Pullen alerted Corporal Peter to his discovery. Corporal Peter, in turn, observed the suspected cocaine in the bureau drawer and seized it. As he then carried the bag of cocaine from the bedroom into the living room, he showed it to the appellant and then announced to the other officers that all four persons who were then being detained would be arrested. The appellant blurted out, "It is all mine." When asked about the timing of the appellant's blurt, Corporal Peter testified:

Seconds, probably—from the time it took me to walk by him and say that everyone is being arrested, less than probably ten seconds.

It is appellant's contention that his exclamation, "It is all mine," was his compelled response to the combination of 1) custody and 2) the functional equivalent of interrogation.

A Testimonial Privilege

To get a firm grip on what we are dealing with, we need to zoom in, progressively first on the testimonial privilege that is constitutionally enshrined in the Fifth Amendment, then on the Supreme Court case of Miranda v. Arizona that implements that privilege in certain new and relatively unfamiliar circumstances, then more narrowly on the very threshold of Miranda's applicability, and finally on the respective sub-elements of applicability, to wit, custody and interrogation.

The Fifth Amendment privilege is part of a broader evidentiary family, the "testimonial privileges." Other members of the family may include (it varies from state to state) the husband-wife privilege, the attorney-client privilege, the doctor-patient privilege, the priest-penitent privilege, the news reporter-source privilege. The privilege against compelled self-incrimination, however, is the only privilege that enjoys constitutional status. As with all testimonial privileges, however, the privilege against self-incrimination is a limited exemption from a basic obligation. The fundamental societal rule is that in the pursuit of full disclosure in the courtroom, in civil and criminal trials alike, "the public is entitled to everyone's knowledge." Kastigar v. United States, 406 U.S. 441, 443-44, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Certain overriding considerations, however, with most privileges as a matter of policy, sometimes justify an exemption from that testimonial obligation. Because such exemptions are, as a general rule, disfavored,2 however, the burden is upon a party asserting a testimonial privilege 1) expressly to claim it, Rogers v. United States, 340 U.S. 367, 370-74, 71 S.Ct. 438, 95 L.Ed. 344 (1951), and 2) to demonstrate an entitlement to it, Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118(1951).

Required Elements of the Fifth Amendment Privilege

The Fifth Amendment privilege consists of a spare fifteen words: "no person shall be compelled in any criminal case to be a witness against himself." Those fifteen words, however, spell out six separate elements. For the privilege to be available, each of its six constituent elements must be established:

1. no person3

2. shall be compelled [the compulsion element]4

3. in any criminal case5

4. to be a witness [the testimonial element]6

5. against7

6. himself;8

Historically, the applicability of these six elements—and, therefore, of the privilege itself—was something that was hammered out in the courtroom or some other formal legal setting. The privilege has been an integral part of our legal culture for 218 years, since the ratification of the Bill of Rights on December 15, 1791, and a massive body of caselaw has been built up around it. It was only in 1966, when Miranda v. Arizona moved the privilege from the courthouse ten blocks up the street to the station house and from the trial ten weeks backward in time to the initial investigation, that additional rules for assessing both applicability and satisfaction became necessary. The Miranda opinion itself, 384 U.S. at 461, 86 S.Ct. 1602, explained why the privilege against compelled self-incrimination, to be effective, necessarily had to apply to the station house as well as to the...

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