Smith v. State

• Decision Date: 06 October 1987
• Docket Number: No. 1436,1436
• Citation: 531 A.2d 302,72 Md.App. 450
• Parties: , 56 USLW 2222 Kenneth Barry SMITH v. STATE of Maryland. Sept. Term 1986.
• Court: Court of Special Appeals of Maryland

Page 450

72 Md.App. 450

531 A.2d 302, 56 USLW 2222

Kenneth Barry SMITH v. STATE of Maryland.

No. 1436 Sept. Term 1986.

Court of Special Appeals of Maryland.

Oct. 6, 1987.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Warren B. Duckett, Jr., State's Atty. for Anne Arundel County of Annapolis, on the brief), for appellee.

Argued before GILBERT, C.J., and MOYLAN, WILNER, WEANT, BISHOP, GARRITY, ALPERT, BLOOM, ROSALYN B. BELL, KARWACKI, ROBERT M. BELL, WENNER and POLLITT, JJ.

ROBERT M. BELL, Judge.

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.

Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886). With this admonition guiding our path, we proceed to consider the issue presented on this appeal.

Kenneth Barry Smith, appellant, was convicted at a bench trial in the Circuit Court for Anne Arundel County of assault with intent to murder, robbery with a deadly weapon, and use of a handgun in the commission of a crime of violence. His sentences for these offenses, a total of 49 years to the custody of the Division of Correction, were ordered served consecutively to a sentence he received in another case ¹. On appeal, appellant presents a single issue: Whether the trial court erred in denying his pretrial motion to suppress a sweatshirt seized in his apartment at the time of his arrest and a statement given the police subsequent to his arrest. ²

The testimony presented at the hearing on the motion to suppress disclosed the facts surrounding appellant's arrest and the giving of his statement. Shortly after midnight on November 11, 1985, Detective Hauf and other members of the Anne Arundel County Police Department responded to the murder scene to investigate the November 9, 1985 murder of one William Conlee. As a part of that investigation, one James Costlow, the murder victim's roommate, was questioned. In the course of this questioning, Costlow provided information linking appellant to the November 5, 1985 robbery of Robert H. Massey, an employee of the Big Red service station on Baltimore-Annapolis Boulevard in Glen Burnie. Specifically, Costlow told the police that on the evening of November 5th, he dropped appellant off across the street from the Big Red station so that appellant could "case" the station. He then drove to a church, approximately two blocks away, to wait for appellant. When appellant did not join him within a short time, Costlow returned to the area of the Big Red station, where he observed an ambulance and law enforcement personnel on the scene. He learned at that time that the station's attendant had been shot during the course of an armed robbery of the station. When Costlow saw appellant the next day and asked him what had happened, appellant allegedly responded that "he had to shoot the guy because he came at him."

Edwin and Brenda Pearson were also questioned in connection with the murder investigation. Each made a statement implicating appellant in the Big Red holdup. According to Edwin Pearson, on the evening of the holdup, he, Costlow and a woman named Laura Knott waited in Costlow's vehicle, the "getaway" vehicle, while appellant went to rob the gas station. Although appellant was supposed to meet them at the church where they had parked, he never did. Pearson also admitted supplying the gun used by appellant in the armed robbery and to its having been returned to him by appellant on November 9, 1985, sometime after William Conlee was shot; however, Pearson reported that the gun was no longer in his possession.

Having concluded their questioning of James Costlow and the Pearsons at approximately 9:30 p.m. on November 11, 1985, the investigating officers decided to arrest the appellant for the November 5th armed robbery at the Big Red station. ³ Without attempting to obtain an arrest warrant and with Costlow accompanying them for the purpose of pointing out appellant's residence, Detective Hauf and Sergeant Collier proceeded to the house in Glen Burnie in which appellant's apartment ^3a was located. By 10:30 p.m., at least five other Anne Arundel County police officers had arrived and positioned themselves around the house. After evacuating residents of the second floor of the house and confirming that appellant rented a first floor apartment, the police knocked on the door to appellant's apartment. When appellant answered the door and, in response to Sergeant Collier's inquiry, identified himself as "Kenny Smith," appellant was immediately placed under arrest. In effecting the arrest, Detective Hauf, Sergeant Collier and Detective Harp entered the one-room apartment, at which time, Detectives Hauf and Harp observed a sweatshirt, which "matched the description of the sweatshirt worn by the gentleman who did in fact rob the Big Red gas station," in plain view on a chair in the apartment. The sweatshirt was seized. Upon closer examination, Detective Hauf observed what appeared to be a spot of blood on the front of the sweatshirt. Then, without conducting a search of the apartment at that time, the police removed the appellant from the apartment and "secured a perimeter around it."

Appellant was taken to the police department's Criminal Investigation Division Headquarters in Crownsville. No attempt to interrogate appellant was made during that trip. At the station, appellant was taken to an interrogation room and given a cup of coffee. He was then advised of his Miranda ⁴ rights and, at 12:30 a.m. on November 12, 1985, signed a waiver of rights form. Detective Hauf testified that, at that time, appellant stated that he did not want a lawyer, but that he "wanted to finish his cup of coffee and ... to think about whether or not he wanted to speak with us." The detectives left the interrogation room at that point.

Detective Hauf returned to the interrogation room a short time later and asked appellant to consent to the search of his apartment. Appellant agreed and signed a consent form. The search of appellant's apartment resulted in the discovery of a wallet matching James Costlow's description of William Conlee's wallet.

Detective Harp was in the interrogation room with appellant from 1:10 a.m. until 2:15 a.m. talking to him about general matters such as "where he's been the last week, who his friends were in the area...." During this time, Detective Hauf was "in and out". At 2:15 a.m., Detective Harp asked appellant whether he was ready to make a statement, to which appellant replied that he wanted more time to think about it. Detective Harp then got appellant another cup of coffee and left him alone in the room for 15 minutes. At 2:30 a.m., appellant asked to go to the bathroom, and Detective Hauf escorted him there. When appellant returned to the interrogation room, he was joined by Detective Harp, who remained until 3:10 a.m. At that time, Detective Hauf joined them and informed appellant of the discovery of the wallet at his apartment. Appellant again indicated that he needed more time to think. He was then left alone. At 3:55 a.m., Detective Hauf entered the room and asked appellant to consent to the taking of a hair sample. Appellant agreed, signed a consent form, and permitted the police to procure the hair sample. Appellant was once again left alone in the interrogation room.

Sergeant Collier entered the interrogation room at approximately 4:30 a.m. He advised appellant of the charges, including that of first degree murder, that were being placed against him. Sergeant Collier also mentioned the possible sentences appellant could receive if convicted of those charges, including the possibility of the death penalty for the murder charge. He remained in the room with appellant until sometime between 5:30 and 6:00 a.m. During that time, he engaged appellant in what Collier described as "a man to man, heart to heart session." Before leaving, he asked whether appellant wanted to make a statement; appellant again replied that he wanted to think about it.

At 6:05 a.m. appellant knocked on the door to the interrogation room. When Detective Hauf opened the door, appellant stated that he was ready to make a statement. Having been re-advised of his Miranda rights and in the presence of Detective Hauf and Sergeant Collier, appellant gave a statement in which he confessed to killing William Conlee and to the November 5th armed robbery of the attendant at the Big Red station. At the conclusion of the statement, which commenced at 6:55 a.m. and ended at 8:50 a.m. on November 12, 1985, appellant was processed and taken before a District Court commissioner in Glen Burnie.

In challenging the denial of his motion to suppress, appellant argues that his arrest was illegal and that, the evidence obtained as a result of that arrest, being tainted by the illegality, should have been suppressed. While conceding that the police had probable cause to arrest him, he points out that the police arrested him in his home without obtaining a warrant, a point that is not in dispute, and asserts that there were no exigent circumstances justifying the warrantless entry, a point also conceded by the State. Thus, appellant argues that he was arrested in violation of the Fourth Amendment to the United States Constitution. He relies heavily on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), in both of which the Supreme Court discussed, at length, the permissible parameters of warrantless arrests.

The State, on the other hand, responds that appellant's arrest in this case need not be justified by exigent circumstances because,...