State v. Collins, 59

• Decision Date: 07 February 2002
• Docket Number: No. 59,59
• Parties: STATE of Maryland, v. Charles Terrence COLLINS.
• Court: Maryland Court of Appeals

790 A.2d 660

367 Md. 700

STATE of Maryland, v. Charles Terrence COLLINS.

No. 59, Sept. Term, 2001.

Court of Appeals of Maryland.

February 7, 2002.

Leigh S. Halstad, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for petitioner.

Michael R. Malloy, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

CATHELL, Judge.

The State of Maryland (petitioner) seeks review of a judgment of the Court of Special Appeals of Maryland remanding the case to the Circuit Court for Washington County for additional suppression hearing proceedings. The Court of Special Appeals held that the bail bond agents in the case sub judice were, in fact, acting as state actors for purposes of the Fourth Amendment due to the extent of the participation by the police officer who accompanied them as part of a "service to stand by" procedure that apparently exists in Washington County.

On March 21, 2000, respondent was convicted of possession of marijuana with intent to distribute and simple possession after a bench trial in the Circuit Court for Washington County. The Circuit Court sentenced respondent to five years imprisonment, all suspended, with three years probation, on the possession of marijuana with intent to distribute conviction. The Circuit Court imposed a concurrent one-year term, with concurrent probation, on the possession of marijuana conviction.

On March 22, 2000, respondent noted an appeal from the ruling of the Circuit Court to the Court of Special Appeals. The Court of Special Appeals reversed the Circuit Court and remanded the case for reconsideration of the motion to suppress evidence.

On August 16, 2001, we granted the State's Petition for Writ of Certiorari to review the holding of the Court of Special Appeals. Petitioner presents one question for our review:

"Did the Court of Special Appeals err in finding that two bail bonds agents, who entered an apartment to look for their defaulting principal, were agents of the State for the purpose of the Fourth Amendment because an accompanying police officer initially knocked on the apartment door, was denied entry and remained outside of the apartment?"

We affirm the intermediate court's holding that the participation, beyond mere presence, of the accompanying police officer in this case conferred the status of state action for purposes of the Fourth Amendment to the actions taken by the two bail bond agents toward respondent. While bail bond agents are generally not state actors for Fourth Amendment suppression purposes, in this case, because of the extent of participation by the police officer, they were acting as agents of the State and respondent is entitled to a further suppression hearing and a ruling on excluding the evidence gained initially and following the alleged illegal entry by the two agents.

I. Facts

In Collins v. State, 138 Md.App. 300, 771 A.2d 478 (2001), as to the questions at issue here, the Court of Special Appeals adopted the evidence proffered at the suppression hearing as the facts of this case.

The facts, as set forth in the Court of Special Appeals's opinion, are:

"At the hearing on the motion to suppress, Officer Carl Hook [of the Hagerstown Police Department] was the only witness. He testified that he was advised by another officer [Officer David Long] to meet with two persons in the business of arranging bail bonds, Tanya Baer and Donna Morris. They advised him that they wanted to apprehend a `wanted subject,' Dale Michael Estep, and that he had been seen going into 126 East Avenue in Hagerstown. Officer Hook accompanied the bail bond agents to that residence. He explained that he was performing a `service to stand by,' which meant that he was not to intervene unless there was a criminal matter that took place. He testified that such service was routinely provided under the circumstances present here.[¹] Officer Hook had no information other than that supplied to him by the bail bond agents.

"The residence at 126 East Avenue was an apartment house containing four apartments. There was a porch on the front of the residence with an entrance from the porch to the apartment in question.

"After Officer Hook and the two agents arrived at the entrance to the apartment, Officer Hook knocked on the door. The door was opened by appellant, who came out and closed the door behind him. Officer Hook stated that they were there for a `wanted subject' and asked for permission to come in to check the residence. Appellant advised that Estep was not there, that he had not seen him for two weeks, and refused entry into the residence. Ms. Baer stated that she was going to enter the residence whether appellant liked it or not. Appellant again refused but called another person, who came outside to the porch. Officer Hook testified that Ms. Baer spoke to that person and knew him as `Jimmy.'[²] `Jimmy' stated that Ms. Baer could go inside and check the residence. Ms. Baer and Ms. Morris went inside. Although appellant was standing at the door, he did not object; nor did he try to stop them. Officer Hook stood near the door, which was still open. The officer said that he detected an odor of burnt marijuana coming out of the residence.

"When Ms. Baer and Ms. Morris exited the apartment [the record reflects they exited a few minutes later], Ms. Baer stated that she had seen approximately fifteen marijuana plants inside, ranging in size from `beginning plants' to three feet in height [and that Mr. Estep was not in the apartment and it was at this time that respondent went back into the apartment]. Officer Hook testified that he called for backup and three officers responded [Officers Gilbert, Long, and Miller]. Officer Hook explained that he called for backup because of the odor of marijuana. After the other officers arrived, Ms. Baer advised Officer Hook that she had just seen appellant running in the alley at the rear of the apartment. Officer Hook then noticed appellant [respondent] running with a black plastic garbage bag. Officer Hook pursued appellant on foot. Appellant dropped the bag, [went approximately ten more feet] and the police took him into custody. In the bag, although not visible prior to searching it, the police found `pot[s] of marijuana plants, high intensity lamp, electric scales, a multi-colored bag that contained marijuana seeds, and a pipe with marijuana residue.'

"A search warrant [³] was obtained for the apartment, and additional evidence was seized. Appellant moved to suppress the items seized from his person and the apartment, arguing that they were the fruits of the poisonous tree because his arrest was illegal and the warrant was based on information obtained during the bail bond agents' prior illegal entry.

"The suppression court ruled that (1) Officer Hook was credible; (2) the bail bonds agents were not State actors; and (3) Officer Hook had probable cause to arrest appellant and search the bag, based upon (A) the smell of marijuana emanating from the apartment, and (B) Ms. Baer's statement that marijuana plants were inside the apartment. Consequently, according to the suppression court, the subsequent search of the apartment pursuant to a warrant was also legal."

Id. at 303-05, 771 A.2d at 480-81 (some alterations in original).

II. Discussion

a. Standard of Review

Our review of a Circuit Court's denial of a motion to suppress evidence under the Fourth Amendment is limited, ordinarily, to information contained in the record of the suppression hearing and not the record of the trial. See Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999); In re Tariq A-R-Y, 347 Md. 484, 488, 701 A.2d 691, 693 (1997); Simpler v. State, 318 Md. 311, 312, 568 A.2d 22, 22 (1990); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749, 755 (1987). When there is a denial of a motion to suppress, we are further limited to considering facts in the light most favorable to the State as the prevailing party on the motion. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990); Simpler, 318 Md. at 312,568 A.2d at 22. In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to the weighing and determining first-level facts. Lancaster v. State, 86 Md.App. 74, 95, 585 A.2d 274, 284 (1991); Perkins v. State, 83 Md.App. 341, 346, 574 A.2d 356, 358 (1990). When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that his findings are clearly erroneous. McMillian v. State, 325 Md. 272, 281-82, 600 A.2d 430, 435 (1992); Riddick, 319 Md. at 183,571 A.2d at 1240. Even so, as to the ultimate conclusion of whether an action taken was proper, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Riddick, 319 Md. at 183,571 A.2d at 1240; Munafo v. State, 105 Md.App. 662, 669, 660 A.2d 1068, 1071 (1995).

b. Fourth Amendment Guarantee

The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures by government, not private individuals. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85, 94 (1984); Waters v. State, 320 Md. 52, 60, 575 A.2d 1244, 1247-48 (1990).

The protections of the Fourth Amendment are applicable to the State of Maryland through the Fourteenth Amendment of the United States Constitution. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961); Owens v. State, 322 Md. 616, 622, 589 A.2d 59, 61 (1991). "The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures." United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605, 613 (1985); se...