State v. Savage
| Decision Date | 08 September 2006 |
| Docket Number | No. 0231, September Term, 2006.,0231, September Term, 2006. |
| Citation | 170 Md. App. 149,906 A.2d 1054 |
| Parties | STATE of Maryland v. Jonathan SAVAGE. |
| Court | Court of Special Appeals of Maryland |
Shannon Avery (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellant.
Kenneth W. Ravenell, Baltimore, for appellee.
Panel MURPHY, C.J., CHARLES E. MOYLAN, JR. (retired, specially assigned), THEODORE G. BLOOM (retired, specially assigned), JJ.
The appellee, Jonathan Savage, was indicted by the Grand Jury for Baltimore City on ten separate counts involving Controlled Dangerous Substances. He filed a pretrial motion in the Circuit Court for Baltimore City, seeking to have the physical evidence suppressed on the ground that the police, albeit with an impeccable search and seizure warrant, entered the premises to be searched without knocking on the door, in ostensible violation of the Fourth Amendment of the United States Constitution. The motion to exclude the evidence on that ground was granted.
The State has appealed, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c), which provides in pertinent part:
(c) Criminal case. — In a criminal case, the State may appeal as provided in this subsection.
. . . .
(3)(i) In . . . cases under §§ 5-602 through 5-609 and §§ 5-612 though 5-614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights.
. . . .
(iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final.
(iv) If the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken.
(Emphasis supplied). Accordingly, our decision in this case, should we opt to reverse, must be filed no later than September 14, 2006.
In terms of the standard of appellate review of an exclusionary ruling, any boiler-plate recitation about 1) deferring to the fact-finding of the trial judge and 2) taking that version of the facts most favorable to the prevailing party is utterly pointless in this case. We shall not be reviewing any fact-finding.
We shall review only the hearing judge's ultimate conclusory ruling that the absence of a knock amounted, ipso facto, to an unreasonable and, therefore, unconstitutional entry of the place to be searched. Our review in such a case consists of making, de novo, our own independent constitutional appraisal. State v. Carroll, 383 Md. 438, 445-46, 859 A.2d 1138 (2004); Dashiell v. State, 374 Md. 85, 93-94, 821 A.2d 372 (2003); Rowe v. State, 363 Md. 424, 432, 769 A.2d 879 (2001); Cartnail v. State, 359 Md. 272, 282, 753 A.2d 519 (2000); Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990); Wynn v. State, 117 Md.App. 133, 165, 699 A.2d 512 (1997), reversed on other grounds, 351 Md. 307, 718 A.2d 588 (1998); Perkins v. State, 83 Md.App. 341, 346, 574 A.2d 356 (1990).
This case had promise of leading us to a hidden treasure trove of intriguing nuances about the phenomenon (or phenomena) of knocking and announcing, had not that inquiry been unceremoniously short-circuited by Hudson v. Michigan, 547 U.S. ___, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).
A vintage conundrum has always been that of whether there is any sound when a great tree falls in a forest but no animal ear is within range of the percussive impact. The answer depends, of course, upon one's conceptualization of sound. The same spirit of intellectual inquiry leads us to wonder whether it makes any difference if a policeman enters a home without knocking if there is no one within to hear a knock in any event. That answer will depend upon the purpose of the knock. Is it to give notice to an occupant of an impending police entry or is it only a mechanical drill movement in a required manual of arms?
Another intriguing question, also rudely aborted by Hudson v. Michigan, is that of how to knock (or should one knock) on an open door. And how does one knock if there is no door at all?1 How does one knock on the flap of a tent? Should one knock on a classical Japanese paper house if the result would be a fist through the wall? Should the police carry a knocking board with them as standard equipment? Will we ever be reduced to measuring a knock's decibel level or to evaluating its acoustical carrying power? Was it for this that the embattled farmers stood at Concord Bridge? We were well on the way to drowning in contentious urging such silliness and triviality when Hudson v. Michigan administered a merciful coup de grace.
Intertwined with these questions, of course, is the tantalizing semantic teaser of whether "knock and announce" is a single indivisible phenomenon or a double-barreled requirement in the unforgiving conjunctive. If the announcement of police presence is loud and clear, is a subsequent (or an antecedent) knock a relentlessly additional Fourth Amendment prerequisite, or is it merely an exclamation point? If the giving of notice is the animating purpose, does not the announcement alone do the trick? Is a police entry after a proclamation, with a bullhorn, "Put your hands in the air; we're coming in," unreasonable without an attendant knock?2 In short, is not the pairing of the words "knock and announce" nothing more than a linguistic convention akin to "goods and chattels" or "give and bequeath"?
Based on overwhelming probable cause that the house at 4754 Melbourne Avenue in the Yale Heights area of Baltimore City was being used as a distribution center for contraband heroin, the police obtained a judicially issued search and seizure warrant for that address. At approximately 4:25 p.m. on June 22, 2004, a team of ten officers proceeded to that location to execute the warrant.
When the police arrived, the only person present at the house was the appellee's ultimate co-defendant, Walter Hooks. Hooks was standing on the front steps and the front door was open.3 The police announced to Hooks that they had a warrant to search the house. Hooks was detained, and the police entered the house through the open front door. Before entering, the police announced, They did not, however, knock on the door. There was, it turned out, no one inside the house.
In terms of giving advance notice to an empty house, appellee's counsel, at the suppression hearing, was adamant that the prescribed drill be followed to the letter whether there is any audience for it or not.
There was nothing that has been articulated from the witness stand that is in evidence for the Court to conclude that there was some basis to believe that there was no one inside. But it doesn't matter. He did not knock.
(Emphasis supplied).
The caselaw, however, focuses not on the drillbook mechanics of giving notice but on the resulting benefit of actually receiving notice. One of the cases cited by Wilson v. Arkansas, 514 U.S. 927, 935, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), was the English decision in Pugh v. Griffith, 7 Ad & E 827, 112 Eng. Rep. 681, 686 (King's Bench 1838), which held:
[T]he necessity of a demand . . . is obviated, because there was nobody on whom a demand could be made.
In Goodman v. State, 178 Md. 1, 8, 11 A.2d 635 (1940), the Court of Appeals similarly observed:
A demand is necessary prior to the breaking in of the doors only where some person is found in charge of the building to be searched.
(Emphasis supplied).
Frankel v. State, 178 Md. 553, 561, 16 A.2d 93, (1940), similarly stated:
An officer . . . may break open the doors if denied admittance, but a demand is necessary prior to breaking doors where the premises are in charge of some one.
(Emphasis supplied).
Approximately ten to fifteen minutes after the house had been secured, Hooks's mother arrived home at her two-story rowhouse, accompanied by Hooks's sister. The mother told the police that she lived there with her daughter. She added that she was trying to get rid of Hooks because he "kept getting in trouble." Hooks himself moreover, as he took the stand at the suppression hearing, gave his address as 2313 West Mosher Street.
Hooks gave a written statement to the police, admitting that the drugs found in the house were in his possession. He further testified at the suppression hearing, acknowledging that the police, before entering the house, displayed their badges to him, announced that they had a search warrant for the house, and then handcuffed him before entering the house. His cross-examination explored the circumstances of the police entry.
Q. So it would be fair to say, Mr. Hooks that when seven or eight Police cars rolled up and you saw Police Officers there, and they announced that they were doing a Search and Seizure Warrant on your house, that you knew they were doing a Search and Seizure Warrant on your house. Is that a fair statement?
A. Yes, ma'am.
Q. And it would be fair to say as well that the door was partially open?
A. Partially cracked.
Q. Partially cracked, partially opened. Would it also be fair to say that the Officers did not use a battering ram or any kind of device to open that door? Is that correct.
A. That's correct.
Q. Would it be fair to say that the Officers were fairly loud in announcing that...
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