State v. Zadeh

• Citation: 468 Md. 124,226 A.3d 463
• Decision Date: 03 April 2020
• Docket Number: No. 25, Sept. Term, 2019,25, Sept. Term, 2019
• Parties: STATE of Maryland v. Hussain Ali ZADEH
• Court: Court of Special Appeals of Maryland

468 Md. 124

226 A.3d 463

STATE of Maryland

v.Hussain Ali ZADEH

No. 25, Sept. Term, 2019

Court of Appeals of Maryland.

April 3, 2020

Argued by Marybeth Ayres, Assistant State’s Attorney (Brian S. Kleinbord, Senior Assistant State’s Attorney, Montgomery County State’s Office, Rockville, MD; Brian E. Frosh, Attorney General of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Matthew H. Blumenstein, Assigned Public Defender (Tanya M. Abrams, Assigned Public Defender, Williams & Connolly LLP, Washington, DC; Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: McDonald, Watts, Hotten, Getty, Booth, Lynne A. Battaglia, (Senior Judge, Specially Assigned), Clayton Greene, Jr., (Senior Judge, Specially Assigned), JJ.

Hotten, J. Respondent, Hussain Ali Zadeh, was tried in the Circuit Court for Montgomery County along with co-defendant, Larlane Pannell-Brown ("Ms. Pannell-Brown"), for the murder of Ms. Pannell-Brown's husband, Cecil Brown ("Mr. Brown"). Following a three-week jury trial, both defendants were convicted of second-degree murder and sentenced to 30 years in prison. The defendants noted timely appeals to the Court of Special Appeals, which consolidated their cases for argument. On appeal, Mr. Zadeh argued that his trial should have been severed from that of Ms. Pannell-Brown, since a substantial amount of the evidence against Ms. Pannell-Brown was not admissible against, or even relevant to him, thereby posing a significant risk of prejudice. Mr. Zadeh also contended that the trial court should have suppressed a black T-Mobile cell phone that was seized from his pocket, in violation of the Fourth Amendment of the United States Constitution¹ and Article 26² of the

Maryland Declaration of Rights.³

The Court of Special Appeals, in an unreported opinion, reversed Mr. Zadeh's conviction and remanded the case to the Circuit Court for Montgomery County, holding that (1) the trials should have been severed because the joint trial unfairly prejudiced Mr. Zadeh and the resulting prejudice could not be cured; and (2) the cell phone should have been suppressed because the officer conducted a warrantless seizure of the cell phone from his person and none of the recognized warrant exceptions applied. The State appealed the decision of the Court of Special Appeals, and this Court granted certiorari to consider the following questions:

1. When a jointly tried defendant claims that there were too many limiting instructions for a jury to effectively follow, should the reviewing court first consider whether the limiting instructions were justified by non-mutually admissible evidence?^{[4 ]} 2. When a warrant authorizes the seizure of certain evidence from a car, and an officer, during a lawful frisk of the driver, feels evidence that falls within the warrant, does the plain-feel doctrine permit seizure of that evidence?

For reasons discussed infra , we find that non-mutually admissible evidence was introduced and admitted at trial, and the limiting instructions were insufficient to cure the prejudice. Regarding the seizure of the cell phone, we conclude that seizure of the phone from Mr. Zadeh's person exceeded the parameters of the Fourth Amendment and Article 26 of the Maryland Declaration of Rights. In the absence of a valid search and seizure warrant for the search of his person or an applicable exception to the warrant requirement, the seizure of the cell phone was unlawful. Accordingly, we shall affirm the judgment of the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

On August 4, 2014, at approximately 12:30 p.m., officers from the Takoma Park Police Department responded to a 911 disturbance call at the home of Cecil Brown and Larlane Pannell-Brown at 805 Colby Avenue in Takoma Park, Montgomery County, Maryland. Police were called to the residence after Ms. Pannell-Brown appeared at her neighbor's back door, screaming and yelling. Ms. Pannell-Brown informed the officers that she had found her husband unconscious in their backyard, bleeding from the back of the head. The police entered the backyard, where they discovered seventy-three-year-old Cecil Brown lying face-down on the ground, deceased. The autopsy report from the medical examiner revealed that he died from injuries consistent with blunt force trauma.

The lead investigator, Detective Richard Poole, subsequently interviewed Ms. Pannell-Brown regarding the events leading up to her husband's murder. Ms. Pannell-Brown advised Detective Poole that she spoke with Mr. Brown on the phone earlier that morning while he was at work. Ms. Pannell-Brown claimed that she called Mr. Brown on his co-worker's cell phone number to ask if he could inspect her truck because it had been making a strange noise. After the alleged phone call, she left her truck in the driveway for her husband to work on when he came home. When her husband returned after 10 a.m., she left the family home to make a bank deposit. Upon her return, she discovered the victim lying dead in the fenced enclosure behind their house. Detective Poole requested that Ms. Pannell-Brown allow him to examine her cell phone to confirm that she placed the call to her husband. Ms. Pannell-Brown agreed. However, Detective Poole was unable to locate the phone number or contact in her call log. Ms. Pannell-Brown informed Detective Poole that she had recently purchased a new phone and that she may have made the call from the new phone. While looking through her call logs, Detective Poole discovered that one of her cell phones reflected a phone call around 6:41 a.m. to an "Ali." Ms. Pannell-Brown told the detective that "Ali" was a friend that she engaged to detail her truck when needed, and she called him that morning to determine whether he had time to service her vehicle. She also advised the detective that "Ali" had a wife and baby in Jamaica, and she was helping them immigrate to the United States.

The same day, one of the victim's sons, Cecil Pannell-Brown ("Beanie"),⁵ informed Detective Poole that Ms. Pannell-Brown had been engaged in a year-long affair with a man named "Ali," and advised the officer that "Ali" drove a silver Jaguar station wagon and was employed at a nearby car rental facility. Detective Poole again questioned Ms. Pannell-Brown about her relationship with "Ali" and she maintained that the two were merely friends.

Upon receiving this information, Detective Poole obtained Ms. Pannell-Brown's consent to take both of her cell phones with him and requested that she come to the police station later that day for an interview. She agreed. Thereafter, as part of a "preliminary investigation," Detective Poole and another detective went to the Enterprise Rent-a-Car on New Hampshire Avenue to question "Ali" about the nature of his relationship with Ms. Pannell-Brown. His manager informed the detectives that the "Ali" they were looking for was Hussain Ali Zadeh ("Mr. Zadeh"). Mr. Zadeh asked Detective Poole whether he was there to talk about "the lady's husband that died." Detective Poole confirmed the purpose of his visit and asked Mr. Zadeh how he became acquainted with Ms. Pannell-Brown. Mr. Zadeh revealed that Ms. Pannell-Brown was a mutual friend that he met through a co-worker, and that she was assisting him with immigration issues. During the interview, Detective Poole also inquired whether Mr. Zadeh owned a vehicle, presumably based on information he received from Beanie about the Jaguar station wagon. Mr. Zadeh advised Detective Poole that he did not. Mr. Zadeh also informed Detective Poole that he had taken the subway to work, arrived at Enterprise between 12 and 12:30 p.m. for his shift, and that he had not spoken to anyone before he left for work that afternoon. Detective Poole observed Mr. Zadeh's hand in his pocket and "assumed that he had a phone in there." Detective Poole subsequently asked Mr. Zadeh for his cell number and for permission to see his cell phone, but Mr. Zadeh repeatedly refused, claiming that the phone in his pocket was not his and his cell phone was at home.

Detective Poole and his team then began investigating Ms. Pannell-Brown and Mr. Zadeh as suspects for the murder of Mr. Brown. On August 5, 2014, the Takoma Park detectives observed a 2007 silver Jaguar station wagon in a parking lot near the Enterprise car rental facility. It was determined that the vehicle was registered to Ms. Pannell-Brown, although it was frequently driven by Mr. Zadeh. Detective Gregory Wolff⁶ subsequently applied for and was granted a search warrant for the Jaguar.⁷ The search warrant indicated that the officers were permitted to search the vehicle for evidence of the crime of murder, including "any object which may have been used to cause the victim's injuries[,]" and "photos, notes, documents, electronic equipment which stores data[.]" That evening around 9:00 p.m., Detective Poole and the Special Assignment Team ("SAT")⁸ that was surveilling the Jaguar stopped the vehicle, which was operated by Mr. Zadeh, to execute the search and seizure warrant. Detective Poole requested that Mr. Zadeh, the operator of the vehicle, exit the Jaguar and proceeded to pat him down for "officer safety." During the frisk, Detective Poole felt a cell phone in Mr. Zadeh's pants pocket and seized it. A subsequent search of the station wagon the following morning⁹ uncovered eleven other pieces of evidence, including a "swab of suspected blood." The search warrant inventory report and return listed a twelfth item—"a T-Mobile cell phone belonging to Hussain Ali Zadeh"—as seized from the "pocket of ‘Ali[.]’ "

The officers did not secure a separate search and seizure warrant for the cell phone they seized on August 5 until August 7, 2014. In the warrant application for that cell phone—specific to its contents —no mention was made of or reference to the frisk of Mr. Zadeh or how the officer came to seize his cell phone.¹⁰ Rather, the...