Turner v. State

Decision Date30 June 2000
Docket NumberNo. 1266,1266
PartiesKim Leon TURNER v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Sherrie B. Glasser, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Rachel M. Kamins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County of Towson, on the brief), for appellee.

Submitted before DAVIS, BYRNES and JOHN J. BISHOP, (Retired, Specially Assigned), JJ. BYRNES, Judge.

In this case, we must decide on independent constitutional review whether, on the facts as found by the Circuit Court for Baltimore County, Kim Leon Turner, appellant, impliedly consented to the entry of police officers into his residence.

Appellant was charged with possession of cocaine with the intent to distribute. Before trial, he moved to suppress the cocaine from evidence, arguing that it was the fruit of an illegal police search of his apartment. The motion was denied, and appellant was tried by the court on an agreed statement of facts. He was found guilty of possession with intent to distribute over fifty grams of cocaine and was sentenced to a term of five years incarceration, to be served without the possibility of parole.

On appeal, appellant asks whether the lower court erred in denying his suppression motion. We hold that it did, and shall reverse the judgment and remand the case for further proceedings.

FACTS AND PROCEEDINGS1

Two witnesses testified at the suppression hearing: Officer Stephen Gillespie and Officer Stephen C. Price, both of the Baltimore County Police Department. They gave the following version of events.

On August 18, 1998, at approximately 1:50 a.m., Officer Gillespie was on patrol in his police cruiser when he noticed an older model Chevrolet Caprice being driven westbound on White Marsh Boulevard. Officer Gillespie observed that the Caprice was "faded and dirty" but that its license tags appeared "fairly new." Thinking that suspicious, he called the tags in over the police radio, and learned that they were not registered to the Caprice.

Officer Gillespie activated his emergency equipment and attempted to make a traffic stop. The driver of the Caprice sped off, and a chase ensued. It ended when Officer Gillespie pulled his cruiser in front of the Caprice, forcing it to a stop. The driver then "bailed out" of the car and fled.2 Other officers who had been called to assist during the chase pursued him on foot, to no avail.

In the meantime, Officer Gillespie stayed with the Caprice and ran an MVA check, which revealed that it was registered to appellant and that appellant lived in a nearby apartment complex. Officer Gillespie relayed that information to Officer Price, who went to appellant's apartment on the third floor of the complex. Appellant's name was on a sign next to the apartment door.

Officer Price knocked on the door. Appellant responded and opened the door, stepping out of the apartment and onto the third floor landing. As he did so, he pulled the door shut behind him. Officer Price was not able to see into the apartment as appellant stepped out of it.

Officer Price noticed that appellant's breathing was labored, "like he had been through some exertion or something." He asked appellant for identification and whether he knew where his car was, explaining the circumstances and that he was looking for the person who had "bailed out" of the Caprice. Appellant responded that he did not know where his identification or his car were.

Just then, Corporal Joseph Yeater, Officer Price's superior, arrived at the first floor of the apartment complex. Officer Price and appellant walked down the steps to the first floor to meet Corporal Yeater and to await the arrival of Officer Gillespie, who had indicated that he was going to come by to look at appellant to determine if he was the driver of the Caprice. (After the events relevant to this appeal, it was established that appellant was not the driver of the Caprice and that he had had no involvement in the happenings that had precipitated the police visit to his apartment).

While the officers and appellant were awaiting Officer Gillespie's arrival, Officer Price once again raised the topic of identification. He and Corporal Yeater both asked appellant whether he had something in his apartment that would confirm his identity. Appellant responded by saying that he had a telephone bill in his apartment that he could show them. Appellant then walked back up the steps to the third floor of the apartment complex. Officer Price followed close behind him, with Corporal Yeater bringing up the rear.

Appellant approached his apartment, opened the door, and entered. Officer Price followed behind him, and Corporal Yeater followed Officer Price. Nothing was said—the officers did not ask permission to enter or tell appellant that they were about to enter, and appellant did not tell them not to enter. Officer Price testified that because he was responding to a call for "fleeing and eluding a police officer," he would not have let appellant out of his sight. He stated, however, that if appellant had told him not to enter the apartment, he would have complied. He further testified that when he and Corporal Yeater entered the apartment, appellant did not say or do anything to indicate that he objected to their presence.

As soon as Officer Price walked into appellant's apartment, he saw a gun on the coffee table, in plain view. He went over to examine it. Appellant told him that it was a cap or starter gun, not a real gun. At that point, Corporal Yeater noticed a "white chunk like" substance on the carpet around the coffee table in plain view. Both officers immediately recognized the substance to be crack cocaine. They placed appellant under arrest. The officers saw that the apartment had a bedroom and that the door to it was closed. They asked appellant for his consent to search that room, but received a negative response.

On the basis of their plain view observations of contraband in appellant's apartment, the police applied for and obtained a search warrant for all of the rooms in the apartment. Upon execution of the warrant, they found a .25 caliber semi-automatic pistol, ammunition, numerous white chunks of cocaine lying loosely about and in three baggies, and items of drug packaging paraphernalia. The cocaine recovered from appellant's apartment totaled 83.5 grams.

At the conclusion of the suppression hearing, the court made the following findings:

While waiting on the first floor, the [officers] had additional conversation as to whether or not [appellant] could produce any type of identification. It was at that point that [appellant] mentioned that he thought he had a telephone bill with his name on it upstairs in his third floor apartment.
[Appellant] then proceeded to go back up to his apartment with Officer Price following behind him. [Appellant] obviously knew that Officer Price was behind him as they climbed three flights of steps. Once they got to the apartment, [appellant] opened the door to his apartment and entered. At no time, as they were climbing steps or when they reached the door to the apartment did [appellant] ever tell Officer Price not to come on back up to the apartment or not to come into the apartment or make any objection whatsoever. There was no evidence that that occurred.
* * * *
So, I find that the consent, it was a consent search ... at no time did [appellant] object to the officer entering the apartment when he certainly had an opportunity to do so as they climbed the stairs to the apartment, for that matter, when they reached the apartment. So, I find that there was no violation of [appellant's] Fourth Amendment rights....

The court found, ultimately, that appellant had impliedly consented to the entry by the police officers into his apartment, and denied appellant's suppression motion on that basis.

DISCUSSION

Appellant contends that the lower court's first-level factual findings do not support the constitutionally significant second-level factual finding of implied consent. He argues that the police entered his apartment without his consent, that the entry was not otherwise justified, and that the entry therefore constituted an unreasonable search, in violation of the Fourth Amendment. He further maintains that the evidence obtained in the subsequent warrant-based search of his apartment was tainted by the illegality of the prior warrantless search, and therefore should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 484-87, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)

.

The State counters that the lower court properly found from the totality of the circumstances that appellant had consented, by his conduct, to the police officers' entry into his apartment. It argues that for that reason, the warrantless search was reasonable, and thus was not in violation of appellant's Fourth Amendment rights, and that the evidence found in plain view was seized legally. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 466, n. 24, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)

(stating that if entry into house is justified based on hot pursuit, and therefore is reasonable, then anything inadvertently in plain view can be seized legally). On that basis, the State maintains that the subsequent warrant-based search was not a product of a prior illegal search, the evidence obtained was not tainted, and the lower court correctly refused to suppress it.

The Fourth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Because a search of the house begins with the entry into it, physical entry into the house is...

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