Walls v. State
| Decision Date | 28 March 2008 |
| Docket Number | No. 1849, Sept. Term, 2006.,1849, Sept. Term, 2006. |
| Citation | 944 A.2d 1222,179 Md. App. 234 |
| Parties | Herbert Johnson WALLS v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Mark Colvin (Nancy S. Forster, Public Defender, on the brief), Baltimore, for appellant.
Brian S. Kleinbord (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for appellee.
Panel: SALMON, DEBORAH S. EYLER and MEREDITH, JJ.
In the Circuit Court for Harford County, Herbert Johnson Walls, the appellant, was charged by indictment with possession with intent to distribute marijuana, possession with intent to distribute cocaine, possession of marijuana, possession of cocaine, two counts of possession with intent to distribute drug paraphernalia, and maintaining a common nuisance, specifically a house used for the purpose of illegally manufacturing, distributing, storing, and concealing cocaine. Before trial, the appellant filed a motion to suppress all items seized from a storage shed on the property where he resided on the ground that the warrant did not authorize a search of the shed or any other outbuilding on the property. After a hearing, the court denied the motion.
The appellant was tried by the court on a not-guilty agreed statement of facts on the charge of possession with intent to distribute cocaine. All other charges were nolle prossed. The court found the appellant guilty. It sentenced him to 40 years' incarceration, all but 25 years suspended, and two years' supervised probation upon release. This appeal followed.
The sole issue on appeal is whether the circuit court erred in denying the motion to suppress. Finding no error, we shall affirm the judgment.
The following facts were adduced at the suppression hearing. On October 21, 2005, Detective Sean Marston of the Harford County Sheriff's Office applied for a search warrant for the appellant's residence at 30 Liberty Street, in Aberdeen. The application and supporting affidavit provided, in relevant part:
APPLICATION is herewith made for Search and Seizure Warrant in that there is probable cause to believe the laws relating to ... controlled dangerous substances ... are being violated in and upon a certain premise and vehicles known as: 30 Liberty Street, Aberdeen, Harford County, Maryland 21001 and are being violated by Herbert Johnson Walls, a black male, with a date of birth of 02/05/1954.
Said premise is described as a single story duplex which is tan in color with white trim around the windows, a white storm and front door, and the numerals "30" to the left of the door on a dark colored shutter. There is a wooden porch with three stairs leading up to the door. Furthermore, said premise is known to, and can be identified by your affiant.
* * *
Your affiant avers that based on the totality of the circumstances and your affiant's training, knowledge and experience acquired during the aforementioned schools and investigation, that based on the information received from CI-1 that Walls is selling CDS, the controlled purchase of crack cocaine from Walls, the positive field test of the purchased crack cocaine, the surveillance conducted on Walls placing him and his vehicles at 30 Liberty street before the controlled buy and returning to 30 Liberty Street after the controlled buy of crack cocaine, the positive identification of Herbert Walls by CI-1, the four tips received between 2002 and 2005 for Herbert Walls selling CDS at the 30 Liberty Street address, the criminal history of Walls showing multiple felony arrests for CDS, the recent search warrant conducted at Walls['] residence of 30 Liberty Street in February 2005 with the subsequent recovery of approximately 19 grams of crack cocaine, the recent traffic stop of Walls in February 2005 with the subsequent recovery of approximately 16 grams of crack cocaine, that there is probable cause to believe and your affiant does believe, that the law relating to the manufacturing, sale and/or possession with intent to distribute controlled dangerous substances, as herein before cited are being violated in and upon the premise herein before described as:
30 Liberty Street, Aberdeen,
* * *
Now, therefore, pursuant to the provisions of Criminal Law Article Sections 1-203, your affiant prays that a search and seizure warrant be issued authorizing, him, with the necessary and proper assistance to:
(Emphasis in original.)
The application and affidavit were attached to the proposed search and seizure warrant, which likewise provided, in part:
Whereas it appears to me, ... by written information of the affiant, hereinafter named, that there is probable cause that a crime is being committed, and that the laws relating to the illegal Manufacturing, Distribution, Possession with Intent to Distribute controlled dangerous substances and Possession of controlled dangerous substances, ... including narcotics, hallucinogenic and dangerous drugs, are being violated in and upon a certain premise known as:
30 Liberty Street, Aberdeen, Harford County, Maryland 21001 and is being violated by Herbert Johnson Walls, a black male, with a date of birth of 02/05/1954.
Said premise is described as a single story duplex which is tan in color with white trim around the windows, a white storm and front door, and the numerals "30" to the left of the door on a dark colored shutter. There is a wooden porch with three stairs leading up to the door. Furthermore, said premise is known to, and can be identified by your affiant.
The name of your affiant is Detective Sean Marston, of the Harford County Sheriffs Office, currently assigned to the Harford County Task Force.
The grounds for the search warrant and the basis for probable cause are set forth in the Application and Affidavit which is attached hereto and made part of the Search and Seizure [sic].
Now therefore, pursuant to the provisions of Criminal Law Article Sections 1-203 of the Maryland Criminal Laws Annotated, 2003 edition, as amended or revised, you are hereby commanded, with the necessary and proper assistance to:
(Emphasis in original.) The search and seizure warrant was issued on October 21, 2005.
Detective Marston testified that, on October 26, 2005, he executed the search and seizure warrant at 30 Liberty Street. The backyard at that location was completely fenced in. There was a shed located in the backyard, about 20 to 25 feet from the house. The shed was locked with a padlock. According to Detective Marston, a K-9 dog first scanned the shed and, thereafter, the appellant's key was used to unlock the padlock.1 Lawn equipment, drugs, and paraphernalia were found in the shed.
On cross-examination, Detective Marston acknowledged that the shed was located at the rear of the yard, almost flush with a fence that separated the backyards of the properties on Liberty Street from the Aberdeen Proving Grounds. He also acknowledged that the application for the search and seizure warrant did not contain any specific mention of the shed or anything stored in it. He explained, however, that, while searching the house, he received information from Detective Webster of the Aberdeen Police Department that the appellant was storing controlled dangerous substances ("CDS") in the shed behind the residence. Detective Webster made it known that he had received that information from a confidential informant, who had advised that the appellant had begun storing CDS in the shed after a task force had raided his house earlier in 2005.
Detective Todd Harmel of the Harford County Task Force similarly testified that the backyard of 30 Liberty Street was completely fenced in, that the shed was located approximately 20 feet from the house and backed up to a portion of the fence dividing the property from the Aberdeen Proving Grounds, and that the padlock on the shed was opened using a key.
Defense counsel argued in support of the suppression motion that the search and seizure warrant lacked the particularity and specificity required by the Fourth Amendment. Specifically, the warrant said "premise" known as 30 Liberty Street, as opposed to "premises," and failed to mention any other buildings, including the storage shed. He further argued that, even if buildings within the curtilage were implicitly included in the warrant, the shed at issue was not within the curtilage. In addition, defense counsel asserted that the shed was used for the appellant's lawn care business and not for domestic purposes.
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