Wengert v. State

• Court: Maryland Supreme Court
• Writing for the Court: RAKER.
• Citation: Wengert v. State, 364 Md. 76, 771 A.2d 389 (Md. 2001)
• Decision Date: 16 April 2001
• Docket Number: No. 34,34
• Parties: George Thomas WENGERT, v. STATE of Maryland.

771 A.2d 389

364 Md. 76

George Thomas WENGERT, v. STATE of Maryland.

No. 34, Sept. Term, 2000.

Court of Appeals of Maryland.

April 16, 2001.

Reconsideration Denied June 1, 2001.

Cynthia E. Young, Annapolis, for petitioner.

Gary E. Bair, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,¹ RAKER, WILNER, CATHELL, and HARRELL, JJ RAKER, Judge.

George Thomas Wengert was convicted in the District Court of Maryland, sitting in Anne Arundel County, for the offenses of gambling and keeping a place for gambling in violation of Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Article 27, § 240. He appealed to the Circuit Court for Anne Arundel County and, in a trial de novo, he was again convicted. Wengert challenges the legality of the search and seizure of items taken from his home. In his petition for certiorari he presents a single question: "Where a sole burglar answered the front door of petitioner's house and could have been taken into custody by police without their entry into petitioner's home, was evidence seized from the home by police admissible under the protective sweep exception or any other exception to the Fourth Amendment?" We shall answer the question in the affirmative and, accordingly, affirm the judgment of the Circuit Court.

I.

There is no dispute as to the facts of this case. On October 22, 1998, at approximately 10:42 a.m., a neighbor who lived behind 311 Edison Street, in Anne Arundel County, Maryland, called the police to report that she had seen a white male enter Petitioner's house through a partially open rear window. Anne Arundel County Police Officer Benner was the first officer to respond to the call, arriving at Petitioner's home at 11:30 a.m. He proceeded to the back of the house, where he saw the partially open window and the window ledge below it with dust marks and smudges. It appeared to him "as if a person had entered or pulled something in or out of the window." Minutes after Officer Benner arrived, three backup officers joined him— Officers Praley, Mills, and Bishop. Bishop and Benner remained at the rear of the house; Praley and Mills went to the front of the house. Officer Benner called into the house, and a voice from within stated "I'm coming up" or "Yes, I'm coming out."

Officer Bishop instructed the suspect to go to the front door and admit the officers. A person matching the description given by the neighbor, who turned out to be a burglary suspect named Myers, opened the front door. Officer Praley handcuffed Myers, and the two then sat down on the couch in the living room.

Officers Benner and Bishop entered the house, and Benner and Praley questioned the suspect about his presence there. The suspect claimed that his grandmother owned the home, prompting Benner to look for mail that might verify the suspect's identity.

While Officer Praley remained on the couch interviewing the suspect, Benner and Bishop looked in the house for other suspects, victims, and residents. They checked the upstairs level, which took about one minute, and then proceeded to the basement, where they saw a stack of money on a television set, a fax machine set up in front of the television set, a sports pager on the floor by the fax machine, and a "pix ticket." ² The officers did not touch or disturb anything in the basement area. While the two officers were downstairs, Officer Praley, who had experience in vice, narcotics, and gambling, saw a paper on the coffee table, which appeared to him to be a tally sheet for record keeping of gambling or drugs.

In Officer Bishop's opinion, the scene as a whole, and particularly the money and the picks ticket atop the television set, led him to believe that the items were evidence of gambling. He testified that it "all just seemed somewhat out of place that you would have a fax machine there right in front of the TV set, and it looked like it was set up so someone could sit there and watch TV, watch sports, and do all their business in one convenient spot." Suspecting a gambling operation, Benner and Bishop called Praley to the basement level.³ Praley saw the fax machine, tally sheet, pick slip, and cash; he testified "that this is leading us to believe it's gambling and I think we should ... stop and call the vice squad." In fact, that is what they did.

At approximately 11:45 a.m., before the vice squad arrived, Petitioner's twenty-two-year-old son, Joshua, came home. He declined to give the officers consent to search, preferring to wait until his parents came home. His mother arrived home about fifteen minutes later, and she, too, declined to consent to a search of the house, preferring to wait for her husband to come home. Petitioner arrived home around 12:30 p.m Vice Squad Detective Middleton arrived sometime between 11:45 a.m. and 12:00 p.m., looked at the papers on the coffee table, as well as the items in the basement, and recognized the papers as a "tally sheet" and "parlay card" used in gambling operations. Middleton told Petitioner that he suspected a gambling operation, and Petitioner and his wife consented to a search of their home.

The police seized approximately $42,000.00 in cash, including the money seen earlier on top of the television and additional amounts found in a closet. The officers also seized other books and papers.

Petitioner filed a motion to suppress the evidence seized from his home. The Circuit Court held a pre-trial evidentiary hearing and denied the motion. The court credited Officer Benner's testimony that his main objective in looking throughout the home was to secure the premises and to ensure that there were no additional suspects or victims in the home. The court found that, in accord with Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), Officer Benner acted reasonably in his initial cursory sweep of Petitioner's basement, limiting his "sweep" to approximately fifteen to twenty seconds and that, within that time period, he also discovered the cash and sports tip card on the television in the basement. The court found that the police seized the items lawfully under the "plain view" doctrine, fully satisfying the requirements of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). As an alternative holding, the court found that the police entry into Petitioner's home was justified under the police community caretaking function of protecting property, relying on State v. Alexander, 124 Md.App. 258, 721 A.2d 275 (1998). As further justification for the search, the court found that the Wengerts consented to a search of the house. Petitioner filed a Petition for Writ of Certiorari in this Court, which we granted, and we shall affirm the Circuit Court.

II.

Petitioner contends that the evidence should have been suppressed because the police officers' initial entry into the house was unlawful. He argues that, even if the initial entry were permissible, the subsequent detailed search of his house was beyond the scope of a protective sweep or any other legitimate police function because there was no indication that another suspect was at large, there was no evidence of any weapon, the arrest did not occur inside any residence belonging to the intruder, and there was no need for the police to enter the house to arrest the burglar.

The State counters that the police satisfied the requirements of the Fourth Amendment. The State argues that the police were investigating a crime in progress; they entered Petitioner's house for the sole purpose of detecting other suspects involved in the burglary or victims and, once lawfully inside, they saw in "plain view" evidence indicating that Petitioner was involved in an illegal gambling operation. They secured the premises until Petitioner arrived home and obtained his voluntary consent to search the home. They seized the items that they had previously seen and, pursuant to Petitioner's consent, further evidence of gambling.

Our review of the propriety of the trial court's denial of a motion to suppress evidence is limited to the record developed at the motions hearing. See Tu v. State, 336 Md. 406, 412, 648 A.2d 993, 996 (1994). In determining whether the police officers' conduct was reasonable, we consider only those relevant facts produced at the suppression hearing that are most favorable to the State as the prevailing party on the motion. See Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240-41 (1990). Although we make our own independent appraisal of whether a constitutional right has been violated, we will not disturb the trial court's factual findings unless those findings are clearly erroneous. See Ornelas v. United States, 517 U.S. 690, 697-99, 116 S.Ct. 1657, 1662-63, 134 L.Ed.2d 911 (1996); Riddick, 319 Md. at 183,571 A.2d at 1240.

III.

The Fourth Amendment prohibits only those searches and seizures that are unreasonable. See Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991); Carroll v. State, 335 Md. 723, 729, 646 A.2d 376, 379 (1994); McMillian v. State, 325 Md. 272, 281, 600 A.2d 430, 434 (1992). The Supreme Court has recognized that a warrantless search and seizure does not violate the Fourth Amendment when law enforcement officers are faced with exigent circumstances such that there is a "compelling need for official action and no time to secure a warrant." Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978) (burning building). See Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978) (emergency aid); United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300 (1976) (hot pursuit); Warden v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967) (hot pursuit and danger to human life); Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826,...