Whiting v. State

• Decision Date: 08 November 2005
• Docket Number: No. 4,4
• Citation: 389 Md. 334,885 A.2d 785
• Parties: Wesley WHITING a/k/a Jeffrey Wilson a/k/a Lynell Whiting v. STATE of Maryland.
• Court: Maryland Court of Appeals

885 A.2d 785

389 Md. 334

Wesley WHITING a/k/a Jeffrey Wilson a/k/a Lynell Whiting v. STATE of Maryland.

No. 4, September Term, 2005.

Court of Appeals of Maryland.

November 8, 2005.

Michael R. Malloy, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for petitioner.

Shannon E. Avery, Asst. Atty. Gen. (J. Joseph Curran, Jr., on brief), for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BATTAGLIA, J.

Petitioner Wesley Whiting, also known as Jeffrey Wilson and Lynell Whiting, seeks review of a judgment of the Court of Special Appeals affirming the Circuit Court's dismissal of Whiting's motion to suppress evidence as the fruit of alleged illegal searches of 810 East Preston Street, Baltimore, Maryland, a house owned by the City in which Whiting was a "squatter." On April 7, 2005, this Court granted Whiting's Petition for Writ of Certiorari to address the question that Whiting has presented to us for review:

Did the lower Court err by ruling that Petitioner did not have standing to challenge the legality of the search of the house where he was residing without a property interest?

Whiting v. State, 386 Md. 180, 872 A.2d 46 (2005). We hold that, although Whiting did possess a subjective expectation of privacy in the second floor rear bedroom of 810 East Preston Street, his expectation of privacy was not objectively reasonable, and as a result, he did not have standing under the Fourth Amendment to challenge the searches.¹

I. Background

On April 7, 2001, Baltimore City Police Officers responded to 1136 Homewood Avenue in Baltimore to try to find William Jerome Moore, Jr., a Correctional Officer who had failed to report to work for two days. Upon arriving at the home, the officers discovered Moore's body. An autopsy showed that Moore's death was caused by blunt force trauma.

During the investigation, detectives were able to identify Moore's cellular phone number, despite failing to recover the phone. The cellular phone records were subpoenaed from the phone company and reflected use after Moore's death. On April 26, 2001, after having traced calls made from the cellular phone, detectives located and spoke with a witness who had received a call from Whiting and believed that Whiting had called from a number resembling Moore's phone number. Another witness also made a photographic identification of Whiting as the individual in possession of Moore's cellular phone, and an acquaintance of Whiting reported that Whiting lived at 810 East Preston Street in Baltimore, where, in fact, he had been arrested on April 21, 2001, on unrelated charges. The investigation eventually culminated in the execution of two search warrants on April 27, and May 4, 2001 at 810 East Preston Street where police recovered various items of personal property, some of which contained blood.

On April 30, 2001, Whiting was served with an arrest warrant for the murder of Moore. He was later indicted for one count of first degree murder in violation of Maryland Code (1957, 1996 Repl.Vol.), Section 407 of Article 27,² one count of first degree assault in violation of Maryland Code (1957, 1996 Repl.Vol.), Section 12A-1 of Article 27,³ one count of second degree assault in violation of Maryland Code (1957, 1996 Repl.Vol.), Section 12A of Article 27,⁴ one count of robbery in violation of Maryland Code (1957, 1996 Repl.Vol.), Section 486 of Article 27,⁵ and one count of theft in violation of Maryland Code (1957, 1996 Repl.Vol.), Section 342 of Article 27.⁶

Whiting moved to suppress the evidence seized during the April 27 and May 4, 2001 searches of 810 East Preston Street. The State countered by contesting Whiting's standing to challenge the searches, alleging that Whiting was a "squatter" or trespasser in the house. At the suppression hearing, Whiting argued that he had standing to challenge the searches of 810 East Preston Street because he had a legitimate expectation of privacy in the second floor room where he was staying and, as evidence of such, introduced items seized during the April 27th search of 810 East Preston Street, including: one college registration in the name of Wesley Whiting, his address listed at 39 Liberty Road; four photographs; one letter addressed to Jeffrey Wilson at 300 East Madison Street from Crystal Whiting, and one letter addressed to Crystal Whiting at 609 29th Street from Wesley Whiting with his return address listed as Forrest Street. Whiting also introduced the affidavit in support of the application for the April 27th search warrant of 810 East Preston Street, which included the phrase that "a witness who reported knowing Wesley Whiting said when interviewed that Wesley Whiting had told him that he had been living at the address determined to be the vacant house at 810 East Preston Street." The State, conversely, argued that Whiting did not have standing to challenge the searches and introduced a copy of a deed reflecting that the Housing Authority of Baltimore City owned 810 East Preston Street, and a copy of the last lease for the premises, showing that Joyce Melvin, Robert Anderson, Corderio Washington, and Donna Fowles had been the last tenants, having vacated the premises in May of 2000. The State also submitted the processing information and Statement of Charges against Whiting, showing that Whiting had not provided any home address, as well as the intake facility processing information for Whiting, in which he listed his address as 39 Liberty Street, a copy of Whiting's arrest information showing his address as 609 North Ellwood Avenue, and a copy of Whiting's motor vehicle records showing he reported his home address as 550 Saint Mary's Street and 828 East Preston Street.

Detective Ronald Berger testified at the suppression hearing that when he visited the premises in April and May of 2001, the front door of 810 East Preston Street was sealed shut with either brick or boards while the rear door was unlocked. Berger could not recall whether the rear door's doorknob had a functioning lock, or if he had occasion to use any lights in the house. The Housing Authority of Baltimore City later confirmed that the meters for the electricity were never disconnected to the home, but that the electricity had not been used since 2000.

Detective Berger also identified photographs taken on April 27, 2001 of the premises which showed that the rear door to the 810 East Preston Street had a broken window in it with "some type of material patching behind the inside area of the broken glass" and that the rear door also had a bolt-type lock above the door knob. The photographs also showed a second floor rear bedroom with a green wall where Whiting had been staying; the room contained bedding on the floor, along with some "personal items about in the room," a television, and a piece of plywood on the wall that appeared to cover a window. In another room on the second floor, distinguished by its white wall, there was also "some bedding" on the floor and a window frame with red trim covered by plywood. A May 4th photograph reflected the addition of a green trash can in the second floor rear bedroom with the green wall.

Robert Jones, also known as Crystal Whiting, also testified at the suppression hearing. Jones noted that he temporarily had been staying at 810 East Preston Street. He stated that he shared the second floor rear bedroom of the house with Whiting, and that approximately four other people also lived in the house. According to Jones, Whiting kept people out of the room by means of a lock on the door, for which Whiting had the only key. Jones acknowledged that he never paid rent for staying at 810 East Preston Street, nor did he ever have keys to the home. He stated that he gained admission to the house through the back door, which was always unlocked. Jones did not know, however, whether the other people who resided in the home had keys or how they entered the house because he did not "socialize" with them.

In ruling that Whiting lacked standing to challenge the searches, Judge Joseph P. McCurdy stated:

Well, I think as a matter of fact I can find that the property at issue in this case, which is 810 East Preston Street, is owned by the Housing Authority of Baltimore City. I find as a matter of fact that the property was not — there was no operable lease in effect regarding this property at the time of the search and seizure, or at the time the Defendant arguably occupied the premises, the last lease having expired in the year 2000. I find, as a matter of fact, and this is essentially admitted by the Defendant, that the Defendant was what would normally call [sic] a squatter in the abandoned property, or a trespasser in the ... of the law. That Defendant had no rights to the property whatsoever, no possessory interest in the property at all that's recognized under the law, either the constitution, which would be a property right, or any statutory law or common law in Maryland. I find as a matter of fact that the Defendant was occupying the property in some manner. And it's unclear if he was actually living there full-time, or whether he spent time there. It does appear that there was some personal property on the premises. There's no evidence that the property, the television, the bedding, and those items that belonged to the Defendant. The only evidence of any property belonging to Defendant that's been admitted is copies of the correspondence addressed to the Defendant at another address, and a copy of a registration form for Baltimore City Community College in the name of the Defendant at another address. There's evidence through the exhibits that the Defendant had other addresses at some point in the past. There's a Liberty Road address, I think there's another Mary Street address that was mentioned. I think that the conclusion here is that the Defendant, at some point, at some time, occupied this property as a trespasser. Now,

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