Wengert v. State

Dissenting Opinion by BELL, C.J., in which ELDRIDGE, J., joins.

*97BELL, Chief Judge,

Dissenting.

The petitioner, Thomas Wengert, has been twice victimized: once by the burglar, who breached the security and privacy of his home and again by the police, who after apprehending the burglar, further breached its privacy. While he undoubtedly appreciates the efforts of the police in catching the burglar, he must deeply resent, and, to me, it is understandable, their creation of an opportunity to investigate, and subsequently charge, him, the victim.

Rather than victimized, the majority maintains that the petitioner was appropriately, and in accordance with proper police procedures and constitutional precepts, charged and convicted of gambling and keeping a place for gambling in violation of Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.), Article 27, § 240. Critical to its conclusion is the showing that the police acted properly both in the apprehension of the burglar and in the manner in which they conducted their investigation following his apprehension, including the use that they made of the petitioner’s home.

According to the State, knowledge of the evidence against the petitioner was acquired during a “protective sweep” of the petitioner’s premises after the suspected burglar had been apprehended. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed.2d 276, 281 (1990) teaches that a protective sweep may be justified upon the arrest of a person in a house. As used in that case, “[a] ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Id. The Court pointed out, in its holding, that a protective sweep following a lawful in-house arrest is permitted when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene. Id. at 336, 110 S.Ct. at 1099, 108 L.Ed.2d at 288. In Buie, the arrest of the defendant occurred in the defendant’s home, prompting the Court to observe:

*98“The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry or [Michigan v. ]Long[, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)] frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.”

Id. at 333, 110 S.Ct. at 1098, 108 L.Ed.2d at 285.

But that does not describe what occurred in this case. Here, the arrest did take place in a home, but not the home of the person who initially was arrested; rather, it occurred in the home of the petitioner, the burglar’s victim. So, it was not because the officers were at the disadvantage of being on the burglar’s turf that the “protective sweep” was made. Indeed, the police do not even purport to rely solely on the “protective sweep” authorized by Buie. Officer Benner, the first officer on the scene and one of the officers conducting the sweep, stated initially that he made the sweep to secure the premises and ensure that there were neither additional suspects nor victims in the house:

“We looked throughout the residence for anybody else. We asked him [the burglar] if he had anybody with him. He said no. However, we still looked for other suspects. We were looking for a possible resident or a victim that might have been victimized inside the residence.”

That is not, however, the only rationale the police offered. Officer Benner later testified that, in addition to checking the area for victims or other suspects, he checked for “anything out of the ordinary. TVs, VCRs, things that might have been tampered with as if to attempt to steal them.” Still later, he stated:

*99“After, like I said, after we looked for suspects and/or victims, we go back and look for — I go back and look for anything tampered with as the intent of the bad guy being in there, what was his intent. Usually you find things tampered with, his intent was most probably to steal with.”

And on redirect examination by the State, he made perfectly clear that the purpose of the sweep in this case was not simply for the safety of the officers or the well being of victims. After repeating how he conducted a sweep and cleared a room, Officer Benner stated that “someone else will generally come behind you and conduct their sweep to insure that you didn’t miss anything.” When asked what he meant by “miss anything,” he explained: “Miss any suspects, victims, damaged property, what have you. Whatever the case is that you’re looking for.”

Sergeant Bishop and Officer Praley confirmed Officer Benner’s testimony of there being a broader purpose for the sweep than simply to look for other suspects or victims. According to Sergeant Bishop, it included looking for “some evidence of a burglary also.” Officer Praley said that the purpose of the officers going into the basement was “[t]o check for other suspects, to check for evidence of the crime, to check for other' — if there was a victim in the house.” Sergeant Bishop provided additional insight into the “sweep,” yet another reason for making and continuing it:

“We looked around to see if there was anyone else. Then shortly after we looked around some more because the subject we had was claiming that his grandmother lived there. We were trying to find something with a name or something to indicate who actually lived there and see if there was any validity to the story he was trying to tell us.”

The first rationale offered by Officer Benner, and confirmed by Sergeant Bishop, is more akin to that underlying Carroll v. State, 335 Md. 723, 734, 646 A.2d 376, 382 (1994), where this Court upheld a warrantless entry into an allegedly burglarized home based upon the exigent circumstances exception. In that case, we held:

*100“that when law enforcement officers have probable cause to believe that a burglary is either in progress or recently has been committed, the exigencies of the situation permit the officers to enter the premises without a warrant to search for intruders and to protect an occupant’s property. Just as a burning building creates an exigency that justifies a warrantless entry by fire officials to fight the blaze, a recent or ongoing burglary may create an exigency that justifies a warrantless entry by law enforcement officers to search for intruders and to protect property.”1

Id. Whichever justification applies, because neither sanctions the additional purposes for which the police undertook the sweep in this case, the search in this case fails miserably.

According to one officer, Officer Praley, the house was secured within ten minutes of the police entry. That is consistent with the testimony of both Officer Benner and Sergeant Bishop. The former said that he went to the *101basement to sweep it within one minute of entering the house, after having looked in the rear bedroom, which was the direction from which the suspected burglar had come to open the door, and then looking in the living room and kitchen. He also said it took no more than “15, 20 seconds” to determine that there were no other suspects or victims in the basement. Sergeant Bishop offered that the sweep of the basement took no more than a minute and that it was not until 10 to 15 minutes after entering the house that the vice squad detectives were called.

With regard to why the vice detectives were called, Officer Praley,2 in response to a question, the premise of which was that “the items [observed in the basement, ie., cash, fax machine, the PIX sheet, the sports pager, and the “tally sheet” he observed in the living room] were not so obvious to [him] as to what they might be, that [he] needed another opinion,” confirmed:

“I brought them to the scene for, yes, another opinion; two, for expertise; three, for that’s their job. That’s what they do. They specialize in that. That’s why I brought them there.”

To be sure, having completed the sweep and while looking for any tampering with the TVs and the like, Officer Benner, as did the others who came to the basement area, saw a large screen television, on which was sitting a “pile of money” and, next to it, some “pick slips,” a fax machine, with a sheet containing names and figures and a sports pager. As to the large screen TV, Officer Benner admitted that it was against the wall so that a suspect could not hide behind it. He also conceded that “a search of that area, at least around the television, ... could be done rather quickly if you are looking for suspects.”

It is likewise true that Officer Praley observed, in the living room of the petitioner’s house on a coffee table, a document *102that he characterized as a “tally sheet.”3 That did not occur until after Officer Praley had handcuffed the suspect and two to three minutes after he had given the suspect Miranda4 warnings. Even then, the officer indicated that he did not immediately see the tally sheet; it was not until he stood up and looked at the paperwork right on the top of the coffee table. Curiously, the officer stated that he did not recall if he had to touch or pick up the paper to look at it.

The plain view doctrine is an exception to the warrant requirement. Texas v. Brown, 460 U.S. 730, 736, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502, 510 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564, 582 (1971); Riddick v. State, 319 Md. 180, 192, 571 A.2d 1239, 1245 (1990). “The plain view doctrine ‘serves to supplement a previously justified intrusion, ... and permits a warrantless seizure.’ ” Livingston v. State, 317 Md. 408, 412, 564 A.2d 414, 416, (1989) (quoting State v. Wilson, 279 Md. 189, 194, 367 A.2d 1223, 1227 (1977)). It is applicable, and the seizure of evidence is permitted, when there is prior justification for police intrusion; the evidence is spotted in plain view5 *103; and the police immediately perceive that what is discovered is evidence. Williams v. State, 342 Md. 724, 757, 679 A.2d 1106, 1123 (1996); Livingston at 412, 564 A.2d at 417. See Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347, 355 (1987); Wiggins v. State, 315 Md. 232, 250-52, 554 A.2d 356, 364-65 (1989); Liichow v. State, 288 Md. 502, 513, 419 A.2d 1041, 1047 (1980). To immediately perceive that what has been discovered is evidence means that, prior to seizure, Hicks, 480 U.S. at 326, 107 S.Ct. at 1153, 94 L.Ed.2d at 355; Wiggins, 315 Md. at 251, 554 A.2d at 365, or further search to confirm suspicion, Michigan v. Tyler, 436 U.S. 499, 512, 98 S.Ct. 1942, 1951, 56 L.Ed.2d 486, 500 (1978); see Carroll, 335 Md. at 740, 646 A.2d at 385, the police must have probable cause to believed that the item seized is evidence of a crime.

Assuming that, pursuant to Carroll, the police were legitimately on the premises for the purpose of conducting a sweep to determine the presence of other suspects or to see if there were victims, I am far from convinced that what the officers observed in that sweep provided probable cause that the petitioner was violating the law. Only after the sweep had been completed and the officers had begun to investigate whether any property had been tampered with or to look for identification material as to the owner of the premises to verify the statements made by the burglar did the police place themselves in the position to observe incriminating evidence. Thus, this case is totally different from Carroll, in which the officers while conducting the exigent circumstances’ sweep discovered contraband, which they immediately recognized as contraband.

Certainly having a large screen television and a fax machine, even with a “pile of money” on the television set in one’s own home is not, like contraband, a sure fire give-away that the occupant of the house is engaged in any illegal activity. Leaving money around, on the top of a large screen television, *104in a room with a fax machine, may be somewhat unusual, and maybe even a little eccentric, but it is not yet, at least not until this case, in and of itself, clear evidence of a violation of the law. Nor is the combination of large screen television, fax machine and money in a private home, in open view, such a suspicious circumstance as to make it readily apparent that the owner of the house is engaged in gambling.

In any event, in this case, it is evident that the officers did not immediately have probable cause that the petitioner was running a gambling ring. As pointed out, the sweep was over within two minutes, yet, it was another ten to fifteen minutes before the determination was made to call in the vice detectives. During that time, the officers milled about the petitioner’s home, consulting with each other as to the significance of what they had discovered, about what it all meant. Officer Benner and Sergeant Bishop got Officer Praley’s advice on what they saw. Lt. Little was shown the set-up and, as indicated, the vice detectives were consulted because of their expertise and to give “another opinion.”

State v. DeWitt, 184 Ariz. 464, 910 P.2d 9 (1996) is instructive. There an officer believing that he had interrupted a burglary in progress when he arrested a man and his girlfriend in a house for which they had no key and could not provide information with which to contact the owner, conducted a sweep of the house for additional suspects and any evidence of a burglary, during the course of which he came upon items, chemicals, glass vials and laboratory equipment, in storage space above an open closet, which he suspected were used in the manufacture of drugs. Not having the necessary expertise to make the determination, the officer called his supervisor. When he arrived ten minutes later, he observed the items, but was also unable to determine whether they were drug manufacturing equipment, whereupon the assistance of the Drug Enforcement Bureau (“DEB”) was sought. Agents from the DEB arrived some 45 minutes later and subsequently obtained a search and seizure warrant, the execution of which resulted in the seizure of among other things drugs and chemicals used in the manufacture of drugs. The *105Supreme Court of Arizona reversed the judgment of the intermediate appellate court, which had affirmed the defendant’s conviction. Although the court concluded that the initial entry into the premises was justified, as were the observation and limited inspection of the items eventually seized by his supervisor, it held that, at that point, “absent a continued exigency or other valid grounds, the justification for warrantless searching came to an end.” Id. at 467, 910 P.2d at 12. Thus, the later observations of DEB agents at the officer and his supervisor’s request constituted a second and separate search for which there was no justification when it occurred. Id. This rationale applies with equal force to the case subjvdice.6

The observation by Officer Praley of what he believed to be a “tally sheet” on the coffee table in the living room fares no better. I question whether the first prerequisite for plain view was met insofar as that observation is concerned. The petitioner was a victim of a burglary. The apprehension of the burglar in his home did not give the police the right to use his home as a branch office. Yet that is precisely what was done in this case. Rather than take the suspect to the station house for booking, he was handcuffed and seated on the victim’s couch while questioned, mirandized and while the other officers swept the premises and later searched it for evidence. As the petitioner points out, “Officer Praley was not searching for accomplices or looking for victims while supervising the burglar.” Had the suspect been transported to the station house or taken to the police vehicles for processing, Officer Praley, nor any other officer would have been ensconced in the living room, in a position to see the document on the coffee table. In short, there was no prior justification *106for the presence of Officer Praley in the petitioner’s home, at that particular place, when the observation was made.

The search, I conclude, was illegal. Consequently, I agree with the petitioner that the subsequent consent he gave was tainted. McMillian v. State, 325 Md. 272, 284-87, 600 A.2d 430, 436-37 (1992); State v. Wilson, 279 Md. 189, 203, 367 A.2d 1223, 1232 (1977).

Judge Eldridge joins in the views expressed herein.

. In dissent in Carroll v. State, 335 Md. 723, 744-45, n. 1, 646 A.2d 376, 387, n. 1 (1994), I noted, as to the matter of protecting the property of another:

"A rather clear case of entry to protect the property of another, and perhaps of the occupant of the premises entered, is United States v. Boyd, 407 F.Supp. 693 (S.D.N.Y.1976). In that case, water was leaking into a third floor apartment. When the landlord discovered that the leak did not originate in the fourth floor apartment, which was vacant, and that the water was running in the apartment above it, it was appropriate, the court held, to enter that apartment, whose occupant did not respond to the knock, to avoid a dangerous condition, i.e., collapse of ceilings and walls.
"If the police enter premises to abort a burglary, it is at least arguable that they are doing so to protect the owner’s property— avoiding its theft is a means of protecting property. It is rather difficult to understand how property is being protected by an entry after the burglary has been completed. In that circumstance, the property owner’s remaining property is protected by securing the premises. See People v. Parra, 30 Cal.App.3d 729, 106 Cal.Rptr. 531 (1973) in which the court paraphrased § 197 of the Restatement (Second) of Torts (1966) to the effect that 'one is privileged to enter and remain on land in the possession of another if it reasonably appears to be necessary to prevent serious harm to the land or chattels of the other party, unless the actor has reason to know that one for whose benefit he enters is unwilling that he shall take such action.' Id. 106 Cal.Rptr. at 533.”

. Officer Praley was asked to come to the basement to see what Officer Benner and Sergeant Bishop had discovered.

. Although the burglary suspect was arrested and handcuffed immediately upon opening the front door of the petitioner’s house, rather than taking him away to the station house, Officer Praley kept him in the living room, placing him on the couch directly in front of the coffee table. Consequently, Officer Praley was in a position to view a paper that lay on the coffee table.

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

. As initially formulated, the Supreme Court of the United States required that the object be inadvertently discovered. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564, 582 (1971). In Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502, 510 (1983), the Court clarified the inadvertent element:

”[T]he officer must discover incriminating evidence 'inadvertently,' which is to say, he may not 'know in advance the location of [certain] evidence [or contraband] and intend to seize it,’ relying on the plain view doctrine only as a pretext.”

(Internal citations omitted.) Horton v. California, 496 U.S. 128, 139-40, 110 S.Ct. 2301, 2309-10, 110 L.Ed.2d 112, 124-25 (1990), made *103clear that inadvertence was not and never had been a requirement of the plain view doctrine.

. I do not agree with the court in DeWitt, that the observations of the supervisor were with justification. All justification for further searching ended, I believe, when the officer completed the sweep and did not have probable cause to seek a warrant based on his own observations. Nor do I agree with the court's analysis insofar as it permitted a search for evidence of the burglary; the officer already had it.