Southern v. State

RAKER, Judge, and WILNER, J.,

dissenting.

We respectfully dissent for two reasons. First, we believe that the issue decided by the Court — whether there was probable cause for the initial detention of petitioner — was not properly raised in the Circuit Court and that, as a result, there is no basis for either a reversal or a remand. Second, we believe that, even if one could find that the issue was raised, given the haphazard and thoroughly confusing manner in which it was raised, any failure of the State to respond to it and any failure of the trial court to recognize that the issue *113was raised was excusable, and a limited remand to allow a reopening of the suppression hearing is a proper and lawful remedy.

The history of the ease is important. On the morning of February 19, 2000, two convenience stores in Prince George’s County — one on Auth Road and one on Old Branch Avenue, near the intersection with Kirby Road — were robbed within an hour of each other. Corporal Peton, a K-9 officer who responded to the Old Branch Avenue store, put his dog in a “tracking mode” and went to the rear of the store. The dog picked up a scent, led Peton across Kirby Road to the rear of a house, and alerted under a tree. Just before crossing the street, Peton saw petitioner jump from a hiding place and run into a wooded area. Petitioner was found under the tree. Officer Pippin, informed of the apprehension, brought three witnesses to the Old Branch Avenue robbery to observe petitioner. One positively identified him as the robber.

While this was occurring, Officer Greever observed an unoccupied Honda Accord parked in what he regarded as an “odd location” near the intersection of Old Branch Avenue and Kirby Road. He looked inside, saw a cash register drawer, and reported that finding to other officers. The car was towed to a police lot. The car was owned by one George Howsore, who had lent it to petitioner’s girlfriend, Lisa Townsend. Ms. Townsend said that, on the evening before the robberies, petitioner had taken the car without her permission.

After the show-up identification, petitioner was taken to the hospital for treatment of dog bite wounds he suffered at the time of his apprehension. While at the hospital, two of the officers guarding him were discussing the car found near the scene of the Old Branch Avenue robbery when petitioner, who was not part of the conversation, blurted out that the car belonged to his girlfriend and that she had given him permission to use it. Following his treatment at the hospital, petitioner was taken to the police station where, after being given his Miranda warnings, he gave a statement that implicated him in the two robberies.

*114We recite these facts, most of which came out at trial rather than at the suppression hearing, only to make clear that, even if petitioner’s initial apprehension and detention were to be regarded as an arrest rather than a Terry stop, there was, in fact, more than ample probable cause to support it. See Terrell v. State, 3 Md.App. 340, 239 A.2d 128 (1968).1 Had the issue of probable cause for the detention been clearly presented at the suppression hearing, it is obvious from the record that the State could have produced more than enough evidence to sustain its burden on the issue.

Petitioner was indicted on March 21, 2000. On March 30, 2000, he filed a motion captioned ENTRY OF APPEARANCE, ELECTION FOR JURY TRIAL, MANDATORY MOTIONS, AND MOTION FOR DISCOVERY AND INSPECTION, in which he (1) demanded a jury trial, (2) requested 20 peremptory challenges on voir dire, (3) moved to dismiss the indictment, (4) requested a severance of his case from that of his co-defendant, (5) demanded a speedy trial, *115and (6) moved to suppress evidence. With respect to his request to suppress evidence, the motion simply read:

“3. Moves to suppress any and all evidence obtained by the State in violation of the defendant’s rights as guaranteed by the 4th, 5th, 6th, and 14th Amendments to the Constitution of the United States and the Maryland Declaration of Rights.”

The motion did not indicate what evidence the defendant wished to suppress or any factual basis upon which he was entitled to have it suppressed.2

In apparent response to his discovery request, the State sent to petitioner copies of documents and police investigative reports. On August 1, 2000, petitioner filed the same “omnibus” motion he filed in April, again without any specificity as to what he wished suppressed or the factual or legal basis for suppression.

On September 20, 2000, after empaneling and swearing in a jury, the court held a hearing on these motions, asking first “which motions are we taking up first?” Without objection or comment by defense counsel, the prosecutor responded “ID and then the statement.” At petitioner’s request, he was excluded from the courtroom, and the court then heard evidence relating to circumstances of the post-apprehension show-up, and, finding that the identifications were reliable, denied the motion to suppress the identification. At that point, defense counsel, noting that “the State is saying they had my client in custody and there was a stop by a K-9, and obviously the seizure of whatever they seized from him, and two statements, the statement to Detective Cheeks and the statement to Detective Arscott,” announced that petitioner was seeking “to suppress the stop and anything that flowed from that.” She added, “I believe evidence was seized from him when he was stopped by Officer Peton, I can’t remember *116how they — Peton, and his K-9, and Officer Burgess. So anything that was seized from that stop.”

That, of course, gave the court no clue whatever as to the evidence petitioner sought to suppress, much less whether there was any basis for suppression. Counsel added:

“The defendant’s statement to Officer Cheeks, which was memorialized in writing allegedly by Mr. Southern and also as it appears by Officer Cheeks. There’s also an oral statement that was allegedly given to Corporal Arscott at the hospital. We’re moving to suppress that. And there was a search of the vehicle. Officer — responded to the car, and Officer Stuehmeier seized it, and they are alleging my client had custody of that vehicle.”

Upon that minor bit of clarification, petitioner returned to the courtroom and the State presented evidence regarding petitioner’s time in custody, the statements he gave, and the seizure of the cash register drawer from the car with which petitioner had associated himself. At the conclusion of that evidence, both sides stated that they had no further evidence to offer, and the court heard argument. Defense counsel stated that she proposed “to re-argue with regard to the search and seizure and the stop, when they stopped the defendant, about the identification, and the statements of Detective Cheeks ...” The identification issue, as noted, had already been resolved by the court, before petitioner returned to the courtroom.

At that point, of course, all of the evidence had been presented. Completely switching gears, defense counsel focused, for the first time, on the initial apprehension of petitioner. She said that, “with regard to the stop, the defendant should really be the starting point for everything. We really have no evidence. What we have is Officer Burkhalter, who did not participate in the stop of Mr. Southern, who indicated the description that was given was a white male, and he really didn’t have anything further than that. I believe it was five-eight to five-ten.” Continuing, she argued, “Other than that, the next thing we know is we have Mr. Southern stopped and *117witnesses driving by. So I don’t think the State has established probable cause — I would therefore like you to suppress the identification based on that.” (Emphasis added). Counsel then argued that petitioner’s statement regarding the car should be suppressed because it was the product of what she regarded as a custodial interrogation, and that the written statement given at the police station was involuntary. She ended her argument with the request “that the I.D. be suppressed because the stop was — .”

The court interrupted before she completed that sentence and repeated the finding it had made earlier that the identification was proper, that the statements petitioner made were voluntary, and that the police properly impounded the vehicle and saw the cash box in open view. On those bases, it denied the motion to suppress. The final colloquy was as follows:

[DEFENSE COUNSEL]: And Your Honor, with regard to the oral statement and identification that flowed from the stop?
THE COURT: You mean the oral statement when he said: It was my girlfriend’s?
[DEFENSE COUNSEL]: Right. (Emphasis added).
THE COURT: The Court finds specifically that was not as the result of any custodial interrogation, that he made that statement when the two other police officers were in fairly close proximity but not really in the same location as he was. And that does not run afoul of any 5th or 6th Amendment right because it wasn’t a custodial interrogation. It was a statement that was made voluntarily by him, not in response to any question.
So, quite frankly, I wasn’t aware that was your challenge on it. I didn’t know that was the subject of your challenge. Because as I heard it, he wasn’t answering any questions. So I deny the motion to suppress.
[DEFENSE COUNSEL]: Thank you, Your Honor.”

On this record, petitioner complained in the Court of Special Appeals that the State “failed to prove that his initial stop was constitutional” because “[n]o evidence was adduced by the *118State ... regarding the circumstances under which he originally came into police custody ... [and] there was no basis from which the court would have concluded that the initial stop and subsequent arrest of the appellant was legal.” Though acknowledging that no such evidence was produced at the suppression hearing, the State argued that petitioner had failed to challenge the propriety of the initial stop and that the issue was, therefore, not properly presented. The Court of Special Appeals concluded otherwise but, because the matter was never ruled upon by the Circuit Court, it remanded the case “so that the court may rule upon the propriety of the initial stop.”

We granted certiorari to determine whether, assuming the facts as presented by petitioner, that court erred in remanding in order to give the State “a second opportunity to introduce evidence supporting the legality of the stop.” The majority, erroneously in our view, accepts that the issue was properly presented and concludes, as a result, that, as the State failed in its burden to establish the legality of the initial stop, it was inappropriate to afford the State a second opportunity to meet that burden.

It is clear to us that the question of whether the police had a lawful basis to detain petitioner was never properly presented to the trial court, and he, therefore, has waived any right to complain about it on appeal. See Maryland Rule 8-131(a) (stating that ordinarily, an appellate court will not decide any issue, other than a jurisdictional one, “unless it plainly appears by the record to have been raised in or decided by the trial court ... ”).

The real problem here was created by petitioner and the manner in which he proceeded in the Circuit Court. The sole reason that the State did not address probable cause for petitioner’s arrest is because the State and the trial court were not aware that the legality of the stop was in issue at the suppression hearing. Defense counsel never told anyone prior to the conclusion of the hearing that the reason he was seeking “to suppress the stop and anything that flowed from *119that” was because the stop lacked probable cause. The pretrial motions filed by petitioner and the transcript make clear that the trial court and prosecutor obviously were not aware that petitioner was contesting the legal basis to justify petitioner’s detention. Not until after all of the evidence was in did defense counsel make any allusion to a problem with the initial detention, and even as to that, she limited her complaint to the blurt-out about the automobile. It is for that reason, and that reason only, that the State did not present the evidence on this issue to the trial court.3

Maryland Rule 4-252(a) lists certain issues that, if not raised in a pretrial motion within the time specified in subsection (b) of the Rule, are waived — a defect in the institution of the prosecution; a non-jurisdictional defect in the charging document; an unlawful search, seizure, interception of wire or oral communication, or pretrial identification; an unlawfully obtained admission, statement, or confession; and a request for joinder or severance of defendants or charges. It has become customary for defense counsel to raise some or all of those issues in a single “omnibus” motion, as was done here, and we have no problem with that practice. The Rule does not require the issues to be raised by separate, independent motions, and there is no reason to file separate motions when one will do.

The problem is with the sloppiness that sometimes surrounds and permeates those motions. Not infrequently, as here, they make only the most general allegations — without any specificity, and sometimes without any basis in fact — that the defendant’s arrest was unlawful, that a confession was unlawfully obtained, that the defendant was subjected to an unlawful identification procedure, that evidence was obtained *120unlawfully, that the defendant was denied the assistance of counsel, and that the defendant was denied various other, often unarticulated, Constitutional, statutory, or common law rights. On those bald, and often unsupported, allegations, the defendant seeks to dismiss the charging document, widespread discovery, severance of one kind or another, and the suppression of every piece of evidence that may be possessed by the State.

That kind of motion, whether it is in the form of an “omnibus” motion or one raising only one of the issues, is impermissible. Rule 4-252(e) requires a motion filed in Circuit Court to “state the grounds upon which it is made” and to be “accompanied by a statement of points and citation of authorities.”4 A similar requirement appears in the. Federal Rules of Criminal Procedure, see Fed.R.Crim.P. 47, and probably in the criminal procedure rules of most States, and it is there for a reason. Whenever a court is asked to make a formal ruling, especially one as important as the rulings sought under Rule 4-252, it must be given the factual and legal basis upon which to make the ruling. Some of that, of course, need not, and should not, be stated in the motion itself, but may be supplied through evidence or argument presented at a hearing or that accompanies the motion, but the motion itself must fairly alert the court to the issue it needs to address.5

There is nothing strange or onerous about such a requirement. The Supreme Judicial Court of Maine observed in *121State v. Desjardins, 401 A.2d 165, 169 (Me.1979) that “the suppression movant must articulate in his motion with sufficient particularity the specific reason on which he bases his claim ... so that the court will recognize the issue to be decided.” The Supreme Court of California explained in People v. Williams:

“A motion is an application to the court for an order. In general, the moving party must carry the initial burden of informing its opponent and the court of the specific basis for its motion. If the rule were otherwise, then the party opposing the motion would have to try to guess, and then refute, every possible basis for the motion, which would always be inefficient and would often produce arbitrary results. Similarly, when defendants move to suppress evidence ... they must inform the prosecution and the court of the specific basis for their motion.”

20 Cal.4th 119, 83 Cal.Rptr.2d 275, 973 P.2d 52, 59 (1999) (citations omitted); see also O’Neal v. United States, 222 F.2d 411, 412 (D.C.Cir.1955) (stating that motion to suppress must identify the evidence that the defendant seeks to suppress); Cummings v. People, 785 P.2d 920, 923 (Colo.1990) (holding that motion to suppress should be adequately descriptive so the court and prosecution are on notice as to what is to be decided); Best v. United States, 582 A.2d 966 (D.C.App.1990); State v. Johnson, 16 Or.App. 560, 519 P.2d 1053 (1974) (requiring that defendant must give State as much notice as possible of the contentions it must be prepared to meet at the suppression hearing).

In most instances, this requirement of stating the “grounds upon which [the motion] is made” and points and authorities that specify the legal basis for the motion means more than simply alleging a violation of broad Constitutional provisions. See People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017, 1021 (1993). It means articulating a factual and legal basis for the relief requested. The motions filed in this case did not even come close to doing so. They did not state the grounds on which they were made and did not contain anything even resembling points and authorities. A motion to *122suppress “any and all evidence obtained by the State in violation of the defendant’s rights as guaranteed by the 4th, 5th, 6th, and 14th Amendments to the Constitution of the United States, and the Maryland Declaration of Rights” tells the court nothing about what evidence petitioner wished to suppress or the basis for any suppression. Faced with such a motion, the court could quite properly have denied it on that ground alone.

We are told, in defense, that the practice has developed, at least in some areas of the State, for the court and the State to accept such a hollow motion, filed solely to comply with the time deadlines of Rule 4-252, and to allow defense counsel, at or shortly before a hearing on the motion, to inform the prosecutor and the court more particularly what issues the defendant really is raising and what relief is sought. That practice is not in conformance with the “precise” rubric embodied in Rule 4-252(e) and is not to be condoned, but if the court chooses to excuse the procedural lapse and entertain the motion, it certainly becomes incumbent upon counsel, at that point, to make clear what the defendant is complaining about and what relief is being sought. In our view, that was not' done, even at the hearing.

We have quoted much of the argument presented at the suppression hearing, for it demonstrates far better than any characterization of the proceedings how hidden was any complaint about a lack of probable cause to detain petitioner and how thoroughly confusing, and to a large extent misleading, was the articulation of the relief sought. Without objection by defense counsel, the issue was initially presented as one of the post-arrest identification show-up. At the request of defense counsel, petitioner was taken out of the courtroom, and substantial evidence was taken on the issue. The court then ruled that the identification was permissible, and everyone assumed that that issue had thus been resolved. Petitioner was brought back into the courtroom and the discussion turned to other issues — the various statements made by petitioner at the hospital regarding the automobile and later at the police station. Although at one point counsel announced *123that she was seeking “to suppress the stop and anything that flowed from that,” when pressed later about what she wanted suppressed because of the “stop,” she made clear that it was limited to his statement at the hospital regarding the automobile. We have quoted that colloquy:

THE COURT: You mean the oral statement when he said: It was my girlfriend’s?
[DEFENSE COUNSEL]: Right.

The court then ruled on that complaint, holding that the statement was essentially a “blurt” and was “not as the result of any custodial interrogation.” As noted, the court expressed understandable surprise — “I wasn’t aware that was your challenge on it” — but it addressed the complaint and rejected it. Counsel understood that a ruling had been made. She never indicated to the court that it misunderstood the nature of petitioner’s complaint, but immediately responded, “Thank you, Your Honor.”

That ruling was absolutely correct. On the evidence presented, petitioner’s statement regarding the automobile was not the product of any kind of custodial interrogation, and there was utterly no basis for suppressing it. It is only with appellate afterthought that petitioner now seeks to expand his attack to include a complaint that the police had no probable cause to detain him and a demand that, by reason of that lack of probable cause, all evidence obtained as a result of that detention be suppressed. That broad attack, however, was never presented to the trial court — neither in the motion nor in argument on it.

Assuming that the suppression issue was raised properly, a limited remand to allow a reopening of the suppression hearing is a proper and lawful remedy. Rule 8-604(d) permits a limited remand and provides as follows:

“If the Court concludes that the substantial merits of a ease will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court. In the order remanding a case, the appellate *124court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. Upon remand, the lower court shall conduct any further proceedings necessary to determine the action in accordance with the opinion and . order of the appellate court.”

This is an ideal case for a limited remand pursuant to Rule 8-604(d). See Atkins v. State, 254 Ga. 641, 331 S.E.2d 597, 599 (1985) (holding that although all crucial elements of test of valid consent were not established, reversal was not required; case remanded to trial court for new suppression hearing) (citing Carpenter v. State, 252 Ga. 79, 310 S.E.2d 912) (1984) (remanding case for in camera inspection of documents); Pittman v. State, 245 Ga. 453, 265 S.E.2d 592 (1980) (remanding case for Jackson Denno hearing).

The majority holds that a limited remand is inappropriate because the State failed to meet its burden and is not entitled to a second bite at the apple. See maj. op. at 20-21.6 The majority recognizes that' cases permitting the introduction of new evidence on remand are permitted to correct some action taken by the trial court in a proceeding that is collateral to the trial itself and results in unfairness to a party. See maj. op. at 21. In the instant case, the issue on remand is collateral to and not an integral part of the criminal trial and the purposes of justice will be advanced by permitting further proceedings.

There are several sound reasons underlying the “one bite at the apple” rule.7 The philosophy underlying this rule includes the interest of finality and appreciation that repetitive motions waste scarce judicial resources and increase the costs of the *125judicial system. Moreover, by requiring the parties to present all the arguments on an issue at the same time, the court may comprehensively analyze the issue presented rather than doing so in a piecemeal fashion. The “one bite” rule means that a party is entitled to but one bite at the apple — but it presupposes that the party knows which apple to bite. See Thomas v. State, 517 So.2d 1285 (Miss.1987).

This is not a case of giving the State more than “one bite at the apple.” This is a case in which the State should be given at least a bite at the apple. In this case, there is a strong competing interest between petitioner’s right to have all the State’s evidence presented at the initial suppression hearing and society’s right to have guilty defendants convicted. For that reason, the “one bite at the apple” rule is not applicable and the State should not be barred from having one full bite at the apple.

. We do not suggest that the apprehension and temporary detention, pending a show-up which occurred very promptly, was in fact an arrest requiring probable cause. We simply note that, even if it was an arrest, there clearly was probable cause to support it.

Moreover, it is arguable that the record of the suppression hearing contains sufficient evidence to support the stop and detention. Although not argued or quoted by any party or the Court of Special Appeals, the transcript from the suppression hearing does contain some evidence supporting the stop. Officer Richard Pippin was called by the State and testified to the circumstances surrounding the identification show-up that occurred close to the place of the robbety and within a few minutes of the crime. The following testimony was presented:

Q. Did you explain to Miss Pryor the reason that you were taking her to Wolverton Avenue?
A. That's correct.
Q. What did you tell her?
A. We had apprehended a suspect fitting the description of the person that robbed the 7 Eleven.

Ms. Pryor testified at the suppression hearing that she identified the man in police custody as the robber. The fact that the police apprehended a suspect in close proximity to the scene of the crime and one fitting the description of the person they believed to be the robber constitutes probable cause, or at the very least, reasonable suspicion to detain a person.

. The motion to dismiss the indictment assigned no reasons at all. Citing no facts or legal principles, it simply said, "[m]oves to dismiss the indictment.”

. It would be absurd to suggest that the State intentionally elected not to present evidence to justify petitioner’s detention. The record suggests that no one in the courtroom believed that petitioner had any credible basis to contest the probable cause for the stop or detention of petitioner. Everyone proceeded upon that assumption and, therefore, the State presented no evidence to establish the legality of the detention.

. Maryland Rule 4-252(e) provides as follows:

"A motion filed pursuant to this Rule shall be in writing unless the court otherwise directs, shall state the grounds upon which it is made, and shall set forth the relief sought. A motion alleging an illegal source of information as the basis for probable cause must be supported by precise and specific factual averments. Every motion shall contain or be accompanied by a statement of points and citation of authorities.”

. Some courts will not hold a suppression hearing unless the written motion alleges facts sufficiently definite, specific, and detailed to enable the court to conclude that a claim is presented. See e.g., United States v. Ledesma, 499 F.2d 36, 39 (9th Cir.1974).

. The majority ill-advisedly tosses in references to Double Jeopardy as a basis for rejecting limited remand. See maj. op. at 24. The Double Jeopardy Clause of the United States Constitution has nothing to do with this case.

. Although reference to the "one bite at the apple’’ principle is absent from our cases, many other states discuss the notion. See e.g., Boughton v. McAllister, 576 N.W.2d 94, 96 (Iowa 1998); Aice v. State, 305 S.C. 448, 409 S.E.2d 392, 395 (1991); Home v. State, 607 S.W.2d 556, 563 (Tex.Crim.App.1980) (Roberts, J., concurring).