Brown v. State

835 A.2d 1208, 378 Md. 355, 2003 Md. LEXIS 758

Opinions

WILNER, J.

Based largely on evidence found by police officers in his motel room, appellant was convicted in the Circuit Court for Harford County of possession with intent to distribute cocaine and sentenced to prison for ten years, all but five years suspended. His sole complaint in this appeal is that his consent to allow the police officers to enter and search the motel room was involuntary and that, as a result, the contraband they discovered should have been suppressed as evidence. We find no merit in that complaint and shall affirm.

BACKGROUND

With two exceptions, one of which appellant claims is critical, this case mirrors what occurred in Scott v. State, 366 Md. 121, 782 A.2d 862 (2001). We dealt there, for the first time, with a police technique known as “knock and talk.” That technique, we noted, had become a popular one with police agencies, particularly in drug enforcement activities. We described the procedure as follows:

“[P]olice officers, lacking a warrant or other legal justification for entering or searching a dwelling place, approach the dwelling, knock on the door, identify themselves as law enforcement officers, request entry in order to ask questions concerning unlawful activity in the area, and, upon entry, eventually ask permission to search the premises. Permission is often given, and, if the police then find contraband or other evidence of illegal activity, the issue is raised of whether the procedure has in some way contravened the occupant’s Fourth Amendment rights.”

Id. at 129, 782 A.2d at 867.

We made three holdings in Scott. The knock on the motel door in that case occurred at night — around 11:37 p.m. That is one of the distinctions between Scott and this case. Scott argued that the very act of the police knocking on one’s door late at night, without probable cause or even reasonable articulable suspicion, constitutes a “seizure” within the meaning of the Fourth Amendment. Based on the Supreme Court’s declaration in Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991) that “a seizure does not occur simply because a police officer approaches an individual and asks a few questions,” and our own conclusion in Ferris v. State, 355 Md. 356, 374-75, 735 A.2d 491, 500-01 (1999) that “[t]his is so even if the police lack any suspicion, reasonable or otherwise, that an individual has committed a crime or is involved in criminal activity,” and in conformance with the view of most of the courts that had addressed the “knock and talk” issue in the context of the Fourth Amendment, we rejected that claim and held that a nighttime “knock and talk” does not constitute a seizure.

Scott also contended that, even if a “knock and talk” operation does not constitute a seizure, it necessarily vitiates any actual consent given to enter and search the room, at least in the absence of affirmative advice by the police that the occupant may refuse entry, may refuse consent to a search, and may terminate any consent that is given at any time. Consistently with the prevailing view of other courts that had addressed the issue in the context of the Fourth Amendment, we rejected that argument as well. Our second holding was that the proper test for determining the validity of any consent given to enter and search was that stated by the Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) and later confirmed in Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996):

“[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”

Scott v. State, at 141-42, 782 A.2d at 874, quoting from Schneckloth v. Bustamonte, 412 U.S. at 248-49, 93 S.Ct. at 2059, 36 L.Ed.2d at 875 (emphasis added in Scott).

Finally, applying the Schneckloth test to the facts in Scott, we affirmed the trial court’s ruling that the consent given was valid.

In this case, Maryland State Trooper George Wooden, who had been assigned to work with a Drug Enforcement Administration interdiction group, received anonymous information on January 31, 2001, about possible drug activity in Room 109 at the Super Eight Motel in Aberdeen. There is no claim by the State that the quality or quantity of that information rose to the level of probable cause or even reasonable articulable suspicion. At around 10:00 that morning, accompanied by two other officers, Wooden went to the motel and knocked on the door to Room 109. When appellant, one of the two occupants of the room, asked who was there, Wooden responded “maintenance” and asked to come in to check the thermostat. Appellant opened the door. As soon as the door was opened, Wooden, who was in plain clothes, displayed his police badge, identified himself as a police officer, and asked if he could come in and talk with appellant. Wooden also said that, upon the opening of the door, he detected the odor of burnt marijuana, but he did not enter the room based on that information. Appellant orally agreed to let Wooden in and backed away from the door in order to allow Wooden and one of his colleagues to enter. The third officer remained outside.

As Wooden entered, the smell of marijuana became stronger. The second occupant was in one of the two beds in the room, and appellant proceeded to lie down on the other one. Wooden observed a burnt marijuana cigarette sitting in an ashtray on the night table between the two beds. Appellant grabbed the cigarette and put it in his mouth, as if to swallow it. Wooden said that he had already seen the cigarette, whereupon appellant took it out of his mouth and placed it back in the ashtray. When appellant acknowledged that he had rented the room, Wooden asked if the officers could search the room and, according to Wooden, appellant consented. Wooden said that appellant was cooperative and that no force or coercion was used. Under a shirt lying on the dresser, Wooden found a digital scale with white powder on it, and in a dresser drawer he discovered a cache of cocaine. In the night table the police found $926 in cash. Upon discovery of the cocaine, appellant and his roommate were placed under arrest.

This information came out at a hearing on appellant’s motion to suppress the evidence found in the motel room. Appellant also testified at that hearing. He acknowledged that Wooden had identified himself as a police officer before asking permission to enter, but appellant expressed the belief that he had no right to prevent the officers from entering, so, to avoid a confrontation, he backed away from the door. He said that he felt “apprehended” once Wooden observed the marijuana cigarette in the ashtray, which was after he had entered the room.

The suppression hearing occurred in September, 2001, before our opinion in Scott was filed. Nonetheless, declaring the testimony of Trooper Wooden to be more credible than that of appellant, the court found that there was “an express consent to enter, an express consent to search” and, on that basis, denied the motion to suppress.

Appellant does not ask us to overrule Scott. He focuses, instead, on the deception employed by Trooper Wooden that induced him to open the door, and, borrowing language from Perkins v. State, 83 Md.App. 341, 350, 574 A.2d 356, 360 (1990), argues that “[t]he use of deception to obtain the opening of a door erodes the consensual quality of that opening.”

DISCUSSION

As appellant relies heavily on Perkins, we shall begin, and end, with that case. Around 1:00 in the morning, Perkins and a number of friends checked into a motel. The desk clerk apparently called the police, and, when an officer responded, she said that she thought that Perkins might be “wanted,” because another officer had been inquiring about him a few days earlier.¹ A computer check revealed no outstanding warrants. Concerned that there might be a recently issued warrant not yet in the computer, however, the officer decided to investigate. He obtained a passkey for the room and, at about 2:30 a.m., went to the room with another officer. They listened at the door for a few minutes and heard only two males talking quietly. The officer banged on the door with his metal flashlight, and, when someone inside asked who was present, he announced “Howard County Police, open the door.” The Court of Special Appeals quite correctly viewed that as a command, not a request, and in response to that command, Perkins opened the door.

There was some disagreement as what occurred next. Perkins said that, when he opened the door, the officer asked for identification and that, when he turned to get it, the officer walked into the room, uninvited. The officer’s police report corroborated that statement — “[a] black male opened the door and this officer entered telling the subject he was there to investigate a noise complaint.” The officer’s testimony was different. He acknowledged telling Perkins that he was there to investigate a noise complaint but said that he merely asked if he could enter and that Perkins consented. The inconsistent statement in the initial report, coupled with the fact that the officer had obtained a passkey, led the Court of Special Appeals to question the officer’s testimony that any consent had been requested, but, when added to the affirmative misstatement about wanting to discuss a non-existent noise complaint, the court concluded that, if consent had been given, it was not knowing and voluntary. Noting cases holding that a warrantless doorway arrest was invalid when the police used deception to cause the arrestee to open the door, the court held that, “[b]y parity of reasoning, the use of deception to obtain entry into a residence following the opening of a door would also erode the consensual quality of that entry.” Id. at 350, 574 A.2d at 360 (emphasis added).

The correctness of the decision in Perkins is not before us. We would concur, however, with the notion that, if the police, lacking any lawful basis to enter a residence without consent, obtain consent to enter based on a material deception or misrepresentation, that may, indeed, “erode the consensual quality of that entry.” It does not, of itself, preclude a finding that the consent is valid, but simply is a factor, albeit an important one, that must be considered in determining the reality and voluntariness of the consent. The ultimate test remains that enunciated in Schneckloth and confirmed in Ohio v. Robinette—the totality of the circumstances.

Appellant seems to believe that the use of deception or ruses by the police to obtain access to a residential area is something new, startling, and untested. That is not the case. The Supreme Court has long and consistently recognized that deception is a proper tool in crime detection, and that its use to obtain entry into Fourth Amendment-protected areas for the purpose of observation does not necessarily contravene any Fourth Amendment rights. In Sorrells v. United States, 287 U.S. 435, 441-42, 53 S.Ct. 210, 212, 77 L.Ed. 413, 416-17 (1932), the Court held that “[ajrtifiee and stratagem may be employed to catch those engaged in criminal enterprises” and that “[t]he appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law.”

In Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), rehearing denied, 386 U.S. 939, 87 S.Ct. 951, 17 L.Ed.2d 811 (1967), the Court, in an Opinion by Chief Justice Warren, found no Fourth Amendment violation in an undercover agent gaining entry into defendant’s home by misrepresenting himself as a drug buyer and actually making a controlled purchase of drugs. Citing Sorrells, the Court recognized that, “in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents.” Id. 385 U.S. at 208-09, 87 S.Ct. at 426, 17 L.Ed.2d at 315. See United States v. White, 401 U.S. 745, 749-50, 91 S.Ct. 1122, 1125, 28 L.Ed.2d 453, 457 (1971), rehearing denied, 402 U.S. 990, 91 S.Ct. 1643, 29 L.Ed.2d 156 (1971) (confirming holding of Lewis that no warrant is required when Government sends to defendant’s home a secret agent who conceals his identity and makes purchase of narcotics from accused). Compare Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (finding mere acquiescence, rather than consent, where the police gained entry by announcing that they had a search warrant).

Most of the Federal and State courts that have addressed the issue in the context of the Fourth Amendment have refused to suppress evidence seen in plain view or discovered pursuant to a consensual search after officers gained entry into motel rooms or other residential areas by various modes of deception — pretending to be persons other than police officers or concealing their purpose. See United States v. Glassel, 488 F.2d 143, 145 (9th Cir.1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974):

“[A]n officer may legitimately obtain an invitation into a house by misrepresenting his identity ... If he is invited inside ... he does not need a warrant, and, quite obviously, he does not need to announce his authority and purpose. Once inside the house, he cannot exceed the scope of his invitation by ransacking the house generally, but he may seize anything in plain view.”

See also United States v. Wright, 641 F.2d 602 (8th Cir.1981), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981) (no Fourth Amendment violation in undercover officers knocking on motel room door, pretending to seek assistance in fixing car trouble, seeing suspected contraband when door was opened, and obtaining warrant based on that observation); United States v. Garcia, 997 F.2d 1273 (9th Cir.1993); United States v. Raines, 536 F.2d 796 (8th Cir.1976), cert. denied, 429 , 97 S.Ct. 327, 50 L.Ed.2d 293 (1976); United States v. Bullock, 590 F.2d 117 (5th Cir.1979); United States v. Guidry, 534 F.2d 1220 (6th Cir.1976); United States v. Ressler, 536 F.2d 208 (7th Cir.1976); United States v. Scherer, 673 F.2d 176 (7th Cir.1982), cert. denied, 457 U.S. 1120, 102 S.Ct. 2935, 73 L.Ed.2d 1334 (1982); United States v. Miglietta, 507 F.Supp. 353 (M.D.Fla.1980); Guidry v. State, 671 P.2d 1277 (Alaska 1983); State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982); People v. Ewen, 194 Ill.App.3d 404, 141 Ill.Dec. 433, 551 N.E.2d 426 (1990), cert. denied, 498 U.S. 854, 111 S.Ct. 149, 112 L.Ed.2d 115 (1990); State v. McCommons, 398 So.2d 1100 (La.1981); State v. Carey, 417 A.2d 979 (Me.1980); People v. Catania, 427 Mich. 447, 398 N.W.2d 343 (1986); People v. Taormina, 130 Mich.App. 73, 343 N.W.2d 236 (1983); State v. Anglada, 144 N.J.Super. 358, 365 A.2d 720 (1976); Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); State v. Hastings, 119 Wash.2d 229, 830 P.2d 658 (1992). See, in general, Officer’s Ruse to Gain Entry as Affecting Admissibility of Plain—View Evidence—Modern Cases, 47 A.L.R.4th 425 (1986).

Some State courts have limited the use of deception to gain actual entry into areas protected by the Fourth Amendment to those situations in which the police had a previous and reasonable belief that criminal activity was afoot, sometimes invoking their own State law to justify that limitation. See State v. Ahart, 324 N.W.2d 317 (Iowa 1982); State v. Hashman, 46 Wash.App. 211, 729 P.2d 651 (1986); State v. Johnson, 253 Kan. 356, 856 P.2d 134 (1993); People v. Ramirez, 193 Misc.2d 181, 747 N.Y.S.2d 711 (Sup.Ct.N.Y.Co.2002). See also United States v. Montoya, 760 F.Supp. 37 (E.D.N.Y.1991). Placing that kind of generic limitation or pre-condition on the use of deception may or may not be good public policy, but it is inconsistent with the holding in Schneckloth that the validity, under the Fourth Amendment, of a search or seizure based on consent is to be determined by looking at all of the circumstances bearing on the consent. Indeed, the Washington Supreme Court later disavowed the ruling of the intermediate appellate court in Hashman as “an unnecessary limitation on undercover police investigations” and as “serv[ing] no valid purpose.” State v. Hastings, supra, 830 P.2d at 660.

As we indicated, we think that the Court of Special Appeals was correct in Perkins in noting that, when deception or ruse directly induces consent for the police to enter an area in which the defendant has a reasonable expectation of privacy, the “quality” of that consent may be regarded as “eroded”— not necessarily destroyed or eliminated, but eroded. That is not an issue here, however. The principal, and decisive, distinction between this case and Perkins lies in the fact that the deception practiced by Trooper Wooden in this case— representing himself as a maintenance person desirous of checking the thermostat — induced nothing more than the opening of the door. Appellant concededly knew before he allowed Wooden and his colleague to enter that they were police officers. Wooden asked for permission to enter and talk; after having identified himself prior to entry, he never misrepresented his purpose for requesting permission to enter. The entry that led to the observation in plain view of the marijuana cigarette and, upon appellant’s ensuing consent, discovery of the scale, the cocaine, and the cash was not induced by deception, either as to Wooden’s identity or purpose. The earlier deception that induced appellant to open the door had no erosive effect on the consent to enter or the consent to search.

JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.

RAKER, J., concurs.

BELL, C.J. and ELDRIDGE, J., dissent.

1

. It appears that the clerk had been told by another clerk that Perkins was wanted and to call the police if he appeared. See appellant’s brief filed in S.T.1989, No. 1541, at 2.