Appellant was found guilty by a jury in the Circuit Court for Baltimore City of possession of cocaine and related offenses. The offenses were merged, and appellant was sentenced as a second offender to ten years of imprisonment without parole. This appeal followed and presents the following questions:
1. Did the trial court err in denying the appellant’s motion to suppress?
2. Did the State fail to establish that the appellant could be sentenced as a subsequent offender?
We answer “no” to both of these questions.
Facts
On March 21, 1997, officers of the Baltimore City Police Department executed a
Officers handcuffed Sutton and pulled his pants up. They then conducted a “quick cursory search of the Defendant’s person ... for weapons only,” and did not find any weapons at that time. The police recovered $1,760.00 in currency from Sutton’s left pants pocket. 1 Sutton told the police that he had worked for this money. As Officer Chevron continued to search the second floor, he located in the front bedroom “various empty packag[es] used for controlled and dangerous substances, in addition to a small revolver silver in color with black tape around the handle.” In addition, testimony at trial revealed that documents with Sutton’s name thereon and a “one dollar bill folded up that contain[ed] a white powder substance” were also found.
Meanwhile, Sutton was taken downstairs, where he was again searched. Inside the crotch area of Sutton’s pants, Detective Mike Wilhelm discovered a plastic bag containing 36 zip-lock bags of cocaine. 2
During the suppression hearing in this case, Sutton was the only person to testify. He admitted that police seized the $1,760.00 in currency from his pants pocket, and maintained that he worked for and saved that money. Sutton testified that the cocaine was not found on his person, but that the police “showed” him a plastic bag (containing cocaine) and “said this is yours.” Sutton’s suppression motion was denied. A jury subsequently found Sutton guilty of possession of cocaine base with the intent to distribute it and possession of cocaine base.
Discussion
I. Standard of Review
In reviewing the denial of a motion to suppress, this Court looks to the facts adduced at the suppression hearing which are most favorable to the State as the prevailing party.
In Re: Patrick Y,
“When the question is whether a constitutional right ... has been violated, we make our own independent constitutional appraisal. We make the appraisal by reviewing the law and applying it to the peculiar facts of the particular case.”
Riddick,
II. Suppression Hearing
The suppression hearing in this case was appallingly devoid of substance. While we are relatively certain that the hearing involved a motion to suppress, at no point before, during, or at the conclusion of the hearing did either party or the judge identify the specific evidence sought to be suppressed. The scant testimony presented at the hearing established that money and drugs were seized, but the court’s findings and conclusions do not provide this Court with insight as to which evidence the court’s ruling addressed. Thus, we are left to our own devices to discern from a Spartan record whether the denial of the general “motion to suppress” was proper. 3
The parties stipulated that the police had a search warrant when they entered the premises. In addition, Sutton did not contest the propriety of the search of the premises or the seizure of any evidence therein. 4 Thus, the sole question before the court during the suppression hearing was whether the police lawfully searched and seized evidence from Sutton’s person.
Although no mention was made as to what evidence Sutton wanted suppressed, we give him the benefit of the doubt that he wanted the court to suppress all evidence seized by police during the challenged search. Sutton’s testimony established that two types of evidence were seized: money and drugs. The prosecutor provided further details in her questions on cross-examination: $1,760.00 and 36 zip-lock bags containing cocaine were seized. As will become pellucid throughout this opinion, the State presented no warrant or witnesses and introduced no evidence; only the defendant testified at the hearing.
III. Motion to Suppress as to the Cocaine
First, we address the court’s denial of the motion to suppress as to the cocaine. Sutton testified that the cocaine was not his, and was not seized from his person. Specifically, defense counsel asked Sutton whether he was “ever confronted with any drugs” during the encounter with police. Sutton responded that “one officer like just came out of his pocket with some — with a plastic bag and showed [it] to me and said this is yours. I said, no, that’s not mine’s, and before I could say that, he banged me in my mouth----” The state presented no witnesses or evidence to contradict Sutton.
5
Therefore, the only testimony
IV. Motion to Suppress as to the Money
Next, we address the court’s denial of the motion to suppress as to the money discovered on Sutton’s person. We will defer to the court’s findings of fact unless clearly erroneous. At the conclusion of the suppression hearing, the court held:
Well, I believe that under the circumstances, the police had the right to enter the bathroom to find out whether CDS was being destroyed and upon finding someone there, to search them.
Now, I don’t have any evidence before me that they found anything when they searched him, because the only evidence I have before me is your client’s testimony that they didn’t find anything. I’m presuming that the testimony of the State’s witnesses will be to the contrary. But, under those circumstances, I’m not inclined to grant the motion. The motion is denied.
The court did recognize that “the only evidence” it had before it was Sutton’s testimony. The court’s only factual finding, that there was no evidence before it that the police “found anything when they searched” Sutton, was clearly erroneous, however, as to the money. Indeed, the only evidence before the court at the hearing, which came from the defendant himself, established just the opposite. Sutton admitted that the police found and seized money ($1,760.00) from his pants pocket, which he maintained was the only evidence the police discovered and/or seized from his person as a result of conducting the search. Accordingly, we will not defer to the trial court’s erroneous factual finding.
We are thus left to consider the legal arguments made by counsel regarding the validity of the search warrant. Because the question here is whether Sutton’s constitutional rights were violated, our task is to “make our own independent constitutional appraisal” by “reviewing the law and applying it to the peculiar facts of the particular case.”
Riddick v. State,
On appeal, appellant asserts the opposite argument: the search warrant amounted to a “general warrant,” which is “constitutionally prohibited.” This is in line with the State’s contention at the suppression hearing, that the warrant authorized a search of “any person” found in the premises. 8 It was this directive that the appellant claims, on appeal, to be a general warrant. As we discuss below, general warrants are unconstitutional because they are overly broad and thus violate the Fourth Amendment’s particularity requirement. 9
The starting point for our analysis would ordinarily be to examine the language of the warrant to determine whether it authorized a search of premises only or a search of “any persons and property located in” the premises. Unfortunately, in keeping with the general theme of this case, the warrant was inexplicably not introduced into evidence. Nor was the affidavit for the warrant. Nor was the application for the warrant. Thus, we are asked to reviéw the trial court’s findings with respect to the propriety of a search warrant, which turns on the specific language used, even though we do not know what the warrant said. Clearly, without the ability to review the warrant or even testimony as to its language, such a review is simply impossible.
We will, however, briefly discuss the potential analyses that could have resolved these issues at the suppression hearing to provide guidance for subsequent hearings with similar circum
stances. We note at the outset that regardless of whether appellant contends that the warrant was too broad or too specific, and regardless of whether the money should have been suppressed, we find that any error was harmless beyond a reasonable doubt, as it was merely cumulative evidence in light of the 36 bags of cocaine that were not subject to the suppression motion.
See Dorsey v. State,
A “general” warrant, also referred to as an “open ended” or “all persons
In
Frey v. State,
A general warrant, broadly defined, is one which fails to sufficiently specify the place or person to be searched or the things to be seized, and is illegal since, in effect, it authorizes a random or blanket search in the discretion of the police in violation of the Fourth Amendment to the Federal Constitution, Article 26 of the Maryland Declaration of Rights, and Section 551 of Article 27 of the Maryland Code (1967 Repl.VoL), all of which require that search warrants particularly describe the place to be searched and the things to be seized, so as to prevent the search of one place, or the seizure of one thing, under a warrant authorizing search of another place, or the seizure of another thing.
Id.
at 46,
Maryland recognizes the general invalidity of overly broad search warrants, but has not yet explicitly ruled on the validity of “all persons present” clauses in search warrants. Although several cases in Maryland involve “all persons” clauses in search warrants, those cases do not address the issue presented in this case. Instead, the “all persons” language is qualified by a directive to police to search all persons discovered in the place to be searched
who are participating in criminal activity on the premises. See, e.g., Tucker v. State,
The only Maryland case that is relatively on point is
Haley v. State,
The prevailing view in other jurisdictions is that such warrants are not
per se
unconstitutional so long as there exists a “sufficient nexus among the criminal activity, the place of the activity, and the persons in the place to establish probable cause.”
10
People v. Johnson,
In
State v. DeSimone,
which contains one of the first discussions of this issue, the Supreme Court of New Jersey considered a warrant issued to search a described car and “all persons found therein” for gambling paraphernalia.
[WJith regard to the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general warrant if the individual is thus identified by physical nexus to the on-going criminal event itself.... So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment. The evil of the general warrant is thereby negated. To insist nonetheless that the individual be otherwise described when circumstances will not permit it, would simply deny govern ment a needed power to deal with crime, without advancing the interest the Amendment was meant to serve.
DeSimone,
“Most of the decisions either upholding or striking down particular warrants of the DeSimone variety conform, at least in terms of the result reached, to the analysis of that case.” 2 W. LaFave, Search & Seizure, § 4.5(e) at 547-48. According to LaFave, “[u]nquestionably, the DeSimone rationale is correct.” Id. at 546. LaFave further clarifies the issue as follows:
[T]he question is whether there is sufficient particularity in the probable cause sense, that is, whether the information supplied the magistrate supports the conclusion that it is probable anyone in the described place when the warrant is executed is involved in the criminal activity in such a way as to have evidence thereof on his person. If the evidence tendered to the magistrate supports such a conclusion, then the search-all-persons-present warrant is unobjectionable.
Id. at 547.
Our review of cases in other jurisdictions reveals that courts are more likely to uphold warrants authorizing the search of premises and all persons present when the place to be searched is a
private residence
and when police have probable cause to believe that drug dealing activity is taking place therein.
11
See, e.g., Morton v. Virginia,
Indeed, courts seem to recognize that an “ ‘all persons’ search of a dwelling is far less likely to entrap the innocent than one of a public or semi-public establishment.”
State v. Doyle,
If the warrant in this case was a general warrant, its validity as to the search of Sutton’s person would depend on whether, when the warrant was issued, there was probable cause to believe that all persons present would be connected with the criminal activity. The place to be searched was a private residence; the reason for the search was suspected drug dealing activity. During closing argument at the hearing, the State informed the court that “pre-raid observations” were conducted in this case after “confidential informants ... indicated that this premises was being used to store large amounts of cocaine.” The officer who conducted the surveillance did not testify until trial, at which time he gave a brief account of his observations.
Had the State called a witness or presented evidence at the suppression hearing, the court may have found a sufficient
At the risk of delving even further into this analytical nightmare, we will briefly address appellant’s “other” contention at the suppression hearing, that the search was illegal because the warrant only authorized police to search persons present in the residence “if [in the] execution of this warrant, there are found persons and they are engaged in the commission of a crime.” Again, this argument directly hinges on the language of the warrant, which is not in the record. We note that police officers do not need a warrant to authorize them to arrest persons committing a crime in their presence. If such language was included in the warrant, the question would be whether the police had probable cause to believe that Sutton was committing a crime when they discovered him in the second floor bathroom. At the conclusion of the suppression hearing, the court found that “under the circumstances, the police had the right to enter the bathroom to find out whether CDS was being destroyed and upon finding someone there, to search them.” 14 As we mentioned in the previous analysis, the court appears to have found that there was probable cause to believe Sutton was committing a crime when he was discovered.
Without any testimony from police or any evidence presented by the State, it is somewhat unclear what facts the court was relying on to determine probable cause. At
trial,
Officer Wilard testified about the surveillance he conducted of the residence prior to obtaining the search warrant. In addition, Officer Chevron testified, based on his “training and expertise,” that the response of people in a residence when a search warrant is executed is to “attempt to run,” which produces an “accelerated heart rate, heavy breathing, and profuse sweating.” Upon discovering Sutton in the upstairs bathroom, Officer Chevron observed that Sutton “was sweating profusely, breathing very heavily, and had an extremely rapid heart rate.” Finally, Officer Chevron testified that documents with Sutton’s name thereon were discovered in an upstairs bedroom.
15
Because none of
As we stated at the beginning of our discussion regarding the money seized from Sutton, any error regarding the denial of the motion to suppress the money was harmless in light of the 36 bags of cocaine that were not part of the motion to suppress.
Dorsey,
V Sentencing Appellant as a Subsequent Offender
Appellant’s second argument is that the State failed to establish a proper basis for the imposition of a mandatory sentence. We disagree. 16
At sentencing, the State sought to have Sutton sentenced as a subsequent offender, subject to a mandatory minimum of 10 years imprisonment, pursuant to Article 27, Section 286(c)(1) of the Maryland Code. For a defendant to be sentenced as a subsequent offender, the State must give the defendant notice of its intent to seek the mandatory minimum penalty
17
and, “at sentencing, ‘the burden is on the State to prove, by competent evidence and beyond a reasonable doubt, the existence of all of the statutory conditions precedent for the imposition of enhanced punishment.[’]”
Beverly v. State,
We note first that defense counsel at the hearing did not object to the imposition of the mandatory minimum sentence to the extent ordinarily required to preserve issues for our review. Even though counsel made several incomplete statements to the court that seem to relate to the State’s
burden to produce competent evidence, counsel never finished his statements or completely articulated his objections.
18
We will not speculate as to what
On appeal, appellant' contends that “the State was obligated to produce certified copies of any prior convictions it wished to rely on. The State failed to do this and, therefore, failed to meet its burden of proof.” Caselaw in Maryland does not support this contention. In cases where this Court has “found evidence of a prior conviction beyond a reasonable doubt, the State has substantiated that fact with some documentation or overt omission,” not necessarily certified copies of convictions.
Ford,
In this case, the court ordered and later considered a presentence investigation report. At no time did defense counsel make any “allegations [that] shed any doubt upon the accuracy” of the report.
Hall,
Moreover, in
Beard v. State,
It is not necessary for us to determine conclusively whether defense counsel’s statements amounted to a judicial admission.
21
We find that the unchallenged presentence investigation report was sufficient in itself to sustain the State’s burden of proving appellant’s prior conviction beyond a reasonable doubt. “‘Whenever the statutory requirements are met and the requisite notice given, a trial court must impose
the sentence prescribed in the mandatory sentencing statute; it has no discretion to do otherwise.’ ”
Beverly,
Conclusion
We affirm the court’s denial of the motion to suppress, and affirm the court’s imposition of the mandatory minimum sentence.
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY THE APPELLANT.
Notes
. At trial, Detective Mike Wilhelm testified that he recovered this money from Sutton after Sutton was brought downstairs to the first floor. During the suppression hearing, Sutton testified that the money was recovered from him when police searched him outside of the bathroom on the second floor of the residence. Sutton was the only person to testify at the hearing.
. We are bewildered as to how the police overlooked this evidence when they raised Sutton's pants after discovering him in the bathroom. This seeming impossibility was not raised or explained at the hearing or during trial.
. Although we refer to a "motion to suppress,” we note that such a . motion was never actually made to the court. Defense counsel raised a general objection to the search and seizure warrant, to which the judge responded, "Why don't we, since the hour is late today, you want to knock that out? We can do it by way of a suppression hearing now?” Defense counsel stated: "Okay.” Shortly thereafter, defense counsel advised his client, "You understand, we're having now a motion to suppress, do you understand that?” During closing arguments, neither the State nor defense counsel referred to suppressing evidence; rather, the arguments focused on the propriety of the search and the search warrant. At the conclusion of the hearing, the trial judge stated, "I’m not inclined to grant the motion. The motion is denied.”
. As to the search of the premises, defense counsel conceded prior to the hearing: "[Cjertainly there’s no standing as far as a search and seizure warrant of the house is concerned----” In addition, counsel admitted that ”[t]here is a warrant for the house, my client, I don't believe that he has any standing anyway. He doesn’t live there. And I’ve reviewed it and it looks like there’s probable cause.” At the conclusion of the hearing, counsel stated that "he [the defendant] has standing to object to the search of his person, not the rest of the house, but of him.”
. The court did not make any explicit credibility determinations, presumably because no testimony or other evidence contradicted Sutton. To the extent that the court discredited Sutton by surmising what the State's evidence would have been, had it presented any, we find that such a determination would be an abuse of discretion. (The court stated, "I'm presuming that the testimony of the State’s witnesses will be to the contrary.”) We will assume, however, that the court did not credit and rely on this imaginaxy testimony in denying the motion to suppress.
. On appeal, appellant couches his argument in terms of "the motion to suppress the fruits of the search.” As we have discussed, Sutton’s testimony that the cocaine was not on his person established that the cocaine was not a fruit of the search.
. For the purposes of this appeal, we do not consider whether the cocaine could have been kept out of evidence on other evidentiary grounds at trial.
. Neither the State nor appellant appears to have recognized the significance of this distinction at the hearing. Rather, each casually referred to the language of the warrant during closing argument, apparently oblivious to the fact that the language related by the parties contained crucial differences. Because the arguments raised by counsel were not merely alternative interpretations of the same language, these differences amounted to more than just semantics. We simply note that the parties’ nonchalant recitations of the warrant’s language reveal a difference that could have been dispositive on this issue at the hearing.
. Because appellant did not make a "general warrant” argument below (and instead argued the opposite), the argument does not appear to be preserved for appeal. However, one interpretation of defense counsel’s argument at the hearing is that he was actually reciting the underlying requirements for a general warrant to be valid: that there be probable cause to believe that all persons present in the place to be searched are connected with the criminal activity. If that was the case, appellant’s arguments at the hearing and on appeal are consistent and the general warrant argument is preserved.
We note that this does not appear to be what defense counsel at the hearing was arguing, as he only indicated that the police could arrest, not search, persons committing a crime on the premises (which in any event police do not need a warrant to do). Such an argument has little to do with general warrants, which focus on searches. The probable interpretation of defense counsel's comment is that he failed to raise the "general warrant” issue at all, even though the State's recital of the warrant’s language raised the ultimate "red flag.” Nevertheless, we will address the issue in the interest of completeness.
. Although we undertake a cursory survey of other jurisdictions’ views on the validity of "all persons” warrants, we do not purport to settle the issue for Maryland in this case.
. In
State v. Kinney,
the Supreme Court of Ohio pointed out that "a search for illegal drugs is more likely to support a search of all persons than a search for evidence of many other crimes.”
. Given that defense counsel did not appear to be asserting a "general warrant” argument, as we have discussed, the court’s failure to address that issue is quite understandable.
. We note in passing that "[w]e fail to perceive how the trial judge could pass upon the validity of the search when neither the warrant nor a completed copy was offered into evidence.”
Campofreda v. State,
. The court did not expand on what would have given police the justification to search anyone they found in the bathroom, simply by virtue of “discovering them.” Although
Terry v. Ohio,
. These documents were discovered after police found Sutton in the bathroom and searched his person. Because the documents connect Sutton to the residence, it is possible that their discovery would have given police probable cause to arrest Sutton and search him incident to that arrest. In the alternative, the documents might have allowed the State to justify the initial search on a theory of inevitable discovery, as per
Nix
v.
Williams,
. In a move that can only be described as “the pot calling the kettle black,” appellant boldly asserts that "[a]gain, the State misunderstands the nature of litigation.” As the string of embarrassingly poor tactics in this case should have already revealed, both parties substantially contributed to the spectacle we have generously referred to throughout this opinion as a "suppression hearing.” Even on appeal, appellant cites one case to support his first argument (Ybarra v. Illinois, which as we have already discussed did not address the issue before us in this appeal), and one case to support his second argument, Bowman v. State, which is also quite distinguishable from this case. (In Bowman, the Court had to decide whether evidence of a conviction of robbery under the law of the District of Columbia, standing alone, was sufficient to prove that the conviction was for a crime of violence in Maryland under Article 27, Section 643B of the Maryland Code.)
. After initial confusion, it was established that the State filed timely notice of its intent to seek the mandatory minimum penalty. The timeliness and sufficiency of the notice is not an issue in this appeal.
. When the State informed the court of its intention to seek the mandatory minimum penalty, defense counsel stated, "Your Honor, with respect to the mandatory. I think we contested it. I don’t think the State has come forward with any kind of evidence to prove one way or the other whether — ” Later, defense counsel said, “Your Honor, I think, and I’ve been involved in these before and generally there is a hearing and somebody comes in and testifies about the prior record to prove it’s the same record, and you know, this has been set for months now and nothing — ” Maryland Rule 4-323(c) provides that ”[f]or purposes of review by the trial court or on appeal of any other ruling or order,” a party, at the time the ruling or order is made or sought, must make "known to the court the action that the party desires the court to take or the objection to the action of the court.”
. Even if counsel was requesting that certified copies of Sutton’s convictions be produced by the State, our discussion demonstrates that his implied contention that such documentation was required, in the absence of a challenge to the accuracy of the presentence report, was legally incorrect.
. Appellant argues on appeal that "the defendant made it clear that he did not accept the presentence investigation conclusion as to the predicate conviction.” Appellant consistently refers to defense counsel as "the defense” throughout his brief. We therefore assume that by referring to “the defendant,” appellant refers to Sutton, himself, as he spoke to the court at sentencing. Our review of Sutton’s remarks to the court reveals that he never addressed the predicate convictions. Instead, he protested the jury’s guilty verdict in this case only. Therefore, we find no merit in appellant's contention that Sutton made it clear that he did not accept the presentence investigation conclusion as to the predicate conviction.
. We note that in Hall, the defendant himself read and acknowledged the accuracy of the presentence report. In the case sub judice, defense counsel read and "submitted] on the PSI.” Moreover, defense counsel never challenged the accuracy of the report. The record does not indicate whether Sutton himself read the report, but in his remarks to the court, he raises no concerns about the report or its accuracy. See n.20, supra. We decline to determine whether and to what extent this distinction is significant, as we do not need to find that counsel's statements amounted to a judicial admission to find that the State met its burden.