Archie v. State

867 A.2d 1120

161 Md. App. 226

Fleance Tyrone ARCHIE v. STATE of Maryland.

No. 2497, September Term, 2002.

Court of Special Appeals of Maryland.

February 14, 2005.

Stephen Sacks, Baltimore, for appellant.

Rachel Marblestone Kamins (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel MURPHY, C.J., SALMON, THEODORE G. BLOOM, (Retired, specially assigned), JJ.

MURPHY, C.J.

This appeal from the Circuit Court for Washington County presents the question of whether officers serving a search warrant violated the "knock and announce" rule because, after announcing their purpose and authority, they entered before they were denied admittance by the lessee of the apartment described in the warrant.¹ A Washington County jury (the Honorable Fred C. Wright, III, presiding) convicted Fleance Tyrone Archie, appellant, of possession of marijuana and possession of cocaine.² appellant now presents two questions for our review:

I. DID THE COURT ERR IN REFUSING TO SUPPRESS THE EVIDENCE SEIZED AS A RESULT OF A VIOLATION OF THE KNOCK AND ANNOUNCE REQUIREMENT IN THE EXECUTION OF THE SEARCH WARRANT?

II. WAS THE EVIDENCE LEGALLY INSUFFICIENT TO SUSTAIN THE CONVICTIONS?

For the reasons that follow, we answer "no" to each question, and therefore affirm the judgments of the circuit court.

Factual Background

On May 8, 2002, agents of the Washington County Narcotics Task Force and the Hagerstown Police Department executed a Search and Seizure Warrant at 213 North Mulberry Street, apartment 1F, Hagerstown, Washington County, Maryland.³ During the pre-raid briefing, Agent Frank Toston told the members of the entry team that they would be executing "a knock and announce search warrant." The officers prepared to execute the warrant by taking various positions around the apartment building in which appellant's apartment was located. They had been conducting surveillance for approximately an hour and a half when they observed appellant enter the building. Shortly thereafter, the officers executed the warrant.

The entry team consisted of approximately eight officers, all in full SWAT uniforms, red vests and helmets. A ram was used to open the front door of appellant's apartment. At the suppression hearing, Sergeant Mark Holtzman, who was "on the street within eye shot of the front of the residence" when entry was made into the apartment, testified as follows:

[I] could hear the SWAT Team go up. It's a very small ... the way the door opens up to the front of the house. It opens up and the defendant's door is just on the right and then there's another door that goes upstairs. So it's very tight in there. So that's why I stayed out on the street and I heard one of the team members do the knock and announce. I could hear the door pounding. Police. Search warrant.... [This] is standard protocol for them. It was a knock and announce warrant. It was not a no knock warrant[.]

* * *

[T]here was a very distinct break in between those patterns of events.... It was the pounding. I heard, "Police. Search warrant. Open the door. Open the door." Nothing happened. And then I heard the ram pounding on the door and it took several hits to get through with the ram.

When the officers entered, they found appellant lying on the floor with most of his body in the bathroom and his legs out in the hallway. Appellant's body was directly in front of the toilet and his arm was wet "up to his elbow." A snack bag was on the floor next to him.⁴ A juvenile female was seated in the living room. Appellant was brought into the living room while the search was conducted.

Numerous plastic bags of marijuana were found on a chair in the kitchen. A burnt marijuana cigarette was found in an ashtray on the kitchen counter. A marijuana cigar and marijuana were found in a trash can also located in the kitchen. Bags of marijuana were also found in the stove. On the counter were a box cutter knife, a plastic bag, and a digital scale, all containing cocaine residue. Near the oven in the kitchen was a Diaper Genie, inside of which were four gallon size zip-lock baggies of marijuana. The officers also seized a potato chip container with a false bottom and a secret compartment containing cocaine residue.

On the kitchen counter was correspondence addressed to "Ayo Flea." Officer Hose testified that he personally knew appellant and knew his nickname to be "Flea" or "Flea Dog." April Anderson testified that in April or May, she came to this residence, appellant's apartment, to "get some coke." Based on the personal effects found during the search, there appeared to be no one other than the appellant residing in the apartment.

Discussion

I.

Appellant argues that his motion to suppress should have been granted on the ground that the police failed to comply with the requirements of the knock and announce rule.⁵ According to appellant, the police were required to wait longer than they waited before making a forced entry into his residence.⁶ We reject that argument. The "knock and announce" rule does not require the officers executing a search warrant to (1) knock and announce their purpose and authority, and (2) delay entry until the persons inside the premises to be searched have ample opportunity to get rid of any and all incriminating evidence. In the case at bar, (1) the premises to be searched was a one bedroom apartment, and (2) the warrant authorized the officers to search the apartment for "controlled dangerous substances [and] related paraphernalia." Under these circumstances, the timing of the officers' entry did not violate appellant's Fourth Amendment rights.

The Fourth Amendment to the Constitution safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. The Fourth Amendment requires that searches be carried out in a "reasonable" manner. United States v. Banks, 540, U.S. 31, 35-36, 124 S.Ct. 521, 525, 157 L.Ed.2d 343 (2003).

In evaluating reasonableness,⁷ courts consider "whether law enforcement officers announce[ ] their presence and authority prior to entering" a dwelling. Wilson v. Arkansas, 514 U.S. 927, 931, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). The "knock and announce" rule, therefore, "forms a part of the reasonableness inquiry under the Fourth Amendment." Id. at 929, 115 S.Ct. 1914. "It is well settled in Maryland, and long has been so, that a police officer executing a search warrant `must give proper notice of his purpose and authority and be denied admittance before he can use force to break and enter' the premises to be searched." State v. Lee, 374 Md. 275, 283, 821 A.2d 922 (2003) (quoting Henson v. State, 236 Md. 518, 521-22, 204 A.2d 516 (1964), overruled on other grounds, Wynn v. State, 351 Md. 307, 315 n. 4, 718 A.2d 588 (1998)). The reasons behind this rule are threefold: (1) "to prevent sudden, unannounced invasions of the privacy of citizens," (2) "to prevent the needless destruction of property," and (3) "to safeguard the officer who might otherwise be killed by a `fearful householder' unaware of the officer's identity or purpose." See Irma S. Raker, The New "No Knock" Provision and its Effect on the Authority of the Police to Break and Enter, 20 AM. U.L.REV. 467, 469 (1970-71); see also Lee, 374 Md. at 284 n. 8, 821 A.2d 922. Under the common law, compliance with the knock and announce rule required two separate but related actions: First, the officers serving the warrant were required to knock and announce their presence and purpose; second, forcible entry was prohibited until the request was refused. The knock and announce rule is not immune from exceptions, however. The Fourth Amendment contains a "flexible" requirement of reasonableness and does not "mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Wilson, 514 U.S. at 934,115 S.Ct. 1914. For example, a no-knock entry is justified when police have "a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997).⁸ The "standards for requiring or dispensing with a knock and announcement" are the same as those used to determine "when officers can legitimately enter after knocking." Banks, 124 S.Ct. at 524.

Nowhere in the Wilson opinion does the Court expressly state that an officer has an obligation to wait until admittance has been refused before force can be used to enter the premises. In Let Sleeping Dogs Lie: Why the Supreme Court Should Leave Fourth Amendment History Unabridged, 82 B.U.L.REV. 895, 904-05 (2002)(footnote omitted), written by Tracey Macklin, the author points out that, at key points in the Wilson opinion, Justice Thomas omits the portion of the rule prohibiting forcible entry until the request is refused.⁹ According to the author, "[t]his is not a trivial omission." Id. at 905, 115 S.Ct. 1914.

The appellate courts of this State have held that, when police officers fear for their safety or believe that evidence will be destroyed if they warn of their presence, they need not knock and announce.¹⁰Wynn v. State, 117 Md.App. 133, 167, 699 A.2d 512 (1997), rev'd on other grounds,351 Md. 307, 718 A.2d 588 (1998).¹¹ Likewise, this Court has ordered suppression of evidence whenever the suspicion of exigency was insufficient to excuse a failure to comply with the "knock and announce" requirement. See Lee v. State, 139 Md.App. 79, 774 A.2d 1183 (2001),aff'd, State v. Lee, 374 Md. 275, 821 A.2d 922 (2003); Carroll v. State, 149 Md.App. 598, 612-13, 817 A.2d 927 (2003),rev'd, State v. Carroll, 383 Md. 438, 859 A.2d 1138 (2004).¹²

When officers equipped with a search warrant do knock and announce, courts have found the existence of a refusal of...