Ozah v. State

WILLIAM CHINEDU OZAH v. STATE OF MARYLAND

No. 1755

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

November 30, 2018

Circuit Court for St. Mary's County

Case No.: 18-K-15-000093

UNREPORTED

Reed, Friedman, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.

Opinion by Alpert, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant, William Chinedu Ozah, was indicted in the Circuit Court for St. Mary's County and charged with theft of property between $1,000 and $10,000, as well as a related conspiracy count. Prior to jury selection, appellant moved to suppress evidence seized from a residence located in Fort Lauderdale, Florida, pursuant to search warrants issued in Broward County, Florida. After that motion was denied, appellant was tried by a jury and convicted of theft of property between $1,000 and $10,000. Appellant was sentenced to ten years, with all but five years suspended, to be followed by five years' supervised probation. He was granted a belated appeal following postconviction proceedings, and now asks:

Did the trial court err in denying the motion to suppress evidence?

For the following reasons, we shall affirm.

BACKGROUND

On April 15, 2014, Eric Faughnan had his Louis Vuitton designer briefcase, worth approximately $3,000, stolen from him while he was watching a movie at the AMC Theaters in Lexington Park, Maryland. Faughnan, the owner of a restaurant on nearby Solomons Island, testified that the briefcase contained his tax information, as well as a payroll report for his business, his passport, checkbook, wallet, driver's license, keys, and approximately $550 in petty cash. Faughnan explained that he saw a person, who he was unable to identify, grab his briefcase towards the end of the movie and then run out an emergency exit. Faughnan reported the theft to the police, as well as the office at the theater, where he encountered two employees on duty, one of whom was appellant.

Approximately seven weeks later, on or around June 7, 2014, Faughnan's briefcase and other effects were recovered following the execution of Florida search warrants for a residence in Dania Beach, Florida. Appellant was present in the residence when the briefcase was recovered. At the time of the search, the briefcase also contained prescription medications in appellant's name.

The issue presented concerns the legality of those search warrants under the Fourth Amendment. The first search warrant sets forth the following assertion of probable cause:

On 06/07/2014 at approximately 1943 Hrs, The Broward Sheriff's Office received several calls advising that four gunshots had been heard coming from the rear of 214 SW 1 Ave, Dania Beach, Fl. Contact was made with the neighbor on the North side of the property who confirmed that four gunshots had been heard from the rear of 214 SW 1 Ave. The neighbor further advised that she observed a black male with dreads locks in the back yard of the residence where the gunshots were heard.

Shortly after road patrol deputies arrived at the location and a perimeter was established around 214 SW 1 Ave. 214 SW 1 Ave which is a single story residence which has been divided into two separate apartments. Entry into the first apartment is made on the East side of the residence and entry into the target apartment is made from the West side of the residence which would be facing the backyard.

Dep Robertson was able to sec a black male with dread locks, no shirt and red shorts walk out of the target apartment briefly before entering back in. Dep Robertson also observed several subjects walking around within the apartment through the Northwest window. The residents of the apartment were called out through the loud speaker but no one exited the apartment. After approximately 20 minutes the subjects began to exit the apartment and were taken into custody. The three subjects were identified as William C Ozah 08/04/93, Reginald M Ozah 11/21/90, and Kadeja Gunther 03/01/94.

Members of the SWAT team arrived on scene and cleared the residence for safety. No one else was found within the apartment.

In plain view within the apartment a make shift bong with suspect Cannabis residue was found in the south bedroom of the target apartment.

An ammunition box was also in plain view in the living room. There was also an odor of Cannabis through out the apartment.

While canvassing the back yard of the residence, one casing from a 9 MM was found outside of the front door to the target apartment in the backyard. There was a 5 gallon plastic container on top of a garbage container in the backyard. The 5 gallon plastic container had what appeared to be three bullet entry and exit holes. The garbage container also had one entry and exit hole. The holes found on the containers were consistent with gun fire.

One of the projectiles appeared to have traveled through one of the containers and exited before hitting a residence located at 238 SW 1 Ave, Dania Beach, Fl. The trajectory of the projectile is consistent with the location of the plastic container leading in the direction of where the house was struck. Contact was made with home owner who stated the damage of the residence was not there previously. It should be noted that there is a park between the two properties and it appeared that the bullet traveled through the park before hitting the property located at 238 SW 1 Ave.

Contact was also made with Brandon J Richard 09/13/93 who showed up on scene shortly after. Richard gave consent to search the apartment and advised that Reginald Ozah also resides at the residence and they are roommates. Richard further advised that William Ozah and his girlfriend Kadeja Gunther have been also residing in the apartment for approximately one month. Richard stated that he does not own a handgun and that Reginald Ozah has been his roommate for approximately five months and he has never seen him with a handgun or ammunition.

A teletype check of William Ozah revealed he is a convicted felon. He was arrested for Grand Larceny out of Virginia (Case # 784581, 760CR13F0035100) and convicted on 09/17/2013.

This affiant is a duly appointed Deputy Sheriff for Broward County Florida. This affiant has served in such a capacity since June 22, 2007. This affiant is currently assigned to the District 2 Dania Beach, Crime Suppression Team. All of this time this affiant has been responsible for road patrol duties, and street level drug enforcement.

Based on the aforementioned facts your affiant has probable cause to believe that the laws of the Slate of Florida (FSS. 893.13, 790.) are being violated within the structure to be searched.

The search warrant was signed by a judge of the Broward County Circuit Court. The return for this warrant indicates that police seized: cannabis, drug paraphernalia, computers, cellphones, iPads, thumb drives, cameras, several state issued ID's, one passport, counterfeit money and money. Following this, the police prepared a second search warrant, which, in addition to the aforementioned description of probable cause, added the following:

On 06/08/2014 the search warrant was approved for the target residency by Honorable Judge Levenson for narcotics and a firearm related investigation. The search warrant was executed at approximately 0400 Hrs. While conducting a search of the residence numerous cut and uncut counterfeit bills printed on business style paper where [sic] observed along with several state issued identification cards from different states, one passport, one credit card reader, a magnetic strip in-ender, several computers, several cellular telephones and I-pads. The items listed above appear to be used in relation to identity theft and the making of counterfeit bills. Further permission from the court to continue our search of the target residence in order to obtain further evidence relating to counterfeiting and identify theft relation to fraudulent practices. The Secret Service has been notified and will participate in the search.

Based on the aforementioned facts your affiant has probable cause to believe that the laws of the State of Florida (FSS. 817.) are being violated within the structure to be searched.

The warrants were the sole evidence presented at the suppression hearing in St. Mary's County Circuit Court. At that hearing, appellant argued that fruits of the search needed to be suppressed because the Florida police first made a warrantless entry into the apartment in question, observed contraband in plain view, and then, used that information to apply for a search warrant. Appellant argued there was no exigency to authorize the initial entry prior to obtaining the search warrant, and that, absent the observations ofcontraband inside the residence, there was no probable cause authorizing the search warrant.

In an ongoing discussion with the motions court, the State responded that there was a substantial basis to uphold the search warrant. The court replied, "But you have gone to step two, and you must address step one: that they had no business being in there gathering the information for the warrant. If they went in illegally and saw things where they didn't have a right to be, doesn't that put the warrant in jeopardy?" The State answered that there were exigent circumstances, including that there were reports of shots fired at the residence, there was a delay before some individuals left the residence, "and not knowing whether there were any victims or additional suspects in the home led to a need to cursory search the home for other individuals before securing the premises." Upon further questioning by the motions court, the State also asserted that another reason justifying the entry was seeing someone matching the description of the shooter in the subject apartment.¹

The State continued that,...