Snowden v. State, 2382

KENNETH EUGENE SNOWDEN v. STATE OF MARYLAND

No. 2382

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

February 22, 2017

UNREPORTED

Meredith, Leahy, Beachley, JJ.

Opinion by Beachley, 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.

A jury in the Circuit Court for Prince George's County convicted Kenneth Eugene Snowden, appellant, of two counts of second-degree burglary, two counts of conspiracy to commit second-degree burglary, one count of unlawful taking of a motor vehicle, one count of unauthorized removal of a motor vehicle, and one count of malicious destruction of property having a value of over five hundred dollars. The trial court sentenced Snowden to a term of fifteen years of imprisonment for the first count of second-degree burglary, a consecutive term of ten years for the second count of second-degree burglary, and a consecutive term of five years for unlawful taking of a motor vehicle. The remaining convictions merged for sentencing purposes. In this appeal, Snowden presents the following questions for our review:

1) Did the circuit court err in denying Snowden's motion to suppress, when a Howard County Circuit Court Judge issued a search warrant that was executed in Prince George's County and Virginia?

2) Did the circuit court err in denying Snowden's Batson challenge?

3) Did the circuit court abuse its discretion by denying Snowden's motion for mistrial after three separate witnesses impermissibly referred to prior bad acts similar to the ones charged in this case?

For the reasons set forth below, we shall affirm.

FACTUAL BACKGROUND

This appeal arises out of the burglary of a warehouse located at 9212 Hampton Overlook in the Capital Heights area of Prince George's County. The Alkaline Water Company ("Alkaline") was a tenant in the warehouse. Alkaline's warehouse had a loading bay door for entry and shared an interior wall with a warehouse for the Bella Furniture Company ("Bella").

On March 22, 2014, at approximately 11:30 p.m., Kenneth Snowden ("Snowden"), Robert Caldwell ("Caldwell"), and Malik Salam ("Salam") drove a blue Toyota Camry from a gas station in Alexandria, Virginia to the Hampton Overlook warehouse. According to Salam, who testified for the State, the three had discussed burglarizing the Bella Furniture warehouse, believing it to contain "high dollar furniture." After arriving at the warehouse, the men stole a box truck to use in the burglary. Snowden and Salam drove the box truck to the warehouse and backed it into Alkaline's loading bay. Meanwhile, Caldwell parked the blue Toyota Camry at a nearby automobile dealership to serve as a lookout.

The Howard County Police Department had been investigating Snowden and Caldwell for some time. Pursuant to a search warrant, a global positioning system ("GPS") device was affixed to the blue Toyota Camry known to be used by Caldwell and Snowden. The police also obtained a warrant to track the men through one of their cell phones. The GPS and cell phone tracking information led the Howard County police to the Hampton Overlook warehouse in Prince George's County. Posing as utility workers near the warehouse, Howard County Police Detective Joseph Pugliese and Sergeant Dwayne Pierce observed Caldwell driving the blue Toyota Camry. They also observed a box truck backing into a loading bay of the warehouse.

Meanwhile, at the loading bay, Snowden cut a hole in the door to Alkaline's warehouse. Once inside, Snowden drove a forklift through the interior wall shared with Bella's warehouse, leaving a hole large enough for the men and the furniture to fit through. A security alarm went off and Salam dismantled it using a hammer he found in thewarehouse. At that point, Salam and Snowden decided to leave the warehouse and wait with Caldwell in the blue Toyota to see if anyone would respond to the alarm. After waiting for about a half hour, Salam and Snowden returned to the warehouse.

The two men proceeded to remove furniture from Bella's warehouse through the demolished wall and load it onto or near the box truck. At approximately 6:10 a.m., marked and unmarked police vehicles moved into the area around the warehouse. At some point, Snowden received a phone call from Caldwell, but the call was disconnected. According to Salam, when Snowden returned the call, someone other than Caldwell answered the phone. Snowden told Salam, "let's get up out of here." The two men ran out of the bay door and behind a nearby fence where they encountered Detective Pugliese with his gun drawn. Salam tried to run away, but slipped, and was arrested. Snowden ran into a wooded area toward a creek.

A short time later, Howard County Police Detective Jason Noble conducted a traffic stop of a blue Toyota Camry occupied by Caldwell. Caldwell was arrested and taken into custody by Prince George's County police officers. Detective Noble stayed in the area where Caldwell had been stopped and looked for other suspects. He later observed Howard County Police Officer Deshawn Luckey make a traffic stop involving a white Toyota Camry. The driver of that vehicle was a woman, later identified as Snowden's wife. Snowden was in the front passenger seat and was taken into custody.

We shall include additional facts as necessary in our discussion of the issues presented.

I.

Snowden contends that the circuit court erred in denying his motion to suppress evidence gathered as a result of a search warrant issued by the Circuit Court for Howard County that allowed for the installation of a GPS tracking device on the blue Toyota Camry used in the burglary. Snowden argues that because the search was conducted outside the jurisdictional authority of the issuing court, specifically in Virginia and Prince George's County, all information obtained as a result of that search, including his location and the police officers' visual observations of him, should have been suppressed.¹ We shall not reach the question presented because we agree with the trial court that Snowden failed to demonstrate standing to raise that issue.

We review the denial of a motion to suppress based on the record of the suppression hearing, and we view the facts in the light most favorable to the prevailing party, here the State. Lee v. State, 418 Md. 136, 148-49 (2011); State v. Donaldson, 221 Md. App. 134, 138, cert. denied, 442 Md. 745 (2015). We extend great deference to the fact finding of the suppression judge and accept the facts as found, unless clearly erroneous. Myers v. State, 395 Md. 261, 274 (2006); Donaldson, 221 Md. App. at 138 (citing Brown v. State, 397 Md. 89, 98 (2007)). We make our own independent constitutional appraisal byreviewing the law and applying it to the facts of the case. State v. Wallace, 372 Md. 137, 144 (2002).

The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides for "[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 government's installation of a GPS device on a vehicle, and its use of that device to monitor the vehicle's movements, constitutes a search under the Fourth Amendment. United States v. Jones, 565 U.S. 400, 404 (2012); Kelly v. State, 436 Md. 406, 423 (2013).

It is well established that rights under the Fourth Amendment are personal and may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978); State v. Savage, 170 Md. App. 149, 174-75 (2006). In order to invoke Fourth Amendment protection, a defendant must establish a property right in the thing or location searched or that he or she had "a legitimate expectation of privacy in the house, papers, or effects searched or seized." Whiting v. State, 389 Md. 334, 345 (2005) (internal quotations and citations omitted). See also, Rakas, 439 U.S. at 143; Katz v. United States, 389 U.S. 347, 353 (1967). The defendant bears the burden of establishing standing. Savage, 170 Md. App. at 177.

A. Appellant Had No Proprietary or Privacy Interest In The Vehicle

In Savage, Judge Moylan concisely described the concept of proprietary standing:

In terms of the objective component of the reasonable expectation of privacy test, one who enjoys an actual possessory or proprietary interest in the place searched or the thing seized invariably has no problem. An expectation of privacy by such a person is almost as a matter of course deemed to be objectively reasonable. Conversely, when a defendant who hasclaimed standing pursuant to an ostensible property right is shown to have no such property right, that is invariably fatal to the defendant's claim.

170 Md. App. at 181 (citations omitted).

Here, appellant produced no evidence to establish any proprietary interest in the blue Toyota Camry. While trial counsel argued at the suppression hearing that appellant "utilized" the Toyota Camry, appellant produced no testimony concerning his possessory interest in the car. Indeed, appellant makes no argument in his brief that he established a proprietary interest in the vehicle.

Nor has appellant produced any evidence that he had an expectation of privacy in the Toyota Camry. In Whiting, the Court of Appeals explained what is required to establish a legitimate expectation of privacy, stating:

In order to evaluate the legitimacy of a privacy expectation, Justice Harlan, in a concurring opinion in Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, 583 (1967), formulated a two-prong test which requires that the person claiming protection under the Fourth Amendment must have exhibited an actual (subjective) expectation of privacy in the item or place searched, as well as have proven that the expectation is one that society is prepared to recognize as "reasonabl

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