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Frobouck v. State

Court of Special Appeals of Maryland

June 6, 2013

CHAD EASON FROBOUCK
v.
STATE OF MARYLAND

ON MOTION FOR RECONSIDERATION

Meredith, Watts, Kenney III, James A. (Retired, Specially Assigned), JJ.

OPINION

KENNEY, J.

A jury sitting in the Circuit Court for Washington County convicted Chad Eason Frobouck, appellant, of manufacturing marijuana. Appellant raises two questions for our review:

• "Did the motions judge err in denying the motion to suppress?"
• "Did the trial court improperly admit prejudicial hearsay?"

For the reasons that follow, we shall affirm the judgment of the circuit court.

SUPPRESSION HEARING

Factual And Procedural Background

At the September 6, 2011 hearing on appellant's motion to "suppress all evidence obtained by police authorities as the result of an illegal search and seizure, " Scott Mapes testified that he was the owner of a shopping plaza located on Maugans Avenue in Maugansville, Maryland. Mapes entered into a commercial lease with appellant to rent 18020 Maugans Avenue ("the property") from April 15, 2009 through April 30, 2010. According to Mapes, the property was to be used for appellant's business, in which appellant "and his partner[1] would go to law offices or doctor's office and scan . . . paperwork and . . . digitize it and keep it on hard drives."[2] Mapes described the lease as being for "one year and then it went on month to month after that." The terms of the lease include, inter alia, that:

• rent was due on the first day of each month;
• non-payment of rent for a period of five days past the first day of the month "shall constitute an event of default";
• "[u]pon the occurrence of any event of default a party at any time thereafter may give written notice to the other specifying such event of default and stating that this Lease shall expire on the date specified in such notice" (emphasis added);
• "[a]ll notice or demands of any kind which either may be required or may desire to serve on the [Tenant] under the terms of this Lease may be served on the [Tenant] (as an alternative to personal service) by leaving a copy of such demand or notice at the [property], or by mailing a copy thereof by registered or certified mail, postage prepaid, addressed to: (a) Tenant at the Demised Premises . . . . Service shall be deemed complete at the time of the leaving of such notice as aforesaid or within two (2) days of mailing same";
• the "[l]andlord shall have access to the [property] . . . during the Tenant's regular business hours for the purpose of inspecting the same and making repairs, or for a period of six (6) months prior to the expiration of the terms of this Lease, to show the property to prospective tenants or purchasers"; and
• the "Tenant shall observe and comply with all laws, ordinances and regulations of public authorities.

Mapes testified that he did not receive a rent payment on August 1, 2010. On August 3, he left voicemail messages on appellant's cellphone and on appellant's partner's cellphone regarding the past due payment. He testified further: "And then a few days later I called both numbers [again] and both are disconnected. A[nd], I sent e-email. And I asked one of the tenants next door if they'd seen [appellant's] vehicle and they said they hadn't. Ah, I assumed he was cleared out and gone."[3] According to Mapes, telephone and email were "the way we communicated" and the "methods that ha[d] always worked in the past" to contact appellant when he was late with a rent payment. "Quite often" Mapes would receive payment "the next day."

Mapes did not receive any payment or communications from appellant or his partner. On August 13, Mapes, believing the lease had "expired" and that he was in possession of the property – but acknowledging that he had not notified appellant via postal mail or personal service of any default on the lease – attempted to enter the property. Discovering that "the lock had been changed, " he "drilled the lock" and entered the property, the interior of which he described as "thrashed."

Once inside, he observed "lots of pot, " and called the police. Sheriff's Deputy Matthew Bragunier responded to the call, and, after Mapes "invited" Deputy Bragunier inside to view the marijuana, the deputy called for backup. Agent Bryan Glines of the Narcotics Task Force ("NTF") later arrived.

Mapes testified that he "immediately" consented to the officers entering the property and "allowed" them "access to [the] premises." He explained to them that the tenant had left, and that he had "taken possession" of the property. He signed a consent form after the "second officer" arrived.

Deputy Bragunier testified that, when he responded to Mapes's call, the door to the property was already open[4] and "Mapes was fidgeting with the locks . . . ." From outside the property, Deputy Bragunier did not see any contraband, but he smelled an "overwhelming, strong" scent of unburnt marijuana. According to Deputy Bragunier, Mapes "identified himself as the landlord, the owner of the strip mall" and "invited" the deputy onto the property. When they

entered the threshold, room one, I noticed a bunch of . . . buckets full of potting soil with broken stems. Ah, . . . as we went down the hallway I looked in room number two. Saw numerous, ah, sapling, little youngling (sic) marijuana plants. That's when I immediately exited the premises and contacted NTF.

Agent Glines and his supervising sergeant, Sergeant Kerns, responded. Agent Glines testified that "as soon as I arrived I spoke with Deputy Bragunier" who indicated that he had entered the property and " saw what he believed to be marijuana plants." Agent Glines called the "attorney in [his] office, " who advised him to have Mapes "sign a consent to search form . . . ." The following colloquy ensued between appellant's counsel and Agent Glines:

Q. Did you have an opportunity to speak with the landlord?
A. I did.
Q. Did you understand him to be the landlord, not the tenant?
A. That's correct.
Q. Did he advise you that he forced entry into the . . . building?
A. Ah, I knew he made entry, I wasn't sure . . . if he forced entry. I don't recall if he advised me on how he made entry.
Q. And you . . . took the consent from the landlord, [5] as opposed to the consent from the tenant?
A. Correct. Ah, speaking with the landlord, he advised that the lease ha[d] . . . expired. Therefore, the property was owned by the owner of the property.

At the conclusion of the testimony, the prosecutor, on the merits of the suppression motion, stipulated that "if the landlord could legally enter the premises, then the police could [too]. And if the landlord could not, then it was not an okay entry" by the police. Contending that Mapes indeed could "legally enter [the] property, " and thus could also "invite the police in to inspect what he had seen, " the prosecutor highlighted certain provisions of the lease, such as the landlord's right to inspection, and appellant's alleged breach of other provisions of the lease, including the payment of rent and the duty to comply with all laws. The prosecutor also argued that appellant had abandoned the property, or that ...


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