Eyler, Deborah S., Meredith, Kenney, James A., III, (Retired, Specially Assigned), JJ.
This appeal arises from judgments against Brian Lee Moulden, appellant, in the following cases in the Circuit Court for Anne Arundel County:
• In Case No. K-10-2130, appellant was convicted by a jury of the robbery, second degree assault, and theft of Taylor Stevens. He was sentenced on the robbery conviction to fifteen years incarceration (five years suspended) and five years probation, beginning October 19, 2010. That sentence was to run concurrent to the sentence imposed in Case No. K-10-2231. The remaining convictions were merged for the purposes of sentencing.
• In Case No. K-10-2131, appellant was convicted by a jury of the robbery, second degree assault, reckless endangerment, and theft of Vincente Ramirez. He was sentenced on the robbery conviction to twelve years incarceration (four years suspended) and five years probation, beginning October 19, 2010. The remaining convictions were merged for the purposes of sentencing.
• In Case No. K-10-2230, appellant was convicted by the court based on an agreed statement of facts of the robbery of Sarai Justo Prospero. He was sentenced to fifteen years incarceration (all fifteen years suspended) and five years probation.
• In Case No. K-10-2231, appellant was convicted by the court based on an agreed statement of facts of the robbery of Tony Alfaro. He was sentenced to fifteen years incarceration (five years suspended) and five years probation, beginning October 19, 2010. That sentence was to run concurrent to the sentence imposed in Case No. K-10-2130.
On appeal, appellant presents three questions for our review, which we have revised as follows:
I. Did the circuit court err in denying his motion to suppress?
II. In Case No. K-10-2230, did the circuit court impose an illegal sentence in violation of the plea agreement?
III. In Case No. K-10-2131, was the evidence sufficient to support his conviction for reckless endangerment?
For the reasons set forth below, we answer "no" to questions I and III, and "yes" to question II.
MOTION TO SUPPRESS
On April 4 and 8, 2011, the parties came before the court on appellant's motion to suppress "physical items seized, " "statements, " and "some subsequent photo arrays" that were allegedly the "fruit" of "one specific stop" involving appellant. As explained by appellant's counsel, evidence obtained and statements made as the result of this stop "leads to . . . five cases, " including the four in the instant appeal.
Detective John Murphy testified that, in the fall of 2010, he was investigating several robberies that had occurred in the area of Thom and Forest Drives in the Quiet Waters Village community of Annapolis. According to Detective Murphy, police had formed a "suspect description" based on descriptions given by the robbery victims: "[b]lack male, six foot, cornrows, dreads, and slight facial hair." Police had also been "made aware" that the suspect went by the nickname "B."
On October 18, 2010, a robbery occurred in Quiet Waters Village. The suspect was described as a "[b]lack male, wearing cornrows" and riding a dark-colored bicycle. The next day, Detective Murphy was watching a "live feed" of "the Bens Drive area, the Marcs Court, which is across the street from Quiet Waters." He observed "two subjects . . . on [bicycles] at the bottom of Marcs Court. One was on a bike that was darker in color, one was on a light- colored bike . . . ." According to Detective Murphy, the individual on the dark-colored bicycle matched the description of "the suspect in the robberies": "[b]lack male, dark-colored clothing, I could see cornrows on his head. I couldn't see his face."
Detective Murphy "called for a patrol officer who was in the area to go down and identify the subjects[.]" Through the live feed, the detective observed that, when Officer Michael Prout arrived on the scene, the man on the dark-colored bicycle "took off" and "ran off into the building straight ahead"; the man on the light-colored bicycle stood by his bicycle.
Officer Prout testified that he was on patrol duty on October 19, 2010, when he received a radio call from Detective Murphy asking him to go to the Marcs Court area to investigate two black males riding bicycles. He "knew of a robbery that happened the evening before" and had been "briefed in lineup as to the suspect's description": "a black male, ranging in six foot one to about six foot three in height. And his nickname was B[.]"
The officer drove to the Marcs Court area and, as he turned his marked police cruiser onto Marcs Court, he saw two men riding bicycles toward a nearby apartment building located at 9 Marcs Court, their backs to the cruiser. One of the men was wearing "a white sweatshirt with red vertical lines, blue jeans, " and the other was wearing "a black baseball cap, I think a dreadlock style haircut and a camouflaged jacket." As he approached, the man in the white sweatshirt, later identified as appellant, abandoned his bicycle, ran "with his back turned . . . into the mouth" of 9 Marcs Court, and entered Apartment F. Officer Prout was "not sure" if the suspect saw him. The other man (later identified as Joshua Grier) "just stood there." He told Officer Prout that the man who ran away went by the nickname "B."According to the officer, "as soon as Mr. Grier said that, alarms went off" and he radioed for backup, indicating that the "subject that ran into the building" matched the description from the briefing: "a black male fitting the height requirements, nickname of B."
Additional officers arrived, and a "p[e]r[i]meter" was set up "around the building." Detective Richard Truitt attempted to "make contact with the resident whoever was in apartment F . . . to try to . . . get into the apartment and . . . identify the subject that just ran in." According to Officer Prout, Detective Truitt announced that he was a police officer and banged on the door to the apartment. Eventually, an "adult female came to the door" and indicated that her two children and appellant were in the apartment. She agreed to leave the apartment with her children and they were "escorted away." At that point, the group of officers "stood outside of the apartment and Detective Truitt continued to ask the person inside, [appellant], to come out for approximately 25/30 minutes."
Officer Prout testified that, "after the [SWAT] Access Team arrived, I believe [appellant] came out on his own accord and they were able to put him into custody." The officer also testified that "I believe the consent was given by the female" and the SWAT team "searched the apartment."
Officer Jennifer Card testified that, on October 18, 2010, she was "called" to 9 Marcs Court, Apartment F, in Annapolis. There, she "spoke with" Sherry Brown, who indicated that she was the "leaseholder" of Apartment F and that "B" was in the apartment at that time. According to Officer Card, Ms. Brown consented to a search of the apartment and later, at the police station, Ms. Brown executed a consent to search form.
After the testimony, the prosecutor argued that there was probable cause to arrest appellant, and that appellant did not have standing to contest the search of Apartment F. As to the arrest, appellant's counsel responded that "I don't think that the information that [the police] were acting on even comes close to them having probable cause to arrest [appellant] for this situation." More specifically, counsel reasoned, inter alia: (1) the description of the suspect was "very vague"; (2) there was no indication that appellant had seen Officer Prout's cruiser when he fled ("So, at best, what we have is a guy with his back to the police officer, with absolutely no eye contact, who is running into an apartment."); and (3) there were no "exigent circumstances" justifying a "warrantless stop, " such as "the exigency of a felony having been committed or a misdemeanor being committed in the officer's presence, " or "hot pursuit" of a fleeing felon. Regarding the search of the apartment, appellant's counsel submitted that "the consent search, itself, is fruit of the poisonous tree" of an illegal arrest, and thus appellant did not "necessarily need standing" to challenge the search. "Because but for the arrest of [appellant], they would not have even attempted to have a consent search there."
The court found that "the police had ample evidence from which they could conclude that they had probable cause" to arrest appellant. The court reasoned: (1) "he meets the description in the same area of the robber who committed the robbery the day before"; (2) "[t]hey give not the most detailed description but they do say black male, they give a height, they say cornrows or dreadlocks"; (3) "[w]hy does someone throw [his] bike down, leave [his] bike there and take off running?"; and (4) Mr. Grier indicated that the man who fled went by the nickname "B, " "which is the same nickname that was given of the person who was involved in the robbery on the 18th."
The court also found that appellant lacked standing to "complain about the search of the apartment":
I don't see anything [in evidence] that tells me what was seized or where it was seized from.
It seems that [appellant's] argument [alludes] to the fact that those items were seized from the apartment and all I know is that the woman, Ms. Brown, is the leaseholder. There has been [no] evidence in the case that [appellant] is also a co-leaseholder.
So, I have no basis from which to conclude that he had the authority to consent or not consent to the search of the apartment. So, it appears that the evidence presented shows that he has no standing to contest the search of the apartment.
The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment in Mapp v. Ohio, 367 U.S. 643 (1961), includes "two separate clauses, the first protecting the basic right to be free from unreasonable searches and seizures and the second requiring that warrants be particular and supported by probable cause." Payton v. New York, 445 U.S. 573, 584 (1980). It reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. Amend IV.
"The touchstone of the Fourth Amendment is reasonableness[.]" United States v. Knights, 534 U.S. 112, 118 (2001). With this in mind, the Supreme Court has consistently affirmed that searches and seizures "conducted outside the judicial process, " Katz v. United States, 389 U.S. 347, 357 (1967), i.e., without "a judicial warrant . . . issued by a neutral magistrate after finding probable cause, " United States v. Place, 462 U.S. 696, 701 (1983), are both "presumptively unreasonable, " Payton, 445 U.S. at 586, or "per se unreasonable under the Fourth Amendment[.]" Katz, 389 U.S. at 357.
But the warrant requirement is "subject . . . to a few specifically established and well-delineated exceptions." Id. In regard to arrests, the Court of Appeals has said that a police officer "possesses legal justification 'to make a warrantless arrest where he has probable cause to believe that a felony has been committed, and that the arrestee perpetrated the offense.'" Prince George's County v. Longtin, 419 Md. 450, 506 (2011) (quoting Ashton v. Brown, 339
Md. 70, 120 (1995)) (emphasis removed). And § 2-202(c) of the Criminal Law Article states:
A police officer without a warrant may arrest a person if the police officer has probable cause to believe that a felony has been committed or attempted and the person has committed or attempted to commit the felony whether or not in the presence or within the view of the police officer.
In regard to searches of a residence, another exception to the warrant requirement is the consent of the occupant of the property searched. Nestor v. State, 243 Md. 438, 443 ...