Argued: January 8, 2015
Circuit Court for Prince George's County Case No. CT100766X
Barbera, C.J. [*] Harrell Battaglia Greene McDonald Watts Raker, Irma S. (Retired, Specially Assigned), JJ.
Petitioner Ronald Sinclair was convicted of various charges related to a carjacking. Part of the evidence against him was derived from a flip cell phone that was seized from him incident to his arrest – screen images that matched the custom wheel rims of the stolen car. He sought to exclude that evidence from his trial in an oral motion made by his attorney on the morning of trial. The Circuit Court allowed the use of that evidence and the Court of Special Appeals affirmed that decision. Before us, Mr. Sinclair relies on the Supreme Court's intervening decision in Riley v. California, ___U.S.___, 134 S.Ct. 2473 (2014) to argue that the arresting officer's review of photos on the cell phone without a warrant was an unconstitutional search and that the evidence derived from the cell phone should have been suppressed.
We hold that, in failing to make his motion to suppress the evidence derived from his cell phone within the time period and with the specificity required by the Maryland Rules, Mr. Sinclair waived that motion. Moreover, even had the motion been made in a timely manner, the primary evidence obtained from the cell phone – the screen saver image that was in plain view upon physical inspection of the phone – was admissible under the Supreme Court's decision in Riley.
A. Charges, Evidence, Verdict, Sentencing, and Appeal
In two indictments that were consolidated for trial, Mr. Sinclair was charged with carjacking and related offenses, various firearms offenses, and possession of illicit drugs. The evidence presented at trial showed the following:
On the evening of April 29, 2010, Thomas Gaines stopped at a gas station in Camp Springs to refuel his Dodge Charger – a car for which he had paid $36, 000 and purchased a special set of custom wheel rims. When he pulled into the station, Mr. Gaines noticed two men speaking on a phone. As he filled his gas tank, one of the men approached him and asked if he wanted to buy "some weed." He declined, but when he turned to get in his car, the other man was standing in his way. The first man put a gun to Mr. Gaines' side while the other searched him and took his wallet, cash, and phone. The two men entered his car and drove away. At trial Mr. Gaines identified Mr. Sinclair as the man who had offered to sell him marijuana and who had put a gun to his side.
The gas station clerk, Gamadanayau Salami,  saw the two men approach Mr. Gaines, pull out a gun, search through Mr. Gaines' pockets, and "zoom off" in Mr. Gaines' car. Mr. Salami called 9-1-1. He was unable to see the men's faces from inside his cubicle and could not identify the man who held the gun. Although it was night, both Mr. Salami and Mr. Gaines testified that the gas station was well-lit and that they could see clearly.
The next day, at approximately 3 or 4 p.m., Mr. Gaines and his girlfriend spotted his Dodge Charger backed into a parking space in the lot of a strip shopping center in Temple Hills. He asked his girlfriend to go to a nearby police car to summon the police while he blocked in the Charger with the vehicle they were driving so that the stolen car could not be driven out of the parking lot. He also recognized Mr. Sinclair, who was inside a barber shop in the strip shopping center, as one of the men who had robbed him the previous night. He noticed that Mr. Sinclair kept looking at him.
Shortly thereafter, Officer Kevin Stevenson of the Prince George's County Police Department, who had responded to the gas station the previous night, was dispatched to the shopping center. He verified that the Charger was Mr. Gaines' car, and waited with Mr. Gaines at a distance for Mr. Sinclair to leave the barber shop. After approximately 45 minutes, Mr. Sinclair left the barber shop while talking on his cell phone and entered a car that pulled up to the curb.
Officer Stevenson stopped the car and ordered its occupants onto the curb. He saw bags of marijuana on the floor boards where Mr. Sinclair had been sitting. Although the officer had instructed Mr. Gaines to keep his distance from the traffic stop, Mr. Gaines walked up to Mr. Sinclair and told Officer Stevenson again that Mr. Sinclair was the man who had stolen his car. Officer Stevenson placed Mr. Sinclair under arrest and recovered cash, suspected cocaine, and a cell phone from his pockets.
The cell phone was a Samsung "flip" phone designed for use on the T-Mobile network. Officer Stevenson testified at trial that, shortly after recovering it from Mr. Sinclair, he opened the phone and saw a screen saver image (sometimes also referred to as a "wallpaper" image) of a wheel rim and fender that matched the wheel rim and color of the stolen car. The officer scrolled through the photos on the phone. In addition to a photograph of the screen saver image, two other photographs of the cell phone screen were introduced into evidence – an image of a photo identical to the screen saver image and an image of a "properties" screen that indicated "sent" on "04/30/10 7:00...".
Photographs of the cell phone's screen showing the screen saver image, the identical image from the phone's photo library, and the screen of that photo's properties were all admitted into evidence. Also introduced into evidence were photos of Mr. Gaines' car and a close-up of one of its wheels, which appears identical to the screen saver image from Mr. Sinclair's phone.
The parties stipulated that Mr. Sinclair was prohibited from possessing a regulated firearm as a result of a prior disqualifying conviction. A forensic chemist testified she had tested the suspected cocaine recovered from Mr. Sinclair and that it was in fact crack cocaine.
The defense case was an alibi presented through the testimony of Mr. Sinclair's father and a friend named Jason Slaughter. Mr. Slaughter testified that, on the evening of April 29, 2010, he and Mr. Sinclair had borrowed a car from Mr. Sinclair's father to go the mall. Mr. Slaughter testified that, after borrowing the car, the two men had spent the night "hanging out" at a mall and a restaurant before returning home. Mr. Sinclair's father agreed that he had lent them the car that night, but did not have further information about their activities as he had gone to bed before they returned.
In rebuttal, the prosecution played a recording of a post-arrest telephone call that Mr. Sinclair had with his probation agent in which he asserted that the identification of him as the carjacker was mistaken because he had been with his mother and his girlfriend at the time. He did not mention borrowing his father's car or spending the evening with Mr. Slaughter.
The jury found Mr. Sinclair guilty of armed carjacking, carjacking, robbery with a dangerous weapon, robbery, first and second degree assault, theft, theft over $10, 000, use of a handgun in commission of a crime of violence, wearing a handgun, conspiracy to commit armed carjacking, possession of cocaine and possession of a regulated firearm by a disqualified person. The trial court merged several counts for purposes of sentencing and sentenced him to a total of 40 years imprisonment.
Mr. Sinclair appealed his conviction on several grounds. The Court of Special Appeals found no merit in any of them and affirmed his convictions. 214 Md.App. 309, 76 A.3d 442 (2013).
Mr. Sinclair then filed a petition for a writ of certiorari limited to the question of the constitutionality of the search of the contents of his cell phone and noted that the Supreme Court was then considering whether to grant a writ of certiorari in two cases involving a similar issue. Shortly thereafter, the Supreme Court agreed to review the issue, consolidated the cases, and decided them during its 2013 term. Riley v. California, U.S., 134 S.Ct. 2473 (2014). We then granted certiorari in Mr. Sinclair's case to consider Mr. Sinclair's arguments in light of the Riley opinion. We also granted the State's conditional cross petition, which raised the question of whether Mr. Sinclair had waived the issue in the Circuit Court, asserted that the officer's viewing of the screen saver image was permissible under Riley, and argued that any error in the admission of the evidence was harmless. Because the State has questioned the timeliness of Mr. Sinclair's effort to suppress the three photographs of images from his cell phone, we turn briefly to the circumstances under which the issue was raised and decided in the Circuit Court.
B. Motion to Exclude Evidence Obtained from Cell Phone
Mr. Sinclair was arraigned on the initial indictment in the Circuit Court for Prince George's County on July 30, 2010 and referred to the Public Defender. The court scheduled a pretrial motions hearing for September 24, 2010, and a trial to commence on October 19, 2010.
Less than a week after the arraignment, on August 5, 2010, an Assistant Public Defender entered his appearance as counsel for Mr. Sinclair, and filed a one-page pleading entitled "Entry of Appearance, Election for Jury Trial, Mandatory Motions, and Motion for Discovery and Inspection." Among other things, it sought dismissal of the indictment, elected a jury trial, moved to sever the trial of co-defendants and charges, requested discovery, moved to exclude evidence, and demanded a speedy trial. Such a pleading, at once both comprehensive and cryptic, is sometimes referred to as an "omnibus motion."With respect to the suppression of evidence, a one-sentence paragraph in the pleading stated that the defendant "[m]oves to suppress any and all evidence obtained by the State in violation of defendant's rights as guaranteed by the 4th, 5th, 6th, and 14th Amendments to the Constitution of the United States, and the Maryland Declaration of Rights."
On September 2, 2010, the Assistant State's Attorney assigned to the case sent defense counsel a letter asserting that, as a pretrial suppression motion, the pleading did not comply with Maryland Rule 4-252(e) and "d[id] not put the State on notice of any issues that you actually wish to raise … and what legal precepts support your position." The letter noted that discovery was being provided to the defense and advised defense counsel to update the pleading with specific motions to which the State would respond. Under cover of another letter of the same date, the prosecutor provided documentary discovery and invited defense counsel to make an appointment to inspect the physical evidence in the case. In yet another pleading filed that same date, the prosecution notified defense counsel of the seizure of the cell phone and drugs from Mr. Sinclair, as further detailed in the discovery materials.
On the date of the pretrial motions hearing, September 24, 2010, the Assistant Public Defender filed a "Line Withdrawing Motions" which stated that all motions were withdrawn "without prejudice." As a result, the scheduled motions hearing was canceled ...