State v. Rush (Ct. of Special Appeals)

Filed April 27, 2007--Opinion by Judge Deborah S. Eyler.

In its murder prosecution against Rush, the State has appealed a pre-trial ruling suppressing from evidence inculpatory statements Rush gave to the police.

The issues before the court at the suppression hearing were whether Rush's statements were obtained in violation of Miranda and whether her statements had been obtained voluntarily. The circuit court ruled that Rush's statements had been obtained in violation of Miranda and would be suppressed on that ground. Further, the court made plain that it was granting the suppression motion on the Miranda violation ground only and was not granting it on the alternative involuntariness ground.

The issue stems from a murder investigation for which Rush was brought in to the police station and questioned. Subsequent to some light background conversation on the investigation, the detective proceeded to advise Rush of her rights using a standard Advice of Rights Form ("Form"), to which he made a handwritten alteration. The form with the alteration stated, in relevant part:

If you want a lawyer, but cannot afford one, a lawyer will be provided to you @ some time at no cost.

The bolded portion is the handwritten addition made by the detective. Rush read the form and, when the detective asked Rush whether it all made sense, she replied in the affirmative. He then asked several questions to verify that she understood the stated advisements and had her initial next to the four answers on the form, confirming:

1. that she understood the rights that had been read to her;
2. that she wanted to make a statement at that time without a lawyer;
3. that she had not been offered any kind of reward or benefit nor had she been threatened in any way in order to get her to make a statement; and
4. that she was not under the influence of alcohol or drugs.

Prior to Rush signing the form, she asked " . . . do I need a lawyer or somethin' or is it, am I just in here for . . . questioning?" The detective responded, ". . . if you decide at that, any point in time during our questioning that you feel that that'd be the best for you, then you let me know that. Okay?" Ultimately, Rush signed and noted her level of education below her signature.

At the suppression hearing, the detective explained that handwriting the words "@ some time" is his usual practice because "[a lawyer] is not going to magically appear. It's going to take a little time for a lawyer to be provided to her for a representation. . ." Rush testified that she did not remember being advised of her rights but did remember being told that a lawyer would be appointed for her "after [she] would go to jail." She then acknowledged, however, that that was said to her only after the interrogation had concluded.

On review, the Court assessed the advisements given to Rush in their totality. By means of Advisement 2, "You have the right to talk to a lawyer before you are asked any questions and to have a lawyer with you while you are being questioned," Rush was told orally and in writing that she had the right to talk to a lawyer. She was then informed, by means of Advisement 3, also orally and in writing, that if she could not afford a lawyer, one would be provided for her at some time, at no cost. Under Eagan and Prysock, the added language did not violate Miranda because the warnings, as given, told Rush in straightforward language that she had a right to talk to a lawyer before being questioned and to have a lawyer present during questioning. Advisement 3, as altered by the words "at some time," was not inconsistent with the rights communicated in Advisement 2. Its message, stated separately from Advisement 2 because its topic was not the same, was that, if Rush decided that she wanted a lawyer, i.e., to exercise the right to a lawyer communicated in Advisement 2, but she did not have the resources to pay for a lawyer, she would be given a lawyer at no cost and at some time. Read objectively, this message did not tell Rush that, if she indeed asked for a lawyer right then, she nevertheless would have to undergo questioning without a lawyer until her lawyer arrived "at some time."

Rush argues that the detective actually asked her a few questions before advising her of her rights and, by doing so, created the impression that the interrogation had begun and the advice-of-rights had no bearing on Rush's ability to stop the interrogation. The Court reasoned that the questions posed prior to advising Rush of her rights were meant to orient her and to determine whether she had any first-hand familiarity with the Miranda warnings before he gave them to her. Further, the remarks made by Rush while the Miranda warnings were being given, and subsequently during the interview, evidence no confusion about her right to counsel and show that she was willing to speak to the police at the outset of the interview and as it progressed. Rush affirmatively stated she was willing to speak with police without a lawyer; and in doing so, she said nothing to suggest that she thought she had no choice in the matter. Rush even inquired whether she "needed" a lawyer, which prompted the detective to advise her that it was her decision and that she could make that decision at any time and questioning would cease.

Based on the stated reasoning, this Court held the circuit court erred in holding that Rush was not advised of her rights in accordance with Miranda and in granting her motion to suppress her statements from evidence on that ground.

With this holding, ordinarily the Court's inquiry would end. However, Rush asked they address the alternative voluntariness and argues that her statements were induced by improper promises and threats and, therefore, were involuntary and subject to suppression even if Miranda were complied with. As opposed to the State, a criminal defendant has no right to immediately appeal a circuit court's decision not to suppress evidence and has no right to pursue a cross-appeal in a State's appeal under CJ section 12-302(c)(3). The criminal defendant, unlike the State, is not without remedy if inculpatory evidence is erroneously admitted at trial, as he may raise the error on appeal after a final judgment of conviction. The legislature created the right of immediate appeal for the State in order to equalize the opportunities the parties have in criminal cases for meaningful correction of erroneous pretrial evidentiary rulings, made on constitutional grounds. The objective was to provide a vehicle to challenge a pre-trial ruling excluding critical evidence so that, if the ruling were erroneous, the error could be corrected before jeopardy would attach. Without such a right of immediate appeal, the State has no meaningful opportunity for error correction, because under double jeopardy principles and the developed case law on verdicts of acquittal, the State cannot appeal from a final judgment in favor of the defendant. The Court reasoned, however, that as the fields have been leveled, it would amount to an enourmous waste of judicial time and resources, and contrary to policies favoring judicial economy, to delay fully ruling on the correctness of a pre-trial suppression ruling when an immediate appeal has been taken.

To be voluntary, a confession must be "freely and voluntarily made at a time when [the defendant] knew and understood what he was saying." Similarly, in order to pass federal and Maryland constitutional muster, a confession must be voluntary, knowing and intelligent. The burden falls on the State to show "affirmatively that the inculpatory statement was freely and voluntarily made." Ordinarily, voluntariness is determined based on a totality of the circumstances test. When a confession is preceded or accompanied by threats or a promise of advantage, however, those factors are transcendant and decisive, and the confession will be deemed involuntary unless the State can establish that such threats or promises in no way induced the statement (the "Hillard" test). The first prong of Hillard is objective -- whether the police or State agent made a threat, promise or inducement, i.e., that is not, as a matter of routine, done for all suspects. Mere exhortations to tell the truth and appeals to a suspect's inner conscience has been held not to be improper. Further, the suspect's subjective belief that he will be advantaged in some way by confessing is irrelevant. The second prong of Hillard triggers a causation analysis to determine whether there was a nexus between the promise or inducement and the accused's confession.

Rush maintains the detective made improper promises during her interrogation that caused her will to be overborne, resulting in her making incriminating statements -- he promised "to help her if she told him the truth." The essential questions to answer are: (1) whether, to a reasonable person in Rush's circumstances, any of the detective's statements urging her to tell the truth were coupled with a promise, express or implied, that there would be a special benefit in doing so; and (2) if so, whether any such improper promise caused her to make an incriminating statement. The Court found that, because the interrogation was recorded, there was no factual dispute about what was said.

The Court agreed with Rush that several of the detective's comments were implied inducements in which he suggested that it would be advantageous to Rush, in terms of the charges she was facing, to speak out and reveal all she knew about the events leading up to the murder. He made two references that strongly implied a special benefit from speaking: 1) that there could be "salvation" for Rush if she told the truth, but, if not, she would remain in "major trouble"; and 2) that if Rush were to tell him "exactly what happened and why it happened," "we can resolve this and get it over with. . . ." These comments went beyond mere pleas to honesty and good conscience. Rather, they conveyed the message that a full statement would get the detective's assistance in making the first degree murder warrant go away so she would not have to "take the ride, take the charge," because the charge would be "resolved." A reasonable person in Rush's circumstances -- age 20 and having a 9th grade education - was an improper inducement. Accordingly, the Court affirms the order of the circuit court suppressing Rush's statements from evidence, in part, and vacates in part.

The full opinion is available in PDF.

State v. Mason (Ct of Special Appeals)

Filed March 27, 2007. Opinion by Judge Charles E. Moylan, Jr. (retired, specially assigned).

On appeal from the trial court's grant of the motion of the defendant ("Mason") to suppress the physical evidence of possession of cocaine with the intent to distribute, the Court AFFIRMED the decision below.

This case arose from a narcotics investigation that resorted to a Whren -style traffic stop ruse to detain the suspect until drug-sniffing dogs could be brought to the scene of the traffic stop, and "alert" to the drugs later found in the vehicle. At trial, the judge granted Mason's motion to suppress the drugs on the basis of an unreasonable detention, which Mason had estimated at 25 minutes, and the State at 10 minutes. The State appealed the decision.

Preliminarily, the Court noted that, under Section 12-302(c) in the Code, the trial court ruling would become final, unless the matter were appealed and the appeals court rendered a decision within 120 days, though commenting that this limitation would be moot unless the appellate decision were to overturn the decision below.

The Court also noted that neither the traffic stop, nor the right to search the vehicle after the drug dog "alerted" to the presence of drugs were at issue, nor relevant to the questions presented. Rather, the sole issue was to assess whether the period between the initial stop and the K-9 alert was an unreasonable detention under the Fourth Amendment. Since the State had appealed the adverse ruling below, Mason's version of the length, 25 minutes, must be presumed.

The Court then turned to the reasonableness of that length of detention, rejecting the mere length of time as the critical factor in favor of the totality of the circumstances, a factual determination. Since the decision of the trial judge, as the trier of fact, is to be overturned only if clearly erroneous, the Court had little trouble, after reviewing the testimony below and the leading cases on the subject, in finding sufficient evidence to support the ruling below, noting that had the ruling gone the other way, there was also ample evidence to support that ruling as well, had it been made below by the trier of fact.

The Court also rejected the State's alternative Fourth Amendment theory, an effort to "unpoison the fruit of the poisonous tree" by advancing an alternative basis for the stop and the detention, namely, an anonymous phone call that had alerted the police that Mason would be transporting drugs in the van later subjected to the Whren stop. While expressing considerable regret that the State had not chosen to do so, the Court found that the State had not preserved the issue, since at no point below did the State advance that rationale as a justification for the stop and detention. This was in contrast to the situation in the Court of Appeals' recent Cox decision, where the issue had been advanced below.

The opinion is available in PDF format.

U.S. v. Srivastava (U.S.D.C.)(Approved for Publication)

Signed March 6, 2007--Memorandum Opinion and Order by Judge Roger W. Titus. (Approved for publication.)

Defendant is a cardiologist practicing medicine through a Subchapter S Corporation who became the subject of a health care fraud investigation. In the course of the investigation, SA Marrero of HHS-OIG submitted a single affidavit in support of applications for three search warrants, which were ultimately approved. Two of the warrants applied to Defendant's medical offices, and the third authorized a search of Defendant's residence. Each warrant contained identical substantive language that authorized the seizure of a list of enumerated "records including, but not limited to, financial business, patient and other records related to" the Defendant's "business . . . which may constitute evidence . . .." SA Marrero then forwarded copies of seized documents between Defendant and the Bank of India to the U.S. Attorney's office, which documents were then forwarded to IRS and ultimately led to a formal investigation regarding possible tax fraud committed by the Defendant. Defendant then filed a Motion to Suppress based on its conclusion that the evidence in question had been obtained in violation of the Fourth Amendment, which motion was granted August 4, 2006.

The Government raised six main arguments in its Motion for Reconsideration: (1) The Court incorrectly interpreted the warrant; (2) the documents were not seized unlawfully; (3) more documents are related to Srivastava's business than the Court concluded because Srivasatava operates a Subchapter S corporation; (4) the evidence obtained in the IRS investigation was lawful; (5) the evidence should not have been suppressed under the independent source and the inevitable discovery doctrines; and (6) specifically, the Bank of India faxes should not have been suppressed.

The Court addressed all these arguments in the August 2006 opinion but repackaged some of its analysis with respect to the first and third arguments.

First, the Government suggested that the modifying clauses "related to the business" and "may constitute evidence of violations" should not be viewed as limits on the types of documents that could be seized. The Court, however, found these clauses must be read to limit the scope of the warrant in order to save it from what would otherwise be unconstitutional overbreadth. The Court determined that suppression was appropriate because of two additional and important factors. First, the quantity of the materials seized was significant. Many of the documents seized were not related to the investigation as the Government later returned many of them to the Defendant, although not until tax investigators had had an opportunity to review the contents. Further, SA Marrero specifically testified that he did not advise his agents on any limits regarding what they could collect and resulted in the seizure of many documents not authorized by the warrant, such as an invitation to a cultural event and a CVS "Extra Care" card. Thus, the Court's suppression order was rooted in the actions of the seizing agents who grossly exceeded the scope of the warrants and not simply the interpretation of the text of the warrants and accompanying affidavit.

Second, the Government argues that the type of corporation, Subchapter S, operated by Defendant is significant with respect to the volumes of documents collected by the agents, including the Bank of India documents, since he declared his income from the corporation on his individual tax return. The Court reasoned that, regardless of the type of business operated by Defendant, the agents should not have seized personal financial records and tax returns, and they should not have seized business records unless they tended to show violations of 18 USC §1347. These were the two simple and basic restrictions contained in the warrant but disregarded by Marrero. It was clear from Marrero's testimony that it was not as if the agents became confused during the search as to whether the documents were business or personal -- they went on a wholesale fishing expedition and seized all documents and many other personal affects without regard as to whether the documents or items were business records or demonstrative of health care fraud. Further, the Government argued that "some of the documents demonstrating defendant's income from a lucrative occupation and the disposition of that income may constitute health evidence of fraud (sic)." While it is true that evidence of extreme wealth or extravagant spending is admissible under the Federal Rules of Evidence, such evidence cannot be said to be evidence of health care fraud in this case. Unlike a typical drug dealer who has no legitimate source of income that would support an affluent lifestyle, Defendant was engaged in a legitimate and lucrative profession. As such, the Court rejected the so-called "proceeds of the crime" argument. The rationale that the financial records and tax returns seized were related to the Section 1347 investigation is also negated by the fact that the Government returned approximately 80% of the seized documents to the Defendant.

The full opinion is available in PDF.

Cox v. State (Ct. of Appeals)

Filed February 8, 2007–Opinion by Judge Clayton Greene.

Petitioner sought to suppress a baggie of marijuana seized after police had obtained information about Petitioner’s outstanding arrest warrant subsequent to an arguably illegal stop. The two issues to review were (1) whether a police encounter, in which a uniformed officer approached Petitioner on the street claiming that he "loosely fit" the description of the perpetrator of a recent string of robberies, asked Petitioner for identification, and ran a check on his identification, constituted an illegal stop in violation of the Fourth Amendment, and (2) whether a police officer’s subsequent discovery of an outstanding arrest warrant represented an intervening circumstance, such that if the stop were illegal the arrest on the warrant attenuated the taint of the illegal stop.

The Court focused on three factors: (1) the Temporal Proximity Factor, (2) the Intervening Event Factor, and (3) the Flagrancy of the Police Conduct Factor.

The Temporal Proximity Factor suggests that the greater the time lapse between the illegality and discovery of evidence, the greater the chance that the taint has been purged. In this case, there existed a mere two minutes between the illegal stop and the discovery of the marijuana. However, since the temporal proximity factor has been labeled ambiguous and the question of timing is not dispositive on the issue of taint, the court focused on the other two factors.

An Intervening Circumstance is an event that breaks the causal connection between the unlawful conduct and the derivative evidence. In this case, the officers discovered the baggie of marijuana after the police learned of Petitioner’s outstanding arrest warrant, stood Petitioner up from the curb and arrested him pursuant to that warrant. The police did not ask Petitioner to sit on the ground until after the radio alert of the outstanding warrant. Although Petitioner may have discarded the baggie while he was seated on the ground, that fact is not dispositive to the Court’s analysis or holding.

The final factor is the Flagrancy of the Police Misconduct. The Court found nothing in the record indicating the police acted in bad faith. Once the officer discovered the outstanding warrant for Petitioner’s arrest, he "gained an independent and intervening reason to arrest and search [Petitioner]." Furthermore, merely because the officer’s stop of Petitioner was determined to be invalid does not mean that his conduct was flagrant.

Holding:
Assuming arguendo that the police encounter constituted an illegal stop, the ultimate question is more appropriate: whether it was proper for the trial court to grant Petitioner’s motion to suppress the evidence. The police officer’s discovery of an outstanding warrant for Petitioner’s arrest pursuant thereto represents an intervening circumstance sufficient to attenuate the taint of what appears to be an illegal stop.

The full opinion is available in PDF.

Brown v. State of Maryland (Ct. of Appeals)

Issued February 6, 2007 -- Opinion by Judge Irma Raker. Joined in Judgment Only by Judges Lynne Battaglia and Clayton Greene. Dissenting Opinion by Judge Robert Bell.

Randy Paul Brown ("Brown") arrived at someone else's residence while the police were conducting a search pursuant to a valid warrant. By the time Brown had arrived, police had alrady discovered controlled dangerous substances on the property and had made some arrests incident thereto.

The police detained and searched Brown and discovered marijuana. There was some discrepancy as to whether Brown voluntarily entered the home or was "escorted" in. There was also some discrepancy as to whether Brown voluntarily admitted to the police that he was carrying marijuana on his person before he was searched. The marijuana that the police found formed the basis for Brown's conviction for possession with intent to distribute marijuana.

Brown moved to suppress evidence of the marijuana based on an illegal search and seizure. The Circuit Court denied his motion, and the Court of Special Appeals affirmed. In this case, the Court of Appeals affirmed the opinions of the two lower courts.

Held: Factual determinations of the trial Court are extended great deference by appellate courts, and will not be overturned unless clearly erroneous. Legal determinations are reviewed de novo.

There are three categories of police contacts with individuals: (1) consensual (least intrusive-no justification required); (2) detentions (mid-level intrusive - police must have articulable suspicion that a person has committed or is about to commit a crime); (3) arrest (most intrusive - police must have probable cause). In this case, Brown was detained. The "clear rule" is that "'police may always detain persons found that the premises named in a search warrant, provided (i) the warrant authorizes a 'search for contraband' and (ii) the persons detained are 'occupants.'" (citations omitted). The Court determined that the term "occupant" includes all people "except for persons who clearly are unconnected with any criminal activity and to clearly present no potential danger." Quoting Cotton v. State. In this case, Brown was properly considered an "occupant," and his detention was proper.

Judge Robert Bell dissented and incorporated the rationale from the dissent in Cotton v. State.

Full opinion is available in PDF.