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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 408 September Term, 2011

PRINCETON FEASTER

v.

STATE OF MARYLAND

Krauser, C.J., Hotten, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.

Opinion by Moylan, J.

Filed: June 29, 2012

In 1945 in Animal Farm, George Orwell told us, "All animals are equal, but some animals are more equal than others." A similar relativism prevails with respect to the protections of the Fourth Amendment. The people are protected from unreasonable searches and seizures, but probationers and parolees are less protected than other people. More precisely, searches that would be unreasonable with respect to other people would not be unreasonable with respect to them. The key to the puzzle now before us is that the appellant, when searched, was a parolee. In United States v. Knights, 534 U.S. 112, 119, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001), Chief Justice Rehnquist wrote for a unanimous Supreme Court in describing the austerely reduced constitutional status under which one labors while on probation: Knights's status as a probationer subject to a search condition informs both sides of that balance. "Probation, like incarceration, is 'a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.'" ... Probation is "one point ... on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service."... Inherent in the very nature of probation is that probationers "do not enjoy 'the absolute liberty to which every citizen is entitled.'" (Emphasis supplied). Five years later, Samson v. California, 547 U.S. 843, 850, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006), confirmed that a convict placed on parole is situated even lower on the constitutional totem pole 1 than is a convict placed on probation:

We apologize for indulging in the almost universal practice of turning the totem pole metaphor upside down. In actual Tlingit Indian culture, the place of honor is at the bottom of the pole and status diminishes progressively as one climbs upward.

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As we noted in Knights, parolees are on the "continuum" of state-imposed punishments .... On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment .... "[P]arole is an established variation on imprisonment of convicted criminals .... The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence." ... "In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements." ...("[O]n the Court's continuum of possible punishments, parole is the stronger medicine; ergo, parolees enjoy even less of the average citizen's absolute liberty than do probationers."

(Emphasis supplied). As we analyze the search of a parolee in this case, we must not lose sight of the very different starting point for such analysis. The Case Now Before Us The appellant, Princeton "Ditty" Feaster, was convicted in the Circuit Court for Wicomico Count by a jury, presided over by Judge D. William Simpson, of a variety of narcotics-related offenses. On this appeal, he raises the single contention that Judge W. Newton Jackson, III erroneously denied his pre-trial motion to suppress physical evidence seized in alleged violation of the Fourth Amendment. The testimony from the suppression hearing tells the whole story. The Surveillance On November 19, 2008, the Wicomico County Narcotics Task Force, a force comprised of members of the Maryland State Police and the Sheriff's Office of Wicomico County, was conducting a surveillance of the Days Inn, located at 2525 North Salisbury Boulevard in Salisbury. The task force had received numerous tips that drugs were being
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sold on the premises. In the course of that surveillance, Corporal Carlisle Widdowson spotted a suspected drug purchaser sitting in a vehicle on the Days Inn parking lot and attempting to inject heroin into his veins. Corporal Widdowson accosted the subject and questioned him about his source. The suspect stated that he had just purchased the drugs at the Days Inn from an individual he knew as "Ditty." Corporal Widdowson was familiar with "Ditty" from previous encounters with him. A quick records check confirmed that "Ditty" was the nickname of the appellant, Princeton Gene Feaster. The records check also revealed that there was an outstanding arrest warrant for the appellant on a "parole retake." Corporal Widdowson obtained a photograph of the appellant from the police file and showed it to the management officials on duty at the Days Inn. Those officials confirmed that the appellant had been regularly around the Days Inn and was in and out of Room 133 specifically. Room 133 The motel officials produced for the police the actual rental agreement for Room 133, which showed that the room was rented to a white male by the name of Gary Dopowsky and was, moreover, rented by him through November 20, 2008. Surveillance was then maintained on Room 133 for approximately another hour. At that time, the surveillance team called in the assistance of the State Apprehension Team, informally known as "the warrant squad."

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Sergeant John Maiello, along with other members of the Apprehension Team, approached Room 133. Through a window, they could see that the appellant was inside the room as its sole occupant. Sergeant Maiello announced his identity and stated that he was there to serve an arrest warrant on the appellant. The appellant adamantly refused to open the door. One of the officers went to obtain a room key from management as the other officers continued to knock on the door and the appellant continued to refuse to open it. When the room key arrived, there ensued what Corporal Widdowson characterized as a "standoff." It was a routine worthy of a Marx Brothers comedy. With the key, one of the officers would unlock the door by turning the bolt. From the inside, the appellant would immediately relock the door. This back-and-forth thrust and counterthrust continued, according to the suppression hearing testimony, for no less than ten minutes. At last, the appellant submitted to the inevitable and the officers entered Room 133. The appellant, who had retreated to the back of the room, was immediately arrested and placed in handcuffs. The Entry We can conveniently interrupt the factual narrative at this point for an interim legal analysis. In terms of Fourth Amendment reasonableness, there are in this case two distinct intrusions calling for assessment. There was first the entry into Room 133. There was subsequently the warrantless search of Room 133. We now know all we need to know to assess the entry. With respect to the entry itself, moreover, it is easy and convenient to

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proceed immediately to the Fourth Amendment merits without pausing at the threshold to consider any questions about Fourth Amendment applicability. The permissibility of entering even a presumptively protected place to serve an arrest warrant is clear, provided only that the police have reason to believe the person to be arrested is, indeed, within that place. Payton v. New York, 445 U.S. 573, 602-03, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) has been for 32 years the unchallenged touchstone: It is true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate's determination of probable cause between the zealous officer and the citizen. If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. (Emphasis supplied). In this case, the police were executing a warrant for the appellant's arrest for a parole violation.2 We have not, to be sure, been treated to much informative detail about the

That the Task Force members did not have the appellant's arrest warrant actually in hand is of no matter. Knowledge of its existence, through their dispatcher's record check, was sufficient. See Whiteley v. Warden, 401 U.S. 560, 568, 91 S. Ct. 1031, 28 L .Ed. 2d 306 (1971): Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. (Emphasis supplied). 5

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warrant, but neither have we been presented with any challenge to the warrant, with respect either to its existence or to its contents. All parties have been content simply to take this Fourth Amendment factor for granted. With respect to the other Payton v. New York requirement, moreover, there is no question but that the police had reason to believe that the appellant was in Room 133. Both the entry into Room 133 and the arrest of the appellant were reasonable within the contemplation of the Fourth Amendment. The Factual Narrative Resumes Once the drawbridge was down, three officers rushed immediately into the breach. As Sergeant Maiello placed the appellant under arrest, the other two officers scanned the immediate area surrounding the appellant, to ensure that he could not grab a weapon that may have been accessible to him. In the course of "securing" the room, the officers looked into the two black bags on which the suppression hearing focused. The first bag was sitting on top of the desk that was located right next to the entrance door to Room 133. That bag was approximately 16 feet away from where the appellant stood as he was being placed under arrest. It was a duffle-type bag. The second bag was on top of a bed and was approximately 7 feet away from where the appellant was being arrested. It was described as a laptop-type bag with a fold-over top. The testimony was that in that immediate scan for weapons, the police observed drugs within both bags. The more thorough evidentiary search of the bags took place only after the appellant had been removed from the room. The bag on the bed contained a smaller blue Crown

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Royal bag containing 58.3 grams of heroin; two smaller bags containing 6.9 grams of heroin and 8.9 grams of heroin, respectively; zip-type baggies; stamp pads; wax baggies; wooden stamps; and pocket scales. In the bag that was next to the door were several bundles of baggies of heroin containing a total of 29.5 grams of heroin and several wax baggies containing heroin. Also recovered from the room were two separate stacks of money located on a table, along with another stack of money and two cell phones that were hidden between the bed and the box spring. Those two bags have produced a plethora of Fourth Amendment theories, some of which were argued and two of which were strangely ignored. A Doctrinal Cul-De-Sac: Abandonment At the suppression hearing, the State flirted briefly with the theme of abandonment, but the flirtation went nowhere. Corporal Widdowson testified that he had been told by the management of the Days Inn that because the appellant had been arrested, Room 133 would be cleared and its contents would be discarded. He testified that in view of that announced intention, he considered those items of property to be legally abandoned. Had that discarding by the Days Inn actually been carried out, the proprietary rights of Gary Dopowsky, who had rented Room 133 through the following day, would seem thereby have been cavalierly disdained.3 Had the Days Inn, without a hint of involvement by way of State

It is inconceivable that the motel management was actually planning to throw three stacks of cash into the trash. To enjoy a criminal trial transcript, however, is necessarily to agree with Samuel Taylor Coleridge that "a necessary condition for the enjoyment of any 7

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action, actually carried out such a plan and had the task force then simply rummaged through the abandoned trash, the Fourth Amendment implications of such a scenario will have to be explored in some other opinion in some other case. In this case, the abandonment rationale never got off the ground. There is, of course, no Fourth Amendment theory that permits the police to treat as abandoned property items that have not yet been abandoned but which might at some future time become abandoned. As Judge Jackson quickly concluded: I don't even believe the State's claiming it's abandoned property. I agree with the defense that this is probably not inevitable discovery. An Opportunity Foregone: Challenging the Appellant's Standing There was another rationale that would have gotten off the ground. Inexplicably, the State never challenged the appellant's Fourth Amendment standing to object to the police entry into or the search of Room 133. Why the appellant was in the room remains to this day a mystery. The room was rented to Gary Dopowsky, with no indication that that was an alias of the appellant. The appellant actually testified that it was Gary Dopowsky who had rented the room. Even with no demonstrated propriety interest in Room 133, however, the appellant might still have enjoyed derivative standing, had he shown that he was a legitimate guest in the room at the invitation of Gary Dopowsky. Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed.2d 85 (1990). In such a case, the Fourth Amendment protection enjoyed by the host would extend derivatively to a guest who is legitimately on the premises

fiction is the willing suspension of disbelief." 8

at the invitation of the host. Even being the legitimate guest of Gary Dopowsky, however, would have yielded the appellant no Fourth Amendment protection in terms of derivative standing if it had also been shown, as it clearly was in this case, that the appellant was in someone else's home, apartment, or motel room for the criminal purpose of packaging and selling narcotic drugs. See Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998): Respondents here were obviously not overnight guests, but were essentially present for a business transaction...There is no suggestion that they had a previous relationship with [their host], or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in [Minnesota v.]Olson to suggest a degree of acceptance into the household. While the apartment was a dwelling place for [the host], it was for these respondents simply a place to do business.
Property used for commercial purposes is treated differently for Fourth Amendment purposes from residential property. (Emphasis supplied). This case would have presented no Fourth Amendment problem if the appellant, who, if challenged, would have borne the burden of proof on standing, Rakas v. Illinois, 439 U.S. 128, 130-31 n.1, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), Fitzgerald v. State, 153 Md. App. 601, 662, 837 A.2d 989 (2003), aff'd. 383 Md. 484, 864 A.2d 1006 (2004); Burks v. State, 96 Md. App. 173, 195, 624 A.2d 1257, cert. denied, 322 Md. 381, 631 A.2d 451 (1993), had not been able to show a Fourth Amendment interest in Room 133. Such a threshold challenge, it would seem, ought to be an automatic prosecutorial instinct when dealing with hotels and motels. 9

There is no point in locking the barn door, however, once the horse is out. A failure of the State to raise a challenge to a defendant's standing at the suppression hearing operates as a waiver of the challenge. As Judge Salmon wrote for this Court in McGurk v. State, 201 Md. App. 23, 33, 28 A.3d 729 (2011): We hold that by failing to raise the standing issue in the circuit court, the State waived that issue for appellate purposes. In McCain v. State, 194 Md. App. 252, 279, 4 A.3d 53 (2010), Judge Kehoe held to a similar effect: Because the State did not raise the issue at the suppression hearing, there was no reason for appellant to present such evidence and he did not. Under these circumstances, consideration of the standing issue for the first time on appeal would be unfair to appellant. The easy disposition of the case is thus not available to us. We will have to take the long way around. In going forward with our Fourth Amendment analysis, we will treat the appellant, therefore, as if he had rented Room 133 in his own name and for his own use. Verily, we will treat him as if he were the fee-simple owner of the Days Inn itself. The Diminished Fourth Amendment Protection Of a Parolee Even with enhanced Fourth Amendment credentials, however, the appellant's case for the suppression of the evidence founders. His Fourth Amendment credentials that may have been enhanced by his presumptive standing were drastically devalued in another respect. The ultimately dispositive factor is that there was an outstanding parole retake warrant for the arrest of the appellant. The appellant had been convicted on July 15, 2004, in the Circuit

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Court for Somerset County for the possession with intent to distribute controlled dangerous substances. He was sentenced to a term of seven years, with all but three years suspended to be followed by two years of probation upon release. On August 1, 2006, the appellant was placed on parole. The record seems to indicate that as of August 1, 2006, the appellant was on both probation and parole. In any event, on March 16, 2008, the appellant was charged with a subsequent offense and on March 20, 2008, a parole retake warrant was issued for his arrest. That parole retake warrant was still outstanding, when the current offense took place eight months later. As we have already discussed, and held, the arrest of the appellant on the outstanding parole retake warrant passed Fourth Amendment muster and is beyond challenge. By the same token, the police entry into Room 133 for the purpose of making that arrest also passed Fourth Amendment muster and is also beyond challenge. The challenge is to the search of (by initially looking into) and to the seizure of narcotics from two bags that were in Room 133. Even granting the appellant presumptive derivative standing in Room 133 itself, attention then devolves upon the extent of any Fourth Amendment protection that the appellant, because of his special status as a parolee, may have enjoyed with respect to a search of his person (including his extended person in the search incident context) or of the motel room. 5 Wayne R. LaFave, Search and Seizure (4th ed. 2004),

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