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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 650

September Term, 2011

ABRAHAM KAMARA v. STATE OF MARYLAND

Woodward, Graeff, Kehoe, JJ.

Opinion by Graeff, J.

Filed: June 7, 2012

Abraham Kamara, appellant, was convicted in the Circuit Court for Montgomery County, pursuant to an agreed statement of facts, of possession of marijuana with the intent to distribute. The court imposed a sentence of three years, all but nine months suspended, with five years unsupervised probation.1 On appeal, appellant raises two questions for our review, which we have rephrased as follows: 1. Where the police illegally enter a home and secure the premises while they obtain a search warrant, is evidence subsequently seized pursuant to a lawful search warrant admissible under the independent source doctrine or the inevitable discovery doctrine? Was the evidence sufficient to support appellant's conviction of possession of marijuana with the intent to distribute?

2.

For the reasons set forth below, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND I. Suppression Hearing On March 17, 2011, the court held a hearing on appellant's motion to suppress evidence. Counsel for the State introduced into evidence, as State Exhibits 1 and 2, a search warrant and the search inventory identifying the evidence the police seized from appellant's home pursuant to the warrant.

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The court ordered that the sentence would not begin until the resolution of this

appeal.

Detective George Witherington prepared the application and affidavit for the search warrant on November 19, 2010. The application detailed Detective Witherington's experience with controlled dangerous substances and then set forth the following: 3. On November 19th, 2010, your affiant was in the vicinity of Flower Avenue and Piney Branch Road, Silver Spring, Montgomery County, Maryland, conducting undercover narcotics operations, due to complaints of drug activity in the area. Your affiant met with an individual, later identified as Ryan Lackonsingh,[2] and engaged him in conversation. Your affiant asked to purchase marijuana and Lackonsingh advised that he knew where to obtain marijuana and that he would obtain marijuana for your affiant. Lackonsingh then entered the writer's undercover vehicle and directed him to the area of Chickasaw Drive and Osage Street, Silver Spring, Montgomery County, Maryland and instructed your affiant to park on the side of the street. Lackonsingh advised that he would go purchase the marijuana at a nearby house and would be right back. Your affiant then provided Lackonsingh with $120.00 in pre recorded drug enforcement funds to purchase marijuana and Lackonsingh exited the vehicle. Detective Oaks, of the Montgomery County Police, Special Investigations Division, Tactical Narcotics Unit, then observed Lackonsingh walk to 1015 Osage Street, Silver Spring, Montgomery County, Maryland. This address will hereafter be referred to as "the residence." Oaks observed Lackonsingh knock on the front door, observed the front door open and observed Lackonsingh enter. After approximately 2 minutes, Oaks observed the front door of the residence open and observed Lackonsingh walking away from the residence, back in the direction of your affiant. Lackonsingh then arrived at and reentered the writer's vehicle. Lackonsingh the[n] handed your affiant a baggie containing green, leafy, vegetable matter, which your affiant recognized through training and experience to be marijuana, a controlled dangerous substance of schedule I. At this time other members of the Tactical Narcotics Unit converged on the area and placed Lackonsingh under arrest. Detective Chmiel, of the Montgomery County Police, Special Investigations Division, Tactical Narcotics Unit, searched Lackonsingh incident to his arrest and located two baggies containing green, leafy vegetable matter in Lackonsingh's right, front coin pocket. Chmiel recognized through training and experience that this green, leafy matter was marijuana, a

There is a discrepancy concerning the spelling of Mr. Lackonsingh's last name. For the purpose of consistency, we will use this spelling. 2

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controlled dangerous substance of schedule I. Additionally, Chmiel located $20.00 US currency in Lackonsingh's left, front pants pocket. Detective Sergeant Carafano of the Montgomery County Police, Special Investigations Division, Tactical Narcotics Unit, confirmed that this $20.00 was a portion of the same $120.00 that your affiant had provided Lackonsingh to purchase marijuana. 4. Upon arrest of Lackonsingh, Oaks responded to the residence to conduct a "knock and talk" investigation with the occupants. Upon approaching the residence, Oaks encountered t[w]o unidentified males who exited the residence and met Oaks in front of the residence. Oaks explained that he was at the residence to conduct an investigation and both individuals immediately became argumentative and began asking Oaks for a warrant. Carafano responded to the scene at this time and explained to the two males and an additional female inside the residence that the residence was being seized, pending further investigation. Carafano explained that your affiant would be applying for a search and seizure warrant. Oaks conducted a protective sweep of the residence in order to verify that no additional individuals were located within the residence and during this sweep, Oaks detected a strong odor of marijuana within the residence. Oaks observed approximately 1/4 pound of suspected marijuana laying in plain view on a bed within the residence, and a jar containing suspected marijuana and a digital scale, also in plain view, on a dresser within the residence. Once Oaks was confident that no additional individuals were in the residence, the house was secured pending a search warrant. The search warrant inventory, which was introduced as State's Exhibit 2, lists the following evidence seized during the execution of the warrant: 1. 2. Marijuana and baggies found on bed in upstairs bedroom. Mail with name Abraham Kamara found on top of dresser in upstairs bedroom. Marijuana scale found on top of dresser in upstairs bedroom. Small bag of marijuana in blue jeans found in blue bin in downstairs bedroom.

3. 4.

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At the hearing on the motion to suppress, Detectives Donnie Oaks and Michael Paul, members of the Montgomery County Police Department, testified regarding the events that occurred on November 19, 2010. Detective Oaks testified that Detective Witherington was working undercover, wired for audio, and he had arranged to purchase marijuana from Mr. Lackonsingh in Silver Spring. Mr. Lackonsingh entered Detective Witherington's unmarked vehicle and directed Detective Witherington to drive toward Osage Street. Detective Witherington gave Mr. Lackonsingh "pre-marked drug enforcement money," requiring Mr. Lackonsingh to leave his jacket in the car for collateral.3 Mr. Lackonsingh left the vehicle and walked up Osage Street. He knocked on the door at 1015 Osage Street, and an unidentified person opened the door. Mr. Lackonsingh then entered the residence. Approximately five minutes later, Mr. Lackonsingh left the house and walked back to Detective Witherington's car. After Mr. Lackonsingh entered the car and gave the detective marijuana, he was arrested. Detective Oaks testified that, several minutes after Mr. Lackonsingh exited appellant's house, he observed another man approach the residence, whereupon a male, whom Detective Oaks identified as appellant, exited. Detective Oaks observed appellant participate in a "hand to hand drug transaction" at the bottom of the front steps. After approximately 15 minutes, Detective Oaks decided to approach the house in order to conduct a "knock and talk." He explained: "I believed I could talk to him, and, and

Detective Oaks listened to the wire transmissions on his scanner and followed Detective Witherington's car. Mr. Lackonsingh was not searched before he left the vehicle. 4

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ask him, you know, what, what's going on in the residence. And I believed I could talk him in, you know, talk him into turning over any more marijuana he had or, and ask him who was living in the residence." Detective Oaks and two other detectives, who were all wearing police bulletproof vests, armbands, and badges, approached the front door. Appellant opened the door while the detectives were walking up the front steps. He stood in the threshold of the door, with both the storm door and the "main wooden door" open, and Detective Oaks observed a "large fold of money in [an] open pocket in [appellant's] sweater." A few seconds later, appellant's brother, Kenneth Kamara, and a female came to the door. Detective Oaks took identification from each of the three individuals. He described appellant as "cooperative," but his brother was "agitated," "confrontational," and "loud." The female had a young child with her who was loud and crying. Detective Oaks gave the identification to Detective Spellman to run a "wanted check," which indicated that that both appellant and Kenneth Kamara "had cautions for being drug dealers, users and . . . there was a caution for Kenneth being possibly armed." He refused Kenneth Kamara's request to return his identification, stating that he was waiting for Sergeant Carafano. When Sergeant Carafano arrived, he advised that he was going to get a search warrant for the residence. He stated that the police were going to detain appellant and his brother while they sought a search warrant. He handcuffed the two men, and the police then

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conducted a pat down of appellant and his brother for weapons and had them sit on a couch "approximately four feet away from the front door."4 Detective Oaks and another officer performed a protective sweep of the residence to make sure no one else was present. He explained that a sweep of a home involved "walking through all the rooms, making sure no one is hiding in the closets, under beds. You know, you have your guns out, make sure, just for your safety, and you just check the house for individuals." He did not open drawers or move anything during the sweep because he was "looking for persons." During the sweep, he saw marijuana in a bedroom on the first floor in plain view. On the bed, there was a shopping bag containing marijuana, and on the dresser in front of the bed, there was a scale and a jar containing marijuana.5 After the sweep, Detective Oaks called Detective Witherington, who was drafting the application for the search warrant.6 The officers did not question appellant, but appellant told his brother, who was very confrontational, to calm down. At some point, appellant said: "[W]hatever, this, it's all me, let him go." Appellant did not want his brother to be arrested.

The woman and the child also sat on the couch. Detective Oaks testified, however, that they did not put handcuffs on the female because "[s]he was dealing with the kid. The kid was a little bit out of control." The shopping bag was a plastic grocery bag, and Detective Oaks could see the marijuana in plain view. He did not touch the bag. Detective Oaks did not specify what he told Detective Witherington. The warrant application, however, contained information gained during the protective sweep. 6
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While the officers were waiting for the warrant, appellant's mother came home. She was crying and very upset, asking "why, why, why." Detective Oaks testified that the officers initially entered the home at approximately 5:32 p.m., and the search warrant was signed at 9:40 p.m. He explained the four hour delay as follows: "I know there [were] problems with getting hold of . . . our Lieutenant, Marcus Jones, to approve the search warrant," as well as "problems with getting hold of the . . . judge who signed the search warrant." The search warrant was approved by

Sergeant Carafano at 7:03 p.m. and by Lieutenant Jones at 7:40 p.m., and it was signed by a judge at 9:40 p.m. Detective Paul testified consistently with Detective Oaks. He stated that he did not hear the officers question appellant, nor did the officers yell at, threaten, place their hands on, or make promises to appellant or his brother. Detective Paul saw a wad of money fall out of appellant's sweater pocket "at least two or three times." He instructed Detective Williams to count the money and put it on the table in front of appellant. Detective Paul testified that appellant stated: "[W]hy you holding my brother? You can release him. Anything that's in this house is mine. The marijuana is mine. That, that room is mine. Anything that you would find in here is going to be mine." Appellant's brother told appellant to "shut up. They're going to use this stuff against you. Shut up." The police told appellant to remain calm. Appellant continued to say, without any questioning, that the marijuana was his. When the warrant search was conducted, Detective Paul photographed the seized items, including marijuana and a digital scale found in the bedroom. One of the photographs 7

showed that a door in the basement had been forced open. Detective Paul testified that it was standard operating procedure to force open a locked door during a protective sweep. The parties stipulated that appellant's father, Kenneth Kamara, Sr., would have testified that the door was not damaged when he left the home that morning. Detective Paul found a small amount of marijuana in a pocket of a pair of jeans in the basement. The parties also stipulated that Sergeant Carafano would have testified that the money that was counted and placed on the table came from appellant's sweater. The money, which totaled $1,360 and included $80 of pre-marked drug enforcement money, was not taken off the table until after execution of the search warrant. Sergeant Carafano also would have testified that marijuana and baggies were found on the bed. At the conclusion of the evidence, the State "conceded that the entry into the defendant's home and his arrest at that time . . . violated his Fourth Amendment rights," stating that the police "created the exigency" by performing a knock and talk. The State asserted, however, that police officers may impound a house pending application for a search warrant for a reasonable amount of time. It argued that most of the evidence seized was admissible pursuant to the doctrine of inevitable discovery. Defense counsel argued that the money was not seized pursuant to the search warrant, but rather, it was seized at the time of the unlawful arrest. He argued that the statements were involuntary because he had been "in the custody of the police for some four or five hours. His house has been broken into, doors inferentially have been kicked into. His sister has been asked to leave her own house." He argued that, if paragraph four of the search 8

warrant application, addressing contraband found inside the residence, was eliminated, then the application lacked probable cause. Counsel asserted that Mr. Lackonsingh "provided no information about whether there [were] any additional drugs still in the house," and the purchase was not a controlled buy because the police did not search Mr. Lackonsingh before he entered the house. The circuit court was troubled by the officers' decision to "go in the house and make their own protective sweep," noting that there was probable cause for a search warrant before the officers entered the house. The court stated: [T]hey meet [Mr. Lackonsingh] on the sidewalk. . . . He then gets into the car and he's transported to the house. He tells them how to get there. Then he takes the money, the marked money, and he goes inside. He's not seen for a period of time. He comes back out and lo and behold, he's got marijuana just like he said he was going to have. Okay? And when they search him after he's lawfully arrested, in my opinion, they find marked monies. The rest of the money is gone. There's certainly probable cause to believe he used part of the marked money to buy the marijuana that he had. There's more than sufficient evidence. The court stated that there was "plenty of probable cause for his arrest. And the information for the probable cause for the search warrant is there if you excise it, based on what the police had . . . ."

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The court found that the entry into the home and the protective sweep were unlawful, and it suppressed appellant's statements7 and his cell phone as fruits of an unlawful arrest. It further suppressed the money: The money that could have been seized from his person had the arrest been lawful, it was clearly the product of that unlawful arrest. It kept falling out of his pockets until the police finally indicated that, what it was. Now, the police are not precluded from testifying that there was a large wad of cash in his pocket when he came to the door. But in connection with their testimony that once they seized it, it turned out to be money that was possessed by the undercover informant, it seems to me that, that would be [the] product as well of the unlawful seizure of the cash. With respect to the drugs that ultimately were seized pursuant to the warrant, however, the court viewed Williams v. State, 372 Md. 386 (2002), discussed infra, as dispositive of the issue. It stated: I think that in light of the Williams case, I have to deny your extremely well based, well articulated, well argued, and well thought out motion. So to take stock on where we are, the Court is denying the motion to suppress as to the items that were seized pursuant to the warrant, because I find that there was sufficient probable cause once I excised the, what was unlawfully seen and placed in the warrant. And I find that based on the Williams v. State case at 372 Md. 386, specifically looking at page 414 and the rest of the opinion as well, that it would seem as though, on facts strikingly similar to this, the Court of Appeals would have ruled based on their reasoning, that there was an independent source because the police did have probable cause to get a search warrant; and

The court ruled that appellant's statements were "suppressed insofar as the State cannot use them in their case in chief," because they were "the direct product of his unlawful arrest and detention," but it ruled that the statements were voluntary and therefore could be used for impeachment purposes. 10

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that when [the State's Attorney] did what they did not do in Williams v. State

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