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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1772 SEPTEMBER TERM, 1998 _______________________________

GLENN IVAN ROSENBERG v. STATE OF MARYLAND _______________________________ Moylan, Hollander, Eyler, JJ. ______________________________ Opinion by Hollander, J. ______________________________ Filed: December 3, 1999

Appellant, Glenn Ivan Rosenberg, was convicted by a jury sitting in the Circuit Court for Montgomery County of two counts of theft of property valued at more than $300. He was subsequently

sentenced by the court to two consecutive terms of fifteen years of imprisonment, with five years of each term suspended.1 On appeal,

Rosenberg presents a pentad of issues, which we have rephrased slightly: I. Did the trial court err in denying appellant's motion to suppress a) physical evidence recovered during a warrantless search of his canvas bag and car, and b) physical evidence recovered from his home pursuant to a search warrant? Did the trial court err in its jury on reasonable doubt? instructions

II.

III. Did the trial court err in admitting evidence of "other bad acts"? IV. V. Did the trial court err in permitting a police officer to give lay opinion testimony? Did the trial court err in admitting certain evidence at trial that was provided by the State in violation of the discovery rules?

As we perceive no error, we shall affirm the trial court's judgments.

SUPPRESSION HEARING In deciding whether the court erred in denying the suppression motion, the record at the suppression hearing is the exclusive source of facts subject to our review. Lee v. State, 311 Md. 642,

In his brief, appellant erroneously states that the court imposed concurrent sentences.

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648 (1988); Trusty v. State, 308 Md. 658, 670 (1987); Aiken v. State, 101 Md. App. 557, 563 (1994), cert. denied, 337 Md. 89 (1995). We extend great deference to the first-level factual

findings of the suppression judge and accept the facts as found, unless clearly erroneous. Riddick v. State, 319 Md. 180, 183 Moreover,

(1990); Perkins v. State, 83 Md. App. 341, 346 (1990).

we give due regard to the hearing judge's opportunity to assess the credibility of the witnesses. (1992). Although we review McMillian v. State, 325 Md. 272, 282 the evidence in the light most

favorable to the State as the prevailing party, Riddick, 319 Md. at 183, we must make our own independent constitutional appraisal. This is accomplished by reviewing the law and applying it to the facts as found by the suppression judge. Howard v. State, 112 Md.

App. 148, 156, cert. denied, 344 Md. 718 (1997); Jones v. State, 111 Md. App. 690 (1996)), 456, 465 (citing Ornelas v. United States, 517 U.S. cert. denied, 344 Md. 117 (1996). With these

principles in mind, we turn to review the evidence adduced at the suppression hearing. At around 10:00 p.m. on October 7, 1997, Montgomery County Police Officers Sean Reilly and Alexander Scott Power arrived at the area of Kersey Road and Monticello Street in Silver Spring, Maryland, in response to a call reporting suspicious activity. The

officers, who were in uniform, arrived separately in marked police vehicles. Upon arrival, the officers saw appellant seated on the 2

ground in front of an open telephone equipment box.2

The box

consisted of a double door metal container encased in concrete, which was located between the sidewalk and curb; it was about four feet high, three feet wide, and one foot deep. rows of wires. Inside the box were

According to Officer Power, "several wires were

pulled out from the box . . . . [S]everal of them were actually sticking out as if someone had pulled on them." On the ground, a

few feet from appellant, were a socket wrench, wire cuttings, and a white canvas bag with some wires and tools sticking out. One of

the exposed tools was an orange and yellow hand-held telephone receiver. The officers recognized the tool as one used by

telephone repair persons. When the officers asked appellant what he was doing, he responded that he was "testing out his equipment." Appellant When he

indicated that he did not work for the telephone company.

was asked where he got his tools, he responded that he had bought them. Upon request, appellant produced his driver's license for A warrant check came back "negative." The

identification.

officers also performed a pat down of appellant and made a cursory look inside the canvas bag for weapons. Although no weapons were

discovered, the canvas bag contained several unidentifiable tools and several papers on which were written 1-800 and 1-900 telephone numbers.
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Officer Power also found a blue technician's repair card

The telephone equipment box was described as a connection point between the central office and area residences. 3

dated June 20, 1997. About five minutes after they arrived, the officers looked through the window of appellant's car, which was parked close by. Inside the car, lying on the back seat, was a "Bell Atlantic" hard hat, like those used by telephone repair persons. When Officer

Power saw the helmet, he recalled an earlier report of a break-in involving a Bell Atlantic truck. Appellant told the officers that

he received the helmet from a friend. Appellant was "fidgety" and "very evasive in his movements." Officer Reilly believed that appellant was "tampering with the phone lines." The officers reported the situation over the radio

and within a few minutes two other officers appeared on the scene. One was Montgomery County Police Officer Elizabeth Cornett, who heard appellant's name broadcast on the police radio and went to the scene because appellant was "known to have a lot of guns." She

was aware that appellant had previously been suspected of using explosives, and she once saw him "scaling the side of a building with gasoline." Moreover, bulletins he had for appellant officer home was listed of on an had

interdepartmental incident in which

safety an

because

followed

officer

who

intervened in his harassment and stalking of his ex-wife.

Because

of other encounters with the police, the bulletins also noted that appellant owned a large number of guns and had a working knowledge of explosives. About fifteen minutes after 4 Officers Reilly and Scott

arrived, appellant indicated that he wished to leave the area.

He

was told, however, that he could not leave until his car was searched. Appellant then gave the police permission to search his Inside the trunk of

car, saying: "You can go and search it."

appellant's car the police discovered two small medicine bottles labeled "mercury." Knowing that mercury can be used to make

explosives, two bomb sniffing K-9 units and a fire marshall were called to the scene. more papers numbers. on which Also in the trunk of the car were several were written 1-800 and 1-900 telephone

At this time, the officers performed a second search of

the canvas bag to determine if there were any markings on the items identifying them as property belonging to Bell Atlantic. contained no such markings. Around this time, Sergeant Alan Goldberg arrived at the scene. After being briefed by the other officers, recognizing the The items

specialized nature of the tools, and recalling an earlier report of a break-in of a telephone company truck, the sergeant contacted a Bell Atlantic representative and Detective Robert Angelino, a member of the Montgomery County Police Department's Special

Investigations, Electronic/Technical Support Unit, to come to the scene. Based on what he saw, Detective Angelino said: "I thought I

we had a theft of . . . service [from the telephone company]. thought we had a possible theft of equipment."

He based his view

of possible theft of services on the open telephone equipment box,

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the condition of the wires, and a butt-in set.3

Sometime between

an hour and an hour and a half after the first officers arrived at the scene, Sergeant Goldberg decided to arrest appellant "at the minimum for destruction of property [and] vandalism for tampering with the box." Appellant was handcuffed and transported to a

police station for questioning. After appellant was taken to the police station, the Bell Atlantic representative and Detective Robert Angelino arrived at the scene. The telephone company representative thought the canvas Although the Bell Atlantic

bag contained Bell Atlantic equipment.

representative recognized many of the tools as the type used by the company, she was unable to "positively" identify any of the items contained in the canvas bag as belonging to the company. Detective Angelino searched the canvas bag and recognized many of the tools as those used by telephone repair persons. He also

believed that the items were not generally available to the public. When Detective Angelino inspected the telephone box, he noticed that some wires had been pulled out. The wires showed evidence of

"crimping," a term referring to indentations on the wires from the use of certain equipment. The marks on the wires were consistent

with someone attaching a "butt-in set" with "alligator clips," so as to allow the user to make a telephone call. The
3

Bell

Atlantic

representative,

Sergeant

Goldberg,

and or

A "butt-in set" refers to a tool used to monitor eavesdrop on existing telephone calls or to make calls. 6

Detective Angelino were aware that earlier that evening a Bell Atlantic truck had been broken into, but they did not know what, if anything, was taken. suspected Atlantic that Both Sergeant Goldberg and Detective Angelino was way connected that with did the not stolen yet Bell know.

appellant in a

equipment

they

Accordingly, it was decided not to charge appellant with any crimes. pending Instead, appellant was released on his own recognizance further investigation. Nevertheless, the police

confiscated from appellant a side kick stress test,4 a handset telephone tester, a flashlight, a roll of wire, assorted tools, the Bell Atlantic hat, and the white canvas bag. On December 11, 1997, about five weeks after the abovedescribed incident, Detective Angelino submitted an affidavit in support of a request for a search warrant for appellant's truck and home, located at 300 Belton Road in Silver Spring. Detective

Angelino presented it to Judge Mason, who asked the detective whether the equipment appellant had on the night in question was generally available to the public. The detective advised the judge The affidavit, which was

that it was not generally available.

signed and executed that day, contained a handwritten and initialed notation, added to the text of the application, which read: "This

This was described as a tool used to measure the loss of line and to tell what lines need repair. 7

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equipment is not generally available to the public for sale."5

At

that point, however, the telephone company was still unable to identify the equipment as the company's. In addition to the facts

recounted above, the affidavit indicated the following information. Detective Angelino had worked for the Montgomery County Police Department for almost twenty-five years. He averred that he had

spent the last fourteen of those years assigned to the Special Investigations Division, Electronic/Technical Support Unit. In

this capacity, he had been assigned to every court-ordered wire tap/interception Department. conducted by the Montgomery County Police

He had also instructed the Montgomery County Police

Department in methods of electronic surveillance and wire tap installation, detection, and neutralization; assisted police

organizations internationally with installation, detection, and neutralization of electronic equipment problems; and kept up-todate on current local, state, and federal laws concerning

electronic equipment installation and usage. The affidavit further stated that Linda Pabst, a Bell Atlantic security investigator, confirmed for Detective Angelino that the equipment found in appellant's canvas bag was not generally

available to the public.

She also informed Detective Angelino that

Bell Atlantic had experienced many thefts of equipment over the Apparently, the language was added by the court based on the detective's response to the court's inquiry. But, Detective Angelino indicated that the writing was not his, and he did not see Judge Mason initial it. 8
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previous several months, totaling hundreds of thousands of dollars. The thefts occurred almost nightly and a similar method of entry, prying off the rear window of the trucks, was used to remove the items from the Bell Atlantic trucks. Detective Angelino also

related that he conducted spot surveillances of appellant's home and, on the evening of December 6, 1997, appellant was observed carrying a large, dark, shiny suitcase into his home at about 1:00 a.m. On December 9, 1997, Cathy Rhodes, a supervisor of Bell Atlantic, told Detective Angelino that some of the equipment stolen from the company's facilities was encased in a black "ABS" plastic suitcase. The affidavit also stated that appellant had a 1989

conviction for theft; a 1990 conviction for theft of property valued at more than $300 and attempted theft of property valued at more than $300; and a 1991 conviction for violation of probation. Upon execution of the search warrant for appellant's home and truck, the police seized more than a hundred items of telephone equipment. These included butt-in sets, tone generators, tone test

sets, inductive amplifiers, hand drills, crimping tools, rolls of wire, fish tape, telephone jacks, Bell Atlantic hard hats, a white canvas bag, volt meters, telephone test sets, voltage testers, Tbird meter, signal strength meters, ammeters, and assorted hand tools. The detective subsequently learned that only the hat and

the sidekick units were generally unavailable for sale to the public. The butt-in set, however, was generally available. 9

In denying appellant's suppression motion, the court said, in pertinent part: Insofar as the events of the night were concerned, just to recap, I mean, we have a complaint from a citizen. We have a police officer who comes on the scene. It is 10 o'clock at night. There is a man sitting in front of, or in some fashion in front of what is known to the officer to be a telephone company piece of property which is, now I know, which is between the curb and the sidewalk, with it open. He has got equipment in his hands and there are wires coming out of the thing, crimped wires. They should have fired the entire lot of them on the spot, the police officers, if they did not do something under those circumstances. They had to do something. The [sic] did, in my view, the entirely appropriate thing to do. Then they saw in the automobile, which has been identified as being that of Mr. Rosenberg's nearby, a telephone company hat. So, there was in plain view, a telephone company hat, a sidekick, a butt set -- now, I am not going to try to define all of these things again. I think it has been defined somewhere. I hope I have done a good job in defining it or having it defined throughout the course of this thing -- and all of which gave the appearance of being the property that one would find in the possession of an authorized telephone company employee. We have this guy sitting out there at 10 o'clock at night doing all of whatever he was doing. I am still not clear what he was doing out there. The officers had in my view, probable cause to believe that he was at a minimum involving himself in theft of services, possibly involved in electronic eavesdropping, theft of equipment, what was the word that you used, Mr. State, that they talked about, the statutory word? [THE PROSECUTOR]: Molestation. THE COURT: Molestation of property? 10

[THE PROSECUTOR]: Right. * * * THE COURT: So, they had all of that. I have no problem whatsoever with the initial events. There was plenty of probable cause to believe he was violating the law, and then they went further. It is sort of a "darned if you do, darned if you don't situation." They did a thorough job. They tried on the scene to stay on the scene and try to more sort out what was going on. Then they took it, the next step, they took him down to the precinct, and then they release him, which I think was the decent thing to do. In no way am I going to -- is anyone ever going to convince me that it was at all improper for them to do that, nor do I think that it in anyway took away from the events that had occurred before that. Then the warrant was prepared on the basis of information that some of which was not entirely correct, but would seem logical. * * * All in all, the police acted in my view in an entirely properly [sic] fashion, and there is nothing wrong -- no reason why I ought to disturb this search and seizure. So, the motion is denied. We will include additional facts in our discussion.

DISCUSSION I. Appellant argues on appeal that the trial court erred in denying his motion to suppress items seized from his person, his vehicle, and his residence. He claims that the police officers

lacked probable cause to arrest him and that his illegal arrest tainted the search and seizure of the canvas bag and the equipment 11

in it. search

Appellant also asserts that the affidavit in support of the warrant for his home intentionally included false

information. affidavit,

When the false information is excised from the maintains that it lacks probable cause.

appellant

Accordingly, he asserts that the evidence seized from his home and vehicle pursuant to the search warrant should have been suppressed. We shall address each argument in turn.

A.

Search and seizure on October 7, 1997

Appellant concedes that, on the night in question, the police made a lawful Terry stop to investigate suspicious behavior. Terry v. Ohio, 392 U.S. 1, 30 (1968). the Terry stop evolved into an See

He complains, however, that warrantless search,

unlawful

warrantless arrest, and invalid search pursuant to a defective warrant. The State acknowledged that the police "froze the situation" while they investigated. Nevertheless, the State insists that

appellant's "detention was valid from the moment officers had probable cause to arrest . . . ." had probable cause to arrest In the State's view, the police Rosenberg for molestation or

destruction of property almost immediately.

Sergeant Goldberg

explained that, based on what the officers observed, "at the minimum, . . . we had probable cause for destruction of property." He explained that a delay in the arrest ensued because the officers

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"were looking for additional charges in our digest, more specific charges relating to telephone company equipment. . . ." The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 646 n.4 (1961), guarantees, inter alia, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." Nevertheless, "The Fourth Amendment does not proscribe all stateinitiated searches and seizures; it merely proscribes those which are unreasonable." Florida v. Jimeno, 500 U.S. 248, 250 (1991).

"Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). A

warrantless search incident to an individual's lawful arrest is one of these exceptions. United States v. Robinson, 414 U.S. 218, 235 In Chimel v.

(1973); Ricks v. State, 322 Md. 183, 188-89 (1991).

California, 395 U.S. 752 (1969), the Supreme Court explained: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. Id. at 762-63. 13

In determining the legality of the search of appellant, his canvas bag, and his car on October 7, 1997, we must engage in a two-part analysis. First, we must determine when, for purposes of Second, we must

the Fourth Amendment, appellant was in custody.

determine whether, at the time of seizure, the police had probable cause. "`Custody' ordinarily contemplates that a suspect will be under arrest, frequently in a jailhouse or station house setting." Reynolds v. State, 88 Md. App. 197, 209 (1991), aff'd, 327 Md. 494 (1992), cert. denied, 506 U.S. 1054 (1993). The concept of

"custody," however, is not necessarily synonymous with an actual arrest; it also includes a reasonable perception that one is significantly deprived of freedom of action. 384 U.S. 436, 477-78 (1966). Miranda v. Arizona,

In determining whether a seizure of

the person has occurred, we must decide whether, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." v. Mendenhall, 446 U.S. 544, 554 (1980). United States

In California v. Hodari

D., 499 U.S. 621, 628 (1991), the Supreme Court explained that the test "is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a

reasonable person." In Thompson v. Keohane, 516 U.S. 99, 112 (1995), the Supreme

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Court indicated that custody may be found when "a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave." Id. at 112. Moreover, the Court of

Appeals has said that the trial court must consider, inter alia, whether the suspect is "physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation." Whitfield v. State, 287 Md. The "`subjective

124, 140 (1980) (internal quotation omitted).

intent' of a law enforcement officer, however, is not relevant in resolving the custody issue." 580, 593 (1997). In re Joshua David C., 116 Md. App.

Examples of circumstances indicating a seizure

include "the threatening presence of several police officers, the display of a weapon by an officer, some physical touching of the person . . . or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554. In our view, appellant was seized between the time of arrival of the second group of officers and when appellant indicated that he wanted to leave the area and was told that he could not do so. It is not necessary to pinpoint the exact moment when appellant was seized, however, because we are satisfied that Officers Reilly and Powers had probable cause to arrest appellant on the charge of molestation or malicious destruction of property, vandalism, or

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tampering with private property before the second group of officers arrived at the scene. "The legality We explain. of the arrest and, therefore, of the

reasonableness of the search and seizure incident to the arrest, turns on the law of the State in which the arrest was made, absent a controlling federal statute." Stanley v. State, 230 Md. 188, 191

(1962) (citing United States v. Di Re, 332 U.S. 581, 589 (1948); Johnson v. United States, 333 U.S. 10, 15-16 (1948); United States v. Rabinowitz, 339 U.S. 56, 60 (1950)). Maryland law provides that

"[a] police officer who has probable cause to believe that a felony or misdemeanor is being committed in the officer's presence ... may arrest without a warrant any person whom the officer may reasonably believe to have committed such offense." Repl. Vol.), Art. 27,

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