{"id":1594,"date":"2008-02-03T13:14:38","date_gmt":"2007-12-09T10:24:23","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-12-09T10:24:23","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1594","title":{"rendered":"MD seemingly declines to follow Hudson<\/em>"},"content":{"rendered":"

Maryland apparently declines to follow Hudson<\/em><\/a> by following state statute and Maryland’s common law. It reiterates prior holdings that the exclusionary rule applies, and the state conceded that the intermediate court’s decision was correct, did not file a cross-petition for certiorari, and then argued that Hudson<\/em> should be followed under Maryland law, a proposition that the court rejected. The court seems to indicate that it would reject Hudson<\/em>, but it technically left the question for another day. Parker v. State<\/a>, 936 A.2d 862 (Md. 2007):<\/p>\n

Nevertheless, we shall assume arguendo that, under federal law, Hudson v. Michigan<\/em> controls the Fourth Amendment issue in this case, and that the Fourth Amendment’s exclusionary rule is inapplicable to any violations of the “knock and announce” principle that may have occurred in the case at bar. We shall decide, however, that, under the peculiar circumstances of this case, the evidence is excludable if there is a violation of Maryland’s “knock and announce” principle. This is a very limited decision based exclusively upon Maryland non-constitutional law and procedure.<\/p>\n

. . .<\/p>\n

Consequently, simply because Article 26 of the Maryland Declaration of Rights and the Maryland common law “knock and announce” principle may generally be in pari materia with the Fourth Amendment, does not require that, in the case at bar, we reconsider the state law holdings of Davis and Adams v. State<\/em>, supra, and other cases.<\/p>\n

There is a compelling reason why the present case is a particularly inappropriate vehicle for such reconsideration. The State failed to challenge the adverse decision of the Court of Special Appeals, or raise the issue of a Maryland exclusionary rule, by filing a cross-petition for a writ of certiorari. Although the petitioner Parker relied on Maryland law as well as the Fourth Amendment, both in his Court of Special Appeals’ brief and in his certiorari petition, and the Court of Special Appeals’ vacation of the judgments and remand for a new suppression hearing was based entirely on the Davis and Adams and Carroll cases in this Court, the State did not file a cross-petition for certiorari. On the contrary, the State’s answer argued in favor of the Court of Special Appeals’ decision vacating the Circuit Court’s judgments and ordering a new suppression hearing. <\/p>\n

. . .<\/p>\n

. . . The State in its brief and oral argument seeks to reverse a Court of Special Appeals’ judgment to which the State had consented. Such a reversal would be contrary to settled Maryland law.<\/p>\n

Consequently, if there was a violation of Maryland’s common law “knock and announce” principle in this case, the evidence is inadmissible under the particular circumstances here. Whether such an exclusionary rule should be applied when there are violations of the Maryland “knock and announce” principle in other cases, or in cases arising after the effective date of Ch. 560 of the Acts of 2005, are matters which we leave for another day.<\/p>\n

We agree with the Court of Special Appeals that Terrance Parker’s controlled dangerous substance conviction should be vacated. This matter should be remanded to the Circuit Court for a new suppression hearing and determination. See Southern v. State<\/em>, 371 Md. 93, 104-112, 807 A.2d 13, 20-24 (2002), and cases there cited. While the Circuit Court, at the conclusion of the prior suppression hearing, considered the factual showing (or absence thereof) made by the police officers at the time of the warrant application, the court did not “review … the facts known to the officers at the time of entry,” Davis and Adams v. State<\/em>, supra, 383 Md. at 427-428, 859 A.2d at 1132. In addition, we disagree with the Court of Special Appeals’ direction for the Circuit Court to determine whether “the evidence seized is nonetheless admissible under the ‘good faith’ exception to the exclusionary rule.” In light of our opinion in Davis and Adams v. State<\/em>, supra, at least in cases not subject to Ch. 560 of the Acts of 2005, the so-called “good faith” exception, applied by the Court of Special Appeals, is not applicable under the Maryland common law “knock and announce” principle.<\/p>\n

Upon remand, the Circuit Court should decide whether the evidence was admissible under the principles of this Court’s opinions in Davis and Adams v. State<\/em> and State v. Carroll<\/em>. If the court determines that the evidence was admissible, the controlled dangerous substance conviction should be reinstated. If the court decides that the evidence should be suppressed under Davis and Adams v. State and State v. Carroll<\/em>, the controlled dangerous substance conviction should remain vacated and a new trial ordered on that count.<\/p><\/blockquote>\n

Hiding a gun in a closet that belonged to another tenant of a common building did not show reasonable expectation of privacy. Also, violation of knock-and-announce rule of Wilson<\/em><\/a> is not even addressed because of Hudson<\/em><\/a>. United States v. Williams, 2007 U.S. Dist. LEXIS 89570 (D. Conn. December 6, 2007):<\/p>\n

Although Williams arguably demonstrated a subjective expectation of privacy in the closet by allegedly choosing to hide a gun there, he has not shown that his expectation of privacy in the closet was reasonable, which is fatal to his standing argument. The closet was outside Williams’ own room, which was the only area on the third floor over which he had exclusive dominion and control. According to the undisputed testimony of second floor resident Leroy Pittman, Pittman was the sole person authorized to use this closet and exclusively used it to store his hunting and camping equipment for many years. No other tenants used the closet or had permission to use the closet. 7 Courts have held that one who shares his or her home with another does not have a reasonable expectation of privacy in those areas of the home used exclusively by his or her roommate. See U.S. v. Haqq<\/em>, 278 F.3d 44, 50 (2d Cir. 2002), citing Lenz v. Winburn<\/em>, 51 F.3d 1540, 1549-50 (11th Cir. 1995) (grandparents lacked reasonable expectation of privacy in closet in their home used exclusively by granddaughter); People v. Fleming<\/em>, 345 N.E.2d 10, 14-15 (1975) (where defendant and his brother shared an apartment and brother kept his bedroom locked and kept key in his possession, defendant had no reasonable expectation of privacy in the brother’s bedroom). Although there were no locks or markings to indicate the exclusive use of the closet by Pittman, the contents of the closet showed Pittman’s exclusive use. In addition, the defendant has not submitted any evidence indicating that Pittman did not have exclusive use of the closet. Thus, if Williams did have a subjective expectation of privacy in the closet, it would have been unreasonable, because anyone opening the closet would have observed it only contained Pittman’s belongings.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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