Street arrest required warrant for search of suspect's home

A Baltimore man who was arrested on the street after allegedly selling heroin to an undercover detective in his home is entitled to reversal of his convictions for drug distribution and possession, the Court of Special Appeals held yesterday.

The intermediate appellate court held that a warrantless search of Robert Smith's home by a team of officers responding to the detective's call was invalid, since the state failed to show that Smith consented to the invasion.

The state sought to invoke a doctrine known as consent once removed to support its claim that Smith's permission to allow Detective Jornee Barnes into his home extended to the other officers. The court rejected the argument, without expressly adopting or rejecting the rule.

Were we to adopt the 'consent once removed' doctrine, the circumstances would not allow us to hold that the police had a right to search appellant's residence as a search incident to his arrest, because [Smith] was not arrested in his home, Judge James R. Eyler wrote for the court.

The doctrine - created by the 7th U.S. Circuit Court of Appeals and used in several jurisdictions other than Maryland - holds that a person's consent to an entry by an informant or government agent also applies to a second entry by backup officers if certain conditions are met.

Barnes, working for the Baltimore City Police Drug Enforcement Unit, encountered Smith in the 100 block of South Monroe Street on Oct. 11, 2002. When Barnes asked if dope was out, Smith rose to the bait and led her to his house nearby, handing her some heroin capsules from a stash on the basement stairs.

After the detective paid for the purchase, buyer and seller both left the house - Smith sauntering down the street, Barnes hopping into a car.

Barnes contacted her colleagues, who swiftly arrested Smith and accompanied him back to his house. A search of the premises revealed the heroin on the stairs as well as some marijuana in plain view; a search of Smith's person revealed only the money given to him by Barnes.

The Baltimore City Circuit Court denied Smith's motion to suppress the drugs and - despite Smith's claim that he had never seen the heroin a day in [his] life - convicted him of four distribution and possession charges in June 2003. He was subsequently sentenced to 14 years in jail.

Although the appellate court ultimately decided the suppression issue based on a lack of evidence of direct consent to the search, it spent most of its time addressing the consent once removed doctrine.

The court noted that in jurisdictions recognizing the doctrine, a defendant's consent will extend to a second entry by police when the initial agent 1) entered at the express bidding of someone with authority to consent; 2) ascertained probable cause to arrest or search; and 3) summoned help from other officers immediately.

The court noted that usually, the agent either remained on the premises or maintained the right to reenter - by asserting, for example, that he or she will return momentarily with money.

In the instant case, after Detective Barnes purchased the drugs from appellant, she left the premises of his home, Eyler wrote.

While some jurisdictions allow for a brief exit to secure backup, the court noted that in those cases, the officers entered to arrest, not to search, and the evidence seized was admissible under a valid search incident to arrest.

Even if we assume that the initial consent for Detective Barnes to enter extended to the members of the arrest team to enter the premises to arrest [Smith], appellant was not arrested in his home, Eyler wrote. While the search of [Smith's] person incident to his arrest for the prior sale certainly was lawful, such lawfulness did not encompass a search of his home.

Counsel for the parties did not return telephone calls for comment by press time.

WHAT THE COURT HELD

Case:

Robert Smith v. State of Maryland, CSA No. 1068, Sept. Term 2003. Opinion by Eyler, J. Filed September 15, 2004.

Issue:

Were drugs seized by police in a dealer's house improperly admitted at his trial on possession and distribution charges?

Holding:

Yes; reversed and remanded. The warrantless search of the dealer's house following his arrest on the street was invalid since the state failed to prove that he had consented to the search. The dealer's consent to allow an undercover police officer into his home earlier did not extend to the arresting officers.

Counsel:

Amy E. Brennan for appellant; Shannon E. Avery for appellee.

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