Brown v. State

BELL, Chief Judge,

Dissenting.

It is true, to be sure, that no one is entitled to a perfect trial, just a fair one. Thus, when there has been error committed in a trial and that error prejudices the defendant, it is universally held that the defendant is entitled to a new trial. In Maryland, the test is the one enunciated in Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665, 678 (1976) (footnote omitted):

“[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.”

Thus, it is the effect that erroneously admitted or excluded evidence has on the verdict rendered by the trier of fact that is the object of the inquiry addressed to the reviewing court. Once the appellate court determines that error was committed, reversal is required unless it also determines, beyond a reasonable doubt, that the error did not influence the verdict; harmless error occurs only if the error played no role in the trier of fact’s verdict. See State v. Enriquez, 327 Md. 365, 374 , 609 A.2d 343, 347 (1992); Johnson v. State, 325 Md. 511, 522 , 601 A.2d 1093, 1097-98 (1992); Bowie v. State, 324 Md. 1, 11 , 595 A.2d 448, 452 (1991); Hook v. State, 315 Md. 25, 42 , 553 A.2d 233, 242 (1989).

Where, however, evidence is obtained as a result of an illegal search and seizure, in violation of the Fourth Amend *44 ment, it must be excluded and can not be used against the defendant from whom or as to whom it was illegally obtained. See Mapp v. Ohio, 367 U.S. 643, 650 , 81 S.Ct. 1684, 1689 , 6 L.Ed.2d 1081, 1090 (1961). This is because the exclusionary rule is intended to curb improper police conduct, which it accomplishes by disallowing the use of the evidence illegally obtained, Potts v. State, 300 Md. 567, 582 , 479 A.2d 1335, 1343 (1984); “[t]he primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights. Post-Mapp decisions have established that the rule is not a personal constitutional right.” Stone v. Powell, 428 U.S. 465, 486 , 96 S.Ct. 3037, 3048 , 49 L.Ed.2d 1067, 1083 (1976).

It is true that there is, and comments on this fact have been extensive and frequent, substantial social costs associated with the enforcement of the exclusionary rule for the vindication of Fourth Amendment rights. In United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), the Court made clear that the exclusionary rule is a judicially created prophylactic remedy and not part of the constitutional entitlement of the defendant, noting that the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands and thus operates as “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” Id. at 906 , 104 S.Ct. at 3411-12 , 82 L.Ed.2d at 687 . Considering the underlying rationale of the exclusionary rule and quoting Michigan v. Tucker, 417 U.S. 433, 447 , 94 S.Ct. 2357, 2365 , 41 L.Ed.2d 182, 194 (1974), and United States v. Peltier, 422 U.S. 531, 539 , 95 S.Ct. 2313, 2318 , 45 L.Ed.2d 374, 389-90 (1975), the Supreme Court concluded:

“The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counter *45 parts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.”

Leon, 468 U.S. at 919 , 104 S.Ct. at 3418 , 82 L.Ed.2d at 696 .

There is, thus, a reluctance to extend the reach of the exclusionary rule and more and more vigilance to limit its application. Where, however, it performs the office for which it was created, ie., deters unlawful police conduct, by suppressing evidence from a search where the law enforcement officer had knowledge, or may properly be charged with knowledge, of the illegality of the search, Peltier, 422 U.S. at 539 , 95 S.Ct. at 2318 , 45 L.Ed.2d at 393 ; see Ott v. State, 325 Md. 206, 212 , 600 A.2d 111, 114 (1992), it remains, as well as it should, alive and well.

In this case, there can be no doubt that the police officers had knowledge of the illegality of the seizure of the petitioner’s car, or, at the very least, is chargeable with that knowledge. A search warrant issued by one jurisdiction does not have extra-territorial effect, such that it can be executed by the officials of the issuing jurisdiction in another jurisdiction, without the knowledge or assistance of that other jurisdiction. That is so clear that bad faith can be attributed to the officers for proceeding as they did. The fruits of that search must be suppressed.

The majority does not disagree. Nor does it agree. Rather than reach the issue of the legality of the search, it holds that harmless error analysis applies and, so, assuming error, affirms the petitioner’s conviction, declaring its belief beyond a reasonable doubt that the introduction of the evidence did not matter. This approach does absolutely nothing to address the police misconduct. And it does nothing to advance the policy of deterrence to which the exclusionary rule is dedicated.

The goal of deterrence of official misconduct is served by addressing the issue of police misconduct. It is accomplished when, where it has occurred, that misconduct has been identified and the consequences of engaging in it are imposed as a *46 matter of course and inexorably. In the case of an illegal search and, as in this case, seizure, this means adjudicating the issue, labeling the seizure of the car from the District of Columbia, without benefit of assistance from the District of Columbia officials, as illegal and expressly and unequivocally, excluding its use, as well as its fruits, as evidence. There simply is no doubt in this case, as previously indicated, that the police conduct was willful and that the police had knowledge, or should have known, of the illegality of the seizure of the car in the District of Columbia.

To justify its harmless error conclusion, the majority states that the gun, which was discovered during the search of the car after it had been brought back to Maryland, and its examination, were, given the petitioner’s defense, merely cumulative. It notes that the petitioner did not deny his criminal agency, but maintained only that the shooting was an accident. Juxtaposed against that defense, the majority points out, is the testimony and forensic evidence that contradicted the petitioner’s version of events.

This case was tried to a jury. I have previously stated my concern when an appellate court, in the guise of reviewing a trial judgment, substitutes its judgment for that of the jury. See Bruno v. State, 332 Md. 673, 696-700 , 632 A.2d 1192, 1203-06 (1993) (Bell, J. dissenting); Rubin v. State, 325 Md. 552, 591-601 , 602 A.2d 677, 696-700 (1992) (Bell, J. dissenting). Not only does the majority weigh the evidence, which is not the office of appellate review of a criminal judgment, but it purports to know the impossible, what evidence the jury found persuasive.

There is another reason to address head-on the police misconduct issue in this case. The Court of Special Appeals concluded that the seizure of the car was reasonable. See Brown v. State, 132 Md.App. 250, 270 , 752 A.2d 620, 631 (2000). Without clear direction from this Court, the guidance that law enforcement needs, and thus the goal of deterrence, can not be achieved. The majority opinion merely assumes error, leaving the police free to follow the opinion of the *47 intermediate appellate court and its expansive authority to seize on probable cause under the Fourth amendment.

I dissent.