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Law Digest — Md. Court of Special Appeals — Sept. 9, 2021

Maryland Court of Special Appeals

Criminal Procedure; Search & seizure: Where defendant was convicted of robbery and weapons offenses based on the contents of his backpack, which contained a gun and a cell phone with data showing evidence of robbery, the circuit court properly denied defendant’s motion to suppress the warrantless search of the backpack, because it was deemed to have been abandoned, and properly denied the motion to suppress the contents of the cell phone, since it was searched pursuant to a particularized warrant based on a detective’s reasonable and good-faith belief that it contained evidence of the crime. Anthony J. Richardson v. State of Maryland, No. 2386, Sept. Term, 2019.

Family Law; Child custody: Circuit court erred when, in custody dispute between minor child’s father and third parties (child’s aunt and uncle), the court ordered visitation between the third parties and the minor child without making a finding of “exceptional circumstances,” since the court found the father to be a fit parent and was therefore required to find that there were “exceptional circumstances” before the court could engage in a “best interest” analysis and order any such visitation. Lionel Best v. Sheron Fraser, et al., No. 1172, Sept. Term, 2020.

Criminal Procedure

Search & seizure

BOTTOM LINE: Where defendant was convicted of robbery and weapons offenses based on the contents of his backpack, which contained a gun and a cell phone with data showing evidence of robbery, the circuit court properly denied defendant’s motion to suppress the warrantless search of the backpack, because it was deemed to have been abandoned, and properly denied the motion to suppress the contents of the cell phone, since it was searched pursuant to a particularized warrant based on a detective’s reasonable and good-faith belief that it contained evidence of the crime.

CASE: Anthony J. Richardson v. State of Maryland, No. 2386, Sept. Term, 2019 (filed, Sept. 7, 2021) (Judges Friedman, Shaw Geter & WRIGHT (Senior Judge, Specially Assigned).

FACTS: On September 28, 2018, Corporal Myron Young, the school resource officer (“SRO”) for Crossland High School, located in Temple Hills, Prince George’s County, Maryland, responded to a call for a fight in the rear parking lot of the school. Approximately 30 or more students were involved in the fight, including Anthony J. Richardson, who was “throwing punches” with other students when Corporal Young intervened. Corporal Young grabbed one of the young men who were punching Richardson from behind. He was familiar with most of the students at Crossland High, and he did not recognize Richardson.

After the officer intervened, Richardson began to get up off the ground. As he did so, a backpack strapped across his body fell to the ground. Both Richardson and Corporal Young reached for the bag at the same time. Corporal Young testified that he thought it suspicious that Richardson would reach for the bag during the middle of a fight.

Corporal Young picked up the bag first and noticed that it was heavy, leading him to suspect that it contained a weapon. At that point, Richardson ran off, leaving the bag behind. Corporal Young opened the bag, saw a firearm inside, and notified other officers in the area. He also recovered a cell phone and a school ID for Richardson associated with another school that was not Crossland High.

Richardson was later arrested and charged with robbery with a dangerous weapon, first-degree assault, use of a firearm in the commission of a felony, illegal possession of a regulated firearm by a person under the age of 21, and related offenses. Before trial, he moved to suppress the evidence on the grounds that the seizure and search of Richardson’s backpack was not supported by probable cause or reasonable articulable suspicion.

The search and seizure warrant authorized the search of a T-Mobile iPhone, including all information, text messages, emails, phone calls, etc., contained therein. The application for the warrant, which was incorporated by reference in the aforementioned warrant, provided details related to the search of the items contained inside the backpack, including a Smith & Wesson semi-automatic handgun, among other contraband. The detective’s Affidavit accompanying the application provided a summary of the underlying facts of a robbery using a LetGo account, as well as the warrantless seizure of a backpack dropped by the Richardson on the grounds of Crossland High School. The application and affidavit then provided details related to the search of the items contained inside the backpack.

After his motion to suppress evidence was denied, Richardson entered a conditional plea, with right to appeal, to conspiracy to commit robbery and wearing and carrying a handgun. He subsequently appealed to the Court of Special Appeals, which affirmed.

LAW: Richardson contended the court erred in not granting his motion to suppress because: (a) Corporal Young lacked reasonable articulable suspicion to search his backpack, any search exceeded its necessary scope, and he did not abandon the backpack; (b) the search warrant for the cell phone was an invalid general warrant that did not particularly describe the place to be searched and the items to be seized; and, (c) the search of the cell phone was not reasonable under the good faith doctrine.

“The touchstone of whether a warrantless search or seizure withstands Fourth Amendment scrutiny is reasonableness.” Lewis v. State, 470 Md. 1, 18 (2020). “What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).

It is well-settled that when a defendant intentionally “abandons” his right in or to property or a specific area, the constitutional protection against unreasonable searches and seizures does not apply. Stanberry v. State, 343 Md. 720, 731 (1996), cert. denied, 520 U.S. 1210 (1997). The critical inquiry is not whether there has been an abandonment of all formal rights concerning the property or place but, rather, whether the party has relinquished any reasonable expectation of privacy in it. Stanberry, 343 Md. at 737. As such, a search of abandoned property is not a “search” protected by the Fourth Amendment because the state action does “not encroach upon the privacy upon which one may justifiably rely.” Morton v. State, 284 Md. 526, 531 (1979).

In assessing whether property is abandoned, the first question is “whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that he sought to preserve something as private. [The second question is] whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.” Bond v. United States, 529 U.S. 334, 338 (2000) (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979) (internal quotation marks omitted)). Moreover, abandonment is primarily a question of intent, and “intent may be inferred from words spoken, acts done, and other objective facts.” Duncan v. State, 281 Md. 247, 265 (1977).

Here, the totality of the circumstances supported a fair inference that it was Richardson’s intent to relinquish the backpack and abandon it once he fled the area. See, e.g. United States v. Nowak, 825 F.3d at 948 (“Nowak did not deny ownership of the backpack but he physically relinquished it when he fled the scene of the traffic stop, leaving the backpack behind in the car”). As Richardson did not retain any reasonable expectation of privacy in the backpack, it was concluded that it was lawful for Corporal Young to open the bag and view its contents.

As for the search of the cell phone, “where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, reasonableness generally requires the obtaining of a judicial warrant.” Riley v. California, 573 U.S. 373, 382 (2014). The Fourth Amendment requires that a search warrant must “particularly describe the place to be searched and the persons or things to be seized.” U.S. Const. amend. IV. The purpose of this provision was “to prevent general searches.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). And “the scope of a lawful search is ‘defined by the object of the search and the places in which there is probable cause to believe that it may be found.’” Id. (quoting United States v. Ross, 456 U.S. 798, 824 (1982)).

In this case, there was no dispute that there was no specific temporal limitation in the search warrant itself. Further, the search warrant did not limit the contents or files on the cell phone that may be accessed and searched. In contrast, however, the application and affidavit in support thereof, provided a specific factual basis for probable cause.

Those facts were specific to an armed robbery which was perpetrated by an apparent bait-and-switch using a LetGo account, and recovery of a cell phone from Richardson’s abandoned backpack. The facts also set forth that the police sent a message to the aforementioned LetGo account and an alert was received on the cell phone that was recovered from the abandoned backpack in question. Thus, there was a substantial basis for the magistrate to conclude that these facts, as particularized in the application and its accompanying affidavit, provided probable cause to search the cell phone.

It was concluded, therefore, that the application and affidavit as incorporated into the search warrant issued by the court contained sufficient particularized facts for an officer to objectively and in good faith rely on the finding of probable cause by a detached, neutral magistrate. Accordingly, the judgment of the circuit denying the motion to suppress court was affirmed.

COMMENTARY: Even assuming there was a defect in the search warrant, evidence seized under a warrant, subsequently determined to be invalid, may be admissible if the officers executing the warrant acted in objective good faith with reasonable reliance on the warrant. United States v. Leon, 468 U.S. 897, 919-20 (1984). As the Supreme Court explained, because “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates,” the rule “cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” United States v. Leon, 468 U.S. at 916, 919.

Here, the application and affidavit for search and seizure warrant averred that there was probable cause to believe that there was property subject to seizure, namely, a T-Mobile iPhone, as specifically identified in the application and affidavit. According to the factual basis in support of the application, a message was sent to the LetGo account associated with the purported seller of the original item sought to be purchased by the victim, and the aforesaid iPhone produced an alert associated with that LetGo account. Based on this, the affiant’s belief that the subject iPhone contained evidence that it was used in connection with a crime was objective and in good faith.

  

PRACTICE TIPS: Police must generally obtain a search warrant before searching a lawfully seized cell phone. Riley v. California, 573 U.S. 373, 386 (2014). “It would not be an overstatement to characterize cell phones as the repository of personal effects in digital form that heretofore would be found in physical form in the home or at the office. It therefore follows that, regardless of the broad array of information a cell phone may hold, the police nonetheless may seize a cell phone and search its digital contents with a duly authorized warrant that complies in all respects with the dictates of the Fourth Amendment. Moats v. State, 455 Md. 682, 703 (2017) (citing Riley, 573 U.S. at 401-02).

Family Law

Child custody

BOTTOM LINE: Circuit court erred when, in custody dispute between minor child’s father and third parties (child’s aunt and uncle), the court ordered visitation between the third parties and the minor child without making a finding of “exceptional circumstances,” since the court found the father to be a fit parent and was therefore required to find that there were “exceptional circumstances” before the court could engage in a “best interest” analysis and order any such visitation.

CASE: Lionel Best v. Sheron Fraser, et al., No. 1172, Sept. Term, 2020 (filed Sept. 7, 2021) (Judges Kehoe, Wells & WRIGHT (Senior Judge, Specially Assigned).

FACTS: Th. was born to Father and Imogene Fraser (hereinafter “Mother”) in 2012. Father and Mother lived together for a few years but never married. Father and Mother eventually moved into separate homes, and Th. remained in the care of Mother. Also, in the care of Mother was Th.’s half-brother, Ty., who was born in 2003 to a different father.

In 2018, Mother died. Shortly thereafter, Mother’s brother, Orville Fraser, and his wife, Sheron Fraser (“Appellees”), moved into Mother’s home and provided care for Th. and Ty. A few months later, Th. moved in with Father while Ty. remained in the care of Appellees. In October of 2018, Appellees filed a petition seeking primary physical custody of Th. Father opposed the petition and filed a counter-complaint for attorney’s fees and related costs. Appellees later withdrew their request for full custody and instead asked that they be allowed access to Th. via a court-ordered visitation schedule.

During the proceedings, the trial court ordered that a custody evaluation be performed by a court-appointed evaluator. The results of that evaluation were later placed on the record in open court. The evaluator reported that Father and Th. had “a loving and supportive relationship” and that there were “no concerns about [Father] or his home.” The evaluator further noted that Father had “been taking care of all of [Th.’s] needs;” that Father had “ensured that [Th.] has stability and is well rounded;” and that there were “no concerns about [Th.] remaining in the care of [Father].”

Regarding Appellees, the evaluator reported that no recommendation could be made because Appellees had failed to attend the scheduled initial interview and had failed to respond to repeated requests to reschedule. The trial court ultimately held a hearing on Appellees’ petition for custody. At that hearing, Ms. Fraser testified that she moved to the United States from Guyana in April of 2018 to help care for Mother, who was sick with cancer. Ms. Fraser testified that she lived at Mother’s residence and provided care for Th. and Ty. following Mother’s death in May of 2018. Ms. Fraser testified that Father removed Th. from the home in August of 2018.

Mr. Fraser testified that he moved from Guyana to the United States in May of 2018. He testified that he and his wife had spoken with Mother and had arranged to move into Mother’s home to care for Th. and Ty. Mr. Fraser testified that his expectation was that he and his wife would live at Mother’s residence following her death and would take care of Th. and Ty. until they reached adulthood.

Appellees both claimed that Father had not been actively involved in Th.’s life and that, by contrast, they had a strong relationship with Th., even prior to Mother’s death. Appellees argued that Th. would suffer significant harm were Father to refuse Th. access to Appellees or his brother, Ty.

Father testified that he spoke with Ms. Fraser following Mother’s death and agreed to allow Th. to continue living with Appellees through the end of the school year. Father testified that he later agreed to allow Th. to stay with Appellees through the summer, mainly because Appellees had already arranged to take Th. on a family cruise and then a month-long trip to New York to visit maternal relatives. Father testified that Th. returned from New York in late August and moved in with Father a few days later.

Father claimed that, prior to their move to the United States in 2018, Appellees did not know Th. and they had no knowledge of Father’s relationship with Th. Father asserted that he had always been an active part of Th.’s life. Father claimed that he was supportive of a relationship between Th. and Ty.

The trial court ordered that Father “shall have sole legal and physical custody of Th.” and that “Th. will have visitation with his brother and by extension, the maternal family.” The court included in its order a visitation schedule whereby Appellees were granted access to Th. one day per week for six weeks and, at the conclusion of the six-week period, for overnight visits every other weekend. It does not appear that the court issued any factual findings or rulings related to whether “exceptional circumstances” existed to justify the court’s decision to grant Appellees access to Th. It likewise does not appear that the court issued any factual findings or rulings regarding Father’s counter-complaint for attorney’s fees and related costs.

Father appealed to the Court of Special Appeals, which  reversed the court’s judgment and remanded the case so that the court can engage in the appropriate analysis and make the necessary findings.

LAW: At issue was whether the trial court erred in awarding Appellees access to Th. without making a finding of “exceptional circumstances.”

“Parents have a fundamental right to direct and control the upbringing of their children.” In re Victoria C., 437 Md. 567, 589 (2014); see also Shurupoff v. Vockroth, 372 Md. 639, 650 (2003) (“The Supreme Court has long recognized the right of a parent to raise his or her children as a fundamental one protected by the due process clause of the Fourteenth Amendment.”). “The ability to deny visitation by third parties to the minor children, absent exceptional circumstances, is an undeniable part of that right.” In re Victoria C., 437 Md. at 589 (internal citations omitted); see also Koshko v. Haining, 398 Md. 404, 430 (2007) (“Visitation, like custody, intrudes upon the fundamental right of parents to direct the care, custody, and control of their children.”). “As a natural incident of possessing this fundamental liberty interest, [parents] are also entitled to the long-settled presumption that a parent’s decision regarding the custody or visitation of his or her child with third parties is in the child’s best interest.” Koshko, 398 Md. at 423.

In custody disputes “between fit natural parents who both have the fundamental constitutional rights to parent, the best interests of the child will be the ultimate, determinative factor.” McDermott v. Dougherty, 385 Md. 320, 418 (2005). “Where the dispute is between a fit parent and a private third party, however, both parties do not begin on equal footing in respect to rights to ‘care, custody, and control’ of the children.” Id. at 353. “Quite simply, the non-constitutional best interests of the child standard, absent extraordinary (i.e., exceptional) circumstances, does not override a parent’s fundamental constitutional right to raise his or her child when the case is between a fit parent…and a third party who does not possess such constitutionally-protected parental rights.” Id. at 418. “Thus, if third parties wish to disturb the judgment of a parent, those third parties must come before our courts possessed of at least prima facie evidence that the parents are either unfit or that there are exceptional circumstances warranting the relief sought before the best interests standard is engaged.” Koshko, 398 Md. at 440.

Here, it was undisputed that Appellees and Ty. were “third parties.” See In re Victoria C., 437 Md. at 591 (noting that any person, including a sibling, “who is not a biological or adoptive parent is a third party”). It was also undisputed that the court found Father to be a “fit parent.” As such, the court needed to make a determination of “exceptional circumstances” before engaging in a “best interest” analysis and ordering visitation between Th. and Ty.

Unfortunately, the court made no such determination. In fact, the record is devoid of any indication that the court even considered the existence of exceptional circumstances before ordering visitation between Th. and Ty. and granting Appellees access to Th. Therefore, it was necessary to vacate the court’s order and remand the case so that the court can consider the relevant factors and make a determination as to the existence of exceptional circumstances. Only upon such a finding may the court then determine whether a visitation and access schedule involving Appellees and Ty. would be in Th.’s best interests.

Accordingly, the judgment of the trial court was vacated and the case remanded.

COMMENTARY: Appellant also claimed that the trial court erred in failing to rule on his countercomplaint for attorney’s fees without considering certain statutory factors.

Section 12-103(a) of the Family Law Article (“FL”) permits a court in a custody action to award to either party the party’s associated costs and attorney’s fees. The statute provides that, before those costs and fees can be awarded, “the court shall consider: (1) the financial status of each party; (2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.” FL §12-103(b). Although the court has the discretion to grant or deny a request for attorney’s fees, the court, in exercising that discretion, “is bound to consider and balance the considerations contained in FL §12-103.” Frankel v. Frankel, 165 Md. App. 553, 589 (2005). Denial of a request for attorney’s fees without consideration of the statutory factors has been deemed reversible error. Simonds v. Simonds, 165 Md. App. 591, 616-17 (2005).

Here, the trial court never ruled on Father’s request for attorney’s fees; nevertheless, the court’s failure to rule can be considered a denial. Importantly, there was no indication that the court considered the requisite statutory factors before denying (or failing to rule on) Father’s request for attorney’s fees. Therefore, upon remand, the court must also decide the issue of Father’s request for attorney’s fees in light of FL §12-103.

  

PRACTICE TIPS: “It is a weighty task (or should be) for a third party seeking custody to demonstrate exceptional circumstances which overcome the presumption that a parent acts in the best interest of his or her children and which overcome the constitutional right of a parent to raise his or her own children.” McDermott v. Dougherty, 385 Md. 320, 424 (2005).