Martin v. State

Kimery Darren Martin v. State of Maryland, No. 101, Sept. Term 2024. Opinion by Tang,
J.

CRIMINAL LAW – REVIEW – PRESENTATION AND RESERVATION IN
LOWER COURT OF GROUNDS OF REVIEW – IN GENERAL – PROCEEDINGS
AT TRIAL IN GENERAL

Under the Fourth Amendment, a defendant must have standing to challenge the search
and/or seizure in question to litigate the possible suppression of evidence. Standing refers
to the defendant’s reasonable expectation of privacy in the premises or the property.
Procedurally, the State has the initial burden to raise the challenge to standing. If the State
fails to raise a timely challenge and the trial court proceeds to reach the Fourth Amendment
merits, the State will be estopped from raising the challenge at a later stage. If the State
does raise a timely challenge to the defendant’s standing—which may be accomplished by
even the most informal of oral pleadings—then the burden of proof is allocated to the
defendant to show his standing.

The State did not contend at the suppression hearing that the appellant lacked a legitimate
expectation of privacy in identification card and bloodied clothes seized at the hospital
while he was being treated for gunshot injury. As the issue was neither raised before, nor
decided by, the circuit court, it was not preserved for appellate review. Maryland Rule 8–
131(a).

SEARCH, SEIZURE, AND ARREST – OTHER OFFICERS OR OFFICIAL
INFORMATION – COLLECTIVE KNOWLEDGE

The collective knowledge doctrine holds that when an officer acts on an instruction from
another officer in making an investigatory detention, the act is justified if the instructing
officer had sufficient information to justify taking such action herself. Likewise, when a
group of officers in close communication with one another determines that it is proper to
arrest an individual, the knowledge of the group that made the decision may be considered
in determining probable cause, not just the knowledge of the individual officer who
physically effected the arrest. In other words, the doctrine is limited to officers acting on
the information and instructions of other officers.

In denying the motion to suppress, the circuit court erred in denying the motion to suppress
on the basis that the collective knowledge of officers with the Prince George’s County
Police Department (PGPD) and Metropolitan Police Department (MPD) justified the
seizure of the appellant’s identification card and bloodied clothes. First, the evidence did
not support the application of the collective knowledge doctrine. Second, the collective
knowledge doctrine did not resolve the argument that the State failed to rebut the
presumption that the warrantless seizure was invalid; the MPD officer had some
involvement with the possible seizure of the items before the PGPD officer arrived and
ultimately took the items, and the State did not present evidence to explain the antecedent
events.

CRIMINAL LAW – EVIDENCE – COMPETENCY IN GENERAL –
WRONGFULLY OBTAINED EVIDENCE – EVIDENCE ON MOTIONS

The plain view exception permits law enforcement to seize an item if (1) the item is plain
view; (2) the officer’s initial intrusion is lawful; (3) the incriminating character of the
evidence is immediately apparent; and (4) the officer has a lawful right of access to the
object itself.

Based on the suppression record, the plain view exception did not support the warrantless
seizure of the appellant’s identification card and bloodied clothing. As it relates to the
identification card, it was handed to the testifying officer and was not in his plain view. As
it relates to the clothing, there was evidence to suggest that another officer was involved in
the placement of the clothing in the hallway where the testifying officer observed it. There
was insufficient evidence to demonstrate that the testifying officer had a lawful right of
access to the clothing in light of the other officer’s apparent involvement.

CRIMINAL LAW – EVIDENCE – COMPETENCY IN GENERAL –
WRONGFULLY OBTAINED EVIDENCE – EXTENT OF EXCLUSION; “FRUIT
OF THE POISONOUS TREE” – EXCEPTIONS – INEVITABLE DISCOVERY

The warrantless seizure of an object may be permissible if the State can show, by a
preponderance of the evidence, that the evidence inevitably would have been discovered
through lawful means. The applicability of the inevitable discovery doctrine is a highly
fact-based determination and involves review by a trial court whether the evidence in
question would have been found.

This Court declined to apply the doctrine to this case because the theory of inevitable
discovery was not raised by the State below. In addition, given the factual void presented
by the suppression record in the instant case, making that determination would necessarily
involve speculation on this Court’s part.
Circuit Court for Prince George’s County
Case No. C-16-CR-23-001601

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 101

September Term, 2024
______________________________________

KIMERY DARREN MARTIN

v.

STATE OF MARYLAND
______________________________________

Friedman,
Tang,
Wright, Alexander, Jr.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Tang, J.
______________________________________

Filed: November 21, 2025

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2025.11.21
15:10:26 -05'00'
Gregory Hilton, Clerk
After a multi-day jury trial, the Circuit Court for Prince George’s County convicted

appellant Kimery Darren Martin of attempted voluntary manslaughter, second-degree

assault, and related firearms offenses in connection with the shooting of William Mason.

On appeal, the appellant challenges the denial of his motion to suppress the seizure

of his identification card and bloodied clothing while being treated for a gunshot injury at

the hospital. He also asks this Court to review for plain error the admission of Mr. Mason’s

deposition testimony at trial.1

For the reasons that follow, we shall reverse the circuit court’s denial of the motion

to suppress and remand the case for a new trial consistent with this opinion. Because we

have decided to remand this case for a new trial, we find it unnecessary to address the

admission of Mr. Mason’s deposition testimony at trial.

I.

BACKGROUND

In the afternoon of April 7, 2023, officers from the Prince George’s County Police

Department (“PGPD”) responded to a shooting at a liquor store in Temple Hills, Maryland,

just outside the border of the District of Columbia (“D.C.”). Officers found Mr. Mason on

1
In his brief, the appellant frames the questions presented as follows:
1. Did the circuit court err in denying Kimery Martin’s motion to suppress his
physical belongings seized without a warrant while he was in an operating
room at George Washington University Hospital?
2. Did the trial court commit plain error in allowing a witness’s deposition
testimony to be read at the trial when there was no express waiver from
Kimery Martin of his constitutional rights to be present at the deposition and
confront the witness?
the ground outside the store with gunshot wounds. He was taken to a local hospital for

treatment of his injuries. The injuries left Mr. Mason paralyzed from the neck down.

While on scene, PGPD Detective Jonathan Marks reviewed the surveillance video

from the liquor store. The footage showed Mr. Mason inside the store at the lottery ticket

machine. At some point, a silver Honda Crosstour pulled up outside the store, and a masked

man exited the rear of the vehicle. The masked man entered the store and pulled a firearm

from his jacket. Mr. Mason then fled the store. When Mr. Mason ran outside, the masked

man followed and shot Mr. Mason in the back. Mr. Mason fell to the ground, and the

masked man continued to fire at Mr. Mason. An associate of Mr. Mason, who was outside

and was also armed, returned fire at the masked man. The associate struck the masked man

in the leg and then fled the scene.2 The Crosstour pulled up, and the masked man got inside.

The Crosstour then drove away.

After reviewing the video, police checked with local hospitals for anyone who had

been admitted with a gunshot wound. Police received a call from George Washington

University Hospital in D.C. that a man had been dropped off with a gunshot wound to his

right leg. Detective Marks went there to investigate.

After arriving at the hospital, Detective Marks went to the hospital’s security office

to review its camera footage to see if the Crosstour dropped off the gunshot patient at the

hospital. Detective Marks saw the vehicle on the hospital surveillance video. He confirmed

that it appeared to be the exact vehicle as the one at the liquor store shooting. In the video,

2
The police were not able to locate or identify Mr. Mason’s associate.

2
an individual exited the vehicle wearing clothing that matched what the masked man was

wearing in the liquor store footage.

By the time Detective Marks arrived, the individual was already in the operating

room. Detective Marks met with police from the D.C. Metropolitan Police Department

(“MPD”) “[r]ight in the hallway right outside” the operating room. An MPD officer

provided Detective Marks with a D.C. identification card bearing the appellant’s name and

address. The MPD officer also told Detective Marks about a bag of clothes and “where

they were.” Detective Marks confirmed with the MPD officer that the appellant was the

one who had walked into the hospital with the gunshot injury.

Detective Marks saw the bag of clothing in the hallway outside the operating room.

It was a transparent bag marked “biohazard” with a “lot of blood in the bag,” and the clothes

were “completely drenched” in blood. The detective saw that the clothes in the bag matched

the clothing that the masked man was wearing on the liquor store surveillance video and

hospital surveillance video. He did not know who had placed the clothes in the bag or who

had placed the bag in the hallway. Based on his conversation with the MPD officer and the

fact that the clothing in the bag “matched the clothing description of what [he] saw in both

videos,” Detective Marks seized the bag of clothes and ultimately logged it into evidence.

PGPD officers were not able to read the tag number on the Crosstour from the

videos, but they could see that it was a Maryland temporary tag. They checked all databases

in the area to find a silver Crosstour that had been issued a Maryland temporary tag. Based

on the investigation, they were able to find one that matched the vehicle in the surveillance

videos. After identifying the tag number, officers found that the car had been the subject of

3
several parking tickets. The parking tickets had been issued in the same block as the address

listed on the appellant’s identification card, which was less than a mile from the liquor

store.

On May 30, 2023, a grand jury indicted the appellant for attempted first-degree

murder, attempted second-degree murder, first-degree assault, second-degree assault,

reckless endangerment, and firearm-related offenses.

A.

Motion to Suppress

The appellant filed an omnibus motion that included a motion to suppress “any and

all evidence obtained by the State in violation of the defendant’s rights as guaranteed by

the 4th, 5th, 6th, and 14th Amendments to the Constitution of the United States, and the

Maryland Declaration of Rights.”3 The State responded in kind with a boilerplate

opposition to the motion, stating, in relevant part, that the appellant could not demonstrate

“a reasonable expectation of privacy in the area searched and thus lacks standing to contest

the issue.”

On October 6, 2023, the court held a hearing on the suppression motion during

which Detective Marks testified as the sole witness. Detective Marks testified about the

Although the practice for some defense counsel to file an omnibus motion,
3

“seeking a panoply of relief based on bald, conclusory allegations devoid of any articulated
factual or legal underpinning,” is not what Maryland Rule 4-252 anticipates and “is not to
be encouraged,” our appellate courts “have not disturbed the discretion of the trial courts
to permit defendants to supplement unsupported allegations in the motion at or before the
hearing, at least where the State is not unduly prejudiced by being called upon to respond
immediately to allegations of which it had no prior notice.” Denicolis v. State, 378 Md.
646, 660 (2003).

4
investigation that led him to George Washington University Hospital and the circumstances

that led to his seizure of the appellant’s identification card and clothing, as recounted above.

The defense clarified that the basis of the appellant’s motion to suppress was the

warrantless seizure of the items, which the State did not challenge the appellant’s standing

to contest. Specifically, defense counsel argued that evidence of the appellant’s

identification card and clothes should be suppressed because the State did not call anyone

to testify about how the items were obtained from the appellant before Detective Marks

took them into custody. Counsel suggested that someone other than Detective Marks—i.e.,

an MPD officer—must have initially seized the items. Defense counsel summarized the

argument as follows:

[T]his seems to be a case of the State just calling the wrong witness. The
seizure in this case, as we heard . . . [Detective Marks] arrived at the hospital.
He met and spoke to a D.C. police officer. They instructed him that the bag
of clothes -- they gave him the identification, and they told him the bag of
clothes was in the hallway. That seizure had taken place, and it happened by
someone else.
The State has to justify a warrantless seizure, and in order to do that they
have to give us testimony about why it was made. They have given us
testimony about basically after the seizure happened this officer taking
custody of it. But what they have not given us any information about at all is
the actual seizure in this case, that is the person who took those clothes and
bagged them from [the appellant], took that wallet and bagged it.
There is no evidence about that, and for that reason alone the search cannot
be found reasonable -- the seizure rather cannot be found reasonable and the
motion to suppress should be granted.

(emphasis added).

The court proceeded to deny the motion to suppress. It sua sponte relied on the

collective knowledge of the officers involved to justify the seizure of the items:

5
All right, so there is a shooting. The vehicle that was involved in the shooting
drives away. The collective knowledge of the officers, they find out what
kind of car as [sic] on scene. They get a call, go to the hospital, and review
the footage. That car is similar to the car that was leaving the scene. They --
he speaks to someone at the hospital, a D.C. officer that was at the scene, and
the clothes from the individual that was -- came into the hospital were placed
into the bag and he took the bag.
This isn’t a trial. It is probable cause. It is the collective knowledge of all the
officers. And while there may be problems or inconsistencies at trial, for
today’s purposes the [c]ourt finds that there was a reasonable basis for that
officer to seize those items.

Defense counsel then asked the court to clarify “which officer” it was referring to,

as well as “the basis” for that officer’s seizure of the items. The court responded:

It is the collective knowledge. This officer says he spoke to the D.C. officer.
The D.C. officer gave him information that these were the clothes of the
individual that was brought in. They took those clothes. And the officer also
said while he did not put them in property, he was able to observe that they
were the same clothes that he saw on the video.

B.

Trial

A jury trial began on November 28, 2023. Although the identification card and the

bloody clothes were not admitted into evidence, Detective Marks testified about how he

came to seize these items. Another officer, Detective Braden Dalton, testified to how the

police developed a connection between the appellant and the Crosstour by using area

databases and checking for parking tickets issued to the Crosstour near the appellant’s listed

address, as recounted above.

6
Mr. Mason was unable to testify at trial due to his condition, but a redacted transcript

of his prior deposition was read to the jury.4 According to Mr. Mason, he had known the

appellant for years. He testified that on the day in question, he was at the liquor store

“playing numbers.” He was with another person, who he claimed had left the store by the

time the appellant arrived. He then heard the appellant call out to him, telling him he was

a coward. Then the appellant shot him. As for motive, Mr. Mason asserted that he did not

know why the appellant shot him. Defense counsel suggested during cross-examination

that the reason was that Mr. Mason had robbed the appellant earlier that day. Mr. Mason

denied this, stating instead, “They robbed me.”

The appellant testified in his defense. He acknowledged that he shot Mr. Mason but

claimed it was in self-defense. He testified that Mr. Mason had robbed him at gunpoint

earlier in the day while the appellant was selling cigarettes at a local gas station. The

appellant, now armed, then went to the liquor store where Mr. Mason was known to hang

out. He testified that he intended to confront Mr. Mason and get his money back and that

the gun was only for protection.

The appellant testified that he entered the liquor store and made eye contact with

Mr. Mason. The appellant heard Mr. Mason call out to his associate, who he claimed was

standing by the door and whom the appellant believed to be armed. He explained that he

had to defend himself because he knew that Mr. Mason carried a firearm based on the

4
Due to Mr. Mason’s injuries, the State moved to take Mr. Mason’s video deposition
in the rehabilitation facility where he was being treated. The court granted the motion.
Ultimately, the deposition was conducted about two weeks before trial.

7
robbery earlier that day. He said that he shot Mr. Mason because he was “scared for his

life” but did not intend to kill him.

In the end, the jury found the appellant guilty of attempted voluntary manslaughter,

second-degree assault, reckless endangerment, carrying a loaded handgun on his person,

and use of a firearm in a crime of violence. The court imposed a cumulative sentence of

fifteen years’ imprisonment.

II.

PARTIES’ CONTENTIONS

The appellant contends that the circuit court erred in denying his motion to suppress

evidence of his identification card bearing his name and address and the bag of bloodied

clothing from the hospital. He argues that the warrantless seizure of the items violated his

Fourth Amendment rights. He argues that the State failed to establish probable cause for

the seizure or that an exception to the warrant requirement permitted the seizure of his

belongings. The appellant also argues that the court’s reliance on the “collective

knowledge” doctrine to justify the seizure of his belongings was misplaced. Finally, he

argues that, given the importance of the testimony at trial about the seizure of these items,

the error was not harmless and therefore a new trial is warranted.

The State argues that the seizure did not implicate the Fourth Amendment because

the appellant did not, and could not, meet his burden of showing that he had a reasonable

expectation of privacy in the items that Detective Marks seized in the hospital. Specifically,

it contends that the appellant “could not establish a subjective expectation of privacy

because he was not present and was in surgery at the time police investigated.” In addition,

8
the State argues that D.C.’s and Maryland’s mandatory reporting statutes requiring a

hospital to report information about shooting victims to police inherently diminish the

appellant’s privacy interests in a hospital.5 The State argues that, because the appellant

“found his way into a hospital’s emergency room after being shot, he forwent any

expectation of privacy and so the Fourth Amendment was not implicated” by the seizure

of his belongings. The State essentially argues—though it does not explicitly state this in

its brief—that the appellant failed to establish standing to challenge the seizure of the

items.6

Even if the Fourth Amendment did apply, the State argues that the warrantless

seizure was proper for other reasons than the one cited by the court. The State agrees that

the court’s reliance on the collective knowledge doctrine was wrong. However, it contends

that this Court can still affirm the denial of the motion based on the doctrines of plain view

or inevitable discovery. As for harmless error, the State concedes that it does not apply.

The appellant responds that he retained a possessory interest in his belongings and

that his presence in an operating room did not diminish his legitimate privacy interests in

his personal effects. The appellant acknowledges the mandatory reporting statutes, but he

contends that they do not endorse warrantless seizures of personal effects. Moreover, even

if they did, he points out that Maryland’s reporting requirement does not apply

5
See D.C. Code Ann. §§ 7-2601 to 7-2602; Md. Code Ann., Health-Gen. § 20-703.
We will describe the relationship between standing and reasonable expectation of
6

privacy in Section IV.A below.

9
extraterritorially to D.C. hospitals, and D.C.’s reporting requirement requires only that D.C.

hospitals make a report to the MPD, not Maryland police.

III.

STANDARD OF REVIEW

In reviewing the denial of a motion to suppress, “we look only to the record of the

suppression hearing and do not consider any evidence adduced at trial.” Daniels v. State,

172 Md. App. 75, 87 (2006) (citing Ferris v. State, 355 Md. 356, 368 (1999)). In doing so,

we view the evidence presented at the suppression hearing, along with any reasonable

inferences therefrom, in the light most favorable to the prevailing party on the motion.

Davis v. State, 426 Md. 211, 219 (2012). “We accept the trial court’s factual findings unless

they are clearly erroneous, but we review de novo the court’s application of the law to its

findings of fact.” Pacheco v. State, 465 Md. 311, 319 (2019) (citation omitted). In other

words, “[w]e conduct our own independent constitutional appraisal of whether the Fourth

Amendment has been violated by applying the law to the facts of the matter sub judice.”

Walker v. State, 432 Md. 587, 605 (2013) (citation omitted). So long as the suppression

record contains sufficient evidence to do so, we have discretion to affirm the suppression

court’s decision on an alternate basis. Rush v. State, 403 Md. 68, 103 (2008) (holding that

defendant could not raise an alternate theory of suppression because the record was “not

adequate to base a decision” on); Powell v. State, 139 Md. App. 582, 589–90 (2001)

(appellate court may affirm trial court’s ruling on a different ground where the trial court

reached the correct result).

10
IV.

OVERVIEW OF SEARCH AND SEIZURE LAW

The Fourth Amendment, made applicable to the States through the Fourteenth

Amendment, “guarantees individuals the right to be secure in ‘their persons, houses,

papers, and effects, against unreasonable searches and seizures.’” Whiting v. State, 389 Md.

334, 346 (2005) (citation omitted). “The Fourth Amendment has two parts.” Owens v. State,

322 Md. 616, 622 (1991). First, it guarantees “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” Id.

Second, it provides that “no Warrants shall issue but upon probable cause, supported by

Oath or affirmation, and particularly describing the place to be searched and the persons or

things to be seized.” Id. Thus, “a search or seizure conducted without the benefit of a

warrant supported by probable cause is per se unreasonable under the Fourth Amendment,

subject only to a few jealously guarded and carefully drawn exceptions.” Id.

Notably here, the language in the Fourth Amendment “protects two types of

expectations, one involving ‘searches,’ the other ‘seizures.’” United States v. Jacobsen, 466

U.S. 109, 113 (1984). “A ‘search’ occurs when an expectation of privacy that society is

prepared to consider reasonable is infringed.” Id. “A ‘seizure’ of property occurs when

there is some meaningful interference with an individual’s possessory interests in that

property.” Id.; accord Texas v. Brown, 460 U.S. 730, 747 (1983) (Stevens, J., concurring)

(“The Amendment protects two different interests of the citizen—the interest in retaining

possession of property and the interest in maintaining personal privacy. A seizure threatens

the former, a search the latter.”); Soldal v. Cook Cnty., Ill., 506 U.S. 56, 68–69 (1992)

11
(explaining that “seizures of property are subject to Fourth Amendment scrutiny even

though no search within the meaning of the Amendment has taken place”).

“All too frequently lawyers and judges leap headlong into the merits of a Fourth

Amendment controversy and do not linger at the threshold to inquire whether the Fourth

Amendment is applicable so as even to require satisfaction.” Richard P. Gilbert & Charles

E. Moylan, Jr., Maryland Criminal Law: Practice and Procedure § 25.0, at 279 (1983)

(“Gilbert & Moylan”). In assessing “an arguable Fourth Amendment problem,” one should

ask “two elemental questions: (1) Is it applicable? (2) Has it been satisfied?” Id. at 280. If

the answer to the first question is “No, the Fourth Amendment does not apply,” then there

is no need to analyze the “substance of constitutional satisfaction.” Id. at 280–81. If,

however, the answer is “Yes, the Fourth Amendment does apply,” then a constitutional

analysis becomes necessary. Id.

This appeal invites us to linger at the threshold.

A.

Standing Under the Fourth Amendment

Under the Fourth Amendment, a defendant must have standing to challenge the

search and/or seizure in question in order to litigate the possible suppression of evidence.

See State v. Savage, 170 Md. App. 149, 174–75 (2006) (“[O]ne may not litigate an alleged

Fourth Amendment grievance unless one is personally aggrieved.”).

The presence or absence of standing . . . has nothing to do with the ultimate
Fourth Amendment merits. It is exclusively a threshold question of
applicability, concerned only with the coverage by the Fourth Amendment of
the defendant who seeks to raise a Fourth Amendment challenge. Far from
reaching the Fourth Amendment merits, standing settles only the entitlement

12
to litigate those merits. The adjudication of a standing challenge is but a
gatekeeping function.

Id. at 174.

“[T]he question of whether an individual has standing under the Fourth Amendment

is best analyzed in terms of the individual’s substantive rights and requires us first to look

at whether the individual invoking the Fourth Amendment possessed a legitimate

expectation of privacy in the effects or place searched or seized.” Whiting, 389 Md. at 347;

see also Alston v. State, 159 Md. App. 253, 262–63 (2004) (explaining that “standing”

refers to the defendant’s “reasonable expectation of privacy in the premises or the

property”). In Savage, Judge Moylan, writing for this Court, explained the relationship

between standing and expectation of privacy:

If, under the totality of the circumstances, one is now deemed to have “a
reasonable expectation of privacy,” that means that one thereby has a Fourth
Amendment right and, for that precise reason, has the standing to litigate an
alleged violation of that right. Conversely, if one does not have “a reasonable
expectation of privacy,” that simply means that one does not have a Fourth
Amendment right and, for that reason, has no standing to litigate an alleged
violation of a non-existent right. A reasonable expectation of privacy equals
a Fourth Amendment right equals standing to vindicate that right. A equals B
equals C.

170 Md. App. at 180–81 (citing Katz v. United States, 389 U.S. 347 (1967)).

“Procedurally, it is clear that there is an initial burden on the prosecution to raise the

challenge to standing. If the State fails to raise a timely challenge and the court goes on to

reach the Fourth Amendment merits, the State will be estopped from raising the challenge

at a later stage.” Thompson v. State, 62 Md. App. 190, 202 (1985) (quoting Gilbert &

Moylan § 26.1, at 291); accord Feaster v. State, 206 Md. App. 202, 215 (2012) (“A failure

13
of the State to raise a challenge to a defendant’s standing at the suppression hearing

operates as a waiver of the challenge.”).

“Requiring the State to challenge standing in a timely fashion not only recognizes

traditional policies of notice and fair play, . . . but also serves to promote the ‘avoidance of

unnecessary litigation which is a key purpose of the standing requirement.’” Coomes v.

State, 74 Md. App. 377, 393–94 (1988) (citation omitted). Judge Moylan explains:

[T]he standing requirement, albeit incidentally beneficial to the State, is not
for the benefit of the State. The requirement primarily serves the interest of
judicial economy. It is to save busy courts from having to waste time and
resources litigating matters that need not be litigated. Once such litigation
has taken place because the State was asleep at the switch, however, it is too
late for a standing challenge to accomplish the purpose for which it is
designed.

Savage, 170 Md. App. at 175 n.8 (citing Steagald v. United States, 451 U.S. 204, 209 (1981)

(explaining that the Government may lose its right to raise factual issues regarding the lack

of reasonable expectation of privacy on appeal “when it has made contrary assertions in

the courts below, when it has acquiesced in contrary findings by those courts, or when it

has failed to raise such questions in a timely fashion during the litigation”)). In other words,

the purpose of avoiding unnecessary litigation “is completely vitiated when the Fourth

Amendment merits have not only been raised but have been completely litigated, prior to

standing being raised as an issue.” Coomes, 74 Md. App. at 394. “When this occurs, the

State will necessarily have ‘acquiesced in reaching the Fourth Amendment merits . . . and

since the very avoidance of unnecessary litigation which is a key purpose of the standing

requirement [will not have been] accomplished, the State will not be heard to raise the issue

[thereafter].’” Id. (citation omitted).

14
If the prosecution does raise a “timely challenge” to the defendant’s standing—

which may be accomplished “by even the most informal of oral pleadings”—then “the

burden of proof is allocated to the defendant to show his standing. The State has no

obligation to show nonstanding.” Thompson, 62 Md. App. at 202–03 (quoting Gilbert &

Moylan § 26.1, at 292).7 The defendant must establish his or her legitimate expectation of

privacy in the place searched or items seized for the Fourth Amendment to apply by: (1)

demonstrating an actual, subjective expectation of privacy in the item or place searched;

and (2) proving that the expectation is one that society is prepared to recognize as

reasonable. Walker, 432 Md. at 605 (referring to the Katz test). The Supreme Court of

Maryland elaborated on these prongs:

A person demonstrates a subjective expectation of privacy by showing that
he or she sought to preserve something as private. An objectively reasonable
expectation of privacy, by contrast, has a source outside of the Fourth
Amendment, either by reference to concepts of real or personal property law
or to understandings that are recognized and permitted by society, and
constitutes more than a subjective expectation of not being discovered. We
have no talisman that determines in all cases those privacy expectations that
society is prepared to accept as reasonable. Nonetheless, common experience
and social norms bear upon our assessment of whether one has an objectively
reasonable expectation of privacy in a particular item or place.

Raynor v. State, 440 Md. 71, 83–84 (2014) (internal quotations and citations omitted).

7
When standing to object to a search and/or seizure is not raised preliminarily, what
is “timely” will vary from case to case. Coomes, 74 Md. App. at 394 (holding that the State
timely challenged standing when it raised the issue during argument at the suppression
hearing, before the court reached the Fourth Amendment merits and early enough for the
defendant, if desired, to respond to the argument and/or present evidence on the point).
“[W]hen the issue is raised during argument, the trial judge must be careful to ensure that
an accused has the opportunity, if he or she wishes, to meet the argument, either by way of
issue or by presenting evidence. This may require the court to offer the opportunity sua
sponte or, upon request, to postpone the hearing.” Id. at 395 n.9.

15
“Whether one’s expectation of privacy is legitimate is in ‘large measure a function

of its reasonableness, and that, in turn, is determined to some extent by the elements of

time, place, and circumstance.’” Joyner v. State, 87 Md. App. 444, 450–51 (1991) (quoting

McMillian v. State, 65 Md. App. 21, 31 (1985)). These elements include:

the [defendant’s] possessory interest in the premises; [the defendant’s] right
to and duration of stay at the searched premises; whether or not he had
unlimited access to the searched premises; whether [the defendant] had a
right to exclude others from access to the searched area; what precautions he
took to maintain his privacy there; [the defendant’s] subjective expectation
of privacy in the area searched; the location of the property at the time of the
search; ownership of the evidence seized, [and] the alleged bailment of the
[evidence seized] to a third party[.]

McMillian, 65 Md. App. at 32–33 (citations omitted).

We noted that “[o]wnership or legal possession of the seized evidence may be

sufficient in some circumstances to entitle a defendant to seek the return of the seized

property if the seizure, as opposed to the search, was illegal.” Id. at 31 n.3 (citing United

States v. Salvucci, 448 U.S. 83, 91 n.6 (1980), citing United States v. Lisk, 522 F.2d 228,

230 (7th Cir. 1975) (“There is a difference between a search and a seizure. A search

involves an invasion of privacy; a seizure is a taking of property. The owner of a chattel

which has been seized certainly has standing to seek its return.”)); accord Savage, 170 Md.

App. at 181 (“In terms of the objective component of the reasonable expectation of privacy

test, one who enjoys an actual possessory or proprietary interest in the place searched or

the thing seized invariably has no problem. An expectation of privacy by such a person is

almost as a matter of course deemed to be objectively reasonable.” (emphasis added)).

16
B.

Allocation of the Burdens of Proof at a Suppression Hearing

As the proponent of the motion to suppress, the defendant bears the initial burdens

of both production and persuasion. Epps v. State, 193 Md. App. 687, 702 (2010). “It [is the

defendant], moreover, who [has] then to show that he enjoyed a Fourth Amendment

coverage in the first instance and that a search and/or seizure occurred in ostensible

violation of that protection.” Id. (citing Herbert v. State, 136 Md. App. 458, 482 (2001));

see also Bates v. State, 64 Md. App. 279, 283 (1985) (“The defendant, as the proponent,

has, upon timely challenge, the burden of establishing standing[.]” (emphasis added)). “At

that initial stage of a suppression hearing, it is the State that enjoys the luxury of not having

to do anything. It may respond to the defense if it chooses to do so, but it is under no such

obligation.” Epps, 193 Md. App. at 702.

“Once the hearing on such a motion progresses into the merits of the Fourth

Amendment, however, there is a possibility that the allocation of the burdens may shift.”

Id. at 703. If the search and/or seizure is pursuant to a judicially issued warrant, “the

burdens will remain firmly fixed on the defendant” to show that the search and/or seizure

was unreasonable. Id. This is because “[w]hen the police execute a search under authority

of a facially adequate warrant, it is presumptively good[.]” Duncan v. State, 27 Md. App.

302, 304–05 (1975). “Where the evidence is inconclusive in this regard, the State wins.”

Id.

However, once it is established that the search and/or seizure was warrantless, “a

tectonic shift occurs in the allocation of the burdens.” Epps, 193 Md. App. at 703.

17
When the State’s investigation, for whatever reason, follows the disfavored
warrantless route, . . . the procedural ball ends up in the State’s court. The
State assumes the burden of overcoming the presumption of invalidity by
demonstrating, by however many steps are necessary, that the warrantless
search satisfied one of the firmly established exceptions to the warrant
requirement.

Graham v. State, 146 Md. App. 327, 349 (2002); see also Ames v. State, 231 Md. App. 662,

665 (2017) (“We must never lose sight of our starting point that warrantless searches and

seizures . . . are presumptively unreasonable and that the burden is on the State to rebut that

presumption and persuade the suppression hearing judge otherwise.” (citation omitted)).

“Where the evidence is inconclusive” in establishing an exception to the warrant

requirement, “the defendant wins.” Duncan, 27 Md. App. at 305.

V.

DISCUSSION

A.

Standing

The State is correct that the appellant, as the proponent of a motion to suppress, has

the burden of establishing that the challenged seizure of the identification card and clothing

violated his Fourth Amendment rights. However, the State incorrectly assumes, as to

standing, that the ball started in the appellant’s court without the prosecution having set it

in motion. As explained, procedurally, the initial burden was on the prosecution to raise the

challenge to standing. See Coomes, 74 Md. App. at 391–92. The State did not assert at the

suppression hearing that the appellant lacked a legitimate expectation of privacy in the

items seized, as the State now does for the first time on appeal. By not raising the standing

18
issue at the suppression hearing “by even the most informal of oral pleadings,” the State

failed to preserve it for appeal. Thompson, 62 Md. App. at 202–03.

McCain v. State, 194 Md. App. 252 (2010), is instructive. There, the State contended

on appeal that the defendant did not have standing to contest a search of his wife’s purse

by police officers because he had no “expectation of privacy in the purse.” Id. at 278. But

at the suppression hearing, the State did not contend that he lacked standing. Id. We

declined to consider the State’s contention on appeal because, under Maryland Rule 8-

131(a), “the issue was neither raised before, nor decided by, the circuit court[.]” Id.

We explained in McCain that we could consider the State’s contention only through

the exercise of the discretion conferred upon us by the Rule. Id. However, we declined to

do so. Id. This was because “[w]hether a party has a legitimate expectation of privacy in

another’s property depends in part upon a consideration of the facts supporting the assertion

of the expectation.” Id. at 278–79. “Because the State did not raise the issue at the

suppression hearing, there was no reason for [the defendant] to present such evidence, and

he did not. Under these circumstances, consideration of the standing issue for the first time

on appeal would be unfair to [the defendant].” Id. at 279; see also McGurk v. State, 201

Md. App. 23, 33–34 (2011) (relying on McCain in holding that, “by failing to raise the

standing issue in the circuit court, the State waived that issue for appellate purposes”);

Feaster, 206 Md. App. at 213–14 (declining to address the State’s standing argument on

appeal where the prosecution never challenged the defendant’s standing to object to the

police entry into or the search of a motel room in circuit court).

19
We reach the same conclusion in this case. Because the State did not contend that

the appellant lacked standing to contest the seizure of the identification card and bloodied

clothes at the suppression hearing, there was no reason for the appellant to present evidence

that he had an expectation of privacy in the items seized; indeed, he did not present any

such evidence. See McCain, 194 Md. App. at 278.

As Judge Moylan, writing for this Court, said in Feaster, “[t]here is no point in

locking the barn door . . . once the horse is out. A failure of the State to raise a challenge to

[the appellant’s] standing at the suppression hearing operates as a waiver of the challenge.”

206 Md. App. at 215. Accordingly, we will treat the appellant as if he had standing, and we

turn to the merits of his Fourth Amendment claim. See id. (after concluding that the State’s

standing argument was not preserved, treating the defendant as if he had standing and

turning to the merits of his Fourth Amendment claim).8

8
The State notes in its brief that Maryland appellate courts have not analyzed
whether an individual has a legitimate expectation of privacy in a hospital setting where a
search and/or seizure occurred in connection with the individual’s admission or treatment
for a gunshot injury. The State cites various out-of-state cases to suggest that the appellant
lacked a legitimate expectation of privacy in the seized items. See Sheffield v. United States,
111 A.3d 611 (D.C. 2015); State v. Thompson, 585 N.W.2d 905 (Wis. 1998); United States
v. Mattox, 27 F.4th 668 (8th Cir. 2022); and People v. Turner, 248 N.E.3d 1006 (Ill. 2024).
In his reply brief, the appellant cites other cases to support the contention that he
retained a possessory interest in the seized items and an expectation of privacy in his
personal effects while in the hospital. See United States v. Davis, 657 F. Supp. 2d 630 (D.
Md. 2009), aff’d, 690 F.3d 266 (4th Cir. 2012); Commonwealth v. Silo, 389 A.2d 62 (Pa.
1978); United States v. Neely, 345 F.3d 366 (5th Cir. 2003); People v. Pearson, 175 N.E.3d
773 (Ill. App. Ct. 2021); and People v. Gill, 103 N.E.3d 459 (Ill. App. Ct. 2018). Because
the issue of the appellant’s standing is not properly before us, the resolution of this
seemingly novel issue will have to wait for another day.

20
B.

Merits of the Fourth Amendment Claim

1. Collective Knowledge Doctrine

We agree that the circuit court erred in finding that the warrantless seizure of the

items was justified under the collective knowledge doctrine. The doctrine allows courts to

measure probable cause in terms of the collective information within the possession of the

entire police team. Peterson v. State, 15 Md. App. 478, 488 (1972); see also Carter v. State,

18 Md. App. 150, 154 (1973) (“[E]ven though an arresting officer personally may lack

probable cause to justify an arrest, the State can show that the police team collectively

possessed knowledge sufficient to establish probable cause.”).

We observe, however, that there is consensus among courts regarding the difference
between an infringement of one’s privacy interest and interference with one’s possessory
interest. As mentioned, the Fourth Amendment “protects two types of expectations, one
involving ‘searches,’ the other ‘seizures.’” Jacobsen, 466 U.S. at 113. “A ‘search’ occurs
when an expectation of privacy that society is prepared to consider reasonable is infringed,”
while “[a] ‘seizure’ of property occurs when there is some meaningful interference with an
individual’s possessory interests in that property.” Id. “Therefore, to challenge a search, a
defendant must demonstrate that he had a reasonable expectation of privacy in the premises
or property searched.” Davis, 657 F. Supp. 2d at 636. “However, to challenge a seizure, a
defendant need only establish that the seizure interfered with his constitutionally protected
possessory interests. The infringement of privacy rights, while often a precursor to a seizure
of property, is not necessary to such challenge.” Id. Stated differently, “the Fourth
Amendment protects against unreasonable seizures of property in which the individual has
a possessory interest, even if a privacy or liberty interest is not at issue.” Sheffield, 111
A.3d at 619 (citing Soldal, 506 U.S. at 65–66 (“[T]he absence of a privacy interest
notwithstanding, ‘[a] seizure of the article . . . would obviously invade the owner’s
possessory interest.’” (citation omitted)) and Jones v. State, 648 So.2d 669, 675 (Fla. 1994)
(“[E]ven if we were to find that Jones’[s] privacy interests were in no way compromised,
there clearly was a meaningful interference with his constitutionally protected possessory
rights when his effects were seized without a warrant.”)).

21
Farrow v. State, 233 Md. 526 (1964), involved an arrest by one police department

based on a broadcast issued by another county’s police department. In Farrow, a Baltimore

City police officer interviewed the defendant’s wife and then broadcast the description of

the defendant and his vehicle, advising that the defendant was wanted for various crimes.

Id. at 531. The Supreme Court of Maryland concluded that, because the broadcasting

detective had probable cause, so, too, did the Anne Arundel County officers who ultimately

made the arrest. Id. at 531–32. Even though the arresting officers “knew nothing about the

probable cause[,] . . . they had received a ‘look out’ for the defendant from a responsible

source,” which was sufficient. Id. The Court explained, “If the police team working on the

particular case had accumulated sufficient information to furnish probable cause for a

reasonable man to believe that the alleged crime had been committed and that there was

probable cause to believe that the defendant was involved therein, there was sufficient

cause for his arrest.” Id. at 532.

In Peterson v. State, 15 Md. App. 478 (1972), an undercover detective instructed

other officers to arrest the occupants of two cars after he observed the occupants engaging

in suspected drug transactions. Id. at 485. The arresting officers seized purses in or around

the stopped vehicles and found heroin inside the purses. Id. at 486. The defense did not

dispute the undercover detective’s probable cause. Id. Instead, the defense challenged the

detective’s directive to another officer, who did not have knowledge of any facts to support

a belief that the purse contained contraband, to make an arrest. Id. at 487–88.

We explained that, when analyzing the probable cause of an arrest ordered by an

officer other than the arresting officer, we must trace the directive “back to its point of first

22
transmittal,” and “the justification at that point of origin must be analyzed and found to be

sound.” Id. at 488. We further explained that “a police officer, with proper justification for

an arrest or a search (with or without a warrant), may multiply his available arms and legs

to execute his purpose by calling upon other police[ officers] to aid him.” Id. at 487 (citing

Whiteley v. Warden of Wyo. Penitentiary, 401 U.S. 560, 568 (1971)). The officer “does not

have to impart to each of his executing agents the building blocks of probable cause that

mounted up to his justification.” Id. Although the arresting officer in Peterson did not

possess knowledge of any facts that would amount to probable cause, because the

undercover detective was part of the “police team,” his “knowledge was attributable to the

whole team,” including the arresting officer. Id. at 489 (citing Farrow, 233 Md. at 531–

32); see also Reimsnider v. State, 60 Md. App. 589 (1984) (reiterating that the arresting

officer need not have probable cause for the arrest, where another member of the police

team has probable cause and the arresting officer has been “alerted to make the arrest”;

further explaining that, under the facts of the case, silence constituted a form of

communication between the officers).

In United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011), the U.S. Court of

Appeals for the Fourth Circuit considered the application of the collective knowledge

doctrine in deciding whether an officer had a reasonable, particularized suspicion that the

defendant was engaged in criminal activity necessary to authorize a nonconsensual frisk

during a street encounter with police. Id. at 483. In that case, police received an anonymous

tip that shots had been fired in a high-crime area. Id. at 482–83. Officers Fries and Gaines

responded to the call, split up, and patrolled the area in question. Id. at 483. Officer Fries

23
saw four men, including the defendant, walking on the street near the alleged origin of the

shots. Id. Both officers converged on the men and began gathering information and asking

if they had weapons. Id.

At the suppression hearing, Officer Fries testified that he had seen a small bulge in

the defendant’s jacket but had not alerted Officer Gaines of this. Id. Officer Gaines frisked

the defendant and felt the handle of a firearm on the defendant’s waistband. Id. The

defendant was subsequently arrested and charged with possession of a firearm by a drug

user. Id.

The defendant argued that Officer Gaines lacked reasonable, particularized

suspicion to justify a nonconsensual frisk. Id. at 482. The Government suggested that,

under the collective knowledge doctrine, Officer Fries’s observation of a bulge in the

defendant’s jacket should be imputed to Officer Gaines to support particularized suspicion

to justify the frisk, even though Officer Fries never informed Officer Gaines about it. Id. at

491. The Fourth Circuit rejected the argument. Id. at 495–96.

The Fourth Circuit articulated the collective knowledge doctrine as follows:

The collective-knowledge doctrine, as enunciated by the Supreme Court,
holds that when an officer acts on an instruction from another officer, the act
is justified if the instructing officer had sufficient information to justify
taking such action herself; in this very limited sense, the instructing officer’s
knowledge is imputed to the acting officer.

Id. at 492 (citing Whiteley, 401 U.S. at 568 (“officers called upon to aid other officers in

executing arrest warrants are entitled to assume that the officers requesting aid” had

probable cause to support the warrant), and United States v. Hensley, 469 U.S. 221, 232

(1985) (“[I]f a flyer or bulletin has been issued on the basis of articulable facts supporting

24
a reasonable suspicion that the wanted person has committed an offense, then reliance on

that flyer or bulletin justifies a stop . . . . If the flyer has been issued in the absence of a

reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth

Amendment.”)).

The doctrine, however, “has a limited domain: officers acting on the information

and instructions of other officers.” Id. Quoting United States v. Laughman, 618 F.2d 1067

(4th Cir. 1980), the Fourth Circuit explicitly delineated the limitations of the doctrine:

The law seems to be clear that so long as the officer who orders an arrest or
search has knowledge of facts establishing probable cause, it is not necessary
for the officers actually making the arrest or conducting the search to be
personally aware of those facts.
[N.3] When a superior officer orders another officer to make an arrest, it is
proper to consider the superior’s knowledge in determining whether there
was probable cause. Likewise, when a group of agents in close
communication with one another determines that it is proper to arrest an
individual, the knowledge of the group that made the decision may be
considered in determining probable cause, not just the knowledge of the
individual officer who physically effected the arrest.

Massenburg, 654 F.3d at 493 (quoting Laughman, 618 F.2d at 1072–73).

The Fourth Circuit rejected the Government’s attempt to broaden the application of

the doctrine by measuring reasonable articulable suspicion or probable cause based on the

aggregate, uncommunicated knowledge of all officers involved. Id. In rejecting such a rule,

the Fourth Circuit reasoned that, if it were to adopt the rule posited by the Government,

“the legality of the search would depend solely on whether, after the fact, it turns out that

the disparate pieces of information held by different officers added up to reasonable

suspicion or probable cause.” Id. The Fourth Circuit reiterated that

25
the collective-knowledge doctrine simply directs us to substitute the
knowledge of the instructing officer or officers for the knowledge of the
acting officer; it does not permit us to aggregate bits and pieces of
information from among myriad officers, nor does it apply outside the
context of communicated alerts or instructions.

Id. Accordingly, the Court refused to impute Officer Fries’s observation of a bulge in the

defendant’s jacket to Officer Gaines, and it held that Officer Gaines lacked the reasonable

suspicion required to conduct a lawful nonconsensual frisk. Id. at 495–96.

We return to the instant case. In denying the motion to suppress, the court

determined that the collective knowledge of the PGPD and MPD officers justified the

seizure of the items. However, the court erred in relying on the collective knowledge

doctrine for two reasons. First, the evidence did not support the application of the collective

knowledge doctrine. There was no evidence of a scenario like that in Peterson, where an

officer who possessed sufficient information to support probable cause instructed an officer

who lacked that information to make an arrest or, as in this case, to seize items. Nor did the

evidence present a situation like that in Farrow, where an officer without independent

knowledge of facts sufficient to establish probable cause made an arrest or, as in this case,

seized items, based on communication from or with a team of officers who collectively

knew facts sufficient to establish probable cause. See Laughman, 618 F.2d at 1072 n.3;

accord United States v. Wells, 98 F.3d 808, 810 (4th Cir. 1996) (“[A]lthough the agent who

actually seized the weapon pursuant to the supervising agent’s instructions had no personal

knowledge that [the defendant had committed a crime], it is sufficient that the agents

collectively had probable cause to believe the weapon was evidence of a crime at the time

of the seizure.”).

26
Second, the collective knowledge doctrine did not resolve the appellant’s argument.

During the suppression hearing, the defense argued that the State failed “to justify a

warrantless seizure,” highlighting that an MPD officer had some involvement with the

items before Detective Marks arrived. However, the specifics of this involvement were

unclear, as the State did not present evidence to explain the antecedent events. In essence,

the appellant argued that the State did not meet its burden of establishing both probable

cause and that the warrantless seizure of items—by Detective Marks and by any other

officer who may have previously performed a seizure—fell within one of the exceptions to

the warrant requirement. After the court sua sponte relied on the collective knowledge

doctrine to deny the suppression motion, defense counsel sought clarification regarding

“which officer” and “the basis on which the officer seized the items.” The court reiterated

its reliance on the officers’ collective knowledge. However, based on the evidence adduced

at the suppression hearing, the collective knowledge of the officers did not establish

probable cause or justify the seizure of the items under an exception to the warrant

requirement. For the reasons stated, the court erred in finding that the warrantless seizure

of the items was justified under the collective knowledge doctrine.

2. Plain View Exception to the Warrant Requirement

The State argues that the warrantless seizure of the items was nevertheless justifiable

because the warrantless seizure fell under the plain view exception to the warrant

requirement. The plain view exception permits law enforcement to seize an item if (1) the

item is in plain view; (2) the officer’s initial intrusion is lawful; (3) the incriminating

character of the evidence is immediately apparent; and (4) the officer has a lawful right of

27
access to the object itself. Glanden v. State, 249 Md. App. 422, 432 (2021). “For the

incriminating character of an item to be ‘immediately apparent,’ the officer, upon seeing

the item, must have probable cause to believe that the ‘item in question is evidence of a

crime or contraband.’” McCracken v. State, 429 Md. 507, 516 (2012) (quoting Arizona v.

Hicks, 480 U.S. 321, 323 (1987)); see State v. Wilson, 279 Md. 189, 195 (1977) (explaining

that the “immediately apparent” element, “in essence, amounts to a requirement that police

have probable cause to believe the evidence is incriminating before they seize it”).9

Specifically, the State argues that given the totality of the circumstances (Detective Marks’s

investigation and comparison of the videos, information about the walk-in shooting victim,

seeing the identification card and the biohazard bag of bloodied clothing), it was a foregone

conclusion that the clothes were evidence of a crime under the third requirement of the

plain view doctrine.10

The appellant responds that the requirements of the plain view exception were not

satisfied. He also focuses on the third requirement, arguing that the incriminating character

of the evidence—bloodied clothing in a hospital—was not immediately apparent to

9
The seizure took place in D.C., but the appellant was prosecuted in Maryland.
Neither side raises an issue with any conflict of search-and-seizure law. See Carroll v. State,
240 Md. App. 629, 658 (2019) (discussing whether to apply the exclusionary rule of the
state where the search occurred or the forum state). Both sides invoke the law of the forum
state, Maryland.
10
The State cites United States v. Davis, 690 F.3d 226 (4th Cir. 2012), to support its
contention that Detective Marks’s seizure of the appellant’s clothes satisfied the
“immediately apparent” prong of the plain view doctrine. For the reasons discussed below,
we resolve this issue under the fourth element of the doctrine—whether the police had a
lawful right of access to the clothing. Accordingly, we need not address the State’s reliance
on Davis.

28
Detective Marks because: Detective Marks lacked “independent discovery” or “initial

recognition” of the appellant’s clothing as incriminating; Detective Marks was unable to

recall basic details about matching the clothes with what he observed on the liquor store

video; and blood-stained clothes in a sealed hospital biohazard bag are inherently

ambiguous and, alone, do not establish probable cause of criminal activity.

There is no merit to the State’s plain view doctrine argument. Regarding the

identification card, the evidence presented at the suppression hearing was that the MPD

officer handed it to Detective Marks. The State does not attempt to justify Detective

Marks’s seizure of the identification card under the plain view doctrine, nor could it. It was

evident that Detective Marks did not have “first-hand perception” of the card when he

entered the hallway outside the operating room. Brown, 460 U.S. at 739.

Determining whether the bloodied clothing in the biohazard bag falls under the plain

view doctrine requires a more in-depth analysis. While we agree with the appellant that the

plain view doctrine does not apply under the circumstances of this case, the analysis does

not depend on the element of incriminating character, as the parties suggest. Instead, the

analysis hinges on the requirement that the officer must have a lawful right of access to the

object seized under the fourth requirement of the plain view doctrine.

The Fourth Amendment requires that the “steps preceding the seizure” of evidence

in plain view “be lawful.” Kentucky v. King, 563 U.S. 452, 462–63 (2011) (explaining that

“law enforcement officers may seize evidence in plain view, provided that they have not

violated the Fourth Amendment in arriving at the spot from which the observation of the

evidence is made”). “‘Plain view’ is perhaps better understood, therefore, not as an

29
independent ‘exception’ to the warrant clause, but simply as an extension of whatever the

prior justification for an officer’s ‘access to an object’ may be.” Brown, 460 U.S. at 738–

39; Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971) (“The doctrine serves to

supplement the prior justification[.]”). In other words, the plain view doctrine cannot justify

the seizure of an object if it was put in plain view as a result of unlawful police conduct.

See Commonwealth v. Jackson, 337 A.2d 582, 585 (Pa. 1975) (“Fundamental to the

application of the ‘plain view’ doctrine is the principle that the seized objects must not have

been put in plain view as a result of unlawful police conduct.”) (citing Harris v. United

States, 390 U.S. 234, 236 (1968)).

The evidence presented at the suppression hearing called into question the

lawfulness of the steps preceding Detective Marks’s seizure of the bag of bloodied clothing.

The evidence suggested that the MPD officer had some involvement in the bag of clothing

being placed in the hallway outside the operating room before Detective Marks found it

there. When Detective Marks arrived, the appellant was already in the operating room.

Detective Marks encountered the MPD officer outside the operating room. The MPD

officer handed Detective Marks the appellant’s identification card, which indicated that the

MPD officer somehow came into possession of the card. Additionally, the MPD officer

knew that the bag of clothing belonged to the appellant because he pointed it out to

Detective Marks. In sum, the evidence raised concerns that the clothing’s placement in the

hallway—where Detective Marks later observed and ultimately seized it—might have

resulted from a prior warrantless seizure by the MPD officer.

30
The State did not present any evidence regarding how the bag of clothing ended up

in the hallway. We do not know whether hospital personnel placed it there or if the MPD

officer seized it unlawfully from the medical staff and then left it in the hallway. If the latter

occurred and, as a result, Detective Marks was able to view the bag of clothing, then

Detective Marks did not have a lawful right of access to it when he seized it. Although the

record may have supported that the incriminating character of the bloodied clothing was

immediately apparent to Detective Marks, the evidence was insufficient to demonstrate

that Detective Marks had a lawful right of access to the clothing in light of the indication

that the MPD officer was involved with its placement in the hallway. See Duncan, 27 Md.

App. at 305 (“Where the evidence is inconclusive in [establishing an exception to the

warrant requirement], the defendant wins.”); see also Coomes, 74 Md. App. at 388 (holding

that evidence presented at the suppression hearing was insufficient to prove that the

seizures were made pursuant to the plain view doctrine where the detective’s testimony

failed to establish the circumstances surrounding the seizure of items in the house).

In rejecting the State’s plain view doctrine argument, we do not suggest that the

State (or the testifying officer) must always explain how seized evidence ended up in the

location where it was observed by the officer to prove that the item was properly seized

under the plain view doctrine. Rather, we reaffirm the well-established rule that the State

assumes the burden of overcoming the presumption of invalidity by demonstrating, “by

however many steps are necessary,” that the warrantless search and/or seizure satisfied one

of the firmly established exceptions to the warrant requirement. Graham, 146 Md. App. at

349. The number of steps required varies depending on the facts of each case. In this case,

31
the apparent involvement of the MPD officer with the identification card and the bag of

bloodied clothing prior to the clothing’s seizure by Detective Marks necessitated that the

State demonstrate, through however many steps were necessary, that the clothing was not

placed in Detective Marks’s plain view as a result of unlawful police conduct.

3. Inevitable Discovery

Alternatively, the State contends the evidence about the appellant’s belongings was

admissible based on the inevitable discovery exception to the exclusionary rule. The State

contends that PGPD officers would have obtained information about the appellant’s

identity, which in turn would have led to the discovery of the Crosstour near the appellant’s

address. According to the State, this would have happened by way of securing a search

warrant and due to the requirement that George Washington University Hospital report the

appellant’s identity to the police. Additionally, officers would have investigated the bag of

bloodied clothing because the clothing matched that shown in both pieces of surveillance

footage.

The appellant contends that he was deprived of an opportunity to rebut this argument

below because the State did not raise the theory of inevitable discovery at the suppression

hearing and that the State’s arguments as to inevitability are speculative. We agree with the

appellant.

The warrantless seizure of an object may be permissible if the State can show, by a

preponderance of the evidence, that the evidence “inevitably would have been discovered

through lawful means[.]” Williams v. State, 372 Md. 386, 410–11, 417 (2002). “[T]he

question is whether that very item of evidence would have inevitably been discovered [i.e.,

32
the appellant’s identification card], not merely whether evidence roughly comparable

would have been so discovered [i.e., the facts contained on the card (name and address)].”

Wayne LaFave, 6 Search & Seizure: A Treatise on the Fourth Amendment, § 11.4(a) (6th

ed. Nov. 2024 update) (emphasis added).

“The analysis of what would have happened had a lawful search proceeded should

focus on historical facts capable of easy verification, not on speculation.” Williams, 372

Md. at 417–18. The “[a]pplicability of the inevitable discovery doctrine is a highly fact-

based determination and involves review by a trial court whether the evidence in question

would have been found.” Id. at 424. “The emphasis on fact finding and the duty of the trial

court is instructive, and demonstrates the limitation on the ability of an appellate court to

decide a factual issue.” Elliott v. State, 417 Md. 413, 437 (2010). “[A]bsent evidence

relating to inevitable discovery, the doctrine should not be applied sua sponte because an

appellate court’s determination of the issue would be based on speculation rather than

‘historical facts that can be verified or impeached.’” Id. (citation omitted); see also Stokes

v. State, 289 Md. 155, 165–66 (1980) (holding that inevitable discovery was unavailable to

State where there was no testimony as to usual police procedure and therefore no way to

know whether police “would have, in fact” discovered the evidence absent the unlawful

action).

Here, the theory of inevitable discovery was not raised by the State below. In

addition (and perhaps as a result), there is not enough evidence in the record to show that

the discovery of the appellant’s identification card and the bag of bloodied clothing was

inevitable. Given the factual void presented by the suppression record in the instant case,

33
making that determination in the first instance would necessarily involve speculation on

our part. Accordingly, we decline to apply the doctrine to this case.

CONCLUSION

For the reasons stated, the circuit court erred in denying the appellant’s motion to

suppress evidence of the appellant’s identification card and bloodied clothing. The State

concedes that harmless error does not apply. Accordingly, we shall reverse the court’s

denial of the motion to suppress and remand for further proceedings consistent with this

opinion, including a new trial.

Because we have decided to remand this case, we find it unnecessary to address the

second issue that we review for plain error the unpreserved claim that the court erred in

admitting the appellant’s deposition testimony at trial. See Pearson v. State, 437 Md. 350,

364 n.5 (2014) (“Generally, where an appellate court reverses a trial court’s judgment on

one ground, the appellate court does not address other grounds on which the trial court’s

judgment could be reversed[.]”); see also Morris v. State, 153 Md. App. 480, 506–07

(2003) (noting that, in resolving contentions of plain error, the five words “[w]e decline to

do so” are “all that need be said, for the exercise of our unfettered discretion in not taking

notice of plain error requires neither justification nor explanation”).

ORDER OF THE CIRCUIT COURT FOR
PRINCE GEORGE’S COUNTY DENYING
THE MOTION TO SUPPRESS REVERSED;
CASE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION. COSTS TO BE PAID
BY PRINCE GEORGE’S COUNTY.

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