Butler v. State

Menchine, J., delivered the opinion of the Court. In a jury trial in the Criminal Court of Baltimore, Nathaniel Butler was convicted of unlawful possession of heroin in sufficient quantity reasonably to indicate an intent to distribute the same. (Art. 27, § 286 (a)(1)) Appellant thereafter was found guilty by the court (after waiver of a jury trial) under an addendum to the indictment as to which he had been found guilty by the jury. He was sentenced to a ⁶⁰⁴ term of twenty years imprisonment and to pay a fine of $25,000.00.

His appeal contends: 1. That the search warrant and admission in evidence of the contraband seized under it, violated his constitutional rights. 2. That the trial court’s refusal to grant an accomplice instruction was erroneous. 3. That the evidence did not establish his possession of narcotics. 4.

That the trial court’s denial of his motion for a new trial upon grounds of newly discovered evidence was erroneous. 5. That the trial court improperly permitted police officers to testify as expert witnesses. 1. The Search and Seizure Appellant attacks the affidavit upon which the warrant was issued and the form of the warrant itself. The Affidavit We regard the contention that the affidavit did not establish probable cause for the issuance of a warrant as frivolous.

We will say no more than that the affidavit, a combination of hearsay information from a reliable informant, buttressed by the direct observations of the affiant, presented the issuing judge with facts and circumstances clearly sufficient to show probable cause to believe that heroin was being concealed within 612 Pitcher Street. Moore v. State, 13 Md. App. 711 , 284 A. 2d 614 . The Form of the Warrant Appellant maintains that the warrant is invalid as a general warrant. It authorized a search of “612 Pitcher Street, 3 story brick dwelling.” The record shows that upon execution of the warrant it developed that the premises 612 Pitcher Street had a first floor tenant (Vaughn); a third floor ⁶⁰⁵ tenant (Rudy); with the second floor rear bedroom rented to the appellant.

The police were directed to appellant’s room immediately upon entry, and it was that room only that was searched and from which contraband was seized. In Tucker v. State, 244 Md. 488 , 224 A. 2d 111 , wherein the warrant authorized search of a similarly described property, the contention that it was a general warrant was rejected. There, the warrant authorized search of the entire premises but the affidavit for that warrant demonstrated probable cause as to one room only and the search was limited to that room. Appellant suggests that Tucker is distinguishable, because the subject property “had three residential units contained within it that were separate and apart from each other,” yet the affidavit contained no restricting language.

No precise formula for constitutional particularity exists, as was pointed out in Tucker at page 496 [115]: “We have said many times that there is no formula which can be used to measure the particularity with which premises must be described and that the adequacy of the description in every case will depend on the facts and circumstances there present.” Appellant cites a number of federal decisions that he argues require us to reject the subject warrant and to suppress the evidence seized thereunder. We reject his contention because we find that the facts and circumstances of the subject case bring it within the legal theory announced in another line of federal decisions presciently indicated by antecedent Maryland cases. A more detailed description of the premises described in the warrant as “612 Pitcher Street, a three-story brick dwelling” is desirable for clear understanding of the distinction made in the appellate decisions cited herein. 612 Pitcher Street is a row house dwelling in Baltimore City with no outward sign that it contains separate apartments. There was no showing that the affiant to the warrant had any knowledge, actual or constructive, that the dwelling was other than a single family dwelling.

Neither he nor other ⁶⁰⁶ police officials were shown to possess any information such as would reasonably indicate that the property was a multiple unit building. Indeed, somewhat ironically, a written statement of a witness, offered by the defendant as Exhibit 1, in the handwriting of his counsel, refers to the property as “612 Pitcher Street a single family row house ífc # * » U. S. v. Hinton, 219 F. 2d 324 , serves as the principal basis for appellant’s contention. He also cites U. S. v. Barkouskas, 38 F. 2d 837 ; U. S. v. Lee, 448 F. 2d 604 ; Moore v. U. S., 461 F. 2d 1236 ; Houser v. Geary, 465 F. 2d 193 ; U. S. v. Diange, 32 F. Supp. 994 , and U. S. v. Esters, 336 F. Supp. 214 , as supporting his view. We find some of the cases cited by appellant are clearly distinguishable on their facts and some, indeed, to support this warrant’s validity.

In Hinton, supra, the Court’s opinion recites at page 325: “The address named in the warrant is an entire apartment building, the basement and each of the three upper floors of which constitute separate residences. ” [Italics supplied] In Barkouskas the opinion recites at page 837: “* * * the owner of the building occupied with his family the second floor, and the defendant held under lease and occupied the first floor, in which place he ran a store. Under these facts, there were two places included in the description and the description was a general and not a ‘particular’ description.” In Lee the warrant authorizing search of “718-720 North Third Avenue” was upheld. Moore, supra, is so factually inapposite that it furnishes no reasonable support for appellant’s contention. Houser, supra, furnishes strong support for the validity of the subject warrant, as will be demonstrated hereafter.

In U. S. v. Esters, supra, the opinion shows that there were two separate and easily visible doorbell buttons; two mail boxes on the right side of the door about one foot below the ⁶⁰⁷ single house number, one of which included an opening for a speaking tube that the Court described [P. 216] as “a device commonly used in multiple-occupancy dwellings;” two telephones served the address, listed to different individuals; and two electric utility meters were attached to the side of the building. Thus it is plain that prior to the application for the warrant in Esters , the affiant or other government agents knew or should have known that the premises was a multi-unit building. Diange, supra, lends first blush support to appellant’s contention. However, the Court’s description of the premises is ambiguous as to its actual appearance.

It is of some significance, however, that the case has been cited with approval in only four cases, namely: Hinton, supra; Esters, supra (both previously distinguished herein); State v. Costakas, 226 A. 2d 695 [Rhode Island], and U. S. v. Brown, 151 F. Supp. 441 . In Costakas [P. 697] the Court stated that the “old mansion * * * had as of the night of the search been long since converted into an apartment building.” In Brown [P. 444] the Court stated that the “building had at least the appearance of a rooming house.” We find the subject case to be controlled by those cases involving premises the multi-unit character of which was neither known nor apparent at the time of issuance of the warrant. The leading case is U. S. v. Orlando (Santore), 290 F. 2d 51 ; cert. denied 365 U. S. 834 . In that case the Court of Appeals for the Second Circuit said at page 66: “The warrant stated that the applicant for the warrant had reason to believe that illegal narcotics were to be found ‘on the premises known as 164 Hill Street, Elmont, Long Island, New York, being a one family house, in the Eastern District of New York.’ However, it is defendant’s contention that since the house was not a one-family house, but two-family, the basement and second floor being occupied by Orlando and his wife and the first floor by a family named Drago, the warrant did not describe the place to be searched with that particularity required by the Fourth Amendment.

While there ⁶⁰⁸ might be merit to this position were we dealing with the case of an ordinary multiple dwelling building, see United States v. Hinton, 7 Cir., 1955, 219 F.2d 324 we think that under the circumstances here the district court’s ruling must be upheld. The house at 164 Hill Street is to all outward appearances a one-family house with a front door and a side door, and it had always been registered with the local authorities as a one-family dwelling. A few years prior to the search the interior of the house was renovated and subdivided by Orlando, but, in contravention of local ordinances, no permission to do so was obtained from the proper authorities. Consequently no notice of this subdivision was ever given to the local officials.

In view of these facts we think that the issued warrant described the premises to be searched with that ‘practical accuracy’ we have held to be necessary. United States v. Fitzmaurice, 2 Cir., 1930, 45 F.2d 133 . The description in the warrant was in accordance with the outward appearance of the structure, cf. Carney v. United States, 6 Cir., 1935, 79 F.2d 821 , and in view of the concealment by Orlando of the interior alteration made by him it would be absurd to say that the Government was on notice as to it. The agents were not warned of a possible dual occupancy of the house until after they had shown the copy of the warrant to Orlando and had entered inside.

At that moment it was too late for them, consistent with the success of their mission, to have retreated and obtained a new warrant.” Houser, supra, although cited by