Carter v. State

Oppenheimer, J., delivered the opinion of the Court. This is an appeal from convictions of the appellants by the Criminal Court of Baltimore for illegal possession of narcotics. The appellants were passengers in a car owned and operated by Calvin Foote. Four police officers came up while Foote’s car was parked at a curb.

They searched the car, with Foote’s permission, and found a piece of paper containing six bags of heroin beneath the right front seat of the car where the appellant, Carter, was sitting. Foote and the appellants were searched but nothing incriminating was found on any of their persons. Subsequently, at the police station, the appellants signed confessions. They contend that Foote’s consent to the search of his car was not voluntarily given and, in any event, that the evidence found as a result of a search to which the appellants did not consent could not be used against them.

They also contend ⁴⁵³ that their statements were inadmissible because the arrests were illegal. Judge Harris, sitting without a jury, found as a fact that Foote had freely given the officers permission to search his car. Two of the police officers so testified and the judge found that the “overall effect” of the testimony of Foote, who took the stand as a State’s witness, was that he had given permission to search the entire car. Foote at no time denied that he had freely given his consent.

A search by permission of the person entitled to constitutional protection from an unreasonable search is lawful as one of the exceptions to the general rule that reasonable searches must be made as the result of valid search warrants. Arwmood v. State, 229 Md. 565 , 185 A. 2d 357 (1962); Gross v. State, 235 Md. 429, 443 , 201 A. 2d 808 (1964). The appellants contend that Foote’s consent could not have been freely given because he was on probation after conviction for a prior narcotics offense, but that fact was only one of the circumstances to be considered by the court in determining whether the State had met the burden of showing that consent to the search was freely given. Even when consent to a search is given by a person under arrest, it is for the court to determine whether, under all the circumstances, consent was freely and voluntarily given.

Payne v. State, 207 Md. 51 , 113 A. 2d 93 (1955); Armwood v. State, supra; Gibson v. United States, 149 F. 2d 381 (D. C. Cir. 1945) cert. denied sub noma, O’Kelley v. United States, 326 U. S. 724 (1945). Cf. Judd v. United States, 190 F. 2d 649 (D. C. Cir. 1951). There was sufficient evidence in the record in this case for the trial judge to consider the voluntariness of Foote’s consent to the search as a question of fact, and, on the record, we agree with his conclusion.

Neither of the appellants objected to the search of the automobile. Under the decisions of this Court, they had no standing to do so. They had no ownership or possessory rights of any kind in the car. Baum, v. State, 163 Md. 153, 157 , 161 Atl. 244 (1932) ; Bevans v. State, 180 Md. 443 , 24 A. 2d 792 (1942) ; Lambert v. State, 196 Md. 57 , 75 A. 2d 327 (1950).

In Jones v. United States, 362 U. S. 257 (1960), relied upon by the appellants, federal officers had found narcotics-