Duncan and Smith v. State

Moylan, J., delivered the opinion of the Court. Courts occasionally leap headlong into the merits of a ³⁰⁴ controversy with scant thought to the preliminary question of whether the controversy is even justiciable in the first instance. This appeal permits us to linger upon the threshold and to explore the fascinating, though frequently overlooked, contours, peculiar characteristics and procedural mysteries of the threshold itself. What is the rite of passage by which one crosses?

Who bears the peril of the crossing? The prime issue in the case before us is: Who has the burden of producing evidence on the question of standing to raise a Fourth Amendment protest? It is, of course, black letter law that only a “person aggrieved by an unlawful search and seizure” may challenge the constitutional validity of that search and seizure. Jones v. United States, 362 U. S. 257, 261 , 80 S. Ct. 725 , 4 L.Ed.2d 697, 702 (1960).

It is not enough that someone’s right to be free of unreasonable search and seizure has been abrogated; it is necessary that the right abridged be that of the defendant personally. Alderman v. United States, 394 U. S. 165, 173 , 89 S. Ct. 961 , 22 L.Ed.2d 176, 186 (1969). One must establish that it is his own direct or derivative enjoyment of property or expectation of privacy that has been invaded before he may challenge the invasion. Walters v. State, 8 Md. App. 583 , 261 A. 2d 189 ; Palmer v. State, 14 Md. App. 159 , 286 A. 2d 572 ; Lopata v. State, 18 Md. App. 451 , 307 A. 2d 721 ; Brown v. United States, 411 U. S. 223 , 93 S. Ct. 1565 , 36 L.Ed.2d 208 (1973).

We are not here concerned with the question of what is the appropriate burden of proof at a suppression hearing once a justiciable issue is properly before the hearing judge. It was settled by Lego v. Twomey, 404 U. S. 477 , 92 S. Ct. 619 , 30 L.Ed.2d 618 (1972), that that burden is a preponderance of the evidence. Nor are we concerned with the allocation of the burden of going forward with the evidence on the merits of a search and seizure question. It is clear that that burden shifts, depending on the presence or absence of a search warrant.

When the police execute a search under authority of a facially adequate warrant, it is presumptively good and the burden is upon the defendant to establish its invalidity. Where the evidence is inconclusive in ³⁰⁵ this regard, the State wins. United States v. Ventresca, 380 U. S. 102 , 85 S. Ct. 741 , 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U. S. 108 , 84 S. Ct. 1509 , 12 L.Ed.2d 723 (1964); Alderman v. United States, supra; Hignut v. State, 17 Md. App. 399, 408-410 , 303 A. 2d 173 . Where, on the other hand, the defendant establishes initially that the police proceeded warrantlessly, the burden shifts to the State to establish that strong justification existed for proceeding under one of the “jealously and carefully drawn” exceptions to the warrant requirement.

Jones v. United States, 357 U. S. 493, 499 , 78 S. Ct. 1253 , 2 L.Ed.2d 1514, 1519 (1958). Where the evidence is inconclusive in this regard, the defendant wins. Coolidge v. New Hampshire, 403 U. S. 443, 454-455 , 91 S. Ct. 2022 , 29 L.Ed.2d 564, 576 (1971); Katz v. United States, 389 U. S. 347, 357 , 88 S. Ct. 507 , 19 L.Ed.2d 576, 585 (1967); United States v. Jeffers, 342 U. S. 48, 51 , 72 S. Ct. 93 , 96 L. Ed. 59 , 64 (1951); McDonald v. United States, 335 U. S. 451, 456 , 69 S. Ct. 191 , 93 L. Ed. 153 (1948). Nor are we concerned with the rules of admissibility at such a hearing.

United States v. Matlock, 415 U. S. 164 , 94 S. Ct. 988 , 39 L.Ed.2d 242 (1974), established that the formal rules of evidence are suspended and that the decision as to the receipt of evidence is left to the broad discretion of the hearing judge. All of the foregoing questions are involved with what transpires within the forum of the suppression hearing. We are here concerned, rather, with the very passkey to that forum. The fundamental issue before us, on the question of standing even to raise and adjudicate a Fourth Amendment question on its merits, is that of Who has the initial burden of producing evidence?

Must the defendant establish standing to raise the issue or must the State establish non-standing to avoid the issue? If, on the motion to suppress, neither establishes anything, who wins the nothing-nothing tie? The issue is squarely raised, for the present appeal confronts us with a pair of nothing-nothing ties. The appellants, Sherman Duncan (alias James Fitz) and Cornell Smith, were jointly arrested in Frederick County on June 18, 1973.

They were jointly charged in a two-count ³⁰⁶ indictment with (1) grand larceny and (2) receiving stolen goods. Although both ultimately elected court trials, a difficulty in arranging for legal representation by Duncan resulted in a trial severance. Smith was tried in the Circuit Court for Frederick County by Judge Robert E. Clapp, Jr., on January 22, 1974, and was found guilty of the first count, charging grand larceny. Duncan was tried in the Circuit Court for Frederick County by Judge Ralph G. Shure on January 24, 1974, two days later, and was found guilty of the second count, charging the receipt of stolen goods.

Notwithstanding the separate trials, the evidence produced was so virtually identical and the issues here presented are so overlapping in significant part, that it serves the purpose of judicial husbandry to consolidate the consideration of these appeals within a single opinion. Any minor differences in the relevant testimony will be noted. The key contention raised by each defendant is that the stolen goods were turned up by the police in the course of an allegedly unconstitutional search of the automobile with which both appellants were linked by several witnesses. Duncan, in the course of his trial, moved to suppress the fruits of that search.

His motion was denied. Smith, by a written motion filed just before his trial commenced, moved to suppress the physical evidence. His motion recited: “1. That your Petitioner was arrested on a public street in the City of Frederick, Maryland without an arrest warrant.

That the police after arresting the Petitioner proceeded to search a car in which Petitioner was a passenger and without the Petitioner’s permission or with a search warrant. 2. That evidence was illegally seized by the police and should not be introduced at trial.” Evidence bearing on the motion was adduced during the course of the trial. Smith’s motion was also denied. Unlike the situation facing the Supreme Court in Combs v. United States, 408 U. S. 224 , 92 S. Ct. 2284 , 33 L.Ed.2d 308 (1972), the State’s Attorney, in arguing against the motions in both cases, clearly raised the issue of standing. ³⁰⁷ The victimized store in this case, Montgomery Ward’s, is located in the Fredericktown Mall on the north side of U.S. Route 40 just west of the city of Frederick.

Until several bags of stolen merchandise still containing the price tags were recovered by the police from the trunk of a white Mercury at approximately 5 p.m. on June 18, 1973, the personnel at Montgomery Ward’s did not realize that a larceny had taken place. The security personnel at the nearby J. C. Penney store, also located in the Fredericktown Mall, were, however, very alert to an attempted larceny of their merchandise at approximately 4 p.m. Two Negro males had been observed putting clothing into big trash bags and then carrying them out of the store, where they were set in trash cans just outside of a Pappy’s Restaurant. A security officer took up a surveillance point to observe whoever might come by to retrieve the merchandise temporarily “stashed” in the trash cans.

He observed two Negro males approach in a white Mercury, with a damaged front end, and bearing Maryland license tags KR 4679. When they, in turn, observed him, they drove off at a high rate of speed, “laying down rubber.” The police were immediately notified. Mrs. Mary Joan Maher lived on Grove Hill Road, a residential cul-de-sac, located just south of U.S. 40 across from the entrance to the Fredericktown Mall. At approximately 4 p.m. on June 18, she observed a white Mercury drive off the road and park on her front lawn.

Two Negro males, strangers to her, alighted from the car, turned away when they saw her looking out of the door, and walked back toward Route 40. She notified the police. The two appellants were ultimately arrested as they were walking along the road several hundred yards away. Mrs. Maher and another neighbor identified them as the occupants of the white Mercury.

The Mercury was the car that had been observed a few minutes earlier by the security officer of J. C. Penney’s. A warrantless search of the trunk of the automobile produced the goods stolen from Montgomery Ward’s. This was the corpus delicti. The two witnesses from Grove Hill Road (with a peripheral assist from the security man at J. C. ³⁰⁸ Penney’s and the proximities of time and place) established the criminal agency of the appellants.

The evidence at both trials on the question of standing was singularly unilluminating. As to whether either appellant had any proprietary or rightful possessory interest in the searched automobile, or was legitimately in the automobile by virtue of being a guest, invitee, licensee or bailee of the rightful owner or possessor, the record is a virtual blank. Neither appellant took the stand; neither appellant offered any witnesses in this (or any other) regard. The only testimony came from the State’s witnesses.

Mrs. Maher saw the appellants get out of the car, but this observation is neutral on the issue of standing. Thieves and unauthorized users of automobiles alight in the same fashion as rightful owners. Indeed, the somewhat bizarre leaving of the automobile on a front lawn in a strange residential neighborhood and then walking an appreciable distance away with no discernible destination is at least as compatible with abandoning a “hot” car as with the sensible parking of a car rightfully possessed. At the trial of Duncan, Lt.

Gary Heerd testified that the two appellants affirmatively disclaimed any interest in or knowledge of the car: “I myself asked them if this was their vehicle or if they knew whose vehicle it was and they denied it. They said it was not their car. They did not know whose it was or how it got there.” Similar testimony was produced at the trial of Smith. Pvt.

Maybush testified: “. . . Lt. Heerd came up and asked the subjects, was it their vehicle and if they had any knowledge how the vehicle got there and both of them stated that it was positively not their vehicle. They had never seen it before.

Q. What did they state? A. They said positively it was not their vehicle and ³⁰⁹ they had never seen it before. Didn’t know how it got there. Q. They had no knowledge of that vehicle?

A. No, sir.” Lt. Heerd again testified: “When they were brought to the scene of the car I myself asked them whether, in fact, that was their car or if they knew whose car it was. They denied it. They did not know whose car it was or who had the car.” Det.

Corp. Himes also testified: “[A]t the time they denied any knowledge of the car that was parked in the yard. They repeatedly stated that they had no connection with it, had not driven it there, had not parked it there and answers of that nature.” Neither appellant at any time offered any evidence to controvert this evidence. 1 In both trials, it was brought out that the police made a radio check to learn if the car had been reported stolen. It had not been so reported. The police checked further with the Department of Motor Vehicles to ascertain the name of the owner.

At the trial of Duncan, this name was not forthcoming. It was simply established that at some time on the early evening of June 18, the police called the home of the owner and spoke with a young child. A message was left with the child asking the owner to return a call to the police in Frederick. It does not appear from the record that any return call was ever made.

At the trial of Smith, it was developed that the owner of ³¹⁰ record was “a Shirley Ann Duncan. . . of 5229 St. Charles Avenue in Baltimore.” No direct contact was established with M’s Duncan and nothing was established as to who M’s Duncan might be. Smith seeks some solace in the fact that the last name of the registered owner of the automobile corresponds with the last name of his companion and codefendant. No relationship was ever established, let alone permission to use the automobile. In this regard, even the acknowledged fact of a father-son relationship did not establish, ipso facto, any permitted use by the son of the father’s farm in Combs v. United States, supra.

A fortiori, a mere similarity of last names, particularly so common a Scottish name as Duncan, will not give rise to an inference of relationship with that inference, in turn, giving rise to an inference of permitted use. Even this tendril of strained logic was not, of course, developed during Duncan’s suppression hearing and is not available to him. 2 The Allocation of the Burden The end result of both hearings on the question of standing is that the appellants did not affirmatively ³¹¹ establish any direct or derivative right in the searched automobile 3 and must fail, if the burden of producing evidence is theirs. By the same token, the State arguably did not affirmatively establish any lack of standing and would fail, if the burden were on it. We look then to the question of Who has the burden?

Until the partial establishment of the Exclusionary Rule in Maryland with the enactment of the Bouse Act in 1929 (Ch. 194, Acts of 1929), the very notion of standing was an irrelevancy. Between the enactment of the Bouse Act and the Supreme Court’s opinion in the case of Cecil Jones v. United States, supra, 362 U. S., in 1960, Maryland considered the question of standing in approximately 14 opinions. Our law not only required a defendant to have a proprietary or possessory interest in the things seized or the place searched but squarely placed the burden upon the defendant of establishing his standing. Baum v. State, 163 Md. 153, 157-158 , 161 A. 244 (1932); Frankel v. State, 178 Md. 553, 562 , 16 A. 2d 93 (1940) (“. . . there being no showing nor contention that any of them were the lawful occupants of those premises”); Leon v. State, 180 Md. 279, 286 , 23 A. 2d 706 (1942); Bevans v. State, 180 Md. 443, 448 , 24 A. 2d 792 (1942); Resnick v. State, 183 Md. 15, 18 , 36 A. 2d 347 (1944) (“Where there is no showing nor contention that the persons complaining were the lawful occupants of the premises, they cannot invoke the constitutional provisions against unwarranted search and seizure.”); Kapler v. State, 194 Md. 580, 586 , 71 A. 2d 860 (1950); Lambert v. State, 196 Md. 57, 63-64 , 75 A. 2d 327 (1950); Delnegro v. State, 198 Md. 80, 86 , ³¹² 81 A. 2d 241 (1951); Curren v. State, 199 Md. 54, 56 , 85 A. 2d 454 (1951) (“Since the appellant claimed no interest in the truck, he could not object to its search.”); Lingner v. State, 199 Md. 503, 506 , 86 A. 2d 888 (1952); Cross v. State, 199 Md. 507, 509-510 , 86 A. 2d 891 (1952); Saunders v. State, 199 Md. 568, 573 , 87 A. 2d 618 (1952); Rizzo v. State, 201 Md. 206, 209 , 93 A. 2d 280 (1952) (“There is no evidence — and no allegation other than any implication in mention of ‘the premises of your defendant’ in the unsworn petitions for return of property seized — that defendants Rizzo and Nicholson had any interest in the premises.”); Manger v. State, 214 Md. 71, 75 , 133 A. 2d 78 (1957).

In several significant regards, Cecil Jones changed the law on standing. 4 For certain possessory crimes and under certain circumstances it conferred “automatic standing” (to be discussed more fully hereinafter). This involved primarily standing in the things seized. Cecil Jones also significantly liberalized the law with respect to standing in the place searched. The law, pre-Jcmes, had austerely limited the class of persons who had enough interest in the place searched to raise a constitutional objection to those who could prove a proprietary interest in the place.

The liberalization of Cecil Jones was to create the notion of “derivative standing” and to extend the Fourth Amendment protection to “anyone legitimately on premises where a search occurs.” 5 This ³¹³ broadening of the class of those who had standing, however, did not in any way work to shift the burden of proving membership in the protected class. Though the class of “persons aggrieved” was broadened, it was still incumbent upon a defendant to establish that he was a “person aggrieved” by the allegedly unconstitutional search and seizure. This allocation of the burden on the question of standing is simply a particular instance of the general truth that he who pleads and asserts the affirmative of an issue has the burden of proving that issue and fails at his peril. It is a defendant who moves to suppress evidence and must give the court some basis for granting the motion.

Cecil Jones was very explicit in this regard, at 362 U. S. 261 : “In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. Rule 41(e) applies the general principle that a party will not be heard to claim a constitutional protection unless he ‘belongs to the class for whose sake the constitutional protection is given.’. . . Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.” (Emphasis supplied) This allocation to the defendant of the burden of proving the thing he asserts as the basis for the relief sought was applied by the Supreme Court at least as early as in Nardone v. United States, 308 U. S. 338, 341 , 60 S. Ct. 266, 268 , 84 L. Ed. 307 (1939): “The burden is, of course, on the accused in the first ³¹⁴ instance to prove to the trial court’s satisfaction that wire-tapping was unlawfully employed.” The allocation of the burden as set forth in Cecil Jones was reaffirmed by the Supreme Court in Mancusi v. DeForte, 392 U. S. 364 , 88 S. Ct. 2120 , 20 L.Ed.2d 1154 (1968); Simmons v. United States, 390 U. S. 377 , 88 S. Ct. 967 , 19 L.Ed.2d 1247 (1968); and Alderman v. United States, supra. Alderman said, at 394 U. S. 173 -174: “The rule is stated in Jones v. United States, 362 U. S. 257, 261 , 4 L.Ed.2d 697, 702 , 80 S. Ct. 725 , 78 A.L.R.2d 233 (1960): . . . [citing the two paragraphs from Cecil Jones quoted above], . .

This same principle was twice acknowledged last Term. Mancusi v. DeForte, 392 U. S. 364 , 20 L.Ed.2d 1154 , 88 S. Ct. 2120 (1968); Simmons v. United States, 390 U. S. 377 , 19 L.Ed.2d 1247 , 88 S. Ct. 967 (1968). We adhere to these cases and to the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” In discussing the impact of Cecil Jones, McCormick, Law of Evidence (2nd Edition 1972), § 179, “Enforcement of the Right to Exclusion: (a) Standing to Object,” p. 419, is very clear: “In Jones v. United States the Supreme Court made clear that a defendant may obtain suppression of relevant but improperly obtained evidence only if he establishes that he himself was a victim of the improper activity which forms the basis for the challenge to the evidence. Only then does he have ‘standing’ to challenge the admissibility of the evidence.” (Emphasis supplied) Although the allocation of the burden in Maryland had been more something axiomatically taken for granted than ³¹⁵ something consciously decided the allocation was more deliberately expressed in Stewart v. State, 1 Md. App. 309, 314 , 229 A. 2d 727 : “Maryland follows the majority view of the federal and state courts, requiring the objector to present to the court an alleged violation of his own constitutional rights as a prerequisite to his right to object to ‘tainted’ evidence.” (Emphasis supplied) Reaffirmed in Kleinbart v. State, 2 Md. App. 183 , 205 234 A. 2d 288 .

The academic commentators are in complete accord. See Abbott et al, Law and Tactics in Exclusionary Heatings (1969), at 52: “In order to successfully invoke the exclusionary rules relevant to illegal searches and seizures the claimant must first establish his ‘standing’ to object.” and again at 54: “[T]he burden of proving standing is generally on the defendant at a motion to suppress.” and again at 107-108: “The burden of going forward with evidence at an exclusionary hearing is clearly upon the defendant. The defendant is the moving party and should be the first to introduce evidence under any rule of orderly procedure. Futhermore, compliance with this requirement alerts the hearing court to the nature and extent of the claimed illegal conduct.

If the defense fails to sustain its burden of going forward, the court may deny the motion.” and again at 110: “The burden of persuasion ‘remains throughout upon the one who at the outset has asserted the affirmative of the issue.’ At an exclusionary ³¹⁶ hearing the defense has asserted the affirmative because it has requested the court to suppress certain evidence. Thus, unless the government has been specially assigned the burden under a particular exclusionary rule [as in the case of a confession], the defense has the obligation to persuade the hearing judge at the conclusion of all the evidence that the facts are such as to require a granting of the motion. When the burden of persuasion is imposed on the defense, the standard of proof usually required by the court is a ‘preponderance of the evidence’.” And see White and Greenspan, Standing to Object to Search and Seizure, 118 U. of Pa.L.Rev. 333 (1970): “[T]he Court has traditionally held that a defendant who wishes to have evidence excluded must first establish standing to object to the unlawful search,” p. 333; Grove, Suppression of Illegally Obtained Evidence: The Standing Requirement on its Last Leg, 18 Catholic U.L.Rev. 150 (1968): “A claimant must establish specific standing in order to invoke exclusionary rules relevant to illegal searches and seizures,” p. 153, “Where the claimant can show he is such person, he has established a logical nexus between his status and the alleged illegality of the search and seizure . . . The defendant has the burden of proving standing on a motion to suppress,” p. 155;