Duncan and Smith v. State

Smith, J., delivered the opinion of the Court. Our grant of the writ of certiorari in this case was “limited solely to the issue set forth in the petition for writ of certiorari,” which was: “Did the Court of Special Appeals err in holding that the decision of the United States Supreme Court in Cecil Jones v. United States [, 362 U. S. 257 , 80 S. Ct. 725 , 4 L.Ed.2d 697 (1960),] is no longer controlling law in Maryland and that the Petitioners, by relying upon the rule, of automatic standing which that case established, failed to show that they had standing to challenge the legality of the search of an automobile and seizure therefrom of evidence used against them at trial?” The Court of Special Appeals in Duncan and Smith v. State, 27 Md. App. 302, 317 , 340 A. 2d 722 (1975), held “that the ‘automatic standing" notion of Cecil Jones” did not apply here “primarily because of [that court’s] considered belief that the very concept of ‘automatic standing1 has been superseded and rendered a dead letter by Simmons v. United States, 390 U. S. 377 , 88 S. Ct. 967 , 19 L.Ed.2d 1247 (1968).” We disagree. We hold that there was “automatic standing.” Therefore, the Court of Special Appeals must determine in this case whether the evidence in question was properly admitted. ⁷¹⁷ Appellants, Sherman Duncan and Cornell Smith (Duncan and Smith), were jointly indicted in Frederick County. Each was charged with grand larceny and receiving stolen goods.

Each elected a court trial. Smith was convicted of grand larceny by Judge Clapp. As it is put in the agreed statement of facts filed in this Court under Maryland Rule 828 g in lieu of a printed record extract, in so doing the trial judge based his “decision on the presumption that one in possession of recently stolen goods is the thief.” Chief Judge Shure convicted Duncan of receiving stolen goods. The agreed statement of facts states, “Again the trial court grounded its verdict on the presumption which arises from the possession of recently stolen goods.” The facts leading up to the arrest of Duncan and Smith and the search and seizure here under consideration are set forth in full at pages 807-10 of 27 Md. App. We need not recount them here.

It will be sufficient for our purposes to say that an important part of the evidence adduced against both defendants was clothing with price tags from Montgomery Ward Co., Inc., attached, which clothing was found in two plastic trash bags as a result of the search of a vehicle parked immediately adjacent to a public road but on private property. Messrs. Duncan and Smith allegedly were returning to this vehicle at the time they were apprehended. They were identified by the owner of the land where the car was parked as the individuals she had seen in the vehicle a short time earlier. 1 Neither defendant took the stand in his own defense.

Both appellants objected to Introduction of the evidence thus obtained. A motion to suppress the evidence was filed by Smith, but since it was not filed five days prior to the date of trial, it was not heard in advance of trial. Rule 729 d 1. Smith specifically relied upon Jones in argument by his counsel to the court.

No mention of Jones was made by counsel for Duncan. The State argued in Duncan’s case that he had no standing to object to the evidence because he was ⁷¹⁸ a trespasser. In Smith’s case the State argued lack of standing because he was a trespasser and also because it claimed the vehicle in question was abandoned. In Smith’s case the trial judge held “the search and seizure [to be] valid [and] reasonable ... [and based] on probable cause . ...” Therefore, he “admitted] the evidence of the articles that were found upon that search of the trunk.” In Duncan’s case the court phrased the question as “whether or not the search of th[e] vehicle without a search warrant was reasonable under the circumstances ... .” The evidence was held properly admissible.

Thus, in each instance the trial judge implicitly found standing. In one regard this case is similar to United States v. Moody, 485 F. 2d 531 (3d Cir. 1973), where the court said: “[T]he issue [of the continuing validity of Jones] was not raised by the government until this appeal, and as a result, the district court has had no opportunity to examine the question. It goes without saying that the proper function of the court is to review the work of the district court, and not to make initial determinations on complicated issues.” id. at 533, n. 3 . Indeed, the issue of the continuing viability of Jones appears in this instance to have been raised by the Court of Special Appeals ex mero motu.

Although the State in its brief in the Court of Special Appeals mentioned Jones and claimed that there was no standing on the part of Duncan and Smith, it at no time contended that Jones was no longer viable nor did it discuss Brown v. United States, 411 U. S. 223 , 93 S. Ct. 1565 , 36 L.Ed.2d 208 (1973), or Simmons v. United States, 390 U. S. 377 , 88 S. Ct. 967 , 19 L.Ed.2d 1247 (1968), which we shall later discuss and which were strongly relied upon by the Court of Special Appeals in reaching its conclusion. In Jones the first count of the indictment charged him with having “purchased, sold, dispensed and distributed” narcotics in violation of the statute in that they were not in or from the “original stamped package.” The second count charged him with having “facilitated the concealment and ⁷¹⁹ sale of' the same narcotics, knowing them to have been imported illegally into the United States. The Court said that “[b]oth statutory provisions under which [Jones] was prosecuted permit conviction upon proof of the defendant’s possession of narcotics, and in the case of [the first charge] of the absence of the appropriate stamps.” The seized narcotics were found in a bird’s nest in an awning outside of a window in the apartment of a friend of Jones. Jones had been permitted to use the apartment “as a friend.” He had slept there “maybe a night.” At the time of the search Jones’ friend had been in another city for about five days.

The motion by Jones to suppress the evidence was denied on the basis of his lack of standing. Mr. Justice Frankfurter said for the Court that the issue of standing was “to be decided with reference to Rule 41 (e) of the Federal Rules of Criminal Procedure” which accords standing to object on certain grounds to “[a] person aggrieved by an unlawful search and seizure.” The Court pointed out that in order to qualify as a person so aggrieved “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.” It perceived a special problem in establishing standing in cases similar to that before it, “[s]ince narcotics charges like those in [that] indictment may be established through proof solely of possession of narcotics [as a result of which] a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him.” The Court said: “[W]e are persuaded by this consideration: to hold to the contrary, that is, to hold that petitioner’s failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the Government to have the advantage of contradictory positions as a basis for conviction. Petitioner’s conviction flows from his possession of the narcotics at the time of the ⁷²⁰ search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time.

The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41 (e). “The Government’s argument to the contrary essentially invokes elegantia juris.” Id. 362 U. S. at 263-64. As an alternate ground for Jones’ standing, the Court found that he had made out sufficient interest in the premises.

It said: “No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched. As petitioner’s testimony established Evans’ consent to his presence in the apartment, he was entitled to have the merits of his motion to suppress adjudicated.” Id. at 267 . In Simmons the Court viewed from a somewhat different posture a dilemma similar to that passed upon in Jones.

Garrett and another were convicted of armed robbery of a federally insured savings and loan association. FBI agents at ⁷²¹ the home of the mother of one of the defendants had seized a suitcase containing a gun holster, a sack similar to the one used in the robbery, and several coin cards and bill wrappers from the savings and loan association which had been robbed. Garrett moved before trial to suppress the evidence. In order to establish his standing, he testified that although he could not identify the suitcase with certainty, it was similar to one he had owned and that he was the owner of clothing found inside the suitcase.

The motion to suppress was denied. His testimony at the suppression hearing was admitted against him at trial. He contended that his constitutional rights were violated when testimony given by him in support of his “suppression” motion was so admitted. Mr. Justice Harlan summarized for the Court the effect of the Jones decision, saying: “At one time, a defendant who wished to assert a Fourth Amendment objection was required to show that he was the owner or possessor of the seized property or that he had a possessory interest in the searched premises.

In part to avoid having to resolve the issue presented by this case, we relaxed those standing requirements in two alternative ways in Jones v. United States, supra. First, we held that when, as in Jones, possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence. Second, we held alternatively that the defendant need have no possessory interest in the searched premises in order to have standing; it is sufficient that he be legitimately on those premises when the search occurs.” Id. 390 U.S. at 389-90 . The Court noted the distinction between the situation oi Jones where a possessory crime was charged and the problem of a defendant such as Garrett in Simmons : “The dilemma faced by defendants like Garrett is ⁷²² most extreme in prosecutions for possessory crimes, for then the testimony required for standing itself proves an element of the offense.

We eliminated that Hobson’s choice in Jones v. United States, supra, by relaxing the standing requirements. This Court has never considered squarely the question whether defendants charged with non-possessory crimes, like Garrett, are entitled to be relieved of their dilemma entirely.” Id. 390 U. S. at 391-92 . The Court pointed out that “[t]he rule adopted by the courts below does not merely impose upon a defendant a condition which may deter him from asserting a Fourth Amendment objection — it imposes a condition of a kind to which [the Supreme] Court has always been peculiarly sensitive.” It then went on to say: “For a defendant who wishes to establish standing must do so at the risk that the words which he utters may later be used to incriminate him. Those courts which have allowed the admission of testimony given to establish standing have reasoned that there is no violation of the Fifth Amendment’s Self-Incrimination Clause because the testimony was voluntary.

As an abstract matter, this may well be true. A defendant is ‘compelled’ to testify in support of a motion to suppress only in the sense that if he refrains from testifying he will have to forgo a benefit, and testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit. However, the assumption which underlies this reasoning is that the defendant has a choice: he may refuse to testify and give up the benefit. When this assumption is applied to a situation in which the ‘benefit’ to be gained is that afforded by another provision of the Bill of Rights, an undeniable tension is created.

Thus, in this case Garrett was obliged either to give up what he believed, with ⁷²³ advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Id. 390 U. S. at 393-94 . Simmons was decided March 18, 1968.

In Mancusi v. DeForte, 392 U. S. 364 , 88 S. Ct. 2120 , 20 L.Ed.2d 1154 (1968), argued and decided after the decision in Simmons , the Court relied upon the rule enunciated in Jones that “anyone legitimately on premises where a search occurs may challenge its legality .. . when its fruits are proposed to be used against him” to hold that a union official had standing to object to the admission of papers at his trial seized in the search of an office described as “one large room, which he shared with several other union officials.” The Court observed that “[t]he record does not show from what part of the office the records were taken” and that “DeForte d[id] not claim that it was a part reserved for his exclusive personal use.” Mr. Justice Black, in a dissent joined by Mr. Justice Stewart, was concerned with the extension of the Jones rule in Mancusi . Among other things, he asked whether the “dictum [of Jones that ‘anyone legitimately on premises where a search occurs may challenge its legality . . . when its fruits are proposed to be used against him’ would] enable a janitor to escape the use of evidence illegally seized from his boss.” Significantly, however, he did not question the continued viability of Jones in the light of Simmons , but said that “the Court’s opinion indicate[d] to [him] that the Court [was] preparing the way to use Jones to eliminate entirely the requirement for standing to raise a search and seizure question and to permit a search to be challenged at any time, at any place, and under all circumstances, regardless of the defendant’s relationship to the person or place searched or to the things seized.” ⁷²⁴ Yet another case in the Supreme Court making mention of Jones subsequent to Simmons was Spinelli v. United States, 393 U. S. 410 , 89 S. Ct. 584 , 21 L.Ed.2d 637 (1969). At the time the FBI searched the apartment in which Spinelli was alleged to be conducting his bookmaking operation, Spinelli was not on the premises. The agents did not execute their search warrant until he was seen to leave the apartment, lock the door and enter the hallway.

Spinelli was then arrested, the key to the apartment was demanded of him, and the search commenced. In n. 2 the Court observed: “We agree with the Court of Appeals that Spinelli has standing to raise his Fourth Amendment claim.... Since petitioner would plainly have standing if he had been arrested inside the apartment, Jones v. United States, 362 U. S. 257, 267 (1960), it cannot matter that the agents preferred to delay the arrest until petitioner stepped into the hallway — especially when the FBI only managed to gain entry into the apartment by requiring petitioner to surrender his key.” Id. at 412, n.2. In Combs v. United States, 408 U. S. 224 , 92 S. Ct. 2284 , 33 L.Ed.2d 308 (1972), Combs and his father were convicted of receiving, possessing, and concealing 26 cases of tax-paid whiskey known by them to have been stolen from an interstate shipment.

The whiskey in question had been seized from the farm of Combs’ father under what was claimed to be an invalid search warrant. The Supreme Court said that “the Court of Appeals did not reach the merits of his claim respecting the warrant, . ..