Everhart v. State

O’Donnell, J., delivered the opinion of the Court. The petitioner, Michael Ashton Everhart, the lessee of a farmhouse upon the Nathan Doody farm, upon his trial in the Circuit Court for Frederick County was found guilty by a jury (Judge Samuel W. Barrick presiding) of “maintaining a common nuisance” in violation of Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 286 (a)(5). 1 He also was convicted of possession of a controlled dangerous substance — marijuana — in violation of Art. 27, § 287 (a). 2 Admitted into evidence at his trial were approximately 200 items, including various types of pipes for smoking marijuana, numerous scales, weights, eyedroppers, gelatin capsules and “Baggies,” measuring spoons and syringes, ⁴⁶² hypodermic needles, wire screens, homemade cookers, a quantity of marijuana, 78 growing marijuana plants, an assortment of colored pills, cigarette papers and two twenty dollar bills in an envelope, as well as cherry incense and incense candles. These items were seized on May 19, 1972, from the various bedrooms occupied by subtenants of Everhart, as well as from his quarters and the attic of the farmhouse, pursuant to a search and seizure warrant issued on May 11, 1972, by Judge Byron Thompson of the District Court.

That warrant authorized the search of a 1966 Lincoln Continental automobile bearing Maryland registration KJ4872, registered to Jerry Wayne Lawson, Route 6, Frederick, Maryland, as well as a two-story gray dwelling with gray metal brick-type siding located approximately two-tenths miles south of State Route 26, approximately one mile east of State Route 194, on the property known as the Nathan Doody farm, Route 1, Frederick, Maryland. The affidavit for the issuance of the warrant made by Sgt. Carl R. Harbaugh of the Maryland State Police set forth an abundance of probable cause as to the person of Jerry Wayne Lawson (a codefendant) and his 1966 Lincoln Continental. We are here concerned only with so much of the affidavit as relates to the establishment of probable cause for the search of the farmhouse.

The only allegations in the affidavit purporting to relate thereto are as follows: “That on May 2, 1972 Joe Lewis Petty, a known heroin addict, and distributor, was arrested and charged with several Breaking, Entering, and Larcenies; And During the course of the investigation, while conversing with your Affiant and other State Police Officers the said Joe Lewis Petty stated he visited the aforesaid Jerry Wayne Lawson on May 1, 1972 at the previously described two story dwelling, located on the Nathan Doody farm, south of State Route 26, in an effort to ‘make a deal’ concerning purchases of heroin; And That on May 4, 1972, Tfc. John W. Reburn, ⁴⁶³ Maryland State Police, and Detective Lieutenant Paul W. Mossburg, Frederick City Police Department, went to the aforesaid two story dwelling located on the Nathan Doody farm south of State Route 26 and obtained a large amount of narcotic and restricted drugs that had been reported stolen from the Parkview Medical Center on May 3. 1972; And That the aforesaid Jerry Wayne Lawson was present at the aforementioned two story dwelling at the time officers obtained the stolen drugs; And That on May 6, 1972 the previously mentioned past proven, confidential and reliable informant advised your Affiant that prior to the arrival of the aforementioned Tfc. John W. Reburn and Det. Lt.

Paul W. Mossburg, the said Jerry Wayne Lawson had sold heroin to a known drug user; . . . .” (Emphasis supplied.) Prior to the petitioner’s trial he filed in the Circuit Court, pursuant to Maryland Rule 729 b 1 — after his indictment — a motion for suppression of the property seized under the warrant asserting, inter alia, (1) that there was no probable cause for its issuance, (2) that “the major factor in the application was the illegal search and seizure at the same residence on May 4, 1972,” (3) that the defendant is not mentioned or named or incriminated in any manner by the application and (4) that the application failed “to satisfy the requirements of the Fourth Amendment to the United States Constitution.” In his attack upon the validity of the affidavit made in application for the search and seizure warrant counsel pointed out that so much of it as pertained to a visit unto the Nathan Doody farm on May 1st by Petty in an effort to purchase heroin from Lawson was a “bare allegation that he made an effort to make a deal” in that there was no showing that any such narcotics transaction ever took place at the farm; that so much of the affidavit as pertained to the purchase of heroin by a known informant from Lawson on ⁴⁶⁴ May 6, 1972, did not provide a sufficient basis for probable cause since it failed to set forth that such transaction had occurred at the farm. The principal thrust of the motion to suppress was addressed to the contention that an illegal warrantless search and seizure of the farmhouse had been conducted by the police on May 4, 1972, “in violation of the constitution”; that on that date, according to the police report, “they saw bags outside the house that indicated that they were similar bags to those stolen in a recent robbery of a clinic that contained drugs”; that the police entered the house and told Mr. Lawson, the only one present, that they “wanted to see Mr. Everhart,” that they were “going to search the place whether you like it or not,” asked direction to Everhart’s room and had Lawson take them up to Everhart’s room. He proffered the testimony of Lawson in support of these allegations and, citing Wong Sun v. United States, 371 U. S. 471 (1963), asserted that the police “cannot use the tainted evidence, the results of an illegal search and seizure to form probable cause for the new application for a warrant.” He cited as well Brown v. State, 15 Md. App. 584 , 292 A. 2d 762 (1972), as authority for his contention that Lawson was without authority to permit an inspection of Everhart’s quarters, and Coolidge v. New Hampshire, 403 U. S. 443 (1971), concerning the need for a search warrant for the May 4th intrusion into the farmhouse. Counsel for the petitioner repeatedly emphasized that the “search and seizure [of May 4th] represented the facts upon which the search warrant [of May 11th] was granted,” that the evidence obtained from that illegal search and seizure cannot be used “to form the probable cause for this application for a warrant”; that the “illegal seizure in violation of the Fourth Amendment does not represent probable cause, it clearly taints everything . . . .” After again proffering the testimony of Lawson, the trial judge opined that it was not permissible to go beyond the “four corners” of the application for the search warrant.

Countering these contentions the State’s Attorney, in his dialogue with the court, stressed the impermissibility of the court going outside the “four corners” of the application and, ⁴⁶⁵ in arguing that no testimony could be taken on the motion, contended that the court “has to assume the validity and trustworthiness of the statements made under affidavit by the officer who secured this warrant.” Conceding that the farmhouse had been “searched” by the officers on May 4th, he argued that “what the officers saw from hallway looking into the room” — when they had seen a green bag in Everhart’s room, and through that green bag could see a box of hypodermic needles, as well as having observed on the floor of his room a hypodermic syringe, a needle and a bloody piece of cotton — even though such evidence might be physically inadmissible, the officers’ observations, as being within their plain and open view, were admissible. The State’s Attorney additionally pointed out to the court that upon their visit to the premises on May 4th the officers had seized, outside the building, a quantity of drugs contained in the same type (green) bag which was “part of the garbage”; that the officers, having seen these items outside the building, “went inside” and that even though the trial court might strike down as not admissible in evidence some of the items seized on May 4th the court should not strike down that which was found outside the building “in the garbage [as] abandoned property” — which would be admissible in evidence. The State’s Attorney conceded that if the seizure on May 4th had been pursuant to a search and seizure warrant which was subsequently shown to have been invalid a subsequent search warrant as the basis for the May 19th search and seizure might be tainted by a search under such an invalid warrant. When, in rebuttal, counsel for the appellant contended that the “abandoned property” outside the premises did not contain drugs but referred to bags that had allegedly carried drugs, Judge Barrick again hypothetically asked whether or not he could take testimony as to facts outside the “four corners” of the application “if the judge who issued the search warrant is satisfied that [such facts] are true.” In urging that he could, petitioner’s counsel submitted that if in fact there “was a tainted search and seizure that that taint carries over to the application” for the search warrant. ⁴⁶⁶ By way of surrebuttal the State’s Attorney vigorously urged that the determination of probable cause, under the holdings in Henson v. State, 236 Md. 518, 521 , 204 A. 2d 516, 518 (1964), must be “determined by the judge or justice who issues the warrant, and if a prudent and cautious man would be justified from the facts presented to show its existence in believing that the offense had been or was being committed, the warrant properly may be issued,” that the existence of “probable cause” cannot be controverted by testimony outside the “four corners” of the application for the search warrant and that upon the facts set forth there was sufficient probable cause for Judge Thompson to issue the search warrant.

Judge Barrick, satisfied that he “should not take any testimony and that [he] should review the application for the search warrant and make a decision of what appears in the four corners of the application,” took the matter under advisement. In a memorandum opinion denying the motion to suppress filed on September 29, 1972, the trial court recognized that “[t]he main thrust of the defendant’s argument is that part of the narcotics and restricted drugs obtained on May 4, 1972, was the result of an illegal search and seizure and therefore, should not be used as a factor in the application and affidavit for the search warrant which was subsequently issued on May 11, 1972.” After pointing out the elements within the equation of “probable cause” and that in searching for its existence the lower court must look “only in the affidavit itself and may not go outside it,” Judge Barrick concluded: “Assuming without deciding that part of the drugs seized on May 4, 1972, are not admissible in evidence, that alone will not suffice in determining probable cause in the issuance of the search warrant. The inadmissibility of that part of the evidence at trial would not warrant the suppression of all the evidence on the theory that there was not probable cause for the issuance of the search ⁴⁶⁷ warrant. If we were to exclude that part of the evidence allegedly illegally seized, there is still more than ample facts in the application to establish probable cause for the issuance of the search warrant.

The application and affidavit outlined numerous facts on which Judge Thompson had probable cause for affecting a search warrant for the 1966 Lincoln Continental and the dwelling located on the Nathan Doody farm.” In affirming the petitioner’s conviction the Court of Special Appeals, in Everhart v. State, 20 Md. App. 71 , 315 A. 2d 80 (1974), held that it was not “dealing with a proper invocation by the appellant of ‘the fruit of the poisonous tree’ doctrine,” since “the very tentative effort to establish a primary taint was in no way preserved for appellate review.” Quoting from an argumentative section of the petitioner’s brief the court converted his contention to the question of the applicability of the exclusionary rule to an ex parte, in camera proceeding wherein a magistrate determines whether probable cause exists for the issuance of a search and seizure warrant. That court concluded that “the attack upon the warrant at the suppression hearing was confined to a review of its surface sufficiency and thus limited the issue before it to the precise question as to ‘whether there was probable cause for the search of the “Nathan Doody farm” ’ ” — when the affidavit was submitted to Judge Thompson in the District Court on May 11th. In its analysis of what it termed “three references” to the farm, the Court of Special Appeals — concerning the first reference — Petty’s visit to Lawson on May 1, 1972 at the farm “in an effort to ‘make a deal’ concerning purchases of heroin” — found that the “basis of knowledge” prong and the “veracity” prong, under the holdings in Aguilar v. Texas, 378 U. S. 108 (1964), were satisfied; that Petty’s statement appeared to be a genuine “declaration against penal interest” in satisfaction of the holdings in United States v. Harris, 403 U. S. 573 (1971), and that although the information set forth did not necessarily point to the farm as the hiding place of ⁴⁶⁸ the drugs which Lawson was purportedly selling, established “some nexus between Lawson himself and the farm.” The court rejected the second reference to the farm — the report from a confidential and reliable informant made on June 6, 1972, that prior to the arrival of the officers “Lawson had sold heroin to a known drug user” — as not providing any basis for probable cause since no “basis of knowledge” for the reference to the farm was in any event set forth either explicitly or implicitly. Concerning the third reference to the farm — the obtention by the police on May 4, 1972 of a large amount of narcotic and restricted drugs that had been stolen from the Parkview Medical Center on May 3, 1972 and the allegation that Lawson was present at the time of the recovery of those drugs — the Court of Special Appeals disagreed with Judge Barrick’s conclusion that that evidence was “superfluous” and found that it was “legitimately in the probable cause equation” and within the “surface sufficiency of the existence of probable cause when the affidavit in application for the search and seizure warrant was submitted to the District Court judge.” After a discussion on the exclusionary rule and premising that the rule was neither “mandated,” nor “desired” and its invocation was indeed inappropriate in that it had no place “when a magistrate makes his ex parte, in camera determination that the police application for a search warrant contains adequate probable cause,” the court reached this conclusion.

That although its holding was “restricted to a constitutional finding that the probable cause affidavit was not facially insufficient, and that the warrant-issuing magistrate is not required to raise sua sponte possible constitutional problems” intimated that the result may have been different “had the appellant adequately raised at the suppression hearing, and adequately preserved for appellate review, an effort to look behind ‘the four corners of the affidavit’ in order to establish some primary taint, and then to apply the exclusionary rule to the ostensible fruits of that ostensible taint.” As an aside the court recognized that the doctrine of the “fruits of the ⁴⁶⁹ poisonous tree” on the one hand and what it sensed to be a “discernible and almost tidal retreat from the exclusionary rule by the Supreme Court” on the other hand — were in essential collision. Parenthetically it must here be observed that the very same evidence which the petitioner contended tainted the affidavit for the search and seizure warrant and which was alluded to by both his counsel and the State’s Attorney, in the suppression hearing before Judge Barrick, was passed upon by the Court of Special Appeals since that evidence was admitted in the trial of the case upon the merits. Lt. Mossburg of the Frederick City Police Department in company with Trooper Reburn, went to the petitioner’s tenant house on the evening of May 4, 1972; as they drove their car up to the side of the house they noticed an area where “trash bags were all piled in a heap.” Noticing that one of the bags was “a light color bluish green plastic bag commonly used by medical people” the lieutenant opened it, inspected it and removed from it three separate boxes addressed to different physicians; one contained Dexamyl, another Phenergran Expectorant with Codeine and the third Doriden, a tranquilizer — all “controlled dangerous substances.” He also recovered a needle, a syringe and three pieces of raw cotton with dark blood-like stains upon them.

After recovering these items from the plastic bag outside the house the officers entered and had Lawson, who lived in one of the rooms with his girlfriend, take them to the second floor and point out the room belonging to the petitioner. Although the prosecution did not undertake to introduce any physical evidence seized from the petitioner’s room and did not offer into evidence any observations made by the lieutenant within the room, it elicited testimony that while standing in the hallway, looking into Everhart’s room, the lieutenant saw a hypodermic needle, another piece of cotton with a red substance on it, some nondescript capsules lying on the floor, a green plastic bag similar to the one found in the trash area outside the house and boxes similar to those recovered from the trash bag outside which appeared to ⁴⁷⁰ have been the types of boxes which package medications and hypodermic needles. With respect to the search of the plastic bag in an area “where trash bags were piled in a heap” and the seizure therefrom the Court of Special Appeals found that it was abandoned property, with no continuing property interest and no reasonable expectation of privacy in connection therewith and was thus outside the protection of the Fourth Amendment — and its admissibility was thus proper. As to the second category of evidence obtained by the police on May 4th, the Court of Special Appeals found that the state had not met its burden to “demonstrate that the consent [by Lawson] was in fact voluntarily given, not the result of duress or coercion, express or implied,” under the holdings in Schneckloth v. Bustamonte, 412 U. S. 218 (1973), and distinguishing the holdings in Brown v. State, 15 Md. App. 584 , 292 A. 2d 762 (1972), concerning the “plain view” doctrine; that court concluded that although what Lt.

Mossburg observed by his visual search from the portal of the petitioner’s room was not properly admissible, 3 the court was convinced, beyond a reasonable doubt, that since such evidence was “merely cumulative” its admissibility had not contributed to the verdict of guilty and, under the holdings in Chapman v. California, 386 U. S. 18 (1967), held that its admission was “harmless error.” Upon this posture of the case we granted certiorari limited solely to the question: whether the petitioner was indicted, arrested and convicted on the basis of a search and seizure warrant issued without probable cause. As a threshhold issue to our review of the case we reject the conclusion reached by the Court of Special Appeals that the petitioner’s contention — that the search warrant was “tainted” by an unlawful search and seizure at the Nathan Doody farm — was not procedurally preserved for appellate review. In quoting a portion of the dialogue between ⁴⁷¹ petitioner’s counsel and the hearing judge, as a basis for concluding that the petitioner had “acquiesced” in the refusal of the trial court to receive from Lawson the proffered testimony the Court of Special Appeals, by ellipsis, omitted from the quoted dialogue the prefatory remarks of counsel that he did not want “to drive this point into the ground,” but that “the only other thing they have is this large seizure of drugs on May 4th, which once again we feel is certainly in violation of the Constitution and clearly contravenes the philosophy and principles espoused by the Court of Special Appeals in the Brown case [Brown v. State, 15 Md. App. 584 , 292 A. 2d 762 (1972)].” It was this statement by counsel which immediately preceded his quoted comment that “it would be helpful if the court wishes to hear from Mr. Lawson as to what happened on the May 4th date that we should put it in the record.” Nor do we agree that the quoted portion of counsel’s dialogue with the trial court, at the very end of the hearing on the motion — after 30 pages of argument and proffer — constitutes an “even more diffident” surrender, or waiver, of the thrust of the objection made by the petitioner. Judge Barrick in his memorandum denying the motion specifically recognized that: “The ‘main thrust’ of the defendant’s argument is that part of the narcotics and restricted drugs obtained on May 4, 1972, was the result of an illegal search and seizure and therefore, should not be used as a factor in the application and affidavit for the issuance of the search warrant which was subsequently issued on May 11, 1972.” In no wise did Judge Barrick consider that this “main thrust” had been either abandoned or waived.

We do not believe that the quoted portion of the dialogue between counsel and the trial court can be equated with an acquiescence in the ruling, since the court had repeatedly pointed out that it could not take evidence which went beyond the “four corners” of the application for the warrant; it seems to us that counsel’s comments evidenced only a deferential respect and an acknowledgment that he understood the court’s ruling and the court’s concept of the law. To belabor his point might have shown conduct which could be considered contumacious. ⁴⁷² Our independent review of the entire proceedings on the motion — set forth at some length, supra — convinces us that the “taint” issue raised by petitioner was properly preserved. Maryland Rule 729 g 2 provides that a “pre-trial ruling, denying a motion or petition to suppress, exclude or return property seized, shall in any event be reviewable on appeal to the appropriate appellate court . . . .” See Mace Produce Co. v. State’s Attorney, 251 Md. 503, 509 , 248 A. 2d 346, 350 (1968); Cleveland v. State, 8 Md. App. 204 , 259 A. 2d 73 (1969), cert. denied, 257 Md. 732 (1970). Additionally petitioner clearly made known to the hearing judge the action which he desired the court to take and the reasons therefor.

See Brice v. State, 254 Md. 655 , 255 A. 2d 28 (1969); Caviness v. State, 244 Md. 575 , 224 A. 2d 417 (1966); he also made a proffer upon the record concerning the nature of the testimony to be submitted by Lawson and the hearing judge rejected its admissibility. See Leitch v. Board of Education, 248 Md. 611, 616, n. 1 , 237 A. 2d 748, 751, n. 1 (1968); Fowler v. Benton, 229 Md. 571, 575 , 185 A. 2d 344, 347 (1962). We postulate our review of so much of the affidavit as may relate to the existence of probable cause for the search of the Nathan Doody farm upon the premise that if an affidavit for a search and seizure warrant contains improper information which should not be considered by the court, the court is nonetheless justified in issuing the warrant if additionally the affidavit contains within it sufficient proper information to show the existence of probable cause. Tucker v. State, 244 Md. 488, 498 , 224 A. 2d 111, 116-17 (1966), cert. denied, 386 U. S. 1024 (1967); Shrout v. State, 238 Md. 170, 175 , 208 A. 2d 585, 588 (1965); Adams v. State, 200 Md. 133, 139 , 88 A. 2d 556, 559 (1952); Kapler v. State, 194 Md. 580, 587-88 , 71 A. 2d 860, 863 (1950); Bratburd v. State, 193 Md. 352, 357 , 66 A. 2d 792, 794 (1949).

We thus will review — as did the Court of Special Appeals — each of the “three references” to the farm. In our review we are concerned with whether or not reasonable grounds existed at the time of the affidavit and the issuance of the warrant for a belief that the law was being violated upon the premises to be searched and if the ⁴⁷³ apparent facts set forth in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged. State v. Edwards, 266 Md. 515, 519 , 295 A. 2d 465, 467 (1972), quoting with approval from Dumbra v. United States, 268 U. S. 435 (1925). See also Henderson v. State, 243 Md. 342, 344 , 221 A. 2d 76, 77 (1966); Henson v. State, 236 Md. 518, 521 , 204 A. 2d 516, 518 (1964).

We disagree with the resolution by the Court of Special Appeals in its analysis concerning the “first reference” to the farm — the recitation that Petty, on May 1st, had visited the farm “in an effort to ‘make a deal’ concerning purchases of heroin.” (Emphasis supplied.) Other allegations in the affidavit which independently set forth an abundance of probable cause concerning Lawson and his 1966 Lincoln Continental established that he was selling heroin from that vehicle and had made sales from it while parked on the parking lot of a Frederick bowling alley. Lawson’s address was listed as on Route 6, Frederick County, Maryland. Although the lower court found that this “reference” established “some nexus between Lawson himself and the farm,” the court also found that this information did not point to the farm “as the hiding place or ‘stash’ of the contraband drugs.” No other allegation in any way connects Lawson or his vehicle with the farm. This “reference” appears to us to be per se factually innocuous; if anything, it might persuade a reasonably prudent and cautious person to conclude — since Petty was unable to “make a deal” — that no heroin was being stored, or sold, or had ever been sold at the Nathan Doody farm.

Giving rise to no more than a suspicion or possibility, such “reference” cannot provide any basis to believe that the law was being violated on those premises. See Davids v. State, 208 Md. 377 , 118 A. 2d 636 (1955); DeAngelo v. State, 199 Md. 48 , 85 A. 2d 468 (1952); Gorman v. State, 161 Md. 700 , 158 A. 903 (1932). See also United States v. Bailey, 458 F. 2d 408 (9th Cir. 1972). Compare State v. Kraft, 269 Md. 583, 614-16 , 307 A. 2d 683, 698-99 (1973), where, in addition to an allegation that “a known and convicted heroin user was seen at this ⁴⁷⁴ apartment,” the affidavit was fortified by the observations of two informants who had seen large quantities of LSD in the apartment, and yet a third informant had purchased LSD and other narcotics from the lessee of the apartment; and State v. Edwards, supra, where an informant, visiting Edwards’ premises had been told that “some good stuff” had arrived but that “it would be a while before [Edwards] could do anything for the [informant],” and where additionally the informant, while upon Edwards’ premises, observed in detail paraphernalia customarily used in the measuring and packaging of heroin. 266 Md. at 524-25 , 295 A. 2d at 469-70 .

We agree with the analysis and conclusion reached by the Court of Special Appeals concerning what it termed the “second reference to the farm” — the recitation that on May 6, 1972, an informant had advised the affiant that prior to the arrival of Trooper Reburn and Lt. Mossburg Lawson had sold heroin to a known drug user. We agree that the informant’s “basis of knowledge” under Aguilar v. Texas, supra, “for the reference to the farm was in no event set forth either explicitly or implicitly” and thus cannot be considered as being within the probable cause determination. Indeed, it might be additionally observed that the reference is semantical in that, although it relates to an incident, apparently prior to the arrival of the officers on May 4th, at the farm, it nowhere states therein that Lawson had sold heroin “to a known drug user” in, upon or at the farm.

With both these references removed as bases for establishing probable cause we are thus confronted solely with the third reference in the affidavit for the warrant which recites the seizure by the police of narcotic and restricted drugs at the Nathan Doody farm on May 4, 1972 — concededly in a warrantless search. In Schneckloth v. Bustamonte, supra, cited by the Court of Special Appeals in connection with Lawson’s purported consent for the police to search the farmhouse, Mr. Justice Stewart, who delivered the opinion for the Court, stated: “It is well settled under the Fourth and ⁴⁷⁵ Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ Katz v. United States, 389 U. S. 347, 357 ; Coolidge v. New Hampshire, 403 U. S. 443, 454-455 ; Chambers v. Maroney, 399 U. S. 42, 51 . It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Davis v. United States, 328 U. S. 582, 593-594 ; Zap v. United States, 328 U. S. 624, 630 .. . .” 412 U. S. at 219 . “ ‘Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant.

And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.’ ” Coolidge v. New Hampshire, 403 U. S. 443, 451 (1971), quoting with