Garrison v. State

O’Donnell, J., delivered the opinion of the Court. Murphy, C. J., dissents. The appellant, Shirley A. Garrison, following a non-jury trial in the Criminal Court of Baltimore (Sodaro, J.), was convicted (under the first count of an indictment) of possession of heroin, in sufficient quantity to reasonably indicate under all the circumstances an intent to distribute such controlled dangerous substance. Maryland Code (1957, 1971 Repl.

Vol.) Art. 27, § 286 (a) (1). On appeal she challenged only the sufficiency of the evidence to sustain her conviction. The Court of Special Appeals in an unreported per curiam, Shirley A. Garrison v. State [No. 237, Sept. Term, 1973], concluded that the evidence permitted a finding that the appellant had a possessory interest in the ¹²⁵ apartment and that she was in joint exclusive control of the contraband heroin under the holdings in Watson v. State, 18 Md. App. 184, 196-7 , 306 A. 2d 599, 607 (1973). We granted a writ of certiorari.

The appellant was jointly indicted with her grandmother, Nelly 0. Reed; the second and third counts charged as well the possession of heroin and of certain paraphernalia, i.e., two (2) hypodermic syringes and four (4) hypodermic needles. 1 On May 25, 1972, upon the applications and affidavit of Officer Vincent Cole of the Baltimore City Police Department, a District judge issued three (3) search and seizure warrants respectively for (a) a 1969 black and white Oldsmobile sedan, (b) the premises 1525 Leslie Street and (c) the premises 1553 Leslie Street. The applications and affidavit were predicated upon information from an informer — the basis for whose reliability was set forth in the affidavit — who reported that one “Piggy” (Ernest T. Garrison) and his wife “Shirley” were selling heroin from the 1969 Oldsmobile and from the two designated residences; that he had visited the home of “Piggy” and “Shirley” at 1525 Leslie Street where he observed “Piggy” packaging heroin, following which “the wife ‘Shirley’ took part of the drugs and took them to her grandmother’s house and stored them there without the grandmother’s knowledge” ; that he had been upon those premises (1525 Leslie Street) on numerous occasions and had there observed heroin and paraphernalia; he further reported having made a purchase of heroin from “Piggy” as he sat in the parked Oldsmobile sedan. ¹²⁶ The affidavit further set forth that the officers arranged for the informant to make two (2) “controlled purchases” of heroin, sending him first to 1525 Leslie Street, where he was admitted by “Piggy” and whence upon his return to his rendezvous with the police stated that he had purchased the glassine bag of heroin from “Piggy” and that “his wife ‘Shirley’ was on the premises with their two children.” The second “controlled purchase” of heroin by the informant was made from the parked 1969 Oldsmobile and [the police] observed a female seated in the automobile with “Piggy.” Upon his return to his second rendezvous with the police the informant reported that the two subjects in the Oldsmobile were respectively “Piggy” and “his wife ‘Shirley’ ” and that “Shirley had the drugs down in her blouse.” At the commencement of the trial counsel on behalf of the codefendant Nelly 0. Reed filed a motion to suppress, under Maryland Rule 729, based upon the contention that the informant’s statement that “Shirley took part of the drugs and took them to her grandmother's house and stored them there without the grandmother’s knowledge,” was a conclusion without a factual foundation, and could not afford a basis for finding “probable cause” to issue the warrant for 1553 Leslie Street.

After considering the affidavit the trial court denied the motion; the State then “withdrew” the affidavit “from any consideration at this point by the court [since it] was only for the motion.” On May 26, 1972, at 8:15 A. M., when Officer Cole, pursuant to the warrant for 1525 Leslie Street, forcibly entered the premises, an unidentified male and female — not charged — were sitting in the living room; he and other officers proceeded directly to the second floor of the two-story house. Upon entering the rear bedroom Officer Cole observed Ernest Garrison (“Piggy”) standing in an adjacent bathroom and saw him discard a plastic bag into the commode and flush it. Retrieving this jetsam he found it contained 173 glassine bags of heroin. Another officer, who proceeded to the front bedroom, found the appellant, nude, in bed, under the covers.

Access to the bathroom was only through the rear bedroom. ¹²⁷ No contraband was discovered in a search of the bedroom in which the appellant was found, but in the drawer of a combination dresser-wardrobe there was found $168 in currency, $85.18 rolled in coin wrappers, a rent card in the name of the appellant showing a tenancy beginning February 29, 1972 — with the rent paid through May 16th, and a “turn-off notice” addressed to “Miss Shirley Annette Garrison, 1525 Leslie Street” from the Baltimore Gas and Electric Company concerning an unpaid utility bill in the amount of $22.82. After the appellant and her husband were arrested an inspection of their arms indicated the presence of needle marks estimated to have been from ten days to two weeks in age. The officers next searched the 1969 Oldsmobile parked outside the premises — with negative results — and proceeded to serve the warrant at 1553 Leslie Street. 2 No substantive evidence was offered to connect the appellant with 1553 Leslie Street, nor to identify her as an occupant of the Oldsmobile when the second “controlled purchase” was made. At the close of the evidence offered by the State the appellant made a motion for judgment of acquittal, which motion was granted on the count which charged her with the possession of the paraphernalia thrown out of the window at 1553 Leslie Street; the motion as to the counts charging possession of heroin was denied and the appellant elected not to offer any evidence in her own behalf.

Her renewed motion as to the possessory counts was denied. 3 The trial judge found as follows: “ . . . [I] t is my finding of fact in this case that these ¹²⁸ two people were living together in the house, all of the personal papers indicate that Shirley Garrison made herself responsible, however for the payment of the rent; notices for the turn off of the gas and electricity were sent to her, and, while it is true that the narcotics were in the manual possession of Mr. Garrison, nevertheless, I find through all the circumstances in this case particularly in view of the fact that $168.00 in paper money and $85.18 in coins was part of the contraband, I think it is reasonable, for a reasonable man to draw a reasonable inference that this money was part and parcel of the operation. I find that Mrs. Shirley Garrison was indeed not only in constructive possession but she was in joint possession of this contraband together with Mr. Ernest T. Garrison.” In reviewing the sufficiency of the evidence to sustain a conviction in a criminal case we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, State v. Devers, 260 Md. 360 , 272 A. 2d 794 (1971), but merely decide whether there was evidence, or probable inferences to be drawn from the evidence, upon which the trial court could find the defendant guilty beyond a reasonable doubt. Wilson v. State, 261 Md. 551 , 276 A. 2d 214 (1971); Drouin v. State, 222 Md. 271 , 160 A. 2d 85 (1960). “Possession” is defined by Code (1957, 1971 Repl. Vol.), Art. 27, § 277(s), to mean “the exercise of actual or constructive dominion or control over a thing by one or more persons.” The statute recognizes, as we held in Rucker v. State, 196 Md. 334, 340 , 76 A. 2d 572, 574 (1950), that such possession may be joint.

Watson and Harris v. State, supra, on which the Court of Special Appeals relied in upholding the appellant’s conviction, is factually distinguishable. Harris had been observed by a police detective throwing a brown paper bag which contained marijuana from a window; her conduct as the sole occupant of the apartment from which the ¹²⁹ marijuana was thrown — and who was the one who threw it — constituted “possession within contemplation of the law.” As to the codefendant Watson, Judge Moylan, who delivered the majority opinion for the court, stated (pp. 196-197): 4 “The appellant Watson was not present at the apartment at the time it was searched. His efforts to disassociate himself from its contents are, nevertheless, unavailing. There was evidence that he maintained two apartments — the one in question and another in the District of Columbia.

There was evidence that he had been living at the Livingston Terrace apartment with the appellant Harris for between six months and one year. Watson admitted that he kept clothing and shoes at the apartment. This was substantiated by Harris. Watson admitted paying part of the rent.

He admitted to Detective Raubaugh that he ‘stayed’ at the apartment. Photographs of both appellants were found in the apartment. Robert Wallace, Jr., testified, moreover, that he and the appellant Watson had been associated in the business of selling narcotics just prior to the crimes in question. There was further testimony that the appellant Watson had offered to give Wallace narcotics if Wallace would refrain from testifying against him at the trial now under review.

Under all the circumstances, we think the evidence permitted a finding that the appellant Watson had a possessory interest in the apartment and that he was in joint exclusive control of the contraband marihuana. See Folk v. State, 11 Md. App. 508 , 275 A. 2d 184 .” (Emphasis supplied.) ¹³⁰ Although the appellant Shirley A. Garrison was the lessee of the premises and a resident, there was no substantive evidence that she was “in the business of selling narcotics” ; nor any evidence of any inculpatory statements made by her. See Henson v. State, 236 Md. 518 , 204 A. 2d 516 (1964), where there was evidence offered concerning the period of surveillance “leading to a reasonable conclusion that he was involved in the narcotics traffic” and the contraband was found within the premises where he resided; Reed v. State, 225 Md. 566 , 171 A. 2d 464 (1961), cert. denied, 368 U. S. 958 (1962), where the appellant admitted that he had sold 40 capsules of heroin and had given the money to Bell (a codefendant); Dodson v. State, 213 Md. 13 , 130 A. 2d 728 (1957), where there was evidence that he had sold narcotics to another person a short time before discovery of the marijuana upon premises occupied by him and his wife; see also Hill v. State, 237 Md. 630 , 206 A. 2d 677 (1965), where oral statements were made admitting use of heroin and witnessing the use of heroin by others in her presence; Williams v. State, 231 Md. 83 , 188 A. 2d 543 (1963), cert. denied, 375 U. S. 851 (1963), where he gave an oral statement; admitting use of heroin; Gault v. State, 231 Md. 78 , 188 A. 2d 539 (1963), cert. denied, 375 U. S. 851 (1963), where an oral confession was given admitting the purchase and injection of heroin; Broadway v. State, 3 Md. App. 164 , 237 A. 2d 820 (1968), cert. denied, 250 Md. 731 (1968), where the appellant admitted that he had used drugs while upon the premises. There was no evidence of the existence of any “fresh needle marks” upon her body as there was in Hill v. State, supra; Henson v. State, supra; Williams v. State, supra; Gault v. State, supra; Peachie v. State, 203 Md. 239 , 100 A. 2d 1 (1953); Brooks v. State, 13 Md. App. 151 , 282 A. 2d 516 (1971), cert. denied, 264 Md. 746 , 749, 750 (1972); Anderson v. State, 9 Md. App. 639 , 267 A. 2d 302 (1970), cert. denied, 259 Md. 729 (1970); Jason v. State, 9 Md. App. 102 , 262 A. 2d 774 (1970), cert. denied, 258 Md. 728 , 729 (1970); Broadway v. State, supra; Waugh v. State, 3 Md. App. 379 , 239 A. 2d 596 (1968); McCuen v. State, 3 Md. App. 73 , 237 A. 2d 785 (1968), cert. denied, 252 Md. 732 (1969). ¹³¹ The seized heroin was not in the plain view of the appellant, nor was there a juxtaposition between her (in the front bedroom) and the contraband being jettisoned by her husband in the bathroom.

See Banks v. State, 228 Md. 130 , 179 A. 2d 126 (1962); Hignut v. State, 17 Md. App. 399, 303 A. 2d 173 (1973); Nutt v. State, 16 Md. App. 695 , 299 A. 2d 468 (1973), cert. denied, 269 Md. 764 (1973); Peterson v. State, 15 Md. App. 478 , 292 A. 2d 714 (1972), cert. denied, 266 Md. 735 , 738, 741 (1972); Folk v. State, 11 Md. App. 508 , 275 A. 2d 184 (1971); Munger v. State, 7 Md. App. 710, 256 A. 2d 888 (1969); Speaks v. State, 3 Md. App. 371 , 239 A. 2d 600 (1968), cert. denied, 251 Md. 752 (1968). The appellant, although having a possessory interest in the premises, was not its sole occupant at the time the contraband was found, as were the appellants in Armwood v. State, 229 Md. 565 , 185 A. 2d 357 (1962); and Dodson v. State, supra. 5 In Yanch v. State, 201 Md. 296 , 93 A. 2d 749 (1953), the wife of a tavern keeper had been convicted (along with her husband) for unlawfully possessing lottery paraphernalia. Several days prior to the arrests, a police officer upon the premises observed an unidentified male remove from a bag some slips of paper on which he made notations and hand them to the appellant; he believed them to be “yellow conventional lottery slips.” There was additional evidence that at the time the police made the arrests they found three lottery slips secreted between newspapers piled on top of the piano in the public dining room to the rear of the tavern. The appellant had entered the premises while the raid was in progress; her automobile, as well as her pocketbook, were searched with negative results.

There was evidence that discarded newspapers and magazines were picked up by the housekeeper and stored on top of the piano. This Court reversed, holding that there was no legally sufficient evidence to sustain her conviction. Judge Collins, for the ¹³² Court, stated: “. .. We are of opinion that there was no legally sufficient evidence here to support a rational inference that the lottery slips found on the piano on February 11,1952, were in the possession of the appellant, or that the yellow slips seen by Sergeant Goldstein on February 7, 1952, were lottery slips.

Therefore, the motion for a directed verdict for the appellant should have been granted.....” Id. 201 Md. at 303 . Compare Tucker v. State, 244 Md. 488 , 224 A. 2d 111 (1966), cert. denied, 386 U. S. 1024 (1967), where the tavern was licensed in the name of the wife of the appellant, and he, the manager, was in possession of the only key to a storeroom, in the rear of the licensed premises, where a substantial quantity of narcotics was found. See also Williams v. State, 7 Md. App. 5 , 252 A. 2d 880 (1969), where the appellants, licensees of a tavern, had been convicted of the possession of lottery slips which were found in a kitchen towel dispenser, on a porch outside the kitchen, underneath the television cabinet, and in a trash can in the rear yard. The kitchen had been leased to others to serve the dining room food; the appellants were not upon the premises at the time of the raid.

The Court of Special Appeals reversed their convictions, predicated upon the fact that they were the licensees of the premises, finding that there was no evidence that they had participated directly in lottery operations, nor were they in physical possession of the slips, and that the evidence was insufficient to show directly, or support a rational inference, that they had constructive possession of the lottery slips, or a measure of control or dominion over them. To the same effect, see Scarborough v. State, 3 Md. App. 208 , 238 A. 2d 297 (1968), where the wife of the appellant was the licensee of a cafe and lottery slips were found behind the bar opposite where she was seated; other lottery and bookmaking pay-off slips were also found behind the bar. During the raid the appellant swallowed a slip of paper despite attempts by the police to dissuade him and they intercepted a number of in-coming telephone calls from bettors asking for the appellant. Although the Court of Special Appeals found that ¹³³ the evidence was sufficient to sustain the appellant’s conviction for using a portion of the building for the purpose of making book and selling lottery tickets, the evidence was insufficient to establish that he was in possession of the lottery slip and the pay-off slips found “right opposite where Mrs. Emma Scarborough was seated.” Id. 3 Md. App. at 218.

The possession of lottery slips has been equated with the possession of narcotics — both are contraband and neither require proof of scienter. See Ford v. State, 85 Md. 465 , 37 A. 172 (1897); Jenkins v. State, 215 Md. 70 , 137 A. 2d 115 (1957). In Tucker v. State, 19 Md. App. 39 , 308 A. 2d 696 (1973), police received information that a room at a motel was occupied by persons using narcotics; the room had been rented by appellant Smith and the register showed it to be occupied by “Mr. and Miss [sic] John C. Smith.” Surveillance of the premises over a two day period disclosed that the room was in fact occupied by Tucker and a “Miss Johnson.” Smith had been observed to visit the premises six times on one day, on two occasions he was accompanied by others. Additionally, during the period of surveillance, approximately eight other unidentified persons visited the room.

After a detective noticed Tucker discard some rubbish and an inspection of the debris disclosed five (5) pieces of aluminum foil coated with a white powdery substance which, by field test, revealed an opium derivative, the officer left to procure a search and seizure warrant. When Tucker and Miss Johnson left the premises they were arrested by other officers, but no drugs were found on their persons. About three and one-half hours later Smith arrived at the motel and was arrested outside the premises; a search of him and his vehicle disclosed no drugs. When the detective returned with a warrant a search of the motel room disclosed $800.00 in cash in the pocket of a jacket hanging in the closet and 27 aluminum packets containing heroin inside a cereal box.

Smith admitted he had paid the rent, but insisted that the money had been provided by Tucker; he had no key to the motel room although he had stayed overnight on at least one occasion. In reversing the conviction of the appellant Smith for the ¹³⁴ possession of heroin and maintaining a common nuisance, Judge Davidson, for the Court of Special Appeals, stated: “The record establishes that appellant Smith, who registered for the room and paid for its occupancy for two days, had a proprietary interest in the premises upon which the heroin was found; that he was a frequent visitor to those premises; and that he knew that the appellant was a heroin addict. But the record further shows that no drugs of any kind were found on the person of appellant Smith or in his car at the time of his arrest; that he was not arrested in the room in which the heroin was located; that the heroin in that room was secreted and was not in plain view; that there was no direct evidence that appellant Smith was engaged in any violation of the narcotics laws; and, most importantly, that the trial court found that the heroin discovered on the premises was for the sole use of the appellant Tucker. The record clearly establishes that appellant Smith did not have