Garrison v. State

⁴¹⁹ GETTY, Judge. Harold Garrison proceeded to trial on a statement of facts following the denial of a motion to suppress evidence. On March 18, 1983, in the Circuit Court for Baltimore City (Thomas, J.), Garrison was found guilty of possession with intent to distribute heroin and was sentenced to a fifteen year term of confinement. On appeal, appellant raises two issues: 1.

Whether the warrantless search of 2036 Park Avenue, Apartment 3F, and the seizure of items therein was legal where the police knew or should have known that appellant’s apartment was separate and apart from apartment 3R, for which a search and seizure warrant had been issued? 2. Whether the plain view doctrine legitimized the search of appellant’s apartment? On May 21, 1982, members of the Baltimore City Police Department executed a search warrant for the third floor apartment located at 2036 Park Avenue in Baltimore City. Lawrence McWebb was named in the warrant as the occupant of the premises.

The warrant described 2036 Park Avenue as a three story brick dwelling. The affidavit accompanying the application for a search and seizure warrant recited that McWebb was known as “Red Cross;” that a reliable informant, instrumental in successful prosecutions in eight search and seizure cases, had purchased marijuana from “Red Cross” at his third floor apartment within the previous twenty-four hours; that the affiant, Officer Marcus, checked with the Baltimore Gas & Electric Company and determined the premises at 2036 Park Avenue, third floor, were in the name of Lawrence McWebb; and that records of the Baltimore City Police Department confirmed that McWebb resided at that address. The warrant authorized the search of McWebb and of the premises “known as 2036 Park Avenue third floor apartment.” The property authorized to be seized included “Mar ⁴²⁰ ijuana, related paraphernalia, monies, books, papers and photographs pertaining to the illegal distribution of marijuana.” The testimony of three police officers involved in the search must be recounted for a full understanding of what took place on May 21 at the premises. The infallibility of hindsight establishes that the police searched the right (McWebb’s) and the wrong (Garrison’s) premises.

The difficulty arises in determining whether the warrantless Garrison search is sustainable despite the acknowledged mistake. We turn now to the testimony of Officers Russell Shea, Albert Marcus and Joseph Schanken. Detective Shea testified that the front door to the premises was locked when the six officers arrived. He observed seven mail box slots with names, but none with the name “McWebb.” A forced entry was unnecessary, because McWebb drove up to the house and another officer advised him of the warrant.

McWebb then unlocked the front door and the six officers present entered into the first floor hallway. Without stopping, the entire group proceeded up the stairs to the third floor. The locked door at the top of the stairs was opened by McWebb, permitting the police to enter into a foyer with rooms to the left and to the right. According to Shea, immediately upon entering the third floor he observed a man (Garrison), in a body cast and a pajama top, standing to the right side of the foyer.

Shea testified that he did not observe any closed doors to his right or to his left. He did notice, from a distance of five feet, loose marijuana on a newspaper located on a dresser inside a doorway behind where Garrison was standing. The officers split up to conduct the search. Shea went to his left and began searching what was later established to be McWebb’s bedroom.

He recovered a revolver, marijuana, and two electric bills, one addressed to McWebb and the other to Garrison. He did not notice at the time, according to his account, that one of the utility bills was marked “3F” and the other “3R.” ⁴²¹ Shea then proceeded across the open foyer through an open doorway to a bedroom on the right side of the third floor entrance. He observed clothing hanging on the door which was opened back to the interior wall and, upon examination, found in the pockets of a jacket, syringes, a cap used for cooking heroin and five bundles of currency totaling $4,940.00. Shea then noticed that the door had a dead bolt lock.

Sergeant Schanken, who was also present, observed that the door to the left of the hallway had a similar lock. Schanken then ordered the search stopped, because it appeared that two apartments were involved. Shea maintained that all of the interior doors on the third floor were open when the police entered and that none of the doors had numbers identifying separate apartments. Officer Marcus, based upon information supplied by an informant, prepared the warrant.

The Baltimore Gas & Electric Company, Marcus stated, advised him that the third floor tenant was Lawrence McWebb. McWebb was accosted by Marcus outside of the building and ordered to unlock thé front door and the door located at the top of the stairs on the third floor. Upon entering the third floor, Marcus observed a quantity of marijuana on a dresser in a room to his right and immediately proceeded into that area to seize the contraband. He, like Shea, placed Garrison in the foyer.

Marcus recovered narcotics from several dressers in Garrison’s room before he was advised by Sergeant Schanken to discontinue the search. In preparing the inventory, Marcus did not separate the property taken on a room by room basis. Detective Schanken was the officer in charge during the search. He saw Garrison when the officers entered and directed him to go into the (McWebb) living room.

Neither Garrison nor McWebb, according to Schanken, stated that the third floor contained separate apartments. In walking through the rooms while the search was in progress, Schanken saw two kitchens and two bathrooms and then halted the search. ⁴²² Appellant Garrison testified that he was not in the hallway as testified to by the police, but remained in his apartment doorway with a police officer present. When the search of McWebb’s apartment was completed, Garrison testified, he was taken to McWebb’s living room while his apartment was searched. He had lived in the apartment since 1979 and McWebb moved in across the hall in 1981.

Garrison asked one of the officers present, “What’s going on man?” The only response he received was that another officer was directed to “watch me.” Contrary to the testimony of the three police officers, Garrison insists that the apartments are designated “3F” and “3R” by lettering on the door jambs inside the third floor foyer. 1 Garrison also contended that it was physically impossible to enter the foyer and see into his bedroom, because the door opening into the foyer opened to the right obscuring any view into the bedroom until the common door was closed. McWebb’s testimony corroborated Garrison’s account of the entire episode. He added that he told Marcus that he lived in the “third floor rear” apartment. Based upon the conflicting testimony the trial court made the following findings of fact: THE COURT: Yes.

Now, the Defendant McWebb contends again that it was a general warrant. Now, Defendant argued that argument. That is the police knew or should have known that the Garrison apartment was separate and distinct from the apartment of the Defendant McWebb. He further characterizes the testimony of police as perjured or unworthy of belief.

Now, the Court, based on what it finds to be critical evidence, makes the following findings of facts: One, that on May 21st, 1982, the police executed a search and seizure warrant for premises at 2036 Park Avenue, third floor apartment. Two, the police had reliable information to ⁴²³ believe the Defendant McWebb resided in a third floor apartment, did not know of another apartment on the third floor. Now, while it was evidence that there were a number of apartments in the building, police were unaware where these apartments were located or the character of the building. Three, the Defendant McWebb was detained outside of 2036 Park Avenue.

With the keys furnished by him, the police gained entrance through a locked front door to the building, next to the door were seven mail boxes with bells, or indicating were bells under each mail box, but no names were reflected on any of the mail boxes. Further, McWebb’s name was not visible on any of the mail boxes or any area adjacent thereto. Next, the police were directed to the third floor by McWebb without any notice or knowledge of the layout of that area. Five, that entrance to the third floor was gained through a common marked door which gave no indication that there was more than one apartment located on said floor.

There was no one to alert anyone to indicate that there were more than one apartment. Next, that upon opening said door, police found the Defendant Garrison standing in his night clothes. Next, seven, upon entrance to the third floor, police saw an open door to the left later identified as McWebb’s apartment, and also an open door to the right later identified as Garrison’s apartment. In fact, no door was visible at the time the police entered and the police were unaware at that time that there were two apartments.

Eight, that from the position of the hallway area leading to the two apartments, the police saw and based on their expertise located on top of the dresser in an open room to the right, a quantity of marijuana. Entrance was made into that room later identified as the apartment of the Defendant Garrison where a police or the police found over the front door or the door leading to that area articles of men’s clothing. ⁴²⁴ No numbers were observed by police upon entering the apartment which would alert them to a separate apartment. The room was searched, and in the apartment of the Defendant Garrison was recovered a quantity of heroin and approximately four thousand dollars in cash. Nine, also significant or significantly at the time, neither defendant Garrison nor Defendant McWebb indicated that there were two separate apartments on the third floor.

Ten, that a copy of the search and seizure warrant was given to the Defendant McWebb. The inventory listed all the evidence seized from both apartments without indicating which pieces of evidence were found in each location. Eleven, it is clear that there was a common door which could be opened at the time of the search affording access between the two apartments. The evidence indicates that while each apartment or the occupant of each apartment could have privacy by locking this door, nevertheless, there was free access judging from all the evidence at the time the police arrived there between the two apartments, and that the Defendants so intended based on the evidence that has been submitted before me.

Now, first with respect to the inventory, the inventory related duties which must be carried out upon execution of a warrant under Maryland Rule 780 are considered ministerial. And assuming the search was valid and the entry was lawful, a failure to comply completely with such ministerial duties does not render the warrant defective. In this case it is clear what was taken as regarded to the inventory and the potential property rights of each of the parties who may be affected or protected. Now, with respect to the search and seizure warrant.

The general rule regarding the searches of multiple units for the purpose of satisfying the Fourth Amendment, searching two or more apartments in the same building, is no different than searching two or more completely separate houses. Probable cause must be show for searching each house, or as the case may be, each apartment. How ⁴²⁵ ever, there is an exception to this general rule where the multiple unit character of the premises is not externally apparent and is not known to the officer applying for or executing the warrant. It is clear that the warrant specified the premises to be searched as the third floor apartment of the Defendant McWebb, that the officers did not know that there was more than one apartment on the third floor and nothing alerted them of such a fact until after the search had been made and the items were searched.

In view of these findings, the Court will deny the motion of each Defendant to suppress the evidence. All right. As a reviewing court, we are obliged to accord due deference to the trial judge who, having seen and heard the witnesses, has a superior opportunity to determine the credibility of the witnesses, and to resolve contradictions in first line facts. Watson v. State, 35 Md.App. 381 , 370 A.2d 1149 (1977); Fidazzo v. State, 32 Md.App. 590 , 363 A.2d 583 (1976); Maryland Rule 1086.

It is clear from the trial judge’s factual summary that he believed the police version of what took place and rejected the contradictory testimony of McWebb and Garrison. Under Watson, supra, he was authorized to make that judgment. The balance sheet on what the police knew, or by the exercise of reasonable diligence should have known, required careful consideration of the following factors: 1. The police knew an apartment building was involved; they saw seven mail boxes at the entrance to a three story building. 2.

They reasonably concluded that McWebb occupied the entire third floor; Baltimore Gas & Electric stated that 2036 Park Avenue had service listed to McWebb, police records established that he lived at that address on the third floor. 3. No attempt was made to determine Garrison’s status when he was first observed in the foyer; Garrison ⁴²⁶ didn’t say he had a separate apartment, but the police didn’t make any inquiry concerning him. 4. The police answered Garrison’s phone and the caller asked for “Red Cross,” McWebb’s street name. 5. Utility bills recovered in McWebb’s apartment were addressed to McWebb and to Garrison, designated as “3F” and “3R”; the police didn’t notice the distinction at the time. 6.

McWebb made no mention of Garrison or his separate quarters. The trial judge did not believe that McWebb said he lived in “the rear.” 7. All of the doors, left and right, inside the foyer were open; the court so found in assessing credibility. 8. The immediate examination of the premises for safety purposes disclosed that no one else was present; with McWebb and Garrison in custody, no exigency existed that precluded an orderly, systematic evaluation of the circumstances incident to the execution of the warrant.

Under these circumstances, is the search of Garrison’s apartment sustainable? Ordinarily, probable cause will not justify a warrant-less entry into fixed premises. Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971); Steele v. United States, 267 U.S. 498 , 45 S.Ct. 414 , 69 L.Ed.