Haley v. State

Orth, J., delivered the opinion of the Court. On 16 August 1968 about 9:30 p.m. police officers entered a private dwelling in Baltimore County under the authority of a search and seizure warrant duly issued that same date upon an application sworn to by Detective Sergeant Raymond Donovan, a member of the Baltimore County Police Bureau. 1 There were about 7 adults and 4 juveniles on the premises, including the appellants. The occupants and the premises were searched. Evidence was found on the person of each appellant and seized: Peterson: “a pack of cigarette roll paper, a piece of aluminum foil and wire hypodermic needle cleaners that are commonly used by narcotic abusers and a ²¹ black wooden pipe with an aluminum foil over the bowl commonly used for marijuana smoking.” These articles were not introduced into evidence nor was there evidence that they were analyzed.

Haley: a black corncob pipe with aluminum foil over the bowl, two small brown envelopes containing “suspected marijuana”, one small plastic vial containing suspected marijuana, aluminum foil and a sewing needle. The pipe, packages and vial contained marijuana. Roberts: one Bufferin bottle containing a green substance that was “suspected of being marijuana”, one vial containing three red capsules and seven white capsules. The bottle contained marijuana.

The white capsules were two different sizes. Four of one size were methadone. The three of other sizes were “negative for amphetamines, LSD and opium.” There was on evidence as to analysis of the red capsules. Evidence was found on the premises and seized: Rear bedroom: in a dresser drawer under clothing —10 #25 hypodermic needles with three eye droppers “adaptable for the use of narcotics, 8 blue capsules, 20 red capsules containing white powder, 5 white tablets, a brown envelope containing” suspected marijuana.

The capsules and tablets contained phenobarbitol, DHDNL amphetamine, amibarbitol and seco ²² barbitol. The envelope contained marijuana. Another bedroom: under the mattress of a bunk bed — 1 blue and white capsule containing a white powder, 2 red capsules containing a white power. They contained two types of secobarbitol and one capsule secobarbitol and amibarbitol.

The bathroom: in the medicine cabinet wrapped in toilet tissue — white tablets; in the bathtub — a broken vial containing marijuana traces; in the toilet bowl — two red capsules partly dissolved. The record does not disclose that these items were analyzed. The kitchen: in a closet by the rear kitchen door —a small brown envelope. It contained marijuana.

Evidence was also found and seized by a search of Peterson’s automobile parked in the driveway of the house: a pipe with aluminum foil attached, “of the type commonly used for marijuana smoking.” It contained “marijuana, residue.” The identification of the various drugs at the trial was by the testimony of expert witnesses who had made the analyses. As a result of the raid, the appellants and Calvin F. Roche, Carl E. Weiland, Bruce L. Olney, James M. Wimberly and Carol Rae Maszarose were jointly indicted under indictment No. 34985. The record before us shows that individual indictments were also returned against Roberts — No. 34979; Peterson — No. 34980; Haley — No. 34981; Maszarose — No. 34978; Roche — No. 34977; Olney — No. Unknown and indicates that individual indictments were also returned against Wimberly and Weiland. The appellants and Roche, Olney and Maszarose were jointly tried on the indictments against them at a court trial in the Circuit Court for Baltimore ²³ County. 2 Motions for judgments of acquittal as to the charges against Roche and Olney were granted at the close of the evidence offered by the State. 3 As to indictment No. 34985 each appellant was found guilty under the 1st count — possession of marijuana — and the 2nd count — control of marijuana — and each was sentenced to 5 years on each count, the sentence on the 2nd count to run concurrently with that on the 1st count.

As to the individual indictments the convictions and sentences were as follows: Roberts, indictment No. 34979: 3rd count — control of amphetamine; 5th count — possession of a barbiturate; 6th count — control of a barbiturate: one year on each count to run concurrently with the sentences on No. 34985. Peterson, indictment No. 34980: 1st count — possession of narcotic paraphernalia; 3rd count —control of amphetamine; 6th count — control of a barbiturate; 5 years on the 1st count, one year on each of the 3rd and 6th ²⁴ counts, the sentences to run concurrently with the sentences on No. 34985. Haley, indictment No. 34981: 3rd count — control of amphetamine; 6th count — control of a barbiturate; 1 year on each count to run concurrently with the sentences on No. 34985. On appeal none of the appellants disputes that there was probable cause for the issuance of the search warrant.

Each claims, however, that the evidence seized from his person was admitted in error and that the evidence found on the premises was not in his control. Peterson also claims that in any event the evidence found on his person did not establish that he possessed narcotic drugs and narcotic paraphernalia, that the law provides no penalty for the possession of narcotic paraphernalia, that the evidence found in his automobile was improperly admitted, and that his sentences were the “products of an unworthy motive.” Roberts claims error by the introduction of evidence seized under the authority of a warrant which the State did not offer into evidence. THE INTRODUCTION OF EVIDENCE SEIZED FROM THE PERSON OF EACH APPELLANT The warrant commanded Donovan, with the necessary and proper assistance: “[T]o enter and search the premises known as 2218 Westridge Rd., Timonium, Baltimore County, Maryland aforementioned and described, to search for, seize and remove any and all and any parts thereof of any narcotics, drugs, narcotic paraphernalia, implements or instruments used with or in connection with the use of drugs and narcotics, further to search the body or bodies of any person or persons found therein and remove from the body or bodies of any person or persons found therein any and all and any parts thereof of ²⁵ any drugs, narcotics, narcotic paraphernalia, instruments or implements used with or in connection with the use of narcotics or drugs and in particular that you search the body of Carl Weiland described as a W/M between 19 and 20 years of age, long brown hair, reddish brown beard and mustache, further that you bring the body or bodies of any person or persons found therein and in particular Carl Weiland, who are found participating in the said unlawful activities to wit: possession, control and sale of narcotics, before me, the subscriber, or some other Police Justice of the State of Maryland, County of Baltimore, aforesaid, to be disposed of and dealt with according to the law.” The search of each appellant and the seizure of evidence found on his person would be valid only if made under the authority of the warrant or as incident to a legal arrest outside of the warrant by reason that the officers had probable cause to believe that a felony had been committed and that the arrestee committed it or had probable cause to believe that a misdemeanor had been or was being committed in their presence and that the misdemeanant committed it or that the search was made with the voluntary consent of the person searched. Simms v. State, 4 Md. App. 160; Randolph v. State, 1 Md. App. 441; Nadolski v. State, 1 Md. App. 304 .

It is clear in the instant case that none of the appellants voluntarily consented to the search of his person. In Salmon v. State, 2 Md. App. 513 we discussed at length the Maryland and federal constitutional provisions as to search and seizure and the Maryland search warrant statute, Md. Code, Art. 27, § 551, which provides, in part, for the issuance of search warrants on proper oath or affirmation where probable cause exists “to believe that any misdemeanor or felony is being committed by any individual or in any building, apartment, premises, place or thing * * * or that any property subject to seizure under the criminal laws of this ²⁶ State is situated or located on the person of any such individual or in or on any such building, apartment, premises, place or thing.” We concluded, at pp. 518-519' “In view of the federal and state constitutional provisions relating to searches and seizures, and prohibiting general or blanket-type warrants, the statute prohibits the issuance of any warrant unless it shall ‘name or describe, with reasonable particularity, the individual, building, apartment, premise, place or thing to be searched’, together with, inter alia, the ‘grounds for the search’. It is thus clear from the provisions of the statute that what it, in effect, authorizes is a search of persons, places or things, as reasonably particularized in the warrant, for specifically designated property, unlawfully obtained or held, or of evidence of the commission of the crime, now including items relating thereto which are purely evidentiary in nature. (See Warden v. Hayden, 385 U. S. 926 ).

As the search warrant is issued for the basic purpose of making a search, the probable cause necessary to support its issuance requires a proper showing not only that a crime has been or is being committed, but also that the evidence of the crime is upon the person or within the place or thing to be searched. * * * It is likewise clear that while a search warrant is issued only for the purpose of making a search, and thus does not operate as an arrest warrant, nevertheless that where a directive to make an arrest is included as one of the commands of the warrant, such directive is a conditional one — valid only if the search reveals the commission of an offense, in which event the arrest is for the offense revealed by the search. * * (citations omitted) Against this background we considered the effect of a ²⁷ command in the warrant — as was contained in the warrant here — not only to search the designated premises and the person named or described in the warrant (only Weiland here) but to search “the body or bodies of any person or persons found therein”, and seize narcotics and narcotic implements so found and arrest all persons “who are found participating in the said unlawful activities”. We said that such provision did not render the warrant general and invalid in toto but we found that “the command of the search warrant to arrest and search all persons participating in the criminal activities” would not support a search of one on the premises who had not committed a crime in the presence of the searching officers”, at 521. The officers were lawfully on the premises under authority of the warrant but as the appellants were not named in the warrant, the inquiry is whether the officers had probable cause to believe that the appellants were participating in criminal activities proscribed by the narcotics laws —if a misdemeanor by committing it in the presence of the officers; if a felony either that they were committing or had committed it. We cannot conclude from the evidence that the premises were searched and evidence found prior to the arrest and search of the appellants.

Donovan testified that when he and the other officers pulled up to the front entrance of the house, the police vehicle was parked at the end of the driveway on the street. There was a large plate glass window in the living room. “As we gained the approach in front of the house I observed through the window several of the people in the house scurrying about as if they were running. We immediately approached the front door, knocked on the door, advised them that we were police officers and demanded entrance. There was no reply.

We could tell there were numerous people running about. We forcibly entered the front door and entered the premises. At this time, we again told them that we were police officers and had a search warrant for the premises and everybody was ²⁸ under arrest.” Donovan saw Roberts “trying to run into the kitchen” and Haley was “trying to make an exit through the kitchen door. Several people had run into the bedroom which is immediately left after you enter the foyer of the home.

And there were others who had gone to the far bedroom which is also off the living room to the left of the home. And a few people were trying to exit through the rear kitchen door and this exit was blocked by oncoming police officers.” Donovan “immediately grabbed Roberts and pulled him back into the living room and placed him under arrest”. He said he determined there was a party by the “unusual crowd. There were no alcoholic beverages found on the premises.

No ice cream or cake and an ensuing search of the premises revealed illicit narcotics and narcotics paraphernalia.” Peterson was searched by Donovan. Haley was searched by Corporal Grimes. Roberts was searched by Detective Manzari. All were in the living room when searched.

The police had entered the premises about 9:40 p. m. About 10:00 p. m. Roche, Olney and Jean Kelly arrived and were arrested. Donovan said, “Then a search was made of the rest of the premises by Corporal Grimes and Detective Manzari.” Weiland, “the owner of the home or the person who resided there * * * was taken along with Corporal Grimes and Detective Manzari while a search of the premises was conducted.” They searched each room.

We find nothing in the testimony of Corporal Grimes and Detective Manzari to establish that the search of the premises preceded the search of the appellants. The lower court found: “The police had probable cause to believe that a felony was being committed at 2218 Westridge Road, that as a result of the serving of a search and seizure warrant, lawful arrest was made of individuals. As a result of the lawful arrest, the search of the individuals was proper.” We agree that the application for the warrant showed probable cause for its issuance. We do not agree that the arrest of the appellants was legal under the authority of the ²⁹ warrant.

The warrant did not specifically command their arrest and search, and there was no evidence, testimonial or otherwise, apart from the search warrant, to show that the police had probable cause to believe that the appellants were violating the narcotics laws at the time of their arrest and the search and seizure incident thereto. The application for the warrant, stating the information from a reliable informant, “known to have supplied prior correct information to Police Authorities in the past which resulted in several arrests”, was that since the owners of the premises, the parents of Carl Weiland have been in Europe, “narcotic parties are being held in their home nightly and are being sponsored by their son Carl. Narcotics of every description are being used, sold and purchased during those parties.” Roche and Roberts were named as being present at one of the parties on 12 August 1968; Roche was named as selling “sets” at a party on the premises on 15 August with about 35