Herbert v. State

MOYLAN, Judge. The appellant, Michael Sean Herbert, was convicted in the Circuit Court for Dorchester County by Judge Donald F. Johnson, sitting without a jury, of 1) the possession of marijuana with the intent to distribute and 2) the possession of drug paraphernalia. On this appeal he raises the two contentions 1. that the evidence was legally insufficient to support the verdicts, and 2. that his motion to suppress the physical evidence was erroneously denied. Legal Sufficiency of the Evidence We hold that the evidence was legally sufficient to support the verdicts.

The appellant’s argument as to evidentiary ⁴⁶² insufficiency is two-fold. Primarily, he challenges the proof of his criminal agency generally. Secondarily, he challenges the establishment of the aggravating or incremental mens rea that the possession of the marijuana was with the intent to distribute it. We will address that secondary challenge first.

Inference of an Intent to Distribute When the search and seizure warrant was executed at Apartment A of 219 Willis Street in Cambridge on March 1, 1999, the police recovered, inter alia, 28.8 grams of marijuana. With respect to the significance of such an amount, Patrolman David Satterfield of the Narcotics Enforcement Team of the Cambridge Police Department testified: Just one other thing is this amount of marijuana found would be more than, through my training and experience, what a normal drug user would possess, and it was my belief that it was for distribution purposes. Although the bulk of the marijuana was found in the living room, there was also a small amount of marijuana found in a cabinet in the kitchen. Next to it was a set of electronic scales.

Marijuana residue was on the scales. Based on his “experience as a police officer trained in narcotics,” Office Satterfield also concluded with respect to the scales: [T]he scale would be used to weigh out narcotics which drug dealers would use to weigh their narcotics and then package them for selling—to be able to have a price for the sale. In the bedroom of the apartment, moreover, there was found, “lying loose on the bed,” $500 in cash. Underneath the “box spring inside this bedroom” was found a further $12,000 in cash, wrapped neatly in packets of $1,000 each.

The appellant chooses to focus exclusively on the amount of marijuana recovered: One ounce of marijuana was found in a single baggie secreted under the pillow of the living room couch. The single one ounce baggie of marijuana was far more consistent with personal use than with an intent to distribute. ⁴⁶³ Although the quantity was legally sufficient, in and of itself, to permit an inference of the aggravating intent, it was not, to be sure, overwhelming. What the appellant conveniently ignores, however, is the $12,500 in cash and the electronic scales with marijuana residue. Pertinent is our observation in Anaweck v. State, 63 Md.App. 239, 254-55 , 492 A.2d 658 (1985): The appellants were convicted not of simple possession, but of possession of cocaine with intent to distribute or dispense.

There are various ways to prove such intent. The statutory language itself strongly suggests one route to the permitted inference of intent when it speaks of possession “in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance.” Art. 27, § 286(a)(1). The quantity of narcotics possessed, however, is not an end in itself; it is but evidence of intent. It is the intent itself that is critical....

Thus, even a large quantity of drugs might not yield a finding of intent to distribute, if other circumstances indicated large private consumption. Conversely, a much smaller quantity might yield stick finding of intent, if evidence other than the quantity possessed showed that intent. (Emphasis supplied). See also Collins v. State, 89 Md.App. 273, 279 , 598 A.2d 8 (1991).

Here there was “evidence other than the quantity possessed [that] showed that intent.” The incremental mens rea of an intent to distribute on the part of SOMEONE was abundantly established in this case. The Linkage Between The Appellant and the Contraband The appellant’s primary challenge is that the evidence was not legally sufficient to permit a finding that he was that SOMEONE. He seeks to distance himself from what was found in the search of 219 Willis Street. ⁴⁶⁴ When the police arrived to execute the search warrant at 5:40 p.m. on March 1, 1999, the appellant was one of two persons present on the premises. The other, Purnell Robert Bailey, had been sitting in the living room, smoking a marijuana cigar, immediately prior to the police arrival.

Bailey bolted for the door, jettisoning the lighted cigar as he went, but was stopped in mid-flight. Both he and his cigar were taken into custody. The appellant had also been seated in the living room as the police arrived and as Bailey attempted to leave. Our analysis begins with the principle that unlawful possession may be constructive as well as actual and may be joint as well as exclusive.

As we observed in Folk v. State, 11 Md.App. 508, 511-12 , 275 A.2d 184 (1971): It is well-settled that the proscribed possession of marijuana or of narcotic drugs under the Maryland law need not be sole possession. “[TJhere may be joint possession and joint control in several persons. And the duration of the possession and the quantity possessed are not material, nor is it necessary to prove ownership in the sense of title.” Jason v. State, 9 Md.App. 102, 111 , 262 A.2d 774 . See also Munger v. State, 7 Md.App. 710 , 256 A.2d 888 ; Davis and Napier v. State, 7 Md.App. 667 , 256 A.2d 819 ; Scott v. State, 7 Md.App. 505 , 256 A.2d 384 ; Hernandez v. State, 7 Md.App. 355 , 255 A.2d 449 ; Haley v. State, 7 Md.App. 18 , 253 A.2d 424 ; Williams v. State, 7 Md.App. 5 , 252 A.2d 880 . Nor is it necessary, in order to be found in joint possession of a contraband drug, that the appellant have a “full partnership” in the contraband....

The Couri of Appeals and this Couri have on a number of occasions reviewed, on the sufficiency of the evidence, convictions of defendants who were not proved to be in direct physical possession or control of contraband drugs but were held to be in joint possession of those drugs. (Emphasis supplied). In Anaweck v. State, 63 Md.App. at 242-43 , 492 A.2d 658 , this Court described the broad embrace of the crime of criminal possession: ⁴⁶⁵ The appellants were not caught with the contraband in their hands. That, of course, is not legally fatal to proof of possession, but it does at least make the burden of persuasion a heavier one.

Henson v. State, 236 Md. 518, 525 , 204 A.2d 516 (1964); Bryant v. State, 229 Md. 531, 537 , 185 A.2d 190 (1962). “Appellant’s argument that the mere fact that narcotics were found in his apartment does not establish beyond a reasonable doubt that he put them there or that they were in his possession is without force.” Armwood v. State, 229 Md. 565, 570 , 185 A.2d 357 (1962). “That the narcotics were not on his person but in the house of which he was a resident did not prevent the inference the police and the trial court drew—that he had possession and control of narcotics—from properly and permissibly being drawn.” Henson v. State, supra, 236 Md. at 524-525 , 204 A.2d 516 . It is also “well-settled that the proscribed possession ... of narcotic drugs under the Maryland law need not be sole possession.” Folk v. State, 11 Md.App. 508, 511 , 275 A.2d 184 (1971). “[TJhere may be joint possession and joint control in several persons.” (Emphasis supplied). Before going on to the more significant linkage between the appellant and the premises of 219 Willis Street generally, we will linger for a moment on the contraband found in the living room alone. It was there that Purnell Bailey had been smoking the marijuana cigar.

There were also recovered from that room “several burnt marijuana cigars.” There was also in that room “some marijuana lying in plain view.” In Folk v. State, supra, we surveyed a number of cases where convictions were sustained on the basis of constructive and/or joint possession of contraband. At 11 Md.App. at 518 , 275 A.2d 184 , we summarized: The common thread running through all of these cases affirming joint possession is 1) proximity between the defendant and the contraband, 2) the fact that the contraband was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in which the contraband is ⁴⁶⁶ found, or 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband. A. Proximity: With respect to the proximity factor, the living room was small, there were only several chairs and other items of furniture in it, and the distance between the appellant and the various items of contraband was minimal. In comparable circumstances, we observed in Folk v. State, 11 Md.App. at 518 , 275 A.2d 184 : In the case at bar, the proximity between the appellant and the marihuana could not be closer, short of direct proof that the appellant herself was in exclusive physical possession of the marihuana.

She was ... literally within arm’s length of every other occupant of that automobile. The marihuana cigarette being smoked was, at any point in time, within the direct physical possession of one of those occupants. Proximity could not be more clearly established. (Emphasis supplied).

As the appellant sat in his living room, he was in intimate proximity of 1) the marijuana cigar being smoked by Bailey, 2) the “several burnt marijuana cigars” strewn about the room, and 3) the unsmoked “marijuana lying in plain view.” B. Knowledge of the Presence of Contraband: The second Folk factor concerns the appellant’s knowledge, through one sense or another, of the presence of contraband. With respect to the 28.8 grams of marijuana found in the living room, Officer Satterfield described it as “lying in plain view.” We infer that the “burnt” marijuana cigars or “roaches,” as well as the marijuana cigar being smoked by Bailey in his presence, were also within the clear view of the appellant. So much for the sense of sight. The appellant also had to have been well aware of the presence of marijuana through his sense of smell.

Officer Satterfield described being confronted by “a strong odor of ⁴⁶⁷ burnt marijuana” as he first entered 219 Willis Street. The appellant, of course, had been sitting in the living room with Bailey as the marijuana cigar was being smoked in his presence. In a comparable circumstance, we observed in Folk v. State, 11 Md.App. at 518 , 275 A.2d 184 : Knowledge of the presence of marihuana would be imparted even more emphatically by the sense of smell, in a situation where the cloud of smoke and the peculiar pungent odor filled the interior of a tightly-closed automobile. C. Possessory Interest In The Premises: Our consideration of the third Folk factor—the question of the appellant’s “ownership or some possessory right in the premises ... in which the contraband is found”—will blend into our analysis of the larger linkage between the appellant and everything found in the search of 219 Willis Street.

The evidence establishing the appellant’s possessory interest in the property was, to be sure, largely circumstantial. That circumstantial evidence, however, convincingly identified the appellant as the person having the primary, if not indeed the exclusive, possessory interest in 219 Willis Street. The appellant testified that he was a music producer and that Apartment A at 219 Willis Street was the studio out of which his production enterprise operated. He testified that there were “five or six” persons with access to the apartment, which testimony Judge Johnson was entitled to weigh as he chose or even utterly to disregard.

The appellant’s wife testified that she and the appellant and their daughter actually resided at 219 Willis Street for about a week in mid-December 1999, about ten weeks before the search of the property by Cambridge Police. On the day of the search, the police had been conducting a surveillance of the property “all afternoon.” With respect to the appellant, Officer Satterfield testified: Well, he was in and out all afternoon that day. I observed him leave a couple times in a vehicle with whom I ⁴⁶⁸ believe a female companion back and forth, so, he was in and out all afternoon. The appellant acknowledged to Officer Satterfield his connection with the property.

Officer Satterfield testified: Q: In your discussion with Mr. Herbert, did he tell you that he lived at that residence? A: Yes. Q: Okay, the residence, meaning—219 Willis Street. A: Yes.

In the bedroom of the apartment, Officer Satterfield found documents and mail addressed to the appellant at 219 Willis Street: THE COURT: And you had mentioned certain things being found in his bedroom. And how do you know it was his bedroom? THE WITNESS: It was the only bedroom in the apartment, and we found—it was just documents that were located that put him with that address. THE COURT: What specifically?

THE WITNESS: Just some miscellaneous mail with his name and his address on it. With respect to similar evidence, Anaweck v. State, 63 Md.App. at 244-45 , 492 A.2d 658 , held: There had been recovered in the course of the search, a bank statement from Patapsco Federal Savings and Loan Association in the names of Lena Anaweck and Edward Anaweck and giving their address as 2532 McComas Avenue. There was also a Baltimore Gas and Electric Company statement in the name of Edward Anaweck of 2532 McComas Avenue. It was clearly inferable that the suspect house was the home of Edward and Lena Anaweck.

When Purnell Bailey was called as a defense witness, he was asked where he was just prior to and at the time of the search of 219 Willis Street. Significantly, he replied: I was over at Mr. Herbert’s house. ⁴⁶⁹ Beyond the Living Room: Constructive Possession The establishment of the appellant as the primary, if not the exclusive, possessor of the apartment makes him criminally responsible for, inter alia, the contraband found in the kitchen. The only person in the apartment at the time of the search other than the appellant, Purnell Bailey, affirmatively disclaimed both having been in the kitchen and any knowledge of anything that was in the kitchen. The scale with marijuana residue was the subject matter of the unlawful possession of paraphernalia charge.

It was a key piece of evidence, moreover, aggravating the unlawful possession of marijuana by adding the mens rea of an intent to distribute. The search of the bedroom was even more damning to the appellant’s claim of innocent unawareness. Although Bailey acknowledged having spent the night before the raid at “Mr. Herbert’s house,” he testified that he slept on the couch in the living room and never went into the bedroom. In the bedroom, small amounts of cocaine were found by the police both on top of the dresser and inside the dresser drawers.

Most incriminating, of course, was the cash, $500 strewn on top of the bed and $12,000 hidden under the box spring, wrapped in bundles of $1,000 each. Inconsistent Stories and Incredible Testimony At the time of the initial search, the appellant disclaimed all knowledge of the cash, the $500 and the $12,000. He claimed to have no idea to whom it belonged. By trial time, however, he sang a different tune.

With respect to the $12,000, he stated simply: [Tjhat money right there belong to the record label. It’s the money that we’ve accumulated over the last four years of selling songs, selling tapes, selling CDs. He offered no explanation as to why a business enterprise would allow $12,000 of its capital to lie fallow under a mattress when, over a four-year period, it could have earned thousands ⁴⁷⁰ of dollars in interest. With respect to the $500 on top of the bed, he explained only that “my brother-in-law wanted to get another DAT machine.” The $12,500 was evidence of guilt in a variety of ways.

In the first place, the inconsistency between the initial statement to the police and the trial testimony was in itself damaging. With respect to the substance of the testimony, an attempted explanation that beggars belief is far more damaging to one’s cause than no explanation at all. The cash, moreover, was one of the key proofs escalating a mere possession into possession with intent to distribute. The presence of the cash in the bedroom also helped to clinch the connection between the appellant and the premises.

It is inconceivable that he would have left $12,000 of money that was his, at least in significant part, under a box-spring in an apartment over which he had little or no control. The $500 would have been even more exposed absent the appellant’s close control over the entire property. The evidence was sufficient to establish the appellant’s constructive, if not actual, possession of the contraband and the paraphernalia found at 219 Willis Street. The Suppression Hearing: What Was It About?

The more interesting of the appellant’s two contentions is his claim that at the suppression hearing Judge Johnson erroneously failed to suppress the physical evidence recovered in the warranted house search of March 1, 1999. The almost exclusive thrust of the appellant’s challenge at the suppression hearing, however, bore no resemblance to the challenge he now makes on appeal. The appellant’s present claim is that the failure of the State to introduce into evidence at the suppression hearing a copy of the application for the search warrant precluded Judge Johnson from finding that probable cause existed for the issuance of the warrant. Absent such a finding, the appellant now ⁴⁷¹ argues, the warrant was presumptively bad, the search of 219 Willis Street was consequently bad, and the evidence should have been suppressed.

The actual proceedings at the suppression hearing, however, reveal a very different controversy then at center stage. At the suppression hearing, appellant’s counsel took it for granted that all parties, including himself, had copies of the warrant application before them and were fully conversant with the application’s substantive contents. There was no suggestion, moreover, that a reading of the application “within its four corners” would have revealed any lack of probable cause. What the appellant seems to have been teetering toward, without ever plotting a clear or steady course in that direction, was some sort of “taint hearing” within the contemplation of Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). 1 Without any preliminary argument or announce ⁴⁷² ment of purpose, appellant’s counsel proceeded to call five witnesses, including the appellant, to the stand. 2 The purport of that testimony was that during the entire week of February 14, 1999, the appellant had been in New York City and could not, therefore, have been in Cambridge, Maryland.

At the conclusion of the testimony and virtually at the conclusion of the entire suppression hearing, counsel revealed the purpose of the testimony. Your Honor, with regard to the warrant, you have to look at the four corners of the warrant. And the principal item in there is the fact, according to the affidavit, that during the week of February lkth that there was a controlled buy. (Emphasis supplied).

The tactical battle at the suppression hearing was cleanly joined although the larger strategic purpose was left completely unstated. It was accepted as a given fact by all parties that in his affidavit in support of the warrant application, Officer Satterfield had stated that at some time during the week of February 14, 1999, he monitored a controlled buy, using an informant, from 219 Willis Street. According to the story told ⁴⁷³ to Officer Satterfield by the informant, 3 the buy was from the appellant himself. The five witnesses at the suppression hearing, including the appellant, sought to establish that the appellant had been in New York City during the entire week of February 14 and could not, therefore, have been a party to the controlled buy.

There was no dispute as to what substantively was in the warrant application. There was no dispute that, accepting its allegations as true, the warrant application established probable cause. The appellant was apparently attempting to establish through extrinsic evidence, presumably under Franks v. Delaware, that a key allegation in the warrant application was false and that the entire warrant application was thereby tainted. Arguably (although it was never argued), that controverting of the information in the affidavit could have been used in an effort to show not that Officer Satterfield was necessarily lying about having observed the controlled buy generally but at least that his informant was lying about having made the controlled buy from the appellant personally. 4 The appellant, however, never made an argument based on Franks v. Delaware. 5 It is, therefore, unnecessary to point ⁴⁷⁴ out the ways in which the appellant’s possible Franks v. Delaware argument, if indeed that is what he was intending to make, was flawed 6 for that potential argument has now been abandoned. ⁴⁷⁵ A Sudden Tactical Shift In response to an unforseen tactical opportunity, the defense suddenly shifted gears.

As the moving party on the suppression motion, the appellant went first, as he should have, and called his five witnesses to make his case for suppression. When the appellant rested, Judge Johnson routinely inquired of the State if it had any witnesses to call. The State simply moved that the Motion to Suppress be denied based on the appellant’s failure to carry his burden of proof. [Prosecutor]: Your Honor, is the Court asking that I call witnesses at this time ... I would argue that the motion be denied at this point because I do not believe that [the defense] has met its burden [.] The Court: When you say met its burden of showing what? [Prosecutor]: Your Honor, the motion is to suppress the evidence ... suppression would be based on the search and seizure warrant.

I have just not heard any testimony that would show that the search and seizure warrant wa,s applied for or executed in any bad faith. [Defense Counsel]: Your Honor, with regard to the warrant, you have to look at the four corners of the warrant. And the principal item in there is the fact, according to the affidavit, that during the week of February ?Jth there was a controlled buy. (Emphasis supplied). The unexpected development then occurred: The Court: Okay, you say look at the four corners of the warrant, I haven’t seen the warrant ... it hasn’t been introduced. [Defense Counsel]: The State’s not going to— The Court: Okay.

All right. So I haven’t really seen the warranty] ⁴⁷⁶ [Defense Counsel]: Well, Your Honor, if the State’s not going to introduce it. I move to dismiss it completely. [Prosecutor]: Your Honor, the State has not called any witnesses at this point. The Court: ... [I]t was agreed at the beginning that there was a warrant.

The Court: ... Although the search warrant was not introduced into evidence, both counsel agreed that there was a search of the defendant’s person and residence pursuant to a warrant. Considering the testimony that’s been offered, the Court finds that the defendant has not proven a lack of probable cause or that the warrant was invalid; therefore, I deny the motion. (Emphasis supplied).

The issue now before the Court is singular and simple. The appellant argues for a per se rule that if the search in issue was executed pursuant to a warrant, the burden, at a suppression hearing, is allocated to the State to produce the warrant (including the application for the warrant) and the failure of the State to do so will compel the granting of a Motion to Suppress. The Appellant, As Well as the State, Had a Copy of the Warrant Application Before we turn to that central issue of this appeal, two predicate facts need to be established to place our analysis in proper context. This is not a case where there was any lack of access by the appellant to the warrant or the warrant application.

The appellant makes no suggestion of any complaint in that regard. The compelling inference is that the appellant was in full possession of photocopies of the warrant, the warrant application, and Officer Satterfield’s supporting affidavit just as surely as was the State. The'search warrant itself expressly commanded the executing officer to “leave a copy of the application, affidavit and ⁴⁷⁷ warrant with an inventory, if any” with the person found on the premises. There was no hint of any failure by the State in that regard.

Maryland Rule 4—263(a)(2) requires: Disclosure without request. Without the necessity of a request, the State’s Attorney shall furnish to the defendant: (2) Any relevant material or information regarding: (A) specific searches and seizures!.] There has similarly been no suggestion that the State did not comply with the mandatory discovery requirements in this case. Indeed, the State’s Automatic Discovery of April 12, 1999, expressly recited, in paragraph 2, that “any relevant material” with respect to “a search and seizure” was “attached hereto.” The appellant’s Demand for a Bill of Particulars of April 14, 1999, further revealed a minute and precise knowledge of what was in Officer Satterfield’s supporting affidavit as it probed for additional details: SEARCH WARRANT AFFIDAVIT 1. The specific date and time that Patrolman First Class David A. Satterfield allegedly witnessed the Defendant exchange substance for currency with unknown subjects. 2.

The automobile tag number and the registered owners of the vehicles given to PFC Satterfield by citizens and the dates and times that persons in these vehicles allegedly visited 219 Willis Street, Cambridge, Maryland, and the names of the individuals who supplied the information to PFC Satterfield. 3. The names of all individuals who reside at 219 Willis Street, Cambridge, Maryland. 4. The specific date and time during the week of February 14, 1999, that the alleged controlled buy orchestrated by PFC Satterfield occurred at 219 Willis Street, Cambridge, Maryland. ⁴⁷⁸ The first request—concerning observations of the appellant exchanging “substance for currency with unknown subjects”— had reference to observations made by Officer Satterfield during the week of January 24, 1999, and were part of his affidavit. The second request demanded more specificity about “25 different tag numbers” by “two concerned citizens” over “a two week period” again revealing precise and detailed knowledge of the contents of Officer Satterfield’s affidavit.

The fourth request concerned the controlled buy during the week of February 14 that was the key allegation in that affidavit. Three separate demands for particulars revealed an intimate, line-by-line familiarity with the warrant application and its supporting affidavit. The entire conduct of the suppression hearing, moreover, made it clear that the appellant had before him copies of the warrant, the warrant application, and Officer Satterfield’s supporting affidavit. This is not a case where the defendant was denied photocopies of all pertinent documents relating to the search and seizure or where the State had exclusive control or possession of the documents the defense sought to have introduced into evidence.

The Essential Equality Of Duplicate Originals Being fully satisfied that the appellant had all of the pertinent documents before him at the trial table, the second predicate fact that needs to be established is that, for purposes of the suppression hearing in this case, the appellant’s copies of the pertinent documents were just as admissible as were the State’s. We are dealing with what is generally called a “duplicate” or sometimes “duplicate original.” Md.Code Ann., Courts and Judicial Proceedings, Sect. 10-103(a)(4) defines a “duplicate”: “Duplicate” means a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic recording, or by chemi ⁴⁷⁹ cal reproduction, or by other equivalent techniques which accurately reproduce the original. Subsection (b) of that provision continues: [a] duplicate is admissible in evidence to the same extent as an original unless: (1) A genuine question is raised as to the authenticity of the original; or (2) Under the circumstances, it would be unfair to admit the duplicate in lieu of the original. There was no question raised in this case as to the “authenticity” of the original warrant.

Neither were there any circumstances that would have made it “unfair to admit the duplicate in lieu of the original.” Those provisions of Sect. 10-103 have been embodied, since the codification of the evidence rules in 1994, in Maryland Rule of Evidence 5-1003, entitled “Admissibility of Duplicates”: A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances, it would be unfair to admit the duplicate in lieu of the original. (Emphasis supplied). In Thompson v. State, 62 Md.App. 190, 209 , 488 A.2d 995 , cert. denied, 303 Md. 471 , 494 A.2d 939 (1985), this Court held that unless the authenticity of the original warrant had been called into question, a photocopy of a warrant is just as admissible as the original warrant itself. The appellant would like to take advantage of the fact that only a copy instead of the original document was offered to the court, but he fails utterly to relate his objections to any possible undergirding purpose that this evidentiary rule of preference was designed to serve.

There was in this case no issue raised as to the contents of the search warrant itself. ⁴⁸⁰ In State v. Brown, 129 Md.App. 517, 526 , 743 A.2d 262 (1999), we again held that a duplicate original of a warrant was “no different than the original [warrant] itself.” In the instant case neither the statute nor the rules were offended. The “duplicate” original submitted to the trial court was, for the purpose of the “Best Evidence Rule, ” no different than the original itself Professor McClain notes that “in most circumstances, a duplicate copy made by a machine, such as a photocopier, -will be admissible to the same extent as the original.” McClain, supra, at § 1001.1 p. 523,; see also Hartford v. Scarlett Harbor, 109 Md.App. 217, 264 , 674 A.2d 106 (1996), aff'd, 346 Md. 122 , 695 A.2d 153 (1997) (“The photocopy of the amendment, in turn, was admissible under the exception to the best evidence rule for photographic duplicates.’ ”); Cicoria v. State, 89 Md.App. 403, 425 , 598 A.2d 771 (1991), aff'd, 332 Md. 21 , 629 A.2d 742 (1993). (Emphasis supplied). In State v. Brown the defendant, as here, failed to show any reason why a duplicate original would not have been just as admissible as the original warrant itself.

Under those circumstances we concluded, 129 Md.App. at 527 , 743 A.2d 262 : Here, the appellee presented no justification as to why the “duplicate original” should not have been admitted. He failed to show, as both the rule and the statute require, that either (1) a genuine question existed as to the warrant’s , authenticity ... or (2) it would have been unfair to admit the duplicate in lieu of the original. Under the “Best Evidence Rule,” the photocopy of the bench warrant was admissible to the same extent as the original. If applicable, the “Best Evidence Rule” was satisfied.

(Emphasis supplied). The appellant’s reliance on Campofreda v. State, 15 Md. App. 693 , 292 A.2d 703 (1972), for the proposition that a photocopy is not as good as the original is misplaced. Campofreda is readily distinguishable in that the “copy” in that ⁴⁸¹ case of both the warrant application and the warrant was totally blank with respect to 1) the name of the issuing judge, 2) any subscription or notarization of the purported affidavit, 3) the name of the officer to whom the warrant was directed, 4) the date the warrant was issued, and 5) any signature by the issuing judge. To the extent, however, to which any language in the Campofreda opinion may be read to suggest that even a more complete copy would somehow still run afoul of the Best Evidence Rule, such a reading is hereby expressly disavowed.

Campofreda was decided before Courts and Judicial Proceedings Article, Sect. 10-103 was adopted by ch. 720 of the Acts of 1981 and before Maryland Rule of Evidence 5-1003 was promulgated by the Court of Appeals, to be effective on July 1,1994. The reading the appellant would give to Campofreda , moreover, is completely incompatible with the express holdings of this Court in Thompson v. State, supra; State v. Brown, supra; Hartford v. Scarlett Harbor, 109 Md.App. 217, 264 , 674 A.2d 106 (1996), aff'd, 346 Md. 122 , 695 A.2d 153 (1997); Cicoria v. State, 89 Md.App. 403, 425 , 598 A.2d 771 (1991), aff'd, 332 Md. 21 , 629 A.2d 742 (1993). As we approach the issue of the burden of production at a suppression hearing, therefore, we are now satisfied 1) that the appellant had accurate photocopies of the search warrant, the warrant application, and the supporting affidavit of Officer Satterfield; and 2) that the appellant’s copies were just as admissible at the hearing as the copies or the originals in the apparent possession of the State. The Allocation of the Burdens of Proof At a Suppression Hearing As a general rule, the moving party on any proposition, civil or criminal, has both the burden of production and the burden of persuasion.

It is the moving party who attempts to persuade a judge somehow to alter the status quo. ⁴⁸² In a criminal trial, the status quo—the norm—is that evidence of a defendant’s guilt that is relevant, material, and competent will be admitted. It is the defendant who seeks to alter that status quo—who seeks a departure from that norm-when he seeks to exclude relevant, material, and competent evidence of guilt in order to serve some extrinsic purpose, such as deterring the police from future unreasonable searches and seizures. Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). To the moving party is allocated the burden of making the case for such an alteration of the status quo-for such a departure from the norm.

Rawlings v. Kentucky, 448 U.S. 98, 104 , 100 S.Ct. 2556 , 65 L.Ed.2d 633 (1980), spoke to the allocation of the burden: Petitioner, of course, bears the burden of proving ... that the search ... was illegal. On the closely related threshold issue of Fourth Amendment standing to object, the Supreme Court in Rakas v. Illinois, 439 U.S. 128 , 130 n. 1, 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978), made that initial allocation of the burden very clear. The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. On the same analogous threshold issue, this Court confirmed that allocation of the burden in Thompson v. State, 62 Md.App. 190, 202-03 , 488 A.2d 995 (1985): [I]t is clear that the burden of proof is allocated to the defendant to show his standing.

The State has no obligation to show nonstanding. See also Ruffin v. State, 77 Md.App. 93, 96 , 549 A.2d 411 (1988); Coomes v. State, 74 Md.App. 377, 391 , 537 A.2d 1208 (1988); Bates v. State, 64 Md.App. 279, 283 , 494 A.2d 976 (1985). We pointed out in Duncan and Smith v. State, 27 Md.App. 302, 313 , 340 A.2d 722 (1975), how the allocation to the defendant on the threshold issue of standing is but an instance ⁴⁸³