Jason v. State

Orth, J., delivered the opinion of the Court. Tyrone O’Neal Jason, Wilbur Allen Johnson and William Francis Moore (appellants) first ask on this appeal: “Did not the trial court err by holding trial under a faulty indictment?” The indictment to which they refer was No. 5332, charging trespass. It was jointly tried with other indictments against them. We dispose of this question by noting that it is pointless, the argument in support of the contention presented by it is meaningless, and the relief sought in connection with it — a reversal or, in the alternative, a “remand to secure a proper indictment for retrial” — is incongruous.

The question is pointless because appellants were acquitted of the offense charged in the challenged indictment by the grant of a motion for judgment of acquittal made at the trial at the close of the evidence offered by the State. The argument is meaningless because, in the light of the acquittal, whether or ¹⁰⁵ not the indictment was properly amended prior to trial is not relevant or material; assuming that the amendment was a matter of substance and not form, appellants were in nowise prejudiced. The relief sought is incongruous because there is no conviction under the indictment to reverse and because even if a new indictment were returned by the grand jury, prosecution under it would be precluded as placing appellants twice in jeopardy, appellants having been found not guilty of the offense. The contention posed by the question is devoid of merit.

Each of appellants, jointly tried, were found guilty at a court trial in the Criminal Court of Baltimore of possession (1st count) and control of heroin (2nd count) and possession of narcotic paraphernalia (3rd count) on 22 August 1968. Jason was so charged under indictment 5331, Johnson under indictment 5333 and Moore under indictment 5334. Johnson was also found guilty as a second offender under an addendum to indictment 5333 and Moore as a third offender under an addendum to indictment 5334, the trial under each addendum being held concurrently with that of the substantive offense. Jason was sentenced to 4 years on the conviction under each count; Johnson was sentenced to 10 years on the conviction under each count; Moore was sentenced to 20 years on the conviction under each count.

The sentences as to each were imposed to run concurrently. FACTS Evidence adduced at the trial showed that the premises 1106 Shields Place in Baltimore City, a one family home, four rooms and a bath, were owned by Samuel London, who maintained the property for rent. At the time the offenses here were alleged to have been committed the premises were not rented to anyone and were not lawfully occupied by anyone. The house was “locked, both front and rear.” Specifically, none of appellants or their codefendants, Sharyn Doshane Cox and Irene Bertha ¹⁰⁶ Page, 1 had made application to rent the premises and none had permission to enter or occupy the premises.

On 19 August 1968 Detective Daniel Davis, Criminal Investigation Division, Narcotics Unit, Baltimore City Police Department, received permission from London for the police to enter the premises. London testified, “He asked permission could he go into the premises and check it, and I told him absolutely he could.” Davis, who it was stipulated by appellants was an expert “in the field of narcotics”, testified that on 22 August, in the company of other officers and an agent of the Federal Bureau of Narcotics, he went to 1106 Shields Place about 2:00 P.M. Officers were stationed in the front and the rear of the house. The front door was secured by a padlock but the rear door was ajar. Davis pushed open the rear door and saw Moore. “He was standing by the sink [in the kitchen] giving himself an injection of narcotics” in the arm by means of “an eye dropper with a needle attached.” He was placed under arrest and the narcotic paraphernalia seized from him.

Irene Page was in the front room seated in an armchair blocking the front door. Some of the officers went to the second floor. As they got to the top of the steps Jason ran past them towards the front room and attempted to get out of the window. He was arrested.

Sharyn Cox and Johnson were in the rear room on the second floor. Cox was on the bed and as Davis entered the room he saw Johnson throw an object from the window. Davis went to the window and observed the Federal Narcotics Agent in the yard picking up two brown envelopes “which had spilled and which contained gelatin capsules of the type I recognized to be a suspected narcotic at that time.” Johnson and Cox were arrested. “All over the bed” were a number of white gelatin capsules. A plastic bag containing an eye dropper, two plastic syringes, two hypodermic needles, four needle hold ¹⁰⁷ ers, a plastic container in which was a piece of wire used to clean hypodermic needles, was found on the staircase leading to the second floor.

Also on those steps were found two hypodermic needles, an eye dropper and a burned bottle cap “which contained a residue of suspected narcotics.” Davis explained that “a burned bottle cap is usually a cap from a beverage used by addicts to cook narcotics * * * for the purpose of injection” and that hypodermic needles and syringes were used by addicts “for the purpose of injection of a narcotic.” Seventeen gelatin capsules containing a white powder and three and a half capsules containing a white residue were recovered from the bed and the floor in the room in which Johnson and Cox were found. Three brown envelopes were recovered by the Federal Narcotics Agent from the yard under the window from which Davis had seen Johnson throw something. In them were 211 gelatin capsules containing a white powder. The Agent also recovered a burned bottle cap.

Appellants and the two persons with them had “fresh needle marks * * * on their arms. * * * Miss Page was observed to have blood running from her leg.” She also “had needle marks on her right arm. Mr. Moore had numerous needle marks on both arms. Mr. Johnson had needle marks and tracks on both arms and legs. Mr. Jason had numerous needle marks on both arms. * * * Miss Cox had numerous needle marks and tracks on the right and left arms.” The evidence was admitted over objection.

The report of the chemist analyzing the evidence was admitted. It showed that the syringe and needle seized from Moore contained no prohibited narcotic. Of the twenty and one-half capsules recovered from the bed and floor in the room in which Johnson and Cox were found, only one capsule contained heroin hydrochloride. What the remaining capsules contained was not disclosed.

Two hundred and five of the capsules recovered in the yard contained heroin hydrochloride. Six of the capsules and the bottle cap recovered in the yard did not contain a narcotic drug. None of the articles found on the steps contained a narcotic ¹⁰⁸ drug. Appellants and the two women were the only persons in the premises.

On cross-examination of Davis on the fact that no trace of a narcotic was found in the syringe seized from Moore, he said, “Sometime you don’t get enough to analyze, depending how many times he jerked off with the needle.” No narcotic drug was found on the person of any of appellants or the two women. The defendants offered no evidence. THE SEIZURE OF THE EVIDENCE We first note that Chimel v. State of California, 395 U. S. 752 is not here applicable as the evidence admitted was obtained by a search and seizure conducted prior to 23 June 1969. Scott v. State, 7 Md. App. 505, 518 .

The rule applicable here was stated in Brown v. State, 3 Md. App. 90 , 93: “If the seizure of the evidence objected to was not unreasonable, it was properly admitted. The seizure of the evidence would not be unreasonable, even though without a search warrant, if the arrest of the appellant was lawful, for then the seizure would be an incident to a lawful arrest. David v. State, 1 Md. App. 666 . The arrest of the appellant would be lawful even though without a warrant of arrest, if the arresting officer had probable cause to believe that a felony had been committed and that the appellant had committed the felony, Boone v. State, 2 Md. App. 479, or if the appellant committed a misdemeanor in the presence of the arresting officer, Scott v. State, 1 Md. App. 481 .

But the facts and circumstances showing probable cause must come lawfully within the knowledge of the officer, Johnson v. State, 2 Md. App. 300, and the commission of the misdemeanor in the officer’s presence must be lawfully observed by him. Dailey v. State, 234 Md. 325 ; otherwise the arrest will not support the introduction of the evidence.” ¹⁰⁹ And in Scott v. State, supra, at 510, we said that prior to Chimel the right to search and seize without a warrant as incident to a lawful arrest extends to things under the accused’s immediate control and to an extent depending upon the circumstances of the case, to the place where he is arrested; the extent of the search is not necessarily confined to the room in which the arrest was made. Appellants claim that their arrests were illegal. We find that they were legal.

We think it clear that the police were lawfully on the premises, as the trial court found, having received permission to enter from the legal owner and appellants having no lawful right to occupy or be on the premises, as guests, invitees or otherwise. They were trespassers. 2 There being no question of an unlawful intrusion by the police into an area constitutionally protected as far as appellants were concerned, the observations of the officers when on the premises were lawfully come by. Compare Brown v. State, supra. Moore was observed in the process of giving himself an injection in the arm by means of an eye dropper with a needle attached.

This was sufficient for the observing officer, experienced in the investigation of illicit narcotic use and traffic, to have probable cause to believe that Moore was committing the felonies of unlawful possession and control of a narcotic drug or was committing in his presence the misdemeanor of unlawful possession of narcotic paraphernalia. Thus the arrest of Moore by a member of the police team was legal and the seizure of the paraphernalia from his person was reasonable as incident to the arrest. Johnson was observed in a room in which were a number of gelatin capsules in plain view and was seen to throw envelopes out the window when the officers entered ¹¹⁰ the room. Looking into the yard under the window, the officer observed gelatin capsules spill out of the envelopes.

This was probable cause for him to believe that Johnson was committing the felonies of unlawful possession and control of a narcotic drug. Thus the arrest of Johnson was legal and the seizure of the evidence found in the room and in the yard was in the circumstances reasonable as incident to the arrest. Having already observed Moore giving himself an injection with narcotic paraphernalia and Miss Page seated in an armchair blocking the front door, Jason was observed attempting to escape out the front window. These facts and circumstances constituted sufficient probable cause for the officers to believe that Jason was a participant in the commission of the felonies of unlawful possession and control of narcotic drugs and thus his arrest was legal.

And on all the attendant facts and circumstances, the total atmosphere of the.case, the search of the entire premises, consisting of only four rooms and a bath, and the seizure of evidence found therein was reasonable as incident to the legal arrests. See United States v. Rabinowitz, 339 U. S. 56, 66 . That some of the evidence so obtained was later proved not to contain traces of a narcotic drug was not material to the existence vel non of probable cause. We hold that the evidence was properly admissible.

Our ruling does not by any means constitute “a frontal attack” on our decisions in Scott v. State, 4 Md. App. 482 , Brown v. State, supra, and Dorsey and Gladden v. State, 2 Md. App. 40 , as appellants suggest. Those cases are simply not factually apposite. THE SUFFICIENCY OF THE EVIDENCE In rendering its verdicts, the lower court made factual findings. It found that all of the appellants were in control of the premises, although they were trespassers.

It found, in the totality of the circumstances, that all of the defendants, the appellants and the two women, were ¹¹¹ jointly engaged in the unlawful enterprise and in possession and control, actual or constructive, of the narcotics and narcotic paraphernalia 3 found on the steps in the house, in the bedroom, and in the yard, having been thrown out the window by Johnson. The totality of the circumstances considered by the court included that only the five defendants were in the premises, that all of them had fresh and old needle marks upon their bodies, that Page had blood running down her leg from one such mark, that Jason attempted to flee, that Johnson threw contraband out the window, that the contraband was distributed throughout the relatively small premises, and that some of the capsules contained heroin. We cannot say that the judgment of the court on the evidence before it was clearly erroneous. Maryland Rule 1086.

We find that the evidence was sufficient in law to sustain the convictions as to each appellant of possession of heroin, control of heroin and possession of narcotic paraphernalia as charged. 4 See Williams v. State, 5 Md. App. 450 . We note that it is not required that there be sole possession and sole control; there 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 the title. See Munger v. State, 7 Md. App. 710 ; Davis and Napier v. State, 7 Md. App.