Kane v. State

⁴⁶⁹ Powers, J., delivered the opinion of the Court. In a jury trial presided over by Judge J. Gilbert Prendergast in the Criminal Court of Baltimore in February and March, 1970, Phillip Bernard Kane, also known as Ghost, was convicted of several violations of the narcotics laws, and sentenced to terms of imprisonment which aggregate 15 years. He has appealed those judgments to this Court. The trial involved three indictments, found by the Grand Jury of the City of Baltimore on October 28, 1969, charging that appellant and others, on September 28, 1969, committed offenses as follows: Indictment 7513 — First count — possession of heroin.

Second count — control of heroin. Indictment 7514 — First count — possession of methadone. Second count — control of methadone. Indictment 7515 — keeping and maintaining a dwelling house known as 2007 Edmonson Avenue — First count — resorted to by narcotics addicts, for the purpose of using narcotic drugs.

Second count — used for the illegal keeping of narcotic drugs. Third count — used for the illegal selling of narcotic drugs. The indictments grew out of the execution on September 28, 1969, of a search and seizure warrant issued on September 27th by Judge Charles D. Harris of the Supreme Bench of Baltimore City. Evidence seized in the execution of that warrant was admitted at the trial.

Appellant was tried separately from the codefendants who were indicted with him. At the close of the evidence presented by the State, judgments of acquittal were granted as to the first count of each of the three indictments. The defense presented no evidence. A motion for judgment of acquittal on the remaining counts, made at ⁴⁷⁰ the close of the whole case, was denied.

The jury returned verdicts of guilty on each of the four counts submitted to it. In this Court, appellant argues that his convictions should be reversed, and raises these questions: I. Is the search warrant a blanket warrant, in violation of constitutional prohibitions against unreasonable searches and seizures ?

II

Does the warrant authorize an unrestricted search of the premises ?

III

Was there a showing of probable cause for the issuance of the warrant?

IV

Did the court err in admitting evidence of the commission of other crimes by appellant? V. Did the court err in denying appellant’s motion for judgment of acquittal? The State presents the first three of these questions in one ultimate question of whether the court erred in overruling appellant’s motion to suppress evidence obtained in the execution of the search warrant. We shall consider separately each question as put by the appellant.

I. The search warrant issued by Judge Harris commanded any police officer of Baltimore City to search forthwith these persons, premises and vehicles in the City of Baltimore: 1. Phillip Bernard Kane, also known as Ghost. 2. 2007 Edmonson Avenue, beauty shop and residence over it. 3. Linda E. Brown and 4027 Annellen Road. 4. 1967 Pontiac Maryland License [¶] 5673. 5. Gary Fenwick and 512 Baker Street. 6.

Wayne Grant and 833 Bethune Road. 7. Melvin Burrell and 1428 Parrish Street. All general warrants to search suspected places, without naming or describing the place “in special”, are proscribed by the Declaration of Rights of Maryland (Art. 26). The Fourth Amendment to the U. S. Constitution ⁴⁷¹ prohibits unreasonable searches and seizures.

Appellant equates the term “general warrant” to what he describes as a “blanket search warrant”, and fastens that term upon the search warrant in this case. He cites Varon, Searches, Seizures and Immunities, for the proposition that a “blanket search warrant” is one in which several properties are described, and such properties are in possession of different owners or occupants, thus making the warrant void. He supports the contention by citation of a 1952 opinion of the Oklahoma Criminal Court of Appeals, Williams v. State, 240 P. 2d 1132 , 31 A.L.R.2d 851 . In that opinion the comment is made, as a dictum, that if the properties described (in the warrant before that court) were in possession of different owners or occupants, the warrant would have been void as a blanket search warrant.

In the report in 31 A.L.R.2d the headnote on this point is classified to 47 Am Jur, Searches and Seizures, §§ 34-36, where § 36 states: “Where the search of several suspected places is desired, it is not necessary that a separate warrant issue for each place, but the same warrant may describe the several places to be searched.” and cites, as authority for the statement, Allen v. State, 178 Md. 269 , 13 A. 2d 352 . As a term implying invalidity, “blanket search warrant” does not appear to have achieved recognition in Maryland. We see no need to recognize it now. If the place to be searched is sufficiently described “in special” to enable the officer to locate it with certainty, the warrant is not general as to the place to be searched and is not, for that reason, illegal.

No additional descriptive terms are necessary to determine whether a search warrant is a general one. Appellant cites Allen v. State, supra, and several other Court of Appeals decisions for authority that when a search is made at more than one place under the authority of a single warrant, the places searched should ap ⁴⁷² pear to be united by a common unlawful use. The rationale of those cases does not control the decision here. All were decided before Pegram v. State, 203 Md. 567 , 101 A. 2d 886 .

That case, decided in 1954, considered the legality of a search warrant issued upon the basis of observations of a described individual in a motor vehicle, also described, which was executed by a search of the motor vehicle and of Pegram, who was the owner, and at the time of the search, was an occupant of the vehicle, but was not the individual specifically described in the warrant. The warrant commanded the search of the automobile, of all persons found in said automobile, of the described individual, and of all other persons found to be violating the lottery laws. At Pegram’s feet, in the front of the car, the officers found, in the course of searching the vehicle, a brown paper bag containing lottery slips and other lottery paraphernalia. Citing Saunders v. State, 199 Md. 568 , 87 A. 2d 618 , and Martini v. State, 200 Md. 609 , 92 A. 2d 456 , the Court of Appeals concluded that it was committed to the proposition that directions to search an automobile and a person, combined in one warrant, are separable.

It pointed out that invalid directions in a search warrant cannot operate to vitiate the valid commands. The inclusion in a search warrant of a command assumed to be erroneous and thus invalid can be rejected as surplusage. Martini v. State, supra. No question is raised of the sufficiency of the description of the premises at 2007 Edmonson Avenue, the only place at which contraband or other goods used as evidence at the trial was seized.

Appellant’s objection is that other places and persons were named in the same search warrant. The objection is not valid. Within the rule prohibiting general warrants, the search warrant in this case was valid authority for a search of the premises at 2007 Edmonson Avenue, and appellant may not complain that other commands in the warrant may be invalid. ⁴⁷³ II. Appellant also contends that the search warrant in this case was general, and therefore illegal, because it authorized an unrestricted search of the premises.

We do not agree. In Frey v. State, 3 Md. App. 38 , 237 A. 2d 774 , this Court, through Chief Judge Murphy, said, at page 46: “A general warrant, broadly defined, is one which fails to sufficiently specify the place or person to be searched or the things to be seized, and is illegal since, in effect, it authorizes a random or blanket search in the discretion of the police in violation of the Fourth Amendment to the Federal Constitution, Article 26 of the Maryland Declaration of Rights, and Section 551 of Article 27 of the Maryland Code (1967 Repl. Vol.), all of which require that! search warrants particularly describe the place to be searched and the things to be seized, so as to prevent the search of one place, or the seizure of one thing, under a warrant authorizing search of another place, or the seizure of another thing.” The warrant in this case commanded the seizure, if found, of “books, papers, photographs, and other documents, prohibited drugs, narcotic paraphernalia, deadly weapons, and other contraband which is/are contraband and/or evidence relating to the commission of * * * conspiracy to commit murder and conspiracy to violate the narcotics laws * * *.” We conclude that this command describes the things to be seized, with sufficient particularity to prevent the seizure of one thing under an authorization to seize another thing, and does not authorize an unrestricted search of the premises.

III

The first line of attack upon the use of evidence seized in the execution of a search warrant is that the warrant ⁴⁷⁴ was issued without probable cause. That attack was made here, by a pretrial motion to suppress the evidence seized. Maryland Rule 729. After hearing arguments on the motion, Judge Prendergast denied it.

The point was properly preserved for review on appeal. Rule 729 g. 2. We accord that review, with the approach detailed by Judge Orth for this Court in Buckner v. State, 11 Md. App. 55 , 272 A. 2d 828 , at pages 61 and 62: “When a search warrant is challenged, the lower court and the appellate court when the determination of the lower court is before it on appeal, must look for probable cause only in the affidavit itself and may not go outside it. Scarborough v. State, 3 Md. App. 208 .

However the affidavit should be interpreted in a commonsense and not in a hypertechnical manner, and the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants. Frey v. State, 3 Md. App. 38, 45-46 , summarizing the observations in United States v. Ventresca, 380 U. S. 102 . But, as we noted in Frey , this is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists. See Hall v. State, 5 Md. App. 394 .

In short, there are established propositions lately specifically affirmed in Spinelli v. United States, 393 U. S. 410 , 419 and noted by us in Price v. State, 7 Md. App. 131 , 137: 1) the standard of probable cause is only the probability and not a prima facie showing, of criminal activity; 2) affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial; 3) issuing judges are not to be confined to ⁴⁷⁵ niggardly limitations or by restrictions on the use of their common sense in judging probable cause; 4) the determination of probable cause by the issuing judge should be paid great deference by reviewing courts.” The analysis of probable cause which must be made by the issuing magistrate was