Kohr v. State

Liss, J., delivered the opinion of the Court. On August 1, 1977, the appellant, Thomas Joseph Kohr, was arrested at an apartment in Baltimore County, Maryland. Charges of violating the state’s narcotic laws were placed against him in the District Court, and at a preliminary hearing held in that court on September 7, 1977, appellant’s trial counsel filed an oral motion to suppress the admission of certain evidence seized by the police in a warrant-less search and seizure conducted at the time of arrest. That motion was denied.

On September 22,1977, a three count criminal information was filed in the Circuit Court for Baltimore County charging the appellant with possession of marijuana, possession of marijuana in sufficient quantity to reasonably indicate an intent to distribute, and maintaining a common nuisance. Appellant elected to be tried by the court without a jury. Prior to the trial on the merits, defense counsel renewed his oral motion to suppress the evidence which was allegedly unlawfully seized at the time of arrest. It appears from the record that the assistant state’s attorney assigned to the prosecution of the appellant had been lying in wait with malice aforethought for just such a motion.

He called the trial court’s attention to the fact that the Criminal Causes portion of the Maryland Rules of Procedure (the 700 Rules) had been ⁹⁴ recently revised by the Court of Appeals and that new rules had been adopted by the Court which became effective July 1, 1977. Specifically, the prosecutor called attention to Rule 736 which requires the defense to file a motion to suppress in writing within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court. A failure to comply with these requirements is stated to amount to a waiver of the right to object to an illegal search and seizure and to the admission of any evidence seized pursuant to such a search. Defense counsel confessed an unfamiliarity with the new rules as adopted but urged that Rule 736 was unconstitutional.

The state advised the trial judge that it was aware of defense counsel’s failure to file the motion to suppress in writing within the time period allowed and had determined to make the case a test case to determine the constitutionality of Rule 736. It urged the trial judge not “to attempt to sidestep the result.” The trial court inquired of defense counsel whether appellant could, as required by the rule, show “good cause” for his failure to comply with the rule, and upon satisfying itself that there was no “good cause” the court denied the motion to suppress and ruled that the state could introduce the evidence seized without any further hearing. The case then proceeded on its merits and the evidence seized without a warrant was admitted over objection. The court found the appellant guilty of possession of marijuana with intent to distribute and imposed sentence.

It is from that judgment that this appeal is taken. Appellant and appellee have raised a number of legal and factual questions which are stated in various forms but boil down to essentially three questions. I. Is Rule 736 of the Maryland Rules of Procedure constitutional? Rule 736 in its pertinent parts reads as follows: “a.

Mandatory Motions. “A motion asserting one of the following matters ⁹⁵ shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise: “3. An unlawful search, seizure, interception of wire or oral communication, or pretrial identification; “b. Time for Filing Mandatory Motions. “A motion filed pursuant to section a of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished. “d.

Content of Motions. “A motion filed pursuant to this Rule shall be in writing unless the court otherwise directs, shall state the grounds upon which it is made, and shall set forth the relief sought. A motion alleging an illegal source of information as the basis for probable cause must be supported by precise and specific factual averments. “e. Determination. “A motion filed pursuant to this Rule, except a motion to dismiss for failure to obtain a speedy trial, shall be determined before trial unless the court ⁹⁶ otherwise directs in motions involving subsection a 4 of this Rule. If factual issues are involved in determining the motion, the court shall state its findings on the record. “2.

Suppression of Evidence. “If the court grants a motion to suppress evidence, the evidence shall be excluded and shall not be offered by the State at trial, except that suppressed evidence may be used in accordance with law for impeachment purposes. If the court denies a motion to suppress evidence, the ruling is binding at the trial unless the court, in the exercise of its discretion, grants a hearing de novo on a renewal of the motion. A pretrial ruling denying the motion to suppress is reviewable on a motion for a new trial or on appeal of a conviction.” The Maryland Constitution, Article IV, Section 18A, 1 vests in the Court of Appeals the power to promulgate rules of practice and procedure in the administration of the appellate courts and the other courts of the state and these rules “shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.” Hill v. State, 218 Md. 120 , 145 A. 2d 445 (1958). The rules, when adopted within their authorized scope, are legislative in nature.

Ginnavan v. Silverstone, 246 Md. 500 , 229 A. 2d 124 (1967). The basis for the grant of this rule-making power is the recognition that in order to provide for the orderly administration of justice reasonable and specific rules of procedure are necessary. The rule-making power, like all legislative power, must be exercised within the confines of the United States Constitution and our own Constitution. See: Article 2, Maryland Constitution, Declaration of Rights.

The ⁹⁷ Supreme Court of the United States held in Maryland Comm. for Fair Representation v. Tawes, 377 U. S. 656 , 84 S. Ct. 1429 , 12 L.Ed.2d 595 (1963), rev’g, 228 Md. 412 , 180 A. 2d 656 (1962), that if any portion of the system of Maryland’s government infringes upon the federal Constitution, which is the supreme law of the land, it must yield to the provision of the federal Constitution. Appellant mounts a two-pronged attack on the constitutionality of Rule 736. He suggests, initially, that it is the burden of the prosecution to prove the guilt of the accused beyond a reasonable doubt on the basis of legally obtained evidence. He contends that that burden has been shifted to the defendant by the requirements of the rule which provide that it is the defendant who must affirmatively file a written motion within 30 days in which he moves to suppress evidence allegedly obtained unlawfully and must advise the state of the reasons why he contends the search and seizure was unlawful.

A failure to comply with these requirements forecloses the accused from his right of litigating the issue of unlawful search and seizure. We do not agree that the rule imposes an unconstitutional burden nor do we believe it shifts the responsibility of the parties in raising the issue. Under the rules which existed for years prior to the adoption of the new Rule 736, it was always the burden of the defense to raise the issue of unlawful search and seizure by appropriate oral or written motion. The manner and mode of filing such motions has varied.

In Sugarman v. State, 173 Md. 52 , 195 A. 324 (1937), the Court of Appeals held that a motion before trial to declare a search warrant null and void and to suppress property seized was not authorized by statute or precedent. See: Asner v. State, 193 Md. 68 , 65 A. 2d 881 (1949). In Rizzo v. State, 201 Md. 206 , 93 A. 2d 280 (1952), the Court noted that a motion to quash a search warrant had been authorized by statute, then codified as Code (1957) Art. 27, Section 551, to be filed and heard before trial. In Farrow v. State, 233 Md. 526 , 197 A. 2d 434 (1964), the Court, referring to then Rule 725 b and c, stated that the admissibility of evidence which is dependent ⁹⁸ upon the lawfulness of an arrest should be ruled upon by the trial judge as a preliminary matter.

The Court stated in Shrout v. State, 238 Md. 170 , 208 A. 2d 585 (1965) that the use of a preliminary motion under former Rule 725 was permissive and that the defendant’s failure to move for the suppression of evidence by preliminary motion did not amount to a waiver of his constitutional rights. The Court pointed out, however, that “there is nothing in the Rule or in our decisions to support the State’s contention that, if the defendant does not make such a preliminary motion, his objections to the issuance of the warrant and the evidence seized thereunder are thereafter without avail.” Id. at 174 . Such is not the case, however, under new Rule 736. It is clear that the Court of Appeals in adopting new Rule 736 decided, as a matter of judicial policy and administration, to make the Maryland rule parallel to Rule 12 of the Federal Rules of Criminal Procedure.

Both rules are identical in that they require that motions to suppress be filed pre-trial and both consider a failure to raise timely objections to the admissibility of unlawfully seized evidence to constitute a waiver. This does not amount to a shifting of burdens since the state still has the duty of establishing such probable cause to justify the search and seizure or that the search and seizure falls within one of the several recognized exceptions to the warrant requirement. The defendant is still afforded an opportunity to litigate the issue and the requirements of Rule 736 do not amount to an unconstitutional burden on the accused. Appellant’s second prong in his attack on the constitutionality of Rule 736 is directed at the waiver provision included in that rule.

As federal constitutional questions are involved, the issue of waiver of these rights is governed by federal standards. See: Douglas v. Alabama, 380 U. S. 415 , 85 S. Ct. 1074 , 13 L.Ed.2d 934 (1965); Fay v. Noia, 372 U. S. 391 , 83 S. Ct. 822 , 9 L.Ed.2d 837 (1963); Farrell v. Warden, 241 Md. 46 , 215 A. 2d 218 (1965); Silverberg v. Warden, 7 Md. App. 657 , 256 A. 2d 821 (1969). It has been held in innumerable decisions that ⁹⁹ constitutional rights may be waived. 2 As we said in Miller v. Warden, 16 Md. App. 614, 621 , 299 A. 2d 862 (1973): “Waiver is chameleon like and takes its color from the right which is waived, from the degree to which it is waived, from the forum in which it is waived, from the state of the proceedings at which it is waived, and from the circumstances under which it is waived.” Appellant urges that the burden is on the state to show, on the record, that the defendant alleged to have waived a constitutional right has made a knowing and intelligent waiver. 3 Johnson v. Zerbst, 304 U. S. 458 , 58 S. Ct. 1019 , 82 ¹⁰⁰ L. Ed. 1461 (1938). While this is correct concerning the waiver of a number of rights, it does not apply to a failure to object affirmatively to the admission of evidence by way of a pre-trial motion.

In the case of a Fourth Amendment claim it is the defendant who must initially object to evidence which he believes was illegally obtained. A failure to object by way of a pre-trial motion, where required by the Rules, has been held to be an effective waiver of Fourth Amendment rights. See: United States v. Sisca, 503 F. 2d 1337 (2d Cir. 1974), cert. denied, 419 U. S. 1008 . In United States v. Rollins, 522 F. 2d 160 (2d Cir. 1975), cert. denied, 424 U. S. 918 (1976), the defendant filed a pre-trial motion to suppress the admission of alleged illegally seized passports which formed the gravamen of a charge against him.

Several grounds for the pre-trial motion were stated, but the motion did not raise the specific contention that the seizure of the passports was beyond the scope of the search authorized by the warrant. Later, a post-trial motion was filed which did include this ground. The Court held that defendant clearly waived this ground by his failure to move for suppression on this basis prior to trial. The Court stated at 165-66: “[T]he failure to assert before trial a particular ground for a motion to suppress certain evidence operates as a waiver of the right to challenge the admissibility of the evidence on that ground____A specific objection on the ground now asserted, made in timely fashion, would have enabled the district court to hold a hearing as to circumstances of the search.

In the event of an adverse ruling the Government would have had the opportunity to alter its conduct of the case, and refrain from relying on the passports. While the passports seized in ¹⁰¹ California were useful in establishing Rollins’ identity and contacts in Kenya, it seems entirely probable that the Government could have secured a conviction without the challenged evidence. Rollins’ identity was established otherwise by