Mills v. State

Moore, J., delivered the opinion of the Court. Clement F. Mills, appellant, was convicted of rape, armed robbery and two counts of kidnapping by a jury in the Circuit Court for Montgomery County (Shure, C. J. presiding), and received a twelve-year sentence. From the judgments entered thereon, he appeals. On July 13, 1974, in Gaithersburg, two married women, ages 22 and 23, were accosted at knife-point by a male who forced them to drive him in their car to a secluded, rural area where he robbed and raped one of them.

He then compelled the victims to drive him back to Gaithersburg where he exhibited them to a number of the community residents, 1 then left the car and walked away. After the women returned to the rape victim’s apartment, where their husbands were awaiting their return from an errand, the police were called. The following day, Detective Thomas D. Evans took the rape victim in a police car through residential areas in Gaithersburg at which time she observed and identified the appellant, Clement F. Mills, as her attacker. Mills was arrested and taken to the Wheaton-Glenmont Police Station.

He received his Miranda warnings and asked for an attorney’s presence during interrogation. The police made two telephone calls but could not secure an attorney’s services for appellant at that moment. Mills spoke with an attorney who had been assigned by the Public Defender to represent him in another matter but the latter explained ³⁰² that he could not assist appellant in the instant case without formal authorization. Evans did not attempt thereafter to question Mills about the offenses.

He desisted, he said, because the answers to any such questions would be inadmissible at trial, in view of Mills’ request for an attorney. Evans did, however, ask Mills for his address and for a specific and detailed description of the house where he resided — including the colors of the walls, floors and door of the room which he occupied. His purpose was apparently twofold: to complete a form pertaining to arrested individuals and to obtain information he believed necessary for the acquisition of a warrant to search Mills’ residence for the knife described by the victims. Evans verified the address with Mills’ uncle and an unidentified woman who came to the station house with the uncle on the afternoon of the arrest.

The next day, a District Court Judge in Montgomery County signed a search warrant and, upon execution, a 9-inch hunting knife with sheath was found in appellant's room. A pretrial motion to suppress was denied and the knife and sheath were identified at trial by the victims as having been used by their assailant. Prior to trial the State petitioned to have a sample of appellant’s blood taken, representing that “in order ... to go forward with certain evidence ... it is necessary to obtain a blood sample from the defendant to determine his blood group .... as necessary corroboration to other scientific evidence.” This petition, filed on November 20, 1974, was styled a “Motion for Appropriate Relief.” It in no way complied with the standards pertaining to applications for search warrants found in Art. 27, Md. Code Annot. § 551 (1974 Supplement). On November "21, 1974, the trial court ordered, without a hearing, that such sample be taken “by the State of Maryland Department of Medical Examiners . ..; counsel for the defendant may be present.” 2 At trial ³⁰³ there was expert testimony, based upon the blood test, that both Mills’ blood and the semen stains on the rape victim’s clothing contained blood group factor A and that the victim also had type A blood.

Appellant had been identified on the street by the rape victim and at a lineup by the other victim of the kidnapping. Both of them had described a distinctive scar on appellant’s forearm and the knife and sheath found pursuant to the search warrant. Appellant, his girlfriend, and two of her friends testified that he had been at his girlfriend’s house during the time the offenses were being committed. A policeman testified that the girlfriend had previously made contrary statements to him.

Mills rests his appeal upon two grounds. He argues that the knife and sheath should not have been admitted into evidence because the application for the warrant did not establish probable cause for the search and certain of the facts recited in the application were obtained in a manner violative of Miranda. His second contention is that the evidence of the blood test was inadmissible because the blood sampling was a search and seizure and no search warrant had been obtained. We address these contentions in that order.

I — THE KNIFE AND SHEATH Appellant contends that the knife and sheath should have been suppressed on the grounds that: “(a) The facts as recited in the application for the search warrant did not establish probable cause for the search, and (b) An essential portion of the facts were [sic] obtained from the appellant in violation of his rights under the Fourteenth Amendment of the United States Constitution.” We shall dispose of (b) first. Assuming, arguendo, that the details learned by Detective Evans after Mills had requested ³⁰⁴ an attorney were “essential”, 3 we are not persuaded that Mills’ constitutional rights were abridged. At oral argument appellant’s counsel urged upon this Court that Everhart v. State, 274 Md. 459 , 337 A. 2d 100 (1975), in which fruits of an unlawful search were held to have provided invalid affidavits supporting an application for a search warrant, rendered the instant search warrant, and therefore the admission into evidence of the knife and sheath, unlawful. We conclude otherwise.

Simply put, there was no poisonous tree here. That portion of the warrant application which was based on Mills’ answers to Evans’ questions about the details of the residence was not tainted. Indeed, the entire Miranda argument is inapposite since there was a singular lack of any admission, confession or other inculpatory statement on Mills’ part. As a federal court observed, in respect of a warrant based on similar questioning: “The place where [defendant] lived was, of course, not a matter within [his] exclusive knowledge, and he no doubt recognized that a little investigation by the officers would locate that place.” Farley v. United States, 381 F. 2d 357 (5th Cir. 1967).

See, also, Clarke v. State, 3 Md. App. 447 , 240 A. 2d 291 (1968) where Judge Morton, writing for the Court, stated: “The questions were routine; were ordinarily addressed to every individual who was subject to ³⁰⁵ the booking procedure; and were not intended to elicit answers which would incriminate Appellant.” We thus do not find that the acquisition of information concerning Mills’ residence violated Mills’ rights. The remaining question is, therefore, whether the affidavit as presented demonstrated probable cause within its four corners, as required. We think that the law in Maryland is clear in this regard. In Grimm v. State, 6 Md. App. 321 , 251 A. 2d 230 (1969), cert. denied 397 U. S. 1001 (1970) and Reidy v. State, 8 Md. App. 169 , 259 A. 2d 66 (1969) this Court found no defects in warrants issued to search residences where weapons used in the commission of recent crimes could reasonably be found.

Chief Judge Murphy, in Reidy , where the affidavit related that an individual had been shot with a .22 caliber weapon and that there was a witness to the crime who identified the defendant as the perpetrator, observed: “We think that it was reasonable, given the information set out in the application for the warrant, for police to believe that the gun used in the crime could be found in appellant’s house.” [Citing Grimm.] We reach the same conclusion concerning the knife and sheath in the instant case and therefore find no error in their admission. II — THE BLOOD TEST It is clear that all blood tests are seizures subject to the reasonableness requirement of the Fourth Amendment to the United States Constitution. Mr. Justice Brennan, writing for the Supreme Court in Schmerber v. California, 384 U. S. 757 (1966) noted, at 767, that “[i]t could not reasonably be argued . . . that the administration of the blood test in this case was free of the constraints of the Fourth Amendment.” Both the State and appellant here rely on Schmerber . In that case, as in most reported blood-test cases, the purpose of the test was to determine the alcoholic content of the ³⁰⁶ defendant’s blood as a means of establishing his intoxication vel non.

Since the alcohol level in human blood diminishes rapidly after the ingestion of alcohol ceases, the Court, in Schmerber , while finding that blood tests were within the scope of the Fourth Amendment, carved out an exception to the warrant requirement because the time necessary to seek out a magistrate and secure a warrant could lead to the dissipation of evidence. Preston v. United States, 376 U. S. 364 (1964). That such immediacy is not involved when the objective of a blood test is the determination of blood type rather than alcohol content seems self-evident. Indeed, the permanence of blood types has been judicially noticed in Graves v. Beto, 301 F. Supp. 264 (E.D. Tex. 1969), 4 aff'd 424 F. 2d 524 (5th Cir. 1970) and Commonwealth v. Davenport, 308 A. 2d 85 (Pa. 1973).

In each of these cases it was held to have been error for the results of a Mills-like