Nutt v. State

Orth, J., delivered the opinion of the Court. Clayton Ignatius Nutt (appellant) was found guilty by a jury in the Criminal Court of Baltimore of having a narcotic drug, to wit: Cannibis under his control on 25 October 1968 (2nd count indictment 7507) ; of having a barbiturate, to wit: Pentobarbital under his control the same date (2nd count indictment 7508) ; and of keeping and maintaining a common nuisance, to wit: a dwelling house at 2030 West Lanvale Street on the same date (2nd count indictment 7510). He was given a sentence of five years on each conviction, the sentences to run concurrently. After the jury was impaneled and sworn, the State, out of the jury’s presence, proffered a search and seizure warrant.

Appellant moved to suppress all evidence seized thereunder on the ground that the affidavit supporting it did not show probable cause for the issuance of the warrant and the court denied the motion. The sole point on appeal is that the denial of the motion was error. If the affidavit showed probable cause for the issuance of the warrant, the ruling on the motion was proper. ⁵⁰³ The warrant commanded the search of 2030 W. Lanvale Street in Baltimore City for Robitussin AC, an exempt Narcotic cough medicine, and the narcotic drugs, “Amphetamines, Barbiturates and Marijunia” and if they be found to seize them. The affiant was Sergeant Gilbert O. Derrenberger of the Baltimore City Police Department.

Derrenberger had been a member of the Department for sixteen and a half years. At the time he applied for the warrant he was on the Plainclothes Squad of the Western District and had so served for four years. As of 25 October 1968 he had investigated approximately 75 to 80 cases involving prohibited narcotic and dangerous drugs and at the time of trial had “handled approximately 200 narcotic cases.” In Henson v. State, 236 Md. 518 at 521 the Court of Appeals discussed probable cause on which a warrant properly may be issued: “Probable cause, which is less than certainty or demonstration but more than suspicion or possibility, is to be determined by the judge or justice who issues the warrant, and if a prudent and cautious man would be justified from the facts presented to show its existence in believing that the offense had been or was being committed, the warrant properly may be issued. In making his determination this judicial, hypothetical, ‘cautious and prudent man’ may give consideration to the special significance which objects, happenings and individuals may have conveyed to the trained, experienced and knowledgeable police officers who apply for the warrant.” In Henderson v. State, 243 Md. 342 , it observed, at 346-347: “There is force in the observations of the Supreme Court in United States v. Ventresca, 380 U. S. 102 , 13 L.Ed.2d 684 , that the requirements of the Constitution are practical and not abstract, that search warrants must be tested and ⁵⁰⁴ interpreted by magistrates and courts in ‘a commonsense and realistic fashion/ that the preference to be accorded a warrant indicates that in a doubtful or marginal case a search under a warrant may be sustainable, where without one it would fail and that ‘a grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting/ and finally that: ‘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 without detailing any of the ‘underlying circumstances’ upon which that belief is based.

See Aguilar v. Texas, supra [ 378 U. S. 114 , 12 L. Ed. 2d at 729]. Recital of some of the underlying circumstances in the affidavit is essential [as it is under the Maryland statute] if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates, the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

Jones v. United States, supra at 270 [of 362 U. S.].’ ” It is established that the finding of presence or absence of probable cause is to be made from the allegations of the application for the warrant. Scarborough v. State, 3 Md. App. 208 . The application here involved is set out in ⁵⁰⁵ Appendix A hereof. We think that the allegations of the application based on the personal observations of Derrenberger and Officer Milton Spencer were sufficient for the issuing judge, acting as the cautious and prudent judicial officer the law requires, to find that there was probable cause to believe that violations of the law against drugs were being committed at 2030 W. Lanvale Street.

That the investigation may have been initiated by an anonymous letter and that information was received from a confidential informant whose reliability may not have been sufficiently spelled out in the application did not invalidate the probable cause established by the personal observations of the officers. We find no error in the denial of the motion to suppress the evidence. This finding, however, does not end our review of the case. Further inquiry is required with respect to the judgment entered on the conviction under indictment 7507.

Under that indictment appellant was found guilty of unlawfully having cannabis (generality known as marihuana) under his control. This offense is proscribed by Code, Art. 27, § 277. That statute declares it to be unlawful for any person “to manufacture, possess, have under his control, sell, prescribe, administer or compound any narcotic drug” except as authorized by the subtitle. Marihuana is a narcotic drug by definition under § 276.

The offenses proscribed by § 277 are classified as felonies by § 300 (a) which also authorizes punishment upon conviction of them of a fine of not more than $1000 and imprisonment for not more than 5 years. These laws were in effect at the time of the commission of the offense here charged and at the time of appellant’s trial and sentence. While the appeal was pending the General Assembly enacted Ch. 237, Acts 1970, as an emergency measure and it became effective 15 April 1970. It provided by § 2 that its provisions “shall apply to any proceedings not finally adjudicated on the effective date of the Act.” Of course, the proceedings in the instant case were not finally adjudicated on 15 April 1970, the appeal being then pending.

See Oberlin v. State, 9 Md. App. 426 (1970), for the mean ⁵⁰⁶ ing of “finally adjudicated.” We discussed Ch. 237 at length in Oberlin but within the frame of reference of the offense of possession of marihuana. We found that the Act, while preserving that offense, changed the criminal sanctions for its commission, making them léss severe for a first offense — imprisonment not to exceed one year or a fine not to exceed $1000, or both. It also reduced the grade of the crime to misdemeanor. The Act did this by first doing away with all punishments for violations of offenses proscribed by § 277 in which marihuana was involved.

Having so wiped the slate clean, it then prescribed punishments for violation of offenses involving marihuana, but in so doing it expressly designated that the punishments applied only to violations of § 277 “with regard to the possession or use” of marihuana, 1 § 300 (b), and “with regard to the sale, dispensing, giving away, or otherwise disposing” of marihuana, § 300 (c). For the offenses specified in § 300 (c) it authorized more severe penalties than were authorized by old § 300 (a). The Act does not expressly prescribe a penalty for having marihuana under control. The question is whether the legislative intent was to obliterate the punishment for the offense of control of marihuana or whether it intended that it be encompassed in the offenses designated.

If the former, there is no longer a criminal sanction for a person having marihuana under his control, although it remains designated as a crime by § 277. If there is no criminal sanction for such act, then the Act is not a crime. 2 And a person cannot stand convicted of an act which is not a crime. We think it clear that the legislature equated “con ⁵⁰⁷ trol” with “possession” and did not contemplate that control of marihuana be included among those offenses for which it designated more severe penalties than formerly were authorized. Nor do we think that “control” could be said to be included, as a separate offense in selling, dispensing, giving away, or otherwise disposing in any event.

Finding that the basic intent was to equate control with possession, we think that the legislature intended to include the punishment for the control of marihuana in the punishment for the “possession or use” of marihuana. Such a conclusion is consistent with the definition of possession heretofore adopted by us, with holdings in our recent cases, and with the meaning of possession as designated by the legislature in Ch. 403, Acts 1970, which becomes effective 1 July 1970. In Williams and Williams v. State, 7 Md. App. 5 , 14 the definition of possession we adopted was “the act or condition of having in or taking into one’s control or holding at one’s disposal.” Control is encompassed in this definition by the terms used to state it. Although “possession” and “control” within the contemplation of § 277 have been held to be separate offenses by the Court of Appeals and this Court, see Bryant v. State, 229 Md. 531 and Broadway v. State, 3 Md. App. 164 , we have recently tempered the practical effect when there are convictions of both.

We noted in Haley, et al v. State, 7 Md. App. 18 , note 6 at 33, we thought it clear that if a person has physical possession of a narcotic it is also under his control; thus upon a conviction of a person possessing a narcotic on evidence that he physically possessed it, that is that he was in actual possession of it, a conviction of having the same drug under his control would be duplicitous. In Agee v. State, 8 Md. App. 148 , 152 we applied this rationale in vacating a judgment as to control of a narcotic drug while affirming the judgment as to possession of it. Then in Jason, et al v. State, 9 Md. App. 102, 116 , we took the next step. We found that evidence establishing that a person is in constructive possession of narcotics is also sufficient to establish that those narcotics were under his ⁵⁰⁸ control.

We held that a conviction of. possession of a narcotic drug based on .constructive possession and a conviction of having that narcotic drug under that person’s control, based on the same constructive possession, would be duplicitous so as. to. preclude the conviction of control. Acts 1970, Ch. 403, declaring its purpose to be “to establish a uniform law controlling the manufacture, distribution, possession and administration of controlled dangerous substances and related paraphernalia”, repealed the existing criminal laws relating to narcotic and other dangerous drugs set out in Code, Art. 27, §§ 276-313 D and enacted in lieu thereof new §§ 276-302. It designated marihuana as one of the