Owens v. State

CATHELL, Judge. Appellant, Lenard Bernard Owens, was convicted before a jury in the Circuit Court for Washington County (J. Corderman presiding), for possession of cocaine with intent to distribute. He was sentenced to 20 years imprisonment and a $10,000 fine. On appeal he presents a single issue: Did the court below err in holding that Appellant had neither standing to contest a search of, nor a reasonable expectation of privacy in, a piece of luggage he placed in a friend’s living room, temporarily? 1 The Facts Appellant traveled, in late January and early February 1988, from his home in Florida to the Hagerstown area.

He apparently first delivered the bag in question to “Miss Elizabeth’s” house. It was not with him on the last day of ³⁵⁵ January 1988 when he spent the evening at Marla Gardin’s house. According to Owens, at some point he asked Marla Gardin to take the bag in question from Miss Elizabeth’s house to her house, which she did, 2 where it was placed in the living room. There it remained until the consensual search occurred.

Prior to trial, Judge D. Moylan held a suppression hearing in respect to the search. The relevant testimony of Marla Gardin at that hearing was as follows: Q. Okay, and when he [Detective Sheppard] came, what, if anything, did he say to you? A. He asked me if he could search my house and I told him yes. Q. Did he show you a form, read a form to you about a Right to Consent?

A. Yeah. Q. Did the officers ask you for permission to search those bags in particular? A. Yes, they did. Q. And what did you tell them?

A. They could. A. One was searching bags and one was searching the house. It was all at the same time. Detective Sheppard testified that: A. I indicated to her that I had received information that there were drugs in her apartment that was brought there by four subjects who just arrived there that morning.

Q. And what, if anything, was her response? ³⁵⁶ A. She stated that she had no problems with us coming in and searching the house. Q. And Detective, what, if anything, did she indicate to you about the persons arriving that day? A. After she signed the consent form, she pointed to some luggage which was located on the southwest corner of the living room and she stated “they had just brought it here this morning and if there’s any drugs it would be in there.” ... Q. And as a result of the consent, did you then search those suitcases?

A. Yes. Q. Do you recall anything she said about [the] intentions [of those leaving the bags]? A. Basically the only thing was that she told me that they had come to the apartment that morning and uh, after they had just arrived from Florida, and her response also was that they would come to her apartment when they would come to town to sell crack, oftentimes leaving some in her apartment, but oftentimes taking it out on the street with them. Owens’ relevant testimony was as follows: Q. Where was your luggage at that time?

A. It was at Marla’s house. Q. What were your intentions in regard to that luggage? A. Well, it doesn’t really matter because I had two bags and I just wanted to get a[n] outfit to put on because I had that outfit on for a couple of days and I left. Q. Were you going to go back to pick it up?

A. Well, later on whenever I had time to. Q. What did you tell Marla about it? ³⁵⁷ A. I asked her could I leave my luggage there till I come back and she said yes. Q. Okay. Do you know how your luggage got from Miss Elizabeth’s house to Marla Gardin’s?

A. Yes. Q. How? A. Marla brought it over. Q. At whose request?

A. I asked her to bring it over to where I could change clothes.[ 3 ] Q. You said you had left and gone somewhere and at some point down the road you were going to come back and get the bag? A. Yes. Q. But you weren’t sure when you were going to come back? A. No. The Law In cases of third-party consent, what is involved is the lack of a total expectation of privacy, the lack of absolute Fourth Amendment coverage, in the party against whom the consent ultimately operates vis-a-vis the spouse, co-tenant, or co-owner giving the consent.

Some writers have referred to this situation as “an assumption of risk” on the part of each party sharing control with another party. There is always the risk that the other person enjoying equal privileges in the protected area may invite ³⁵⁸ guests, even including policemen, into the private zone. What is involved is the lack of full Fourth Amendment coverage as against the spouse or co-owner and his or her guests. Gilbert & Moylan, Maryland Criminal Law 407-08, § 35.

While we have reviewed the authorities cited by both parties, we believe that the specific factual circumstances of this case bring it within the following line of cases, wherein consent searches generally, and third-party consent searches specifically, have been upheld as reasonable searches. The tenant’s adult daughter, Mrs. Graff, consented to a search of a bedroom she shared with the defendant in the search at issue in U.S. v. Matlock, 415 U.S. 164 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974). Evidence was recovered from a diaper bag examined during the search. The lower court held that the search was unlawful because the Government had failed to show Mrs. Graff’s actual authority to consent to a search of premises jointly occupied with the defendant.

While ultimately remanding to the District Court, the Supreme Court stated, 94 S.Ct. at 993 , that: More generally, in Schneckloth v. Bustamonte, 412 U.S. [218], at 245-246, 93 S.Ct. [2041], at 2057 [ 36 L.Ed.2d 854 (1973)], we noted that our prior recognition of the constitutional validity of “third party consent” searches in cases like Frazier [v. Cupp, 394 U.S. 731 , 89 S.Ct. 1420 , 22 L.Ed.2d 684 (1969) ] and Coolidge v. New Hampshire, 403 U.S. 443, 487-490 , 91 S.Ct. 2022, 2048 , 29 L.Ed.2d 564 (1971), supported the view that a consent search is fundamentally different in nature from the waiver of a trial right. These cases at least make clear that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient ³⁵⁹ relationship to the premises or effects sought to be inspected, [emphasis added] Concluding, 94 S.Ct. at 996 , it held: It appears to us, given the admissibility of Mrs. Graffs and respondent’s out-of-court statements, that the Government sustained its burden of proving by the preponderance of the evidence that Mrs. Graff’s voluntary consent to search the east bedroom was legally sufficient to warrant admitting into evidence the $4,995 found in the diaper bag. More recently the Supreme Court has spoken in respect to the expectation of privacy 4 when a person places items under the control of a third party whose effects are then seized. The defendant in Rawlings v. Kentucky, 448 U.S. 98 , 100 S.Ct. 2556 , 65 L.Ed.2d 633 (1980), was present when police arrived at a residence to serve an arrest warrant for another individual.

There he remained while police left to get a warrant to search the house. 5 Rawlings had flown to Bowling Green a week before his arrest, met Cox and had spent a couple of nights at Cox’s house. On the morning of the search, Rawlings placed his drugs in Cox’s purse after allegedly securing her permission. The Supreme Court stated, 100 S.Ct. at 2561 -62: In holding that petitioner could not challenge the legality of the search of Cox’s purse, the Supreme Court of ³⁶⁰ Kentucky looked primarily to our then recent decision in Rakas v. Illinois, supra, where we abandoned a separate inquiry into a defendant’s “standing” to contest an allegedly illegal search in favor of an inquiry that focused directly on the substance of the defendant’s claim that he or she possessed a “legitimate expectation of privacy” in the area searched. See Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967).

In the present case, the Supreme Court of Kentucky looked to the “totality of the circumstances,” including petitioner’s own admission at the suppression hearing that he did not believe that Cox’s purse would be free from governmental intrusion, and held that pétitioner “[had] not made a sufficient showing that his legitimate or reasonable expectations of privacy were violated” by the search of the purse. [Rawlings v. Kentucky ] 581 S.W.2d [348], at 350 [1979]. We believe that the record in this case supports that conclusion. Petitioner, of course, bears,.the burden of proving not only that the search of Cox’s purse was illegal, but also that he had a legitimate expectation of privacy in that purse.[ 6 ] See Rakas v. Illinois, supra, 439 U.S., at 131, n. 1, 99 S.Ct., at 423, n. 1; Simmons v. United States, 390 U.S. 377, 389-390 , 88 S.Ct. 967, 973-974 , 19 L.Ed.2d 1247 (1968).... Petitioner contends nevertheless that, because he claimed ownership of the drugs in Cox’s purse, he should be entitled to challenge the search regardless of his expectation of privacy.

We disagree. While petitioner’s ownership of the drugs is undoubtedly one fact to be considered in this case, Rakas emphatically rejected the notion that “arcane” concepts of property law ought to control the ability to claim the protections of the Fourth Amendment. See 439 U.S., at 149-150, n. 17, 99 S.Ct., at 434, n. 17. See also United States v. Salvucci, 448 U.S. [83], at 91-92, 100 S.Ct. [2547], at 2552-2553 [ 65 L.Ed.2d 619 (1980)].

Had petitioner placed his drugs in plain ³⁶¹ view, he would still have owned them, but he could not claim any legitimate expectation of privacy. Prior to Rakas, petitioner might have been given “standing” in such a case to challenge a “search” that netted those drugs but probably would have lost his claim on the merits. After Rakas, the two inquiries merge into one: whether governmental officials violated any legitimate expectation of privacy held by petitioner, [emphasis added] Sartain v. United States, 303 F.2d 859 (9th Cir.), cert. denied, 371 U.S. 894 , 83 S.Ct. 194 , 9 L.Ed.2d 127 (1962), was a Fourth Circuit case in which the defendant left a locked brief case and the key which unlocked it in a friend’s kitchen cabinet. When that friend learned of appellant’s arrest, she called a Mr. Zucher, who advised her to take it to a lawyer.

She did so, and the lawyer then turned the briefcase over to the police. The key was missing. The police, aware that it was Sartain’s briefcase, then broke into the briefcase, discovering heroin inside. The Court stated 303 F.2d at 862 : The thrust of appellant’s argument on this point is that it was unreasonable for the officers, without a warrant, to open the briefcase and seize the narcotics upon the invitation of those who were then in control of the bag, and after appellant was in custody on a related charge.

In considering this point, we adhere to the approach outlined in United States v. Rabinowitz, 339 U.S. 56, 66 , 70 S.Ct. 430, 435 , 94 L.Ed. 653 (1950): “The relevant test is not whether it is reasonable to procure a search warrant, but whether the search is reasonable. That criterion in turn depends upon the facts and circumstances — the total atmosphere of the case. It is a sufficient precaution that law officers must justify their conduct before courts which have always been, and must be, jealous of the individual’s right of privacy within the broad sweep of the Fourth Amendment.” ³⁶² See also, Harris v. United States, 331 U.S. 145, 150 , 67 S.Ct. 1098, 1101 , 91 L.Ed. 1399 (1947): “ ‘Each case is to be decided on its own facts and circumstances.’ ” Here, we have a situation where a defendant delivers his briefcase and the means of access to it to another, thereby voluntarily surrendering to a large degree his right of privacy. Upon defendant’s being arrested and charged on a closely related offense, the person then in control of the bag forwards it through intermediaries to the police.

The police, with probable cause for a search, and with reason to believe that control of the bag had been surrendered to the persons who turned it in, conduct a search. The search turns up, not general evidentiary materials, but objects subject to immediate forfeiture and seizure— the very instrumentations of the crime. We cannot say of this activity, as was said in Holzhey v. United States, 223 F.2d 823 (5th Cir.1955), that it was unreasonable under the circumstances.... Several of our decisions also appear relevant to the Fourth Amendment issue in the case at bar.

These include: Tate and Hall v. State, 32 Md.App. 613 , 363 A.2d 622 (1976), where the search of a minor defendant’s bedroom was upon the consent of his mother, the owner of the house. Incriminating evidence was seized from that room. 7 We said at 619-20, 363 A.2d 622 : This issue of third party consent was addressed under strikingly similar circumstances by this Court in Jones v. State, 13 Md.App. 309 , 283 A.2d 184 (1971), cert. denied, 264 Md. 749 (1972). In that case the mother of a 20-year-old defendant gave permission for a search of his ³⁶³ bedroom. There, as here, the mother testified that her son’s bedroom was his alone, but that he paid no rent.

The Court found as dispositive, in upholding the validity of the search, the fact that: “Appellant’s mother had the sole control, power and superior right to exclude others, including the appellant, from her home, and also from the very bedroom that the appellant used. It was her free and voluntary choice to allow the police to search her house.” Id., 13 Md.App. at 315 [ 283 A.2d 184 ] (citations omitted). While it is true that in Jones the defendant was present and offered no objection when consent for the search was given, we do not consider that fact significant. What is crucial and dispositive, in our view, is that Harper possessed not only a common authority with Tate over the searched premises, but in fact possessed superior authority under these circumstances, including the right to exclude him from the premises.

It is equally clear in the case at bar that Gardin had “sole control, power and superior right to exclude others, including the appellant, from her home ____” McDonald v. State, 61 Md.App. 461 , 487 A.2d 306 (1985), involved a situation where an adult daughter of the owner of the house gave consent to the police for them to search the bedroom shared by the mother and the defendant. A motion to suppress was denied. On appeal, we said: Premises may be searched without a warrant when voluntary consent to search the premises is given. U.S. v. Matlock, 415 U.S. 164 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974).

The prosecution is not limited to proof that the consent was given by the defendant. The search will be deemed valid if voluntary consent is obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.... Id. at 470, 487 A.2d 306 (emphasis added). After consenting to a search of her apartment, Gardin directed the