Palmer v. State

Moylan, J., delivered the opinion of the Court. The convictions of the appellant, Walter Palmer, in the Circuit Court for Baltimore County by Judge Walter R. Haile, sitting without a jury, for the possession of narcotics paraphernalia and for the carrying of a concealed weapon present the question, “Does the thief have standing to object to the search of a stolen automobile?” The answer is, “No.” The very concept of “standing” is a latter-day consideration of the criminal law. It is an adjunct of the exclusionary rule, and serves as a limitation upon the operation of that rule. 1 It would have beén an irrelevancy ¹⁶¹ until the adoption of the exclusionary rule in the Federal Courts in 1914 in Weeks v. United States, 232 U. S. 383 ; the partial adoption of the rule with respect to certain non-excepted misdemeanors in Maryland in 1929 by the so-called Bouse Act (Ch. 194, Acts of 1929; now codified as Art. 35, Sect. 5, Annotated Code of Maryland) ; and the elevation of the rule to a matter of constitutional dimension in 1961 in Mapp v. Ohio, 367 U. S. 643 . Only then, and solely within the context of that rule, would it have come into play as a means of determining who had been “aggrieved” by an unlawful search and seizure and was, therefore, in a position validly to seek to suppress its fruits.

The wellspring of our modern law on “standing” is Jones v. United States, 362 U. S. 257 , decided in 1960. Prior to Jones , standing to contest an unlawful search was narrowly restricted to those who had either a proprietary or possessory interest in the premises searched. 2 The law as to who had standing was largely derived from the common law rules of trespass to real property, presented subtle technical questions concerning property interests, and resulted in confusing and contradictory decisions. 3 The Maryland Court of Appeals first considered the question of standing, within the context of the Bouse Act, in 1932 in Baum v. State, 163 Md. 153, 157-158 . Its holding, and those of the approximately 13 de ¹⁶² cisions that followed in its wake through I960, 4 was not dissimilar to those in other state and Federal courts. It held, at 157: “From the above authorities, and many others which might be cited, it is certain that one cannot complain of an illegal search and seizure of premises or property which he neither owns, nor leases, nor controls, nor lawfully occupies, nor rightfully possesses, or in which he has no interest.

Or, stating it conversely, those whose private rights have been or may be disturbed alone may invoke the constitutional right against unreasonable search and seizure. The constitutional and statutory provisions against unwarranted searches and seizures are made in favor of the persons whose property or possessions are affected by such search and seizure.” The pre-Jones restrictions on who had “standing” were harsh in two regards. They not only austerely limited the class of persons who had enough interest in the place searched or the thing seized to claim the protection of the Fourth Amendment, 5 but they also posed a cruel dilemma for those charged with crimes of possession. Where a defendant, in order to assert sufficient standing to challenge the admissibility of evidence, had to claim ¹⁶³ and to prove a proprietary interest in the very contraband the possession of which was the gravamen of the offense charged, and such damaging admissions could then be used by the prosecutor at the trial on the merits to establish the incriminating nexus between the defendant and the contraband, the defendant was faced with an intolerable “Hobson’s Choice.” 6 The dilemma was starkly delineated by Judge Learned Hand in Connolly v. Medalie, 58 F. 2d 629 (2d Cir. 1932), at 630: “Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve.

If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.” Although the Supreme Court had dealt obliquely with questions of “standing” in McDonald v. United States, 335 U. S. 451 (1948) and United States v. Jeffers, 342 U. S. 48 (1951), it did not meet the subject squarely until its seminal decision in Jones . Justice Frankfurter there spoke for a unanimous court. 7 Jones liberalized the “standing” requirement significantly, mitigating its earlier harshness in both of its manifestations. 8 ¹⁶⁴ Jones first removed a defendant from the horns of Learned Hand’s dilemma. It pointed out that the government, as well as the defendant, was faced with a choice of contradictory positions and would be engaging in mere “elegantia juris” in seeking to avoid its impossible choice simply by deferring to the defendant and requiring him to choose first.

It conferred “automatic” standing on one charged with possession, thereby permitting him to challenge the seizure of those goods the possession of which was the gravamen of the offense. The Court said, at 263-264: “The same element in this prosecution which has caused a dilemma, i.e., that possession both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is required when standing is challenged. . . . The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41 (e).” 9 See Walters v. State, 8 Md. App. 583, 589-590 . The Court also recognized that “standing” to challenge a seizure by virtue of an “interest in” the thing seized 10 ¹⁶⁵ is a question distinct and analytically severable from that of “standing” to challenge a search by virtue of an “interest in” the place searched.

The more significant liberalization of the “standing” requirement effected by Jones was the broadening of the class of persons who have an “interest” in a premises or place searched and are therefore entitled to be “aggrieved” at an unconstitutional intrusion. Justice Frankfurter set out the rationale for the broadening of the protection, at 266: “We do not lightly depart from this course of decisions by the lower courts. We are persuaded, ¹⁶⁶ however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. . . . Distinctions such as those between ‘lessee,’ ‘licensee,’ ‘invitee’ and ‘guest,’ often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.” Jones then explicitly broadened the class of persons protected by taking the “standing” which was already available to persons who had a proprietary or possessory interest in the premises and extending it to all who are legitimately upon the premises, at 267: “No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.” Significantly for present purposes, Jones then underscored its measured use of the adverb “legitimately” by stating the converse: “This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.” The law of “standing” as announced by Jones , as an adjunct to the exclusionary rule, entered the Fourteenth Amendment in June of 1961, in the train of Mapp.

Ker v. California, 374 U. S. 23 ; Belton v. State, 228 Md. 17 ; Kleinbart v. State, 2 Md. App. 183. ¹⁶⁷ Thus, in the wake of Jones , “standing” may rest upon any of three theoretical bases: (1) Automatic standing; (2) Standing based upon relationship to the situs of the search, either (a) present possessory interest in the property searched, or (b) legitimate presence upon the premises; and (3) Standing based upon relationship to the property seized. 11 The statements of the Supreme Court on the question of “standing” since Jones have simply been interpretive. Katz v. United States, 389 U. S. 347 , and Mancusi v. DeForte, 392 U. S. 364 , together established that, since the Fourth Amendment protects persons rather than property, the protected “premises” will be construed to include any “area in which there is a reasonable expectation of freedom from governmental intrusion.” Alderman v. United States, 394 U. S. 165 , reiterates that “Fourth Amendment rights are personal rights which . . . may not be vicariously asserted.” Simmons v. United States, 390 U. S. 377 , holds that whenever a defendant takes the stand at a suppression hearing to contest the legitimacy of a search or seizure, his testimony thereat may not be used against him at the trial upon the merits. 12 ¹⁶⁸ It is the “legitimately on the premises” aspect of the appellant’s relationship to the place searched that concerns us in the case at bar. At approximately 3:30 p.m. on January 24, 1971, a State trooper flagged down the 1960 Pontiac being driven by the appellant and occupied by one other passenger on U.S. Route 40 in the area of Middle River. The car bore Florida license tags.

A radio check revealed that the car had been stolen three days earlier in Jacksonville, Florida. A second trooper responded to the scene and proceeded to search the automobile. Recovered therefrom were a hatchet (from under the driver’s seat) and a small box containing six syringes, a leather cord and several pink capsules. Also recovered was a small metal whiskey bottlecap, which was burned on the bottom, which had a clothespin around it, and which had two or three long hollow plastic tubes with needles on one end and eyedropper tops on the other end.

The appellant admitted the ownership of the narcotics paraphernalia found under the driver’s seat, admitted that he had been a narcotics user for twenty years and admitted that he had purchased the two capsules in Washington, D. C., believing them to be heroin. The appellant challenges the search of the automobile as not being based upon probable cause. It is unnecessary even to consider that issue on its merits because of our belief that the appellant had no “standing” as to that stolen automobile. In interpreting the “legitimately on the premises” aspect of Jones, this Court has consistently denied “standing” to trespassers in or upon real property.

Brooks, Keaton and Patterson v. State, 13 Md. App. 151, 157 ; Middleton v. State, 10 Md. App. 18, 29-30 ; Jason v. State, 9 Md. App. 102, 109 . The rationale applies with equal vigor to the thief vis-a-vis the stolen automobile. ¹⁶⁹ In so holding, we are not unmindful of Cotton v. United States, 371 F. 2d 385 (9th Cir. 1967), but find it unpersuasive. The Cotton case stands alone for the proposition that the thief does have rights in the stolen vehicle, as an adverse possessor, superior to all the world except the true owner. Since the Cotton case involved a prosecution for a Dyer Act violation of transporting a stolen vehicle across state lines, it could well have reached its conclusion that there was “standing” by relying directly on the “automatic standing” aspect of Jones .

It gratuitously foreswore such an approach, and chose to reach the second issue. Its purported reliance on Simpson v. United States, 346 F. 2d 291 (10th Cir. 1965), is misplaced, since Simpson , another Dyer Act case, does rely on the “automatic standing” aspect of Jones by virtue of the fact that the possession of the stolen vehicle was the gravamen of the charge. Both the overwhelming weight of authority and, we feel, the better reasoning are represented by the cases which hold squarely that the thief has no “standing” in the stolen automobile. Kaufman v. United States, 323 F. Supp. 623 (E.D. Missouri 1971); Williams v. United States, 323 F. 2d