Skinner v. State

Moylan, J., delivered the opinion of the Court. Even the most conscientious police find it difficult to please convicted defendants. The almost universal plaint, following a successful warrantless search of an automobile, is that the police should have immobilized the car ¹¹⁸ and then obtained a warrant for its search. In the case at bar, they did just that.

Unpropitiated, the appellant, Michael Thomas Skinner, still manages to complain. At his trial before Judge William Travers and a jury in the Circuit Court for Wicomico County, following removal from Baltimore County, the appellant was convicted of 1) receiving stolen goods, 2) possession of heroin, 3) possession of controlled paraphernalia and 4) the keeping of an automobile as a common nuisance for the sale and distribution of controlled dangerous substances. He raises eight contentions going to the validity of those convictions, the first of which charges error in the non-suppression of inculpatory evidence unconstitutionally seized from his automobile. The search is constitutionally unassailable.

With scrupulous regard for their suspect’s 4th Amendment protections, the Baltimore County Police did more than they were required to do. Their effort, in terms of its constitutionality, is like Portia’s quality of mercy, “twice blest.” Sometime during the night of August 5-6, 1970, a breaking and entering was perpetrated at S & M Contractors, located at 2207 East Joppa Road in the Park-ville area of Baltimore County. Stolen were a check-writer and 759 printed payroll checks, some drawn upon the Equitable Trust Company and some drawn upon the Mercantile Safe Deposit and Trust Company. Both banks were immediately notified of the numbers of the stolen checks.

The Baltimore County Police were furnished the full particulars of the crimes on the morning of August 6. At 9:45 a.m. on August 7, the manager of the. Satyr Hill branch of the Equitable Trust Company spotted four of the stolen checks as they were pressed upon one of his tellers for cashing. When the white male who was attempting to cash the checks was asked to “wait a minute,” he instead ran out of the bank and shouted to a driver of a 1962 white Chevrolet Nova convertible, bearing Maryland license tags HT 3557, to “take off.” The car took off.

It drove north on Satyr Hill Road and turned east on Joppa Road where it stopped to pick up the man who had issued the warning. The car was last seen driving eastbound on Joppa Road. All of this information was ¹¹⁹ reported to the Baltimore County police at 9:52 a.m. An immediate radio alert was broadcast, describing both the car and its occupants.

Officer Woodrow Klein, assigned to the Fullerton district, heard the broadcast. He knew the appellant. He had prior knowledge that the appellant possessed an automobile matching the description given in the radio alert. At 9 a.m. that morning, he had seen the appellant and another white male sitting in the appellant’s car on the parking lot of the Parkville Senior High School.

Within two minutes of hearing the police broadcast, he observed the car, driven by the appellant and also occupied by another white male who matched the description given in the broadcast, pull onto the parking lot of the Chapel Manor Apartments. Officer Klein approached the appellant and his companion, Jack McVeigh, and asked them to accompany him to the Parkville Police Station. They agreed to do so, after requesting and receiving permission to lock the car. Officer Klein did not at that time place them under arrest.

They were arrested later at the Parkville Police Station. It is beyond dispute that at the moment when Officer Klein saw the appellant’s automobile pull onto the parking lot of the Chapel Manor Apartments, he (and through him his police colleagues) had probable cause to believe that the automobile contained fruits, instrumentalities and evidence of crime. We are further satisfied that the exigency of the situation would have justified an immediate warrantless search of the automobile there upon that parking lot. Carroll v. United States, 267 U. S. 132 ; Bailey v. State, 15 Md. App. 83 .

Far from derogating from the exigency of the circumstances, the non-arrest of the appellant and McVeigh compounded that exigency. It increased the peril that the automobile might be moved or its contents removed. Those exigent circumstances would have justified, in the alternative to the immediate search upon the parking lot, the seizure and removal of the car to a police garage for a more convenient warrantless search in such safer haven. Chambers v. Maroney, 399 U. S. 42 ; Coolidge v. New Hampshire, 403 U. S. 443 .

Notwithstanding constitutional justification for im ¹²⁰ mediate warrantless action by way of either an immediate search or a seizure and removal to be followed by a later search at the police station, the police exercised forbearance. Officer Klein summoned the assistance of Officer Harry Owens and had Officer Owens maintain a passive surveillance over the automobile until Officer Klein returned from the Parkville Police Station. No one, including the police, entered the automobile, put anything into it or took anything from it. When Officer Klein returned to relieve Officer Owens, he called for a tow truck and had the automobile removed to police headquarters.

Even there, no one entered the automobile. Officer Klein reported all of his information to Officer Wayne Ross, who combined it with all other knowledge bearing upon this crime in the hands of the Baltimore County Police Department and recited it in an application for a search warrant for the automobile which was submitted to Judge Lester L. Barrett, the Chief Judge of the Circuit Court for Baltimore County. Judge Barrett issued the warrant. Only then was the appellant’s automobile entered and searched.

The search turned up the evidence which led to the convictions at bar. The same probable cause that would have justified the warrantless search of the automobile upon the parking lot also justified the issuance of the search warrant. The validity of the warrant is not contested. The appellant rather claims that the warrantless seizure of the automobile prior to the issuance of the warrant taints the entire proceeding.

We hold that he is in error in that contention upon either of two independent grounds. Ignoring for the moment the justification for warrantless action and analyzing the search exclusively within the framework of the warrant, that search warrant which authorized the entry into the vehicle in the police garage would also have authorized the entry into the vehicle back on the parking lot of the Chapel Manor Apartments. The appellant makes no showing nor even a contention that the automobile would somehow have been removed from the parking lot and therefore unavailable for the execution of the search warrant but for its prior seizure by the police. In that factual context, even if the seizure had been unwarranted, it would not ap ¹²¹ pear to have worked any prejudice to the appellant.

There is no suggestion that the police could not have executed the search warrant just as effectively and with just as much damage to the appellant’s cause even though they might have had to travel a few blocks farther and consumed a few more minutes before making that execution. For the appellant even to urge the likelihood of prejudice is to urge in the same breath the existence of exigency. It is quite clear that since the police could have searched the automobile without a warrant in the first instance or could have seized it without a warrant and removed it to the police garage for a subsequent warrantless search in the second instance, the justification for the mere seizure not followed by a warrantless search is subsumed within the larger justification. The search of the appellant’s automobile was constitutional by virtue of the warrant; it was constitutional because of the combination of probable cause and exigent circumstances, even absent a warrant.

The appellant claims that his conviction under a count charging him with receiving stolen goods of the value of $100 or more is fatally defective because the only testimony with respect to the value of the stolen check-writer was that it was three years old and that its initial purchase price was $199.50. Although we are by no means certain that a jury would not be permitted to infer that a functioning piece of office equipment had not depreciated more than 50% in three years, the point is academic in its present posture and need not be decided. The appellant’s sentence of one year for the receiving conviction was well within the maximum sentence of three years permitted even for receiving stolen goods of a value of less than $100. As we held in Jackson v. State, 10 Md. App. 337, 347 , “there is only one offense of receiving stolen goods and not two separate crimes, one of receiving goods to the value of $100 and upwards and another of receiving goods under the value of $100.

It is not a question of a greater or lesser crime for there is only one crime.” It is true that since the enactment of Chapter 628 of ¹²² the Acts of 1966, the receiving of stolen goods of the value of $100 or upwards has been designated a felony, where the receiving of stolen goods of a lesser amount remains, as it was at the common law, a misdemeanor. In the case at bar, as in Jackson , the operative adverb used in the indictment was “unlawfully.” Under Maryland Rule 712 b, the use of “unlawfully” shall serve to cover the cases of both felony and misdemeanor. In Jackson again, as in the case at bar, the proof established the receiving of goods of the value of less than $100 under a count charging the receiving of goods of the value of $100 or upwards. In upholding the validity of that conviction, we said, at 347-348: “That the goods proved to be received were of a value of under $100 simply authorized a maximum term of imprisonment of 3 years rather than 10 years and made the appellant a misdemeanant rather than a felon, important considerations, but not going to the validity of the conviction.

The indictment set out the circumstances necessary to constitute the offense of receiving stolen goods which was all that was required. Henze v. State, supra, at 335. . . . The value of the goods is not an element necessary to constitute the offense; it did not have to be alleged nor proved as alleged any more than it is necessary to allege in the indictment the name of the thief or the person from whom the property is received. ... Of course, the State must prove the value of the goods received to establish the punishment authorized and the classification of the offense.” It follows from our decision to treat the case at bar as one in which the proof did not establish the value of the goods received as having been $100 or upwards that the appellant not only be freed of any liability to an enhanced sentence (There was no enhanced sentence upon this count.), but also that he be freed of any collateral disabilities flowing from his designation as a felon rather than a misdemeanant.

Our mandate shall so reflect. ¹²³ Both the appellant’s contention that the prosecution of a narcotics addict for the possession of drugs and/or paraphernalia represents cruel and unusual punishment and his contention that the court below committed error in denying his Motion for a Judgment of Acquittal and in denying his Motion for a New Trial are based upon his theory of so-called “pharmacological duress.” Suffice it to say that the appellant’s ingenious doctrine of “pharmacological duress” is not recognized in the law of this State, and we are not persuaded to adopt it judicially. The appellant’s reliance on Robinson v. California, 370 U. S. 660 , is misplaced. As the Court of Appeals pointed out in Murray v. State, 236 Md. 375 , addiction is no crime in Maryland and an addict is not prosecuted or punished for his mere status. See also Nutter v. State, 8 Md. App. 635 .

In oral argument, the appellant concedes that the contention contained in his brief to the effect that the trial court gave an erroneous definition of insanity to the jury was based upon a mistaken reading of the charge. He now acknowledges that the definition given was the correct one. The appellant contends that he should have been entitled to the services of an independent psychiatrist of his choice at State expense. All that the law requires is that a defendant, upon his plea of not guilty by reason of insanity, be provided with an impartial and competent psychiatrist at the State’s expense.

That was done by making available to the defendant the impartial and competent psychiatric staff of the