State v. Boone

Orth, J., delivered the opinion of the Court. Cole, J., filed an opinion dissenting in part and concurring in part at page 18 infra. On our review of the judgment of the Court of Special Appeals upon grant of the State’s petition for the issuance of a writ of certiorari, we agree with the claim of Marcus Angelo Boone, as did the intermediate appellate court on direct appeal, that his convictions in the Circuit Court for Prince George’s County of two offenses of receiving stolen goods resulted from an unreasonable seizure prohibited by the Fourth Amendment to the Constitution of the United States. 1 We therefore affirm the judgment of the Court of Special Appeals, with modification as hereinafter set forth, which reversed the judgments of the circuit court. Boone v. State, 39 Md. App. 20 , 383 A. 2d 412 (1978).

I Boone was found guilty in the circuit court 2 upon two arrest warrants which, as amended, charged him with receiving stolen goods under the value of $100 as proscribed by Md. Code (1957, 1976 Repl. Vol.) Art. 27, § 467 (a). Warrant no. 95493 alleged that he had received goods stolen from Jeanne A. Flynn and warrant no. 95494 alleged that he had received goods stolen from Robert C. Masterson. 3 The ⁴ warrants were issued on the application of Private T. P. Lennon of the Prince George’s County Police Department. It came about in this manner.

The Legislature has provided that “[wjhenever the tenant under any lease of property, express or implied, verbal or written, shall fail to pay the rent when due and payable, it shall be lawful for the landlord to have again and repossess the premises so rented.” Md. Code (1974) § 8-401 (a) of the Real Property Article. The procedural requirements for a trial on the matter in the District Court of the county wherein the property is situated, are spelled out in § 8-401 (b). If judgment is given in favor of the landlord, § 8-401 (c) (2), and the tenant fails to comply with an order to yield and render possession of the premises to the landlord within two days after the trial, § 8-401 (c) (3), “the court shall, at any time after the expiration of the two days, issue its warrant, directed to any official of the county entitled to serve process, ordering him to cause the landlord to have again and repossess the property by putting him... in possession thereof, and for that purpose to remove from the property, by force if necessary, all the furniture, implements, tools, goods, effects or other chattels of every description whatsoever belonging to the tenant, or to any person claiming or holding by or under said tenant. If the landlord does not order a warrant of restitution within sixty days from the date of judgment or from the expiration date of any stay of execution, whichever shall be the later, the case shall be considéred as dismissed.” § 8-401 (d).

See amendment, Acts 1978, ch. 450. Boone rented an apartment in Prince George’s County and, upon his failure to pay the rent when due, appropriate proceedings pursuant to § 8-401 were instituted in the District Court of Maryland in that county, and trial was had. Upon judgment rendered in favor of the landlord, a warrant of restitution was duly issued commanding the Sheriff “forthwith to deliver” to the landlord possession of the premises. It was during the execution of this warrant by ⁵ Stephen Philip Mach, Deputy Sheriff of Prince George’s County, that the goods which Boone was found to have received unlawfully were found.

The goods consisted of three credit cards in the name of Flynn and a credit card in the name of Masterson. The circumstances under which they were found and Mach’s actions thereafter were recounted by him during a pretrial hearing in the circuit court on a motion to suppress evidence. Mach, accompanied by a crew of movers, went to the building in which Boone resided. After determining at the rental office that the rent due had not been paid, he went to Boone’s “top-floor standard one-bedroom apartment,” with the movers and the resident manager.

He testified: “I knocked on the door. There was no answer. We unlocked the doors and entered the apartment. I searched the premises for contraband, money, weapons, things that we normally don’t put out on the street.” The search was thorough.

It included going through closets, furniture drawers, clothing and boxes. Mach characterized such a search as “standard procedure,” but the authority for it and the limitations on its scope, if any, were not fully disclosed. Whether it was pursuant to rule, regulation, directive or direction of the Sheriff, or simply Mach’s method of operation does not appear in the record before us. Mach indicated that there were some items which he would “hold for the owner.” He explained: “That would be handguns, jewelry,... weapons, things that you don’t put out on the street because they would be a health hazard or dangerous.” 4 Asked specifically about checks, credit cards and personal papers belonging to the occupant of the premises, he said: “If they belonged to the occupant, I would put them in a dresser drawer or a box or a bag and remove them.” They would go out on the street with the other articles in the apartment.

Mach searched the bedroom last, after he had searched the living room and kitchen. He found the credit cards in a walk-in closet in the bedroom. He was not sure of the exact location of the cards. “They may have been on the ⁶ floor or on the ledge or in the pockets [of clothes].” 5 The Acevedo checkbook with other papers was in a small cardboard box beside the bed. He seized the credit cards and checkbook and then had the remaining contents of the apartment removed to the street.

At the time Mach seized the credit cards and checkbook he did not know that they had been stolen. He subsequently called Ms. Acevedo, whose telephone number and address were listed on the checkbook, “[t]o find out if it was stolen.” Ms. Acevedo informed Mach that the checkbook had been stolen and that'Lennon was the investigating officer. Mach then contacted Lennon who said he would ascertain whether there were any outstanding reports of thefts from Flynn or Masterson. It seems that Flynn had reported the thefts, but there had been no report to the police of the theft of the Masterson credit card at the time Mach seized it.

Mach turned the credit cards and checkbook over to Lennon. The trial court denied the motion to suppress, and the items Mach seized were received in evidence during trial on the merits. II The State would invoke the doctrine of abandonment to justify the seizure of the evidence. We have recognized that “[wjithout question, abandoned property does not fall within that category in which one has a legitimate expectation of privacy to bring it within the protection of the Fourth Amendment, but whether property is abandoned is generally a question of fact based upon evidence of a combination of act and intent.” Everhart v. State, 274 Md. 459, 483 , 337 A. 2d 100 (1975).

In Venner v. State, 279 Md. 47 , 51-52 and 59, 367 A. 2d 949 , cert. denied, 431 U. S. 932 (1977), we adopted and applied the criteria for testing the Fourth Amendment’s applicability enunciated by Mr. Justice Harlan in his ⁷ concurring opinion in Katz v. United States, 389 U. S. 347, 361 , 88 S. Ct. 507 (1967): “[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ Thus a man’s home is, for most purposes, a place where he expects privacy____” We have also noted that one of the exceptions to the general rule, that a search of private premises should be pursuant to a legally issued warrant, permits the search of a dwelling unit which has been vacated and abandoned by its former occupants. Buettner v. State, 233 Md. 235, 239 , 196 A. 2d 465 (1964) . In other words, “one who abandons or discards property cannot complain with effect of the later seizure of such property by the police, or of its use against him in court.” Henderson v. Warden, 237 Md. 519, 523 , 206 A. 2d 793 (1965). See Matthews v. State, 237 Md. 384, 387-388 , 206 A. 2d 714 (1965) .

The Deputy Sheriff was lawfully on the premises by virtue of the duly issued warrant of restitution. But he was there for one purpose, to enable the landlord to have the premises again. To accomplish this, the Deputy Sheriff had statutory authority to remove all the goods on the premises. His duties with respect to the goods, as far as the record before us shows, ordinarily ended when he removed them from the premises.

They were simply placed on the street at the risk of the tenant. The Deputy Sheriff was concerned, however, and with sound cause, we think, about placing on the street contraband and goods which “would be a health hazard or dangerous.” In order to prevent this, it was .“standard procedure” to search for such items before clearing the premises, and, apparently, when such articles were found, they would be taken into custody. We need not decide whether, in such circumstances, a search of the premises is constitutionally proscribed as unreasonable. Nor need we decide if it would be unreasonable to seize, rather than place on the street, 6 contraband and articles which ⁸ constitute a health hazard or are dangerous, whether discovered in plain view on the premises or found by a search.

We do not make such determinations because it is abundantly clear that the taking of the credit cards by the Deputy Sheriff was an unreasonable seizure in the contemplation of the Fourth Amendment. They were not contraband. They were not dangerous or a hazard to health in the usual meaning of those terms. And the seizure of them was not removed from the constitutional proscription as being the taking of abandoned goods.

It is patent that the actions of Boone in not paying the rent, or in not redeeming the leased premises prior to eviction, or in not being present at the time of eviction, were not sufficient to meet the test of abandonment with respect to the credit cards. Boone did not relinquish his right to the goods or to a reasonable expectation of privacy therein. His conduct did no more than give up a right to have the goods remain in the apartment. Compare Buettner, 233 Md. at 239 -240 and the cases cited on the point in Venner and in Everhart .

We hold that the seizure of the cards may not be justified under the doctrine of abandonment. See Duncan and Smith v. State, 281 Md. 247, 261-263 , 378 A. 2d 1108 (1977). Ill The State claims that even if the credit cards be deemed not to have been abandoned, there was no Fourth Amendment intrusion because the actions of the Deputy Sheriff amounted to no more than the taking of an inventory. It urges us to adopt the view that the taking of an inventory by enforcement authorities under a community caretaking function is not a search to be tested under Fourth Amendment strictures.

We reviewed the law regarding the Fourth Amendment and police community caretaking functions in Duncan and Smith v. State, supra. We accepted for the purpose of decision, but expressly did not decide, that the taking of an inventory by the police under their community caretaking function is a “search.” Duncan, 281 Md. at 253, n. 1 . Police caretaking functions are ordinarily with respect to automobiles; “[t]he search of an automobile is one of the class of carefully defined ⁹ cases which constitutes at least a partial exception to the general rule that a search of private property without proper consent is 'unreasonable’ unless it has been authorized by a valid search warrant.” Duncan at 254, citing Cady v. Dombrowski, 413 U. S. 433, 439 , 93 S. Ct. 2523 (1973). Although the opinion of the Court in South Dakota v. Opperman, 428 U. S. 364, 370-375 , 96 S. Ct. 3092 (1976) found that the state courts “overwhelmingly” and a majority of the Federal Courts of Appeals have sustained inventory procedures as reasonable police intrusions, it is the legal impoundment of an automobile which permits the inventory search of the vehicle.

Duncan at 256. A routine practice of securing and inventorying the automobile’s contents developed in response to three distinct needs: (i) protection of the police from danger; (ii) protection of the police against claims and disputes over lost or stolen property; and (iii) protection of the owner’s property while it remains in police custody. Duncan at 256-257, citing Opperman, 428 U. S. at 369 . Even if the community caretaking functions were to be expanded to apply to the contents of dwelling units, despite the constitutional difference between houses and cars, Chambers v. Maroney, 399 U. S. 42, 52 , 90 S. Ct. 1975 (1970), see Duncan at 254-255, it would not be applicable to justify an inventory search in the circumstances here.

The statutory authority given the police went to the removal of the goods on the premises to be repossessed, not to the impounding of them. The three needs leading to the practice of securing and inventorying the contents of automobiles were simply not present here. There was no need to protect the Deputy Sheriff from danger, particularly since there was no one on the premises. There was no need articulated on the record itself to protect him or others involved in the removal of the goods against claims and disputes over lost or stolen property, and no need to protect the goods while in custody because the goods were not to be taken into custody but placed unattended on the public street.

The short of it is that the Deputy Sheriff was clearly not conducting an inventory search under a community caretaking function. Since there was no inventory search, we again do not reach the question ¹⁰ whether an inventory search is within the ambit of the Fourth Amendment. IV The State further suggests that assuming arguendo that Boone “retained a reasonable expectation of privacy in the credit cards and checkbook, that the inventory thereof constituted a Fourth Amendment intrusion, and that an inventory is not another exception to the warrant requirement, the intrusion was valid under the plain view doctrine because the credit cards and checkbook were immediately incriminating evidence.” This notion, as the Court of Special Appeals readily perceived, is laid to rest by our discussion of the “plain view doctrine” in State v. Wilson, 279 Md. 189 , 367 A. 2d 1223 (1977). Noting that the “plain view” exception was enunciated in the plurality opinion in Coolidge v. New Hampshire, 403 U. S. 443, 464-473 , 91 S. Ct. 2022 (1971), we said: “This doctrine serves to supplement a previously justified intrusion, such as a search warrant for other property, and permits a warrantless seizure.

Id. at 466 . The exception, on the other hand, may not be used to expand a justified, but limited, intrusion into a general exploratory search of a person’s belongings until something incriminating at last emerges. Id. at 466-67 . To confine the exception within these boundaries, the Court prohibited the use of any evidence seized outside the warrant unless (1) the police have a prior justification for the intrusion; (2) they find the evidence in plain view; (3) they find it inadvertently; and (4) it is ‘immediately apparent to the police that they have evidence before them,’ id. at 466-71 .” Wilson, 279 Md. at 194-195 .

Here, as in Wilson , we need look no further than the fourth requirement. We observed in Wilson that “[t]his element, in essence, amounts to a requirement that police have probable cause to believe the evidence is incriminating before they ¹¹ seize it____Stated another way, to be subject to seizure, the object must be one for which the police could have obtained a warrant because they had probable cause.” 279 Md. at 195. We set out the standard, applicable also to articles in plain view, used to determine whether probable cause existed to seize evidence as stated in Warden v. Hayden, 387 U. S. 294, 307 , 87 S. Ct. 1642 (1967) (emphasis added): “.. There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior.

Thus in the case of “mere evidence,” probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.’ ” 279 Md. at 196. We concluded: “Under the Hayden formulation, so long as police have probable cause to believe that what they see is contraband, or the fruit or instrumentality of some unspecified criminal activity, they may seize the object.” Id. Whether we regard the credit cards as the “fruit of crime” or “mere evidence,” the record fails to show that the Deputy Sheriff had probable cause to seize them. We are in full accord with the findings of the Court of Special Appeals: “Mach clearly did not have probable cause to believe the credit cards were incriminating before he seized them.

In fact, he testified that he had no knowledge that the cards were stolen. The presence of credit cards bearing several different names creates ‘no more than a mere suspicion that any of the [credit cards] were stolen.’ Like Wilson , the incriminating nature of the evidence became apparent only after the seizure.” Boone v. State, 39 Md. App. at 33 . See Wilson, 279 Md. at 197-198 . We hold that the seizure of the credit cards was not justified under the plain view doctrine. ¹² V We have found no substance in the reasons advanced by the State in support of its claim that the seizure of the credit cards was not constitutionally proscribed.

On the contrary, we believe it clear that the seizure was unreasonable within the contemplation of the Fourth Amendment and thus prohibited by it. It follows that our ultimate holding is that the trial court erred in denying Boone’s motion to suppress the challenged evidence. This error, of course, was prejudicial. See Dorsey v. State, 276 Md. 638, 646-659 , 350 A. 2d 665 (1976).

We are, therefore, in accord with the reversal by the Court of Special Appeals of the judgments entered in the trial court. The Court of Special Appeals precluded a retrial, citing Gray v. State, 254 Md. 385 , 255 A. 2d 5 (1969), cert. denied, 397 U. S. 944 (1970). In Gray we concluded “that the practice of remanding for a new trial after reversal for insufficiency of the evidence rather than remanding for entry of a judgment of acquittal, is permissible.” Id. at 393 . We spelled out certain actions to be taken by the reviewing court depending upon the state of the record before it.

One was that if the record indicates that no additional probative evidence can be adduced by the State, the entry of a judgment of acquittal should be directed. Id. at 397 . We said: “[I]f the record before the Court of Special Appeals indicates that additional probative evidence of guilt can be adduced by the State at another trial necessitated by the insufficiency of the evidence, a new trial should be awarded after a reversal if the interests of justice appear to require it. If the record indicates that no additional probative evidence can be so adduced, the entry of a judgment of acquittal should be directed.

If the Court of Special Appeals cannot determine from the record whether or not additional probative evidence can be produced on a retrial, and the interests of justice appear to require it, the Court should vacate the judgment and remand the case with directions to the trial court (a) to hold ¹³ a new trial if the State within a specified time can satisfy the court that it can produce additional probative evidence, or (b) to enter a judgment of acquittal if the State cannot preliminarily so satisfy the court.” Id. at 397 . Gray was decided in the frame of reference of “another trial necessitated by the insufficiency of the evidence.” We learned from Burks v. United States, 437 U. S. 1 , 98 S. Ct. 2141 (1978) and Greene v. Massey, 437 U. S. 19 , 98 S. Ct.