State v. Brown

MOYLAN, Judge. Like the Rule in Shelley’s Case and the Rule Against Perpetuities, the Best Evidence Rule is a treasured legal relic. As a practical matter, however, it is rapidly sinking into deeper and deeper obsolescence, as the error-fraught human activity which it was designed to circumscribe is being almost totally displaced by advancing technology. The single issue before us on this appeal by the State, pursuant to Md.Code Ann., Cts. & Jud.

Proc. § 12-302(c)(3)(i), 1 is whether the State’s offer of a photocopy or a Xeroxed copy or of what is sometimes called a “duplicate original” of a bench warrant even implicated, let alone offended, the Best Evidence Rule. On May 21, 1998, Detective Herbert Ellingston of the Baltimore County Police Department was working as a warrant officer when he was called upon to serve a bench warrant on the appellee, Shawn Patrick Brown. The bench warrant itself was a one-page standard pre-printed form, at the top of which the appellee’s name and address appeared. The warrant charged that the appellee had failed to appear in court on May 12, 1998.

The warrant was signed by Judge Patricia S. Pytash. At 7:00 p.m. on May 21, Detective Ellingston served that warrant on the appellee at his address and arrested him. As a result of items seized from the appellee in the course of a search incident to the warranted arrest, the appellee was charged with the unlawful manufacturing of a controlled dangerous substance and other drug related offenses. On June 28, 1999, a hearing was held with regard to the appellee’s motion to suppress the physical evidence recovered in the ⁵²⁰ search incident to his arrest.

The appellee challenged the lawfulness of the underlying arrest by challenging the bench warrant on which it was based. During the hearing, Detective Ellingston testified that before serving the warrant on the appellee, he had received the warrant from Central Records and that it appeared to be a valid warrant with no defects. At the hearing, Ellingston was presented with a photocopy of the warrant. He positively identified it as a photocopy of the warrant he had served on the appellee, and the State submitted the photocopy as an exhibit.

Detective Ellingston further testified that the warrant did not appear to have changed since he originally signed it immediately after its execution. On cross-examination, he acknowledged that the document was only a photocopy of the warrant and that the original was kept in the District Court files. Defense counsel moved to suppress the photocopy. The trial court granted the defense request and explained: All right.

Now, so the motions hearing begins today and once again the State has failed to produce the original. Now, In Bumper v. North Carolina, [ 391 U.S. 543 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 (1968)], the Supreme Court made an observation that if the State relied upon a search warrant to justify a search but failed to produce it in evidence, there is no way of knowing the conditions under which it was issued or determined whether it was based upon probable cause, and what I’m talking about here is the best evidence rule. But more to the point, in Duggins v. State [ 7 Md.App. 486 , 256 A.2d 354 (1969) ], Duggins was convicted in Prince George’s County of possessing counterfeit paraphernalia. He had been arrested in Prince George’s County pursuant to a Federal warrant which had been obtained from the U.S. Commissioner on the same day as he was arrested, which I believe was October the 2 nd, 1968.

In that case there was testimony that the arresting officers told the defendant that they had a warrant. Now, ⁵²¹ Duggins challenged the legality of the warrant and he demanded its production so that the Court in assessing the constitutional validity of the arrest could pass on the legality of the warrant. In that case the State declined to produce the warrant taking the position of the federal agents that they had ... a valid warrant in their possession was sufficient and, the trial court accepted it. The Court said that when the constitutional validity of the arrest was challenged, which we have here, and that the basis for the arrest was an arrest warrant, which we have here, and relying solely on the warrant to justify the arrest, there’s no question about that, and it’s challenged, no question about that, it’s production has been called for, no question about that, then it says, “We think the State was required to do more than simply make a testimonial showing.” So the testimony of the officer is not good enough.

Now, the State points out that the rules of evidence permit substituting a copy, and I think that’s true in almost most situations but what we are dealing with here is someone’s liberty, and whether the State has done all it is supposed to do correctly. In my judgment the best evidence rule, or whatever you want to call it, is still applicable here; that the defendant is entitled to see the document upon which his arrest was effected. The State has been given a number of opportunities to produce it and they have failed to do so. So I say no more chances.

This is almost a year old. So I’m going to grant the defendant’s motion to suppress the warrant. (Emphasis supplied). This appeal by the State followed.

The “Best Evidence Rule” Inapplicable Much of the analysis surrounding the “Best Evidence Rule” we here employ was developed in Thompson v. State, 62 Md.App. 190 , 488 A.2d 995 , cert. denied, 303 Md. 471 , 494 A.2d 939 (1985). In that case, as here, the defendant challenged ⁵²² the State’s offering at trial of a photocopy or duplicate original of a search warrant. The defendant there seized upon the “Best Evidence Rule” and maintained that only the original, and not a copy, should have been produced by the State. The purpose of the “Best Evidence Rule,” which as every treatise writer on evidence points out should more properly be called the “Original Document Rule,” was set forth in McCormick on Evidence (2d ed.1972), § 230 at 560: The specific context in which it is generally agreed that the best evidence principle is applicable today should be definitely stated and its limits clearly defined.

The rule is this: in proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. (Emphasis supplied). The justification for the “Best Evidence Rule” is due to the chance of human error in the copying process. As McCormick explained: [Presenting to a court the exact words of a writing is of more than average importance, particularly in the case of operative or dispositive instruments such as deeds, wills, or contracts, where a slight variation of words may mean a great difference in rights.

In addition, it is to be considered (1) that there is substantial hazard of inaccuracy in many commonly utilized methods of making copies of writings, and (2) oral testimony purporting to give from memory the terms of a writing is probably subject to a greater risk of error than oral testimony concerning other situations generally. The danger of mistransmitting critical facts which accompanies the use of written copies or recollection, but which is largely avoided when an original writing is presented to prove its terms, justifies preference for original documents. Id. at § 231 p. 561 (emphasis supplied). See also Andresen v. State, 24 Md.App. 128, 203 , 331 A.2d 78 (1975); Wentworth v. State, 29 Md.App. 110, 122-23 , 349 A.2d 421 (1975).

By contrast, “[t]he rule does not apply to exclude evidence offered to show the existence, execution, or delivery of a writing, ⁵²³ recording, or photograph.” 6 Lynn McClain, Maryland Evidence State and Federal (1987), § 1001.4 p. 527. In Thompson , this Court was unpersuaded that the defendant’s challenge to the admission of a search warrant even fell under the umbrella of the “Best Evidence Rule”: The appellant would like to take advantage of the fact that only a copy instead of the original document was offered to the court, but he fails utterly to relate his objections to any possible undergirding purpose that this evidentiary rule of preference was designed to serve. There was in this case no issue raised as to the contents of the search warrant itself. It is a mass-produced, printed form put out by the Operations Bureau of the Baltimore City Police Department and referred to as “Form 77/187.” Fully 85% of its contents is printed up in advance with only a few blanks left to be filled in, such as the date of issuance and the name of the officer applying for the warrant.

One critical blank permits a brief descriptive reference of the place to be searched. Another critical blank permits reference to the likely evidence that is the subject of the search and seizure. In the present case, no remote question was raised by the appellant that the place to be searched (“5810 Reisterstown Rd., room 270, Town House Motel, 2 nd fl.”) was not adequately described. By the same token, no remote question was raised by him that the reference to “cocaine, marihuana, paraphernalia for packaging and distribution of controlled dangerous substances” did not describe with adequate particularity “the things to be seized.” The contents of the search warrant were simply not in dispute and the entire contretemps about the “Original Document” Rule is, therefore, immaterial.

A rule does not exist for its own sake, but only to serve a purpose. 62 Md.App. at 209-10 , 488 A.2d 995 (emphasis supplied). As in Thompson , the contents of the bench warrant here were not in issue. As in Thompson , the bench warrant in the instant case was a pre-printed form. The blanks to be filled in consisted of (1) the appellant’s name and address, (2) the case ⁵²⁴ number, (3) the reason for the issuance of the bench warrant in summary form, and (4) the signature of the judge or commissioner.

Also to be filled in on the form was information for the “Return of Service,” consisting of (1) the serving officer’s name and rank, (2) the date and time of service, and (3) the location of service. We have before us a one-page bench warrant with none of its contents being challenged. The appellee made no allegation that the information supplied on the bench warrant, i.e., his address or his failure to appear in court on May 12, 1998, as the reason for the issuance of the warrant, was inaccurate in any way. Defense