Thompson v. State

MOYLAN, Judge. The appellant, Gary Thompson, was convicted in the Circuit Court for Baltimore City by Judge Robert M. Bell, sitting without a jury, of 1) possession of cocaine with intent to distribute; 2) possession of methadone; 3) possession of narcotics paraphernalia (hypodermic syringes); 4) possession of paraphernalia (packaging material); and 5) possession of marijuana. Upon this appeal, he raises two contentions: ¹⁹⁷ 1) That the evidence was not legally sufficient to support the convictions; and 2) That evidence seized from his briefcase should have been suppressed. Sufficiency of the Evidence All of the incriminating evidence was found in the course of a seach, pursuant to a search and seizure warrant, executed on Room 270 of the Town House Motel, 5810 Reisterstown Road, on February 26, 1981.

The room was registered to one Harriet Oliver, a close friend of the appellant. The appellant was not present at the time of the search. The appellant was found to be in joint possession of the contraband. The attributes of joint possession were well spelled out by us in Folk v. State, 11 Md.App. 508, 511-512 , 275 A.2d 184 (1971): “It is well-settled that the proscribed possession of marihuana or of narcotic drugs under the Maryland law need not be sole possession. ‘[Tjhere may be joint possession and joint control in several persons.

And the duration of the possession and the quantity possessed are not material, nor is it necessary to prove ownership in the sense of title.’ ... Nor is it necessary, in order to be found in joint possession of a contraband drug, that the appellant have a ‘full partnership’ in the contraband.” (Citation omitted). We have no difficulty in holding that the evidence was legally sufficient to permit the fact finder to draw the inference that the appellant was exercising constructive dominion and control over the contraband that was seized. The appellant was no stranger to the motel room in question.

The police had actually been in the motel room for another purpose, not here pertinent, shortly before the execution of the search and seizure warrant. At the time of that earlier entry, Harriet Oliver and the appellant were standing in close proximity to a dresser, but moving away ¹⁹⁸ from it, as the police entered. There was cocaine, in the obvious course of being made ready for distribution, in open view on that dresser. There were two bottles of manite, a substance used as a cutting agent for cocaine, on the same dresser.

Four hypodermic needles, some syringes, and three bottle caps with cotton were also found on the dresser. There were twelve white envelopes for packaging and a stocking for straining cocaine, also on the dresser. In addition to evidence of manufacturing and distributing, there was evidence of personal use of the cocaine as well. There was a mirror, a razor blade, and straws for snorting cocaine.

The straws contained cocaine residue. Both methadone and marijuana were observed in the general area. The police, who were there initially only for the purpose of executing an arrest warrant for Harriet Oliver, did not seize any of this evidence at the time of their initial observation of it. They arrested Harriet Oliver, a second female by the name of Ms. Buice, and the appellant, transporting them immediately to the Northern District.

The scene in which the appellant was observed was then frozen until the police returned not long thereafter, with a full search and seizure warrant based upon those earlier observations. The further search revealed papers indicative of financial transactions, a gun, and a briefcase taken from beneath the bed. The briefcase contained a picture of the appellant and a piece of paper bearing his name. The room itself, moreover, contained both men’s and women’s clothing.

In addition to the three human occupants at the time of the first entry, the room was also occupied by three dogs. When the officers mentioned taking the dogs to an animal shelter, the appellant spoke up and stated that he would have someone pick them up. The appellant’s wife eventually claimed the dogs from the animal shelter. A motel employee indicated that she had called Room 270 earlier in that day to pass on complaints about the barking dogs.

That employee indicated that sometimes a woman ¹⁹⁹ answered the phone in the motel room but sometimes a man did. That employee further described a thin black man in his middle 30’s or early 40’s, matching generally the description of the appellant, as the man who had paid the rent on the room during the month of February. In Folk v. State, supra, we analyzed the many cases affirming findings of joint possession and summarized the common denominator characteristics, at 11 Md.App. 518 , 275 A.2d 184 : “The common thread running through all of these cases affirming joint possession is 1) proximity between the defendant and the contraband, 2) the fact that the contraband was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in which the contraband is found, or 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband.” We hold that the evidence was legally sufficient to permit Judge Bell to infer that the appellant had an adequate nexus with the contraband to sustain the verdicts in this case. Standing as to the Briefcase We turn to the suppression issue.

Clearly, the papers and photograph found in the briefcase under the bed, linking the appellant with the room, were evidentiary items of real significance. The appellant asserts that he had Fourth Amendment standing in this briefcase, that was both seized and searched. Indeed, the appellant’s argument, at the suppression hearing, focused narrowly on this standing in the briefcase, in contrast to a virtual concession of non-standing in the larger motel room itself: “I have no argument as to presence, whether or not the defendant has standing to contest the search and seizure warrant, the items that were found in the motel room. I ²⁰⁰ would like to advise the court in addition to the other evidence found in the motel room, there was a briefcase, a closed briefcase, found in the motel room, which was subsequently seized pursuant to the warrant and subsequently opened and in there was found marijuana and a slip or piece of paper with the name of the defendant.

My suppression motion goes to everything as an advocate for my client, but specifically my suppression motion also goes to the validity of the seizure of the briefcase because ... there is no question that my client does at least have standing as to the briefcase.” We agree with the appellant as to his standing to challenge the search of the briefcase. When the officers were initially searching the motel room, they were searching both the room at large and all containers within it for “controlled and dangerous substances and the items used in their manufacture, distribution and use.” Without suggesting that it would have made any difference, we note that the officers had no reason to believe that the briefcase under the bed was the special property of the appellant, as distinguished from any other closet, drawer, box, suitcase, or purse examined in the course of the larger search. The reasonableness of the police behavior has nothing, however, to do with standing to object. The reasonableness of police conduct, assessed from their subjective point of view in light of the facts available to them at the time of the search, bears only upon the merits of Fourth Amendment satisfaction.

Standing to object, on the other hand, is assessed objectively in terms of the actual, historic facts that are developed at the time of the suppression hearing itself. At the suppression hearing, it was developed that the appellant’s photograph and identification papers were in the briefcase. We conclude that this was enough to entitle him to standing to litigate the constitutional propriety of the search of that briefcase. Standing to object, however, by no means suggests that the appellant will win upon the ²⁰¹ Fourth Amendment merits; it simply entitles him to litigate the Fourth Amendment merits.

Standing as to the Motel Room Standing as to the briefcase does not necessarily imply standing as to the motel room itself. The Fourth Amendment interest there must be independently established. The ultimate demonstration (at the suppression hearing) of a proprietary interest in the briefcase does not necessarily imply an ultimate demonstration (at the suppression hearing) of a proprietary interest in the motel room. The appellant here failed utterly, following the State’s timely challenge, to establish any standing in the motel room itself.

All that came out at the suppression hearing was that the room was registered to Harriet Oliver. The appellant clearly, on the facts made available to Judge Bell before he was called upon to rule, had demonstrated no proprietary interest in the motel room itself. Nor did the appellant have any derivative standing in the place searched by virtue of being legitimately on the premises, as a guest, licensee, or invitee, at the time of the critical search in issue. Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960).

To be sure, some of the evidence ultimately brought out at the trial could have given the appellant a more plausible claim to standing with respect to the motel room, but that evidence was not offered at the time Judge Bell was called upon to rule on the issue of standing. The appellant’s clothing in the motel room could have been a factor; the appellant’s dogs in the motel room could have been a factor; the appellant’s answering of the telephone in the motel room could have been a factor; the appellant’s possible paying of the rent for the motel room for the month of February could have been a very significant factor. All of these things, in aggregate, might have contributed to a finding of a proprietary interest on his part in the place searched. They are totally beyond the pale of this assessment, however, because they were not developed ²⁰² at the suppression hearing.

Our limited appellate responsibility is not to decide, in an historic sense, whether the appellant had a proprietary interest in that motel room sufficient to establish standing to object. ■ Our sole mission is to decide whether Judge Bell committed error, on the basis of the evidence before him, when he ruled that the appellant lacked such standing. 1 On the threshold issue of standing, the allocation of the burden of proof is clear. Rakas v. Illinois, 439 U.S. 128 , 130 n. 1, 99 S.Ct. 421, 424, n. 1 , 58 L.Ed.2d 387, 393, n. 1 (1978), stated unequivocally: “We reject petitioners’ suggestion. The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” R. Gilbert & C. Moylan, Maryland Criminal Law: Practice and Procedure (1983), spoke to the same allocation of the burden of proof, at 291-292: “Procedurally, it is clear that there is an initial burden on the prosecution to raise the challenge to standing. If the State fails to raise a timely challenge and the court goes on to reach the Fourth Amendment merits, the State will be estopped from raising the challenge at a later stage.

If the prosecution does raise the challenge, however, by even the most informal of oral pleadings, it is then clear that the burden of proof is allocated to the ²⁰³ defendant to show his standing. The State has no obligation to show nonstanding.” The appellant had no standing to object to the search of the motel room as such. What impact has this on the merits of the search of the briefcase, which he is entitled to litigate? Since the police entry into the motel room and the police presence in the motel room are beyond the appellant’s challenge, he can mount no constitutional claim that depends upon establishing the invalidity of that entry or presence.

If, by virtue of that unchallengeable presence in the motel room, the police had inadvertently observed probable evidence in plain view, that evidence would be just as subject to legitimate seizure under the Plain View Doctrine as if the police presence in the room had been affirmatively shown to have been valid. Foreclosing the appellant from litigating the legitimacy of the police entry into or presence in the motel room, however, is not dispositive of his claim on the merits. The briefcase itself was searched by virtue of the search and seizure warrant, just as was the motel room at large. If the unchallengeable presence of the police in the room had itself established sufficient cause to open the briefcase, the appellant would lose on the Fourth Amendment merits.

Such, however, was not the situation here. There was nothing suspicious about the briefcase itself, even conceding the right of the police to be in a position to view it. It was opened, rather, in the course of the execution of the warrant itself. The entitlement of the appellant to litigate the opening of his briefcase thereby entitles him to litigate the propriety of the warrant which authorized the opening of his briefcase.

The possible repercussions from the appellant’s entitlement to litigate the propriety of the search warrant, however, are still limited to the appellant’s demonstrated Fourth Amendment interests. A bad warrant, for instance, could call for the suppression of the fruits of the search of the briefcase, in which the appellant established his Fourth ²⁰⁴ Amendment interest. The same bad warrant, on the other hand, would have no adverse impact whatsoever on the fruits of the search of the room at large, in which the appellant failed to establish any Fourth Amendment interest. With respect to a place in which the appellant had no Fourth Amendment interest, he could not be heard to complain even if the police had searched it without any warrant at all, let alone with a warrant that was merely arguably defective.

The Merits of the Search Warrant Probable Cause Ironically, the Fourth Amendment litigation before Judge Bell and the Fourth Amendment litigation before us bear very little resemblance to each other. Since our primary appellate obligation is to determine whether the trial judge was in error when he declined to suppress the physical evidence, our concern will be with the issues raised before Judge Bell and not with other issues raised here for the first time. We have combed every line of argument from the July 25, 1983, suppression hearing and find that, aside from the issue of the appellant’s standing in the briefcase, the hearing was concerned only with whether the factual allegations spelled out in the application for the search and seizure warrant established probable cause, as a matter of fact, to believe that there were “controlled and dangerous substances” and related paraphernalia in the motel room to be searched. That was the exclusive issue raised and the exclusive argument made by Leslie Stein, attorney for the appellant.

There was a very narrow focus to the issue before Judge Bell for determination: “It is our position that the warrant fails to establish probable cause for that warrant for them to go back in that motel room for the reason that all the evidence and all the narcotics sat in plain view was seized. I know of no case that holds mere appearance or finding of drugs at ²⁰⁵ a certain location gives rise to an inference that more drugs are at that location.” The conclusion of counsel’s argument summed up the issue for determination: “[T]he issue is whether or not that warrant expressed probable cause, and our position is that it does not. All you have is that the narcotics were found.” We have examined, as did Judge Bell, the affidavit of Officer Paul Miller, offered in support of the warrant application. After reciting his training and experience, which was extensive, in the field of narcotics investigation and after reciting his entry into the motel room, with four other officers, to serve an arrest warrant on Harriet Oliver, Officer Miller got to the core of the probable cause: “During the time I was in the room, I observed a marihuana pipe containing a greenish vegetable substance which I believed to be marihuana on the night stand by the bed in open view and on the dresser in open view was a container of white crystal powder, which I believed to be cocaine and several white paper envelopes, a wire screen, and a spoon, money, and a pad of white paper that the envelopes were made of.

I, Officer Paul Miller, based on the above information and the training and by past experience know that these items are used for the manufacture, distribution, and use of controlled, dangerous substances marihuana, cocaine, and other abused drugs. Based on the above information, your affiant believes by past experience that the room contains more controlled and dangerous substances and the items used in their manufacture, distribution, and use.” When defense counsel concluded, “All you have is that narcotics were found,” Judge Bell corrected him by pointing out that the affidavit referred to other items as well, indicating the manufacture and distribution of narcotics: “You also have, as I read it, these observations and a container of white powder and several white paper en ²⁰⁶ velopes, a wire screen and a spoon, money, and a pad of white paper that the envelopes were made of. Officer Miller says, based on the above information and training and by past experience, he knows that these items are used for the manufacturing and distribution and use of controlled dangerous substances and other use of drugs. He believes that his past experience knows that these items are used in the distribution and use of controlled dangerous substances.” On the only issue presented to him for determination on the merits of the search warrant, Judge Bell reached a firm conclusion: “[I]f he does have standing to contest the warrant, then I would find there is probable cause.” The spirit with which we must approach a review of a probable cause finding by a warrant-issuing judge was made very clear by Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983): “Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.

A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ Spinelli [v. United States ], supra, [ 393 U.S. 410 ] at 419 [ 89 S.Ct. 584 at 590 , 21 L.Ed.2d 637 (1969)]. ‘A grudging or negative attitude by reviewing courts toward warrants,’ Ventresca, supra, 380 U.S., [102] at 108 [ 85 S.Ct. 741 at 745 , 13 L.Ed.2d 684 (1965)] is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; ‘courts should not invalidate ... warrants] by interpreting affidavits] in a hypertechnical, rather than a commonsense, manner.’ ” 462 U.S. at 236 , 103 S.Ct. at 2331 . Illinois v. Gates, moreover, was very precise as to the test to be applied: “Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate’s ²⁰⁷ probable-cause determination has been that so long as the magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Id. We hold that Judge Bell had a “substantial basis for concluding” that a search of the motel room “would uncover evidence of wrongdoing.” “The Fourth Amendment requires no more.” The Merits of the Search Warrant Duplicate Copy vs. Original We have grave reservations whether, under Maryland Rule 1085, this next issue is properly preserved for appellate review. At the suppression hearing, Judge Bell ruled unequivocally that the appellant had no standing in the briefcase and, in the alternative, that even if the appellant had standing, there was probable cause to issue the warrant to search the entire room, including the briefcase.

As the suppression hearing was adjourning, however, the final words there spoken alluded to an issue that had never theretofore been mentioned: “The Court: Ms. Hochberg, I am going to give your warrant back to you now and trust that tomorrow I will have the original. Ms. Hochberg: Yes, your Honor.” As the trial was about to commence on the following day, the assistant state’s attorney brought up the subject of the missing original: “[Ms. Hochberg:] Before we proceed with the merits of the case, yesterday we argued a motion for the suppression of the warrant. The warrant has not been introduced in evidence, at that time it could not be located. I requested the Clerk of the Court, Mr. Timothy Werner, and after a diligent search, he did not find it.

Detective Paul Miller requested Mr. Werner to search again, and Mr. Werner advises me that it was never returned to the Clerk’s Office. Therefore, I do not have the original. The Court: Who had it? ²⁰⁸ Ms. Hochberg: It was signed out by Judge William Murphy originally. I do have another, I believe it is a copy, however, I think we have the original signature of Judge Murphy on here, which I move to introduce in place of the original.

I think this one is a copy that the judge signed at that time. I believe since we have two copies of the warrant, one is the original and one is a photostatic copy, and I do have this copy, which I am showing Mr. Stein. Detective Miller is in court and available to