Tucker v. State

McWieeiams, J., delivered the opinion of the Court. The trial judge (Foster, J. without a jury), having convicted appellant (Tucker) of possessing heroin, sentenced him to five years in the Maryland Penitentiary. In this appeal Tucker’s principal contention is that the heroin which clinched his conviction was seized under a defective search warrant. On 16 September 1965 Sergeant Bishop Robinson (Sgt.

Robinson) a member of the Narcotics Squad of the Baltimore City Police Department presented to Judge Aaron of the Municipal Court an application for a search and seizure warrant in which it was stated that the provisions of Code, Art. 27, §§ 277 and 291 were being violated on the “premises known as 721 West Lexington Street, a three story building which is occupied by a tavern known as The Lexington West, licensed for the sale of alcoholic beverages bearing the licensee’s name, Patricia Tucker, thereon and operated by Edward Lee Tucker ⁴⁹¹ @ 1 Eddie Tucker.” Attached to the first page of the application were the following: “AFFIDAVIT of Louis Walter Burman, 2 3 4635 Lanier Avenue—Baltimore, Maryland, in support of Search and Seizure Warrant for the premises known as The Lexington West, a night club, located at 721 West Lexington Street which is operated by Edward Lee Tucker, name of Licensee Patricia Tucker. “I, Louis Walter Burman, do state the following to Sergeant Bishop Robinson in the presence of Officer Daniel Davis and Policewoman Bessie Norris, all members of the Narcotic Squad, Baltimore City Police Department on September 16, 1965 about 4:30 P.M. “Eddie Always keep Heroin in the Bar, Lexington West. On Tuesday, September 14, 1965 around dust, I went to the Lexington West Night Club which is operated by Edward Lee Tucker. 1 went there to get a bundle of stuff from Eddie on consignment. We had conversation about different things and then I told Eddie that I wanted to get a bundle of Heroin. Then we went to a room which is on the west side of the bar next to the ladies’ room.

There is one step in front of the door and this door leads to the cellar, the upstairs, the hat check room and the stock room. As you open the door, to the left, there is a coat and an old bag hanging on the wall. Eddie keeps bundles of Pleroin in the coat or the bag. In back of this door I just mentioned above, about several feet, is another door which is kept locked and upon opening this door, there is a stairway of three or four steps.

To the right of this stairway, on the floor against the wall on the west side of the bar, is a wooden footlocker with a ⁴⁹² pad lock on it. In this footlocker I saw forty or fifty bundles of Heroin. Eddie gave me one bundle of Heroin out of this footlocker at this time. /s/ Louis Walter Berman Louis Walter Berman WITNESS : /s/ Sergeant Bishop Robinson “Subscribed and sworn to before me this 16th day of September, 1965. /s/ Howard L. Aaron Associate Judge of the Municipal Court of Baltimore City.” “AFFIDAVIT OF Sergeant Bishop Robinson, member of the Narcotics Squad, Baltimore City Police Department, in support of Search and Seizure Warrant for the premises known as The Lexington West, a night club, located at 721 West Lexington Street which is operated by Edward Lee Tucker, name of Licensee, Patricia Tucker. “That the grounds for a search and the basis of probable cause are that, since 1962 Sergeant Bishop Robinson has received information from reliable sources that Edward Lee Tucker sells Heroin in large quantities. Sergeant Robinson have received this reliable information on the following dates: “August 9, 1962 January 19, 1963 April 23, 1963 May 26,1963 The most recent being August 19, 1965. “This information, on these dates, is from separate reliable sources.

Prior investigations made by the Narcotic Office supports the information given by these reliable sources that Edward Lee Tucker is a wholesale dealer of narcotics. “Because of the above facts and the affidavit of Louis Walter Burman contained herein, there is probable cause to believe that there is now illicit narcotic ⁴⁹³ drugs being secreted in the said building named and described herein. /s/ Sergeant Bishop Robinson” The last page of the application is as follows: “The affiants therefore pray that a search and seizure warrant be issued authorizing Sergeant Bishop Robinson, with the necessary and proper assistants: (a) to enter and search said premises, (b) to search the person and clothing of said previously named or described person(s), (c) to search all other persons who may be participating in said criminal activities; and seize all evidence and other material having to do with the possessing and illegal keeping or selling of narcotic drugs, in the heretofore mentioned apartment, as well as any and all persons believed to be in possession of narcotic drugs at the time of the execution of this warrant. “Subscribed to this 16th day of September in the year of Our Lord, one thousand nine hundred and sixty-five. /s/ Sergeant Bishop Robinson Sergeant, Narcotic Squad, Baltimore City Police Department /s/ Louis Walter Berman Louis Walter Berman 4635 Lanier Avenue Baltimore, Maryland “Subscribed to and sworn to before me on this 16th day of September 1965. /sj Howard L. Aaron Associate Judge of the Municipal Court of Baltimore City.” The warrant issued by Judge Aaron is directed to Sgt. Robinson. The second page thereof is identical with the affidavit of Berman set forth above. The third page is identical with the affidavit of Sgt.

Robinson. Declaring that he was satisfied there was “probable cause to believe that narcotics” were being concealed on the premises he ⁴⁹⁴ commanded Sgt. Robinson, with the necessary and proper assistants, “(a) to enter and search the said premises, (b) to search the person and clothing of the said previously named or described person(s), (c) to search all other persons who may be participating in said criminal activities, and (d) to arrest all persons, including the previously named or described person(s) who may be participating in the said criminal activities; and seize all evidence and other material having to do with the maintaining and illegal keeping or selling of drugs in the heretofore mentioned building, as well as any and all persons believed to be in the possession of drugs at the time of the execution of this Warrant; and bring the said person(s), evidence and material before me the subscriber, or some Judge of the Municipal Court of Baltimore City aforesaid, to be dealt with and disposed of according to law.” Sgt. Robinson, flanked by two policemen and a policewoman, entered the tavern at 721 West Lexington around 11:00 P.M. on 16 September, showed Tucker the warrant and went immediately to the basement.

After looking around for a minute or two they returned to the first floor. Sgt. Robinson pointed to a padlocked door (described by Berman) and asked Tucker if he had a key to the padlock. Tucker said the key was behind the bar.

When .Sgt. Robinson told him to get the key he said the keys were not behind the bar but in his car. Tucker thereupon handed his car keys to one of the policemen and told him that he would find on the floor of the trunk a set of keys, one of which would open the padlock on the storeroom door. There was such a key and with it the lock was opened.

Concealed among the bottles of liquor in the storeroom Sgt. Robinson found a supply of heroin and quinine hydrochloride (used to attenuate the heroin) worth from $10,000 to $20,000. At trial Tucker moved to suppress the evidence because (a) the warrant was insufficient on its face, (b) the property seized was not the property described in the warrant, (c) lack of probable cause, and (d) the warrant was illegally executed. ⁴⁹⁵ Following the denial of his motion to suppress evidence Tucker’s request to submit evidence controverting the allegations in Berman’s affidavit was likewise refused, whereupon he offered to prove that Tucker’s wife was the lessee of the premises (except the third floor), that she was the holder of the liquor license and the operator of the tavern and that Tucker was the manager. He offered to prove further that Berman was an addict, that he had twice been convicted of violations of the narcotic laws, that he has “been convicted of murder,” that the friendship of Tucker and Berman came to an end on 6 September 1965 after “a bitter argument,” that Berman was arrested on 16 September 1965 and that to avoid prosecution as a third offender of the narcotic laws he elected to give a statement implicating Tucker.

He offered to prove also that the contraband seized by Sgt. Robinson was in the possession or under the control of Berman. The State offered in evidence the warrant and the application therefor. Sgt.

Robinson supplied the details of the search and seizure and the narcotics together with the chemical analyses thereof were received in evidence. He said Tucker told him there was only one key to the storeroom. Juanita Barnes was the only witness produced on behalf of Tucker. She claimed to be the manager.

She testified, however, that except for ordering, at regular intervals, the liquor Tucker told her to order she was really the barmaid. She said the storeroom was accessible to herself and six other employees, including Berman until his discharge on 6 September. She contradicted Sgt. Robinson’s testimony that there was only one key to the storeroom.

She testified there were at least three keys, her own (which she produced), Tucker’s and Mrs. Tucker’s. She said there were times when Berman had possession of Tucker’s key. In rebuttal the State produced the executive secretary of the Board of Liquor License Commissioners. He identified as one of his records a list of Tucker’s employees furnished by Tucker’s accountant.

At least four of the six other employees said by Juanita Barnes to have had access to the storeroom are not shown thereon. The list describes her, not as a manager, but ⁴⁹⁶ as a barmaid. He testified also that Tucker told him he was the manager. I. Tucker contends the warrant is fatally defective for a number of reasons, the first of which is that there is a variance between the place described in the application and the place authorized to be searched in the warrant.

The statements intended to constitute probable cause, he argues, are directed to one room only whereas the warrant authorizes the search of the entire “premises known as 721 West Lexington Street.” Assuming there is any merit in this contention the fact that the heroin was found in the room described in Berman’s affidavit dissipates much of its force. We have said many times that there is no formula which can be used to measure the particularity with which premises must be described and that the adequacy of the description in every case will depend on the facts and circumstances there present. Allen v. State, 178 Md. 269 , 13 A. 2d 352 (1940); Saunders v. State, 199 Md. 568 , 87 A. 2d 619 (1952); Dow v. State, 207 Md. 80 , 113 A. 2d 423 (1955). The sufficiency of the description in the case at bar is obvious when measured against the circumstances of two of our recent decisions.

In Hall v. State, 232 Md. 588 , 194 A. 2d 801 (1963) the probable cause set forth in the application was directed to a grocery and confectionery store located on the first floor of the premises described in the warrant. The warrant authorized a search of “the premises known as Randy’s Confectionery, 1436 Holbrook Street.” We held that a search of the entire premises was permissible. In Ferguson v. State, 236 Md. 148 , 202 A. 2d 758 (1964), the warrant authorized a search of 1301 E. Baltimore Street. Three connected buildings, 3, 5 and 7 S. Central Avenue,