Venner v. State

Smith, J., delivered the opinion of the Court. We shall here affirm the holding of the Court of Special Appeals in Venner v. State, 30 Md. App. 599 , 354 A. 2d 483 (1976), that certain balloons found in the stools of appellant, Charles A. Venner, IV (Venner), were abandoned property and that Maryland Code (1957, 1971 Repl. Vol., 1976 Cum. Supp.) Art. 43B, § 10 (b) (as amended in 1971) with reference to a person who “seek[s] counselling, treatment or therapy for any form of drug abuse” in certain named circumstances is not applicable to the facts of this case.

The facts of the case were set forth in full by Judge Powers for the Court of Special Appeals. We shall relate only such facts here as are necessary to a clear understanding of the issues presented and of our opinion. Venner was admitted to a Baltimore hospital in a semiconscious condition. The attending physician concluded upon the basis of his own observation, combined with information obtained from Venner’s friends, that Venner was suffering from a narcotic overdose caused by the leakage of hashish oil from balloons in his stomach.

X-ray examination revealed the presence of 12 to 15 balloons. The Baltimore City Police Department was notified. The police requested the supervisor of nurses in the intensive care area where Venner was a patient to notify them immediately if his stools contained balloons. A total of 21 balloons and a fragment of a balloon were recovered.

The hospital records ⁴⁹ reflect that the first balloons were passed about 26 hours after his admission. The remaining balloons were eliminated over a period of the next two to three days. Upon examination the balloons were found to contain hashish oil. The analyst said that “there could easily be a hundred pounds of marijuana involved” in order to extract the amount of hashish oil there shown.

Venner was convicted under an information charging him with unlawfully possessing marijuana extract in sufficient quantity to reasonably indicate an intent to manufacture or distribute it. The trial judge, in imposing sentence, noted: “[I]t strikes me that this was obviously a commercial transaction. No doubt in my mind that you were attempting to smuggle this hashish oil in. It obviously must have cost a fairly substantial amount of money to buy it and, according to the testimony that I got at the time of the trial of the case, its value on the market was some twenty-five to thirty thousand dollars.” Venner’s pretrial motion to suppress the evidence was overruled by the trial court on the dual grounds of exigent circumstances and abandoned property.

The trial judge (Liss, J.) likewise concluded that Maryland Code (1957, 1971 Repl. Vol., 1976 Cum. Supp.) Art. 43B, § 10 (b) was not applicable under these facts. The Court of Special Appeals affirmed on both points.

However, it did not reach the question of exigent circumstances because it determined the balloons to be abandoned property. Fourth Amendment No search warrant was issued for the balloons. Accordingly, Venner contends that the seizure of the balloons is a violation of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” protected by the Fourth Amendment to the Constitution of the United States, made applicable to the states by Mapp v. Ohio, 367 U. S. 643 , 81 S. Ct. 1684 , 6 L.Ed.2d 1081 (1961). ⁵⁰ In Frank v. Maryland, 359 U. S. 360, 363 , 79 S. Ct. 804 , 3 L.Ed.2d 877 (1959), Mr. Justice Frankfurter said that “[t]he history of the constitutional protection against official invasion of the citizen’s home makes explicit the human concerns which it was meant to respect.” He then went on to refer to the fact that “[i]n years prior to the Revolution leading voices in England and the Colonies protested against the ransacking by Crown officers of the homes of citizens in search of evidence of crime or of illegally imported goods” and observed that “[t]he vivid memory by the newly independent Americans of these abuses produced the Fourth Amendment as a safeguard against such arbitrary official action by officers of the new Union, as like provisions had already found their way into State Constitutions.” In Warden v. Hayden, 387 U. S. 294, 301 , 87 S. Ct. 1642 , 18 L.Ed.2d 782 (1967), Mr. Justice Brennan spoke of “the history and purposes of the Amendment” as being “a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect against invasions of ‘the sanctity of a man’s home and the privacies of life,’ Boyd v. United States, 116 U. S. 616, 630 [, 6 S. Ct. 524, 532 , 29 L. Ed. 746 (1886)], from searches under indiscriminate, general authority.” A portion of the opinion of Mr. Justice Stewart for the Court in Hoffa v. United States, 385 U. S. 293 , 87 S. Ct. 408 , 17 L.Ed.2d 374 (1966), provides insight as to the intended scope of the Fourth Amendment. In that case a government informer had been placed with the defendant during a criminal trial.

It was contended that the fact the informer was able to hear Hoffa’s incriminating statements in a hotel suite violated Fourth Amendment rights, the argument being that the informer’s failure to disclose his role as a government informer vitiated the consent given by Hoffa to the informer’s repeated entries into the suite and that by listening to Hoffa’s statements the informer conducted an illegal “search” for verbal evidence. Mr. Justice Stewart said for the Court: “The preliminary steps of this argument are on solid ground. A hotel room can clearly be the ob ⁵¹ ject of Fourth Amendment protection as much as a home or an office. United States v. Jeffers, 342 U.S. 48 .

The Fourth Amendment can certainly be violated by guileful as well as by forcible intrusions into a constitutionally protected area. Gouled v. United States, 255 U.S. 298 . And the protections of the Fourth Amendment are surely not limited to tangibles, but can extend as well to oral statements. Silverman v. United States, 365 U.S. 505 . “Where the argument falls is in its misapprehension of the fundamental nature and scope of Fourth Amendment protection.

What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel room in Jeffers , the purloining of the petitioner’s private papers in Gouled , or the surreptitious electronic surveillance in Silver man.” Id. at 301 .

In his concurring opinion in Katz v. United States, 389 U. S. 347 , 88 S. Ct. 507 , 19 L.Ed.2d 576 (1967), Mr. Justice Harlan enunciated criteria for testing the Fourth Amendment’s applicability: “As the Court’s opinion states, ‘the Fourth Amendment protects people, not places.’ The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place.’ My understanding of the rule that has emerged from ⁵² prior decisions is that there 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, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf.

Hester v. United States, [ 265 U. S. 57 , 44 S. Ct. 445 , 68 L. Ed. 898 (1924)].” Id. at 361. Venner concedes that if he can be deemed to have abandoned the waste here in question, then there has been no violation of his Fourth Amendment rights. Hester v. United States, 265 U. S. 57 , 44 S. Ct. 445 , 68 L. Ed. 898 (1924). See discussion in 1 J. Varon, Searches, Seizures and Immunities 590-91 (2d ed. 1974), and J. Cook, Constitutional Rights of the Accused — Pre-Trial Rights § 48 (1972).

The latter work warns at page 313 that “Hester should not be read to mean any brief relinquishment of possession or control constitutes an abandonment,” citing Rios v. United States, 364 U. S. 253 , 80 S. Ct. 1431 , 4 L.Ed.2d 1688 (1960), where the Court observed that “a passenger who lets a package drop to the floor of the taxi cab in which he is riding can hardly be said to have ‘abandoned’ it.” Judge O’Donnell said for this Court in Everhart v. State, 274 Md. 459 , 337 A. 2d 100 (1975): “[W]hether property is abandoned is generally a question of fact based upon evidence of a combination of act and intent. See Parman v. United States, 399 F. 2d 559 (D.C. Cir.) (Burger, J.), cert. denied, 393 U. S. 858 (1968).” Id. at 483. ⁵³ A test for abandonment is set forth in United States v. Wilson, 472 F. 2d 901 (9th Cir. 1972), cert. denied, 414 U. S. 868 (1973): “The proper test for abandonment is not whether all formal property rights have been relinquished, but whether the complaining party retains a reasonable expectation of privacy in the articles alleged to be abandoned. Katz v. United States, 389 U.S. 347, 351 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). As Mr. Justice Frankfurter stated in Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960): ‘ * * * We are persuaded, however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical * * *.' 362 U.S. at 266 , 80 S.Ct. at 733. “Wilson urges that the rejection of Fourth Amendment distinctions based on property rights is a one-way street: that is, ancient rules of tenure and transfer of property may be rejected to increase, but never to decrease, Fourth Amendment protections.

It is more accurate to look to the purpose of the Fourth Amendment. Privacy, rather than hereditaments, has motivated the recent decisions. Cases like Jones and Kata encourage a functional approach to the Fourth Amendment. The objective is protection of a justifiable expectation of privacy and freedom from governmental intrusion.” Id. at 002-08.

Venner particularly relies on People v. Krivda, 5 Cal. 3d 357 , 486 P. 2d 1262 , 06 Cal. Rptr. 62 (1071), vacated and ⁵⁴ remanded, 409 U. S. 33 (1972), affirmed on same grounds, 8 Cal. 3d 623 , 504 P. 2d 457 , 105 Cal. Rptr. 521 , cert. denied, 412 U. S. 919 (1973). As the Court put the question there it was “whether a householder who places contraband in trash barrels and subsequently places the barrels adjacent to the street for pickup by the rubbish collector may be deemed to have abandoned the trash at that location and to have forsaken any reasonable expectation of privacy with respect thereto.” Police officers were investigating a tip from an anonymous informant that certain individuals were engaged at a particular address in sex and narcotics activities and were injecting two children with methedrine.

After verifying through a utility check the fact that one of the persons said to be engaged in such activities paid the utilities there and that a man whose wife’s name corresponded to the information furnished had previously been arrested for narcotic activity, the police officers returned to the address where they saw several trash barrels in front of the home adjacent to the sidewalk. They observed refuse collectors approaching. They stopped them about a half a block away, identified themselves, and requested them to empty the well of their trash truck and to pick up the trash in the cans in front of the address. The contraband was concealed in paper sacks within the barrels and was not visible without emptying or searching through the barrel’s contents.

The court said that “[ujnder such circumstances, . .. defendants had a reasonable expectation that their trash would not be rummaged through and picked over by police officers acting without a search warrant.” It relied on its earlier decision in People v. Edwards, 71 Cal. 2d 1096 , 458 P. 2d 713 , 80 Cal. Rptr. 633 (1969). There a defendant’s “reasonable expectation of privacy was [held] violated by unreasonable governmental intrusion.” The court said: “In the light of the above authorities, we are satisfied that the search of the trash can was unlawful. As we have seen, the trash can was within a few feet of the back door of defendants’ home and required trespass for its inspection.

It was an adjunct to the domestic economy. (See