Venner v. State

Powers, J., delivered the opinion of the Court. May the State obtain evidence in a narcotics case from the excrement of a hospital patient, without a warrant, and use that evidence against the patient in a criminal trial? This question was posed by a motion filed in the Criminal Court of Baltimore by Charles Venner. A two count information charged Venner with unlawfully possessing marihuana extract in sufficient quantity to indicate an intent to manufacture or distribute it, and with simple possession of the same substance.

He moved to suppress the evidence and dismiss the information. Both the issue raised by the motion, as well as the ultimate issue of guilt or innocence, were submitted to Judge Solomon Liss, without a jury, in a series of appearances from 12 December 1973 to 20 November 1974. Evidence which it was stipulated that the court should consider on both issues consisted of an agreed statement of facts, supplemented by testimony and exhibits. Judge Liss denied the motion and found Venner guilty on the first count.

After sentence was imposed, Venner appealed. The Facts Before The Court The agreed statement was submitted on 27 September 1974. The transcript reads: “THE COURT: All right, Mr. Bass [Assistant State’s Attorney], will you please give us the facts that are agreed on in this case? ⁶⁰¹ Now as I understand it, Mr. Gede, these facts are stipulated and agreed and are to be accepted by the Court as if they had been introduced into evidence by the witnesses. Any facts that are not agreed on you will, of course, promptly let the Court know?

MR. GEDE [Defense counsel]: Yes. THE COURT: Very well. MR.

BASS: Your Honor, on July 21, 1973, at 3:45 P.M., Charles Venner, a twenty year old male, was taken to Sinai Hospital in Baltimore, Maryland by several friends. The defendant was admitted to the emergency room in what appeared to be a semi-conscious state. The friends gave certain information to the attending physician, Dr. Robert Egbert of the Sinai Hospital Staff, and based on this information Dr. Egbert had reason to believe that perhaps the defendant had taken in his stomach, contained in balloons a substance known as hashish oil; and he also, on the basis of looking at the patient, believed that either one of the many balloons had burst inside the defendant, thus an overdose. The doctor ordered x-rays taken by the hospital radiologist, and these photographs revealed 12 to 15 balloons still inside the defendant’s stomach.” “MR.

BASS: As I said, the x-rays revealed what looked like 12 to 15 balloons still inside the defendant’s stomach. Dr. Egbert then notified the Baltimore City Police Department, and Officer Russell Smeak of Northwest District. Officer Smeak, after hearing the situation, made arrangements with the Supervisor of Nurses, Intensive Care, if any stools contained balloons the hospital was told to contact Northern District, and they would respond and take custody of the contents. On July 22, 1973, at 8:10 P.M., Officer Michael ⁶⁰² Leonard of the Northwestern District responded to a call of the hospital and took custody of 8 balloons.

On July 23, 1973, Officer Wendell France responded to a call to the hospital and received 4 balloons. At approximately 6:30 Officer Allen Taylor went to the hospital to retrieve one more balloon passed by the defendant. On July 24, 1973, about 11:00 A.M., Officer Joseph Lombardi responded to the hospital call to receive eight more balloons found in the defendant’s stool. A total of 21 balloons were recovered, plus a fragment of a broken balloon.” “THE COURT: Is it further stipulated between counsel that the balloons that were turned over to Officer Leonard, Officer France, Officer Taylor, and Officer Lombardi were, in fact, retrieved from the stools that were passed by the defendant in the hospital?

MR. GEDE: Yes, sir. THE COURT: Very well. Now that still leaves, obviously, the open question as to whether or not the nurse was entitled — the nurses were entitled to take these stools and to examine them, and whether the police officers were entitled to receive them without a search and seizure warrant.

MR. BASS: Chemist William Butler of the Baltimore City Police Department analyzed the contents of the rubber balloons and obtained a positive test for hashish oil. Your Honor, that is as far as we can go with the statement of facts. MR.

GEDE: Your Honor, just for the record, I will stipulate that that is what he would say without seeing the chemist’s report and analysis of it.” “THE COURT: I think what you ought to do is ⁶⁰³ bring your expert in. This is an essential part of the case. There’s a question of whether he should be held for possession or distribution, and I think that we ought to have testimony on this. I suggest to you, when we meet again two weeks from today, that the expert be here so we can qualify him and have him bring his report in and have him give us the benefit of any expertise as to what this means from the standpoint of dosage as well as from the standpoint of quantity.” There followed a discussion among the judge and counsel as to additional evidence.

Judge Liss set a time for taking further evidence. At a later hearing the State called a qualified chemist, who testified that he had received the balloons and examined their contents. They contained what the chemist referred to as hashish oil, or marihuana extract, the principal agent extracted being tetrahydrocannabinol. The quantity of the extract was 200 grams, which the witness said could easily involve a hundred pounds of marihuana.

He said that that much extract could be used to produce a hallucinogenic effect in thousands of cigarettes. The record of Venner’s admission and treatment at Sinai Hospital, in Baltimore, which was before Judge Liss and is a part of the record before us, provides more detail than was included in the agreed statement. The hospital summary shows, as the history of the present illness: “Patient has been in apparent good health without any significant medical history. Three months ago, he went to Morocco for a vacation and on returning home he was caught with illegal possesion of narcotics (name ? unknown).

He was jailed for three months, and was released a few days prior to admission. Before boarding the plane, he allegedly swallowed 24 to 25 bags of hashish oil and on that night he became dizzy, weak, nauseated, with dry mouth. He arrived at New York Kennedy Airport and passed 5 balloons the next day. The night prior to admission he developed ⁶⁰⁴ nausea, hallucinations, increased appetite, drowsiness, and disorientation.

His condition remained the same and he was brought to the Sinai Hospital Emergency Room the next day, euphoric, disoriented and lethargic, but responding to verbal orders.” The summary contains this description of “Hospital Course”: “Patient was admitted to Mt. Pleasant ICU, and on the 2nd hospital day, he was coherent, and oriented x3. He was noticed to be persistently bradycardeic, which did not respond to Atropine. At 5:40 p.m., on that day, he passed through the rectum 8 balloons of different colors.

Another five balloons were passed on the next day, then four balloons on the 4th day and two balloons on the 5th day. Vital signs remained stable in spite of the bradycardia, ranging between 34 to 60/min. Serial abdominal films revealed the presence of numerous foreign bodies, and the last film taken the day before discharge disclosed no evidence of such foreign body. Police report on the contents of one of the balloons was positive for marihjuana [sic].” Progress notes in the hospital record contain these entries: , _40 “7/22 6 pm Passed at 5 pm 8 bags (balloons) of diff colors — yellow, green, blue.

They were given to the nursing supervisor at once. 11 more bags to go (if count is correct).” “7-23 He passed 5 balloons more.” “7/24 passed 4 balloons (intact) plus a small fragmént. Total = 8 + 5 + 4 = 17. (2 more if count is correct & if all are intact, however, apparently at least one got burst).” 30 “7/25 12N passed 2 more balloons at 3 ]M yesterday. Everything accounted for, however, on further questioning, he says that he could not remember if they were really 24 or 25.” ⁶⁰⁵ On the Doctors Order Sheet an entry at 1:00 A.M. on 22 July 1973 says, “Foreign bodies in stools to be handed over to security.” Relevant entries in Nurses Notes are: “7-22 5 40/pm Had large stool including 8 colored articles which were removed and given to Dr. Uy. 6 P.M. Miss Keithly given the foreign bodies taken from stool.

Dr. Uy gave them to Miss Keithly.” “7-23 10 45/AM Passed large brown formed stool c [with] 5 balloons.” “7-24 9 10/AM Had large formed bowel movement & passed four balloons. 3 30/PM Passed 2 more balloons <* loose bowel movement. Balloons kept — locked security. To be analyzed.” Contentions on Appeal The questions in this appeal, as appellant presents them in his brief, are: 1. Did the trial court err in admitting evidence obtained as a result of Appellant’s medical treatment for drug abuse? 2.

Was there sufficient probable cause to justify a warrantless search and seizure? 3. Did the State show sufficient exigent circumstances to justify a warrantless search and seizure? Numbers 2 and 3 could well be combined and restated: Was the contraband lawfully obtained by the police? Statutory Protection Against Disclosure Appellant’s first contention invokes the protection of Code, Art. 43B, § 10 (b), which says: “Whenever a person shall seek counselling, treatment or therapy for any form of drug abuse ⁶⁰⁶ from a physician, psychologist, hospital, an educator pursuant to the provisions of § 85A of Article 77, or a person, program or facility authorized by the Authority to counsel or treat any form of drug abuse, no statement, whether oral or written, made by such person and no observation or conclusion derived from such counselling, treatment or therapy made by such physician, psychologist, hospital, person, program or facility shall be admissible against such person in any proceeding.

The facts or results of any examination to determine the existence of illegal or prohibited drugs in a person’s body shall not be admissible in any proceeding against such person, provided that the facts or results of any such examination ordered pursuant to a civil commitment proceeding under this article or as a condition of parole or probation shall be admissible in the proceeding for which the examination was ordered.” Pointing out that the statute, Art. 43B, § 2 (d) defines drug abuse as including “any misuse by any person of * * * any drug whose use is either prohibited or regulated”, appellant argues that § 10 (b) makes inadmissible against him any evidence from the hospital or its personnel or records. The same argument was made below. In an excellent opinion filed with his ruling on the motion to suppress, Judge Liss held that Venner was not entitled to the protection of the statute. We adopt that portion of Judge Liss’s opinion.

He said: “Defendant urges that he is entitled to the protection of this section of the Drug Abuse Control and Rehabilitation Act (Article 43B); and that therefore the evidence obtained by reason of his examinations and treatment at Sinai Hospital is inadmissible. The State concedes that if this evidence is suppressed the case against the Defendant must fall. It therefore becomes necessary for the Court to determine whether it ⁶⁰⁷ was the intent of the Maryland Legislature to afford the Defendant, under the circumstances of this case, the protection mandated by Article 43B. “Article 43B begins with a Declaration of Purpose which states the legislative intent for the passage of the Act. Section (c) of that Declaration of Purpose is as follows: ‘Experience has demonstrated that drug addicts can be rehabilitated and returned to useful lives only through extended periods of treatment in a controlled environment followed by supervision in an after-care program.

The purpose of this article is to provide a comprehensive program of human renewal of drug addicts in rehabilitation centers and after-care programs. The comprehensive program provided by this article is designed to assist the rehabilitation of drug addicts. It applies to addicts who are not accused of crimes, as well as addicts convicted of crimes. The program is further designed to protect society against the social contagion of drug addiction and to meet the need of drug addicts for medical, psychological and vocational rehabilitation, while safeguarding the liberty of individuals against undue interference. ’ (1969, Ch. 404) [Italics supplied] “Delegate Steven V. Sklar,' of the Maryland Legislature, the sponsor of Article 43B, was called as joint witness by the State and by the Defense.

Delegate Sklar indicated that it was his view that the legislative intent was to prevent the use of evidence in a court proceeding against a drug abuser or drug user where this evidence was obtained by reason of the drug user’s or abuser’s seeking counseling, treatment or therapy from a physician, psychologist, hospital, or educator. ⁶⁰⁸ “Article 43B, Section 2, included the following definitions: ‘(D) “Drug abuse” means any misuse by any person of or dependence by any person on any drug whose use is either prohibited or regulated by 276 through 302 of Article 27, including, but not limited to, narcotic and non-narcotic drug addiction and narcotic and non-narcotic drug habituation. ‘(E) “Drug Addiction” means a physical and psychological dependence on any drug enumerated in 276 through 302 of Article 27. “Drug Addict” means a person exhibiting the symptoms of drug addiction or who, by reason of the repeated use of any drug enumerated above is in imminent danger of becoming addicted to that drug; provided, however, that no person shall be deemed a drug addict solely by virtue of his taking of any such drug pursuant to a lawful prescription issued by a physician in the course of professional treatment for legitimate medical purposes.’ “It would seem clear that the purpose of this Act was to aid in the treatment, counseling and rehabilitation of drug abusers and drug addicts. A reading of the declaration of purpose, the definitions, and Section 10 leads to the inescapable conclusion that the Legislature was seeking to encourage those unfortunates to seek treatment and not to be deterred from requesting such treatment and assistance because of the fact that the information obtained by the physician or hospital might be used in a criminal prosecution against the patient. “The Defendant, however, has not shown that he is entitled to the benefits accruing from Section 10 of Article 43B. There is not a scintilla of evidence that he was either a drug abuser or drug addict. ⁶⁰⁹ While it is obvious that the Defendant introduced a large quantity of hashish oil in his body, it is clear that this was not done for the purpose of achieving the psychotrophic response sought by a drug abuser. Instead, the Defendant very carefully devised an ingenious scheme to prevent the drug from entering his blood stream.

The sole purpose was to assist the Defendant in secreting the contraband drug so that he might avoid discovery. The magnitude of the amount involved indicated an intention to manufacture or distribute the drug. His scheme might have succeeded except for the fortuitous circumstance that one of the balloons burst and he suffered the effects of a hashish overdose. The Court draws the conclusion from all the facts that the swallowing of the balloons was for the purpose of evading discovery of the contraband which was to be distributed illegally by the Defendant for a profit. “Article 43B, Section 10, was never intended to assist the drug trafficker to engage in his nefarious trade and to use its provisions as a shield against apprehension and punishment. “For the reasons given, the Court holds that the Defendant is not entitled to the protection afforded by Article 43B, Section 10.” Fourth Amendment Protection Against Unreasonable Search and Seizure The other issue, as Judge Liss stated it in his Memorandum Opinion below, was: “The second issue to be decided by this Court is whether the evidence seized by the police without a warrant from Sinai Hospital should be excluded from the case because its seizure was a violation of the Fourth Amendment of the Constitution of the United States * * ⁶¹⁰ Appellant’s questions 2 and 3 as he states them here, are directed to specific findings by Judge Liss under that issue.

That part of the Fourth Amendment which is invoked provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.” Judge Liss cited and discussed numerous decisions of the United States Supreme Court, including Rochin v. California, 342 U. S. 165 , 96 L. Ed. 183 , 72 S. Ct. 205 (1952); Schmerber v. California, 384 U. S. 757 , 16 L.Ed.2d 908 , 86 S. Ct. 1826 (1966); Chambers v. Maroney, 399 U. S. 42 , 26 L.Ed.2d 419 , 90 S. Ct. 1975 (1970); Cupp v. Murphy, 412 U. S. 291 , 36 L.Ed.2d 900 , 93 S. Ct. 2000 (1973). He proceeded to examine the factual situation in this case and held that there was probable cause, that the circumstances were exigent, and that the warrantless seizure was reasonable and did not violate Venner’s rights under the Fourth Amendment. For these reasons he denied the motion to suppress the contraband as evidence and to dismiss the information against Venner. We reach the same result, but we do not find it necessary to consider the questions of probable cause, exigency, or reasonableness.

Those are considerations which must be weighed when a court undertakes to determine whether questioned evidence, seized by police from a defendant on trial, was seized in compliance with or in violation of conceded Fourth Amendment rights of that defendant. Before it is necessary to entertain the question of compliance on the one hand and violation on the other, there may be, as there is in this case, a threshold question to be answered. That question is whether the Fourth Amendment applies at all to the circumstances under which the police came into possession of the questioned evidence. 1 If the ⁶¹¹ Fourth Amendment does not apply — if Venner was not the “victim” of a police seizure — then questions of probable cause, exigency, and reasonableness are totally irrelevant. The well known comment of Mr. Justice Holmes in Hester v. United States, 265 U. S. 57 , 68 L. Ed. 898 , 44 S. Ct. 445 (1924) that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields”, serves to illustrate that agents of the government may, irrespective of probable cause or the lack of it, search an unprotected place and seize anything they find there, with no requirement whatever that they obtain a warrant or that there be exigent circumstances which required the immediate seizure without a warrant.

What must be kept in mind is that what the Fourth Amendment protects is the right of people to be secure against unreasonable searches and seizures. When a search and seizure are made in the proper execution of a properly issued warrant, they are not unreasonable and therefore they violate no constitutionally protected rights. To put it another way, there is no constitutional protection against a reasonable search and seizure. And not everything is protected against unreasonable searches and seizures.

What is protected is the right to be secure in one’s person, house, papers, and effects. What may be suppressed, upon a proper showing, are not persons or houses themselves, but papers and effects, broadened in meaning to include any so-called real evidence or physical evidence, including intercepted conversations, but distinguished from testimonial evidence, which has been ⁶¹² unlawfully seized by the police from a person or from his house or other place where the individual has a constitutionally protected expectation of privacy. In the familiar constitutional sense of the word “search” and the word “seizure”, it is neither a search nor a seizure when the police come into possession of contraband, instrumentalities of crime, fruits of crime, or mere evidence, without violating the security of the defendant’s person or his house or other constitutionally protected area. A review of the evolution of Fourth Amendment protection available to defendants in State criminal cases may be helpful to an understanding of that protection as it is applied today.

The rule followed for many years in Maryland, and in many other states, is found in Marshall v. State, 182 Md. 379 , 35 A. 2d 115 (1943). The Court said, at 383: “At common law matter pertinent to the issue was always admissible and the court would not raise an issue as to how it was obtained.” The Court quoted with approval from Lawrence v. State, 103 Md. 17 , 63 A. 96 (1906), which cited 4 Wigmore on Evidence, Sec. 2264, and 1 Greenleaf on Evidence, Sec. 254 (a), and quoted from Greenleaf that “though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice of how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.” This view was reaffirmed by the Court of Appeals in Davis v. State, 189 Md. 640 , 57 A. 2d 289 (1948), in which the Court said, at 645: “This State has aligned itself with those jurisdictions holding that the question of how evidence is obtained is collateral to the issue of the guilt or innocence of the accused, and, therefore, ⁶¹³ pertinent evidence, no matter how obtained, will be admitted.” It should be noted that the rule applied as the law of Maryland in the cases just cited was the common law rule. A statutory modification enacted in 1929 made inadmissible in most misdemeanor trials evidence obtained through an illegal search or seizure.

The common law rule continued to apply in felony cases. That statute, known as the Bouse Act, appeared as Code, Art. 35, § 5, until 1 January 1974, when it was repealed by Acts of 1973,1st Sp. Sess., ch. 2, § 2. When Mapp v. Ohio, 367 U. S. 643 , 6 L.Ed.2d 1081 , 81 S. Ct. 1684 (1961), extended the federal exclusionary rule of Weeks v. United States, 232 U. S. 383 , 58 L. Ed. 652 , 34 S. Ct. 341 (1914), to state prosecutions, defendants in all criminal prosecutions, felony or misdemeanor, became entitled, as a matter of federal law, to the exclusion from the trial of all evidence obtained in violation of the Fourth Amendment.

But one must have been a “person aggrieved” — he must have been the victim of an unlawful seizure — to be entitled to the protection of Mapp’s exclusionary rule. In Katz v. United States, 389 U. S. 347 , 19 L.Ed.2d 576 , 88 S. Ct. 507 (1967), the accused sought to suppress a telephone conversation seized by agents by the placing of an electronic device on the outside of a telephone booth in which Katz originated a call. The issues as argued were whether a public telephone booth was a constitutionally protected area, and whether a physical penetration into a constitutionally protected area is necessary to make the search unlawful. The Supreme Court declined to adopt that formulation of the issues.

It said, at 350: “In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase ‘constitutionally protected area.’ Secondly, the Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ ” The Court went on to say, at 351: “For the Fourth Amendment protects people, not ⁶¹⁴ places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U. S. 206, 210 [, 87 S. Ct. 424, 427 , 17 L.Ed.2d 312 ]; United States v. Lee, 274 U. S. 559, 563 [, 47 S. Ct. 746, 748 , 71 L. Ed. 1202 ], But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Answering the contention that Katz was not in a private place because he could be seen in the booth through the glass the Court said, at 352: “But what he sought to exclude when he entered the booth was not the intruding eye — it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen.

No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.” Not all of the cases in this area undertake to draw a clear distinction between two approaches which we see as different, and which may or may not, in a particular case, be significant to the result. It is one thing to hold that evidence may be used because the manner in which the police came by it was unrelated to any right of the accused under the Fourth Amendment. It is quite different to hold that evidence may be used because the police respected the accused’s Fourth Amendment rights and the seizure was reasonable, having been made under a valid warrant, or upon probable cause and exigent circumstances.

Cardwell v. Lewis, 417 U. S. 583 , 41