Lebedun v. State

• Citation: 283 Md. 257,390 A.2d 64
• Decision Date: 18 July 1978
• Docket Number: No. 154,154
• Parties: Allan Abraham LEBEDUN v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 257

283 Md. 257

390 A.2d 64

Allan Abraham LEBEDUN v. STATE of Maryland.

No. 154.

Court of Appeals of Maryland.

July 18, 1978.

Bradford C. Peabody, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Stephen B. Caplis, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

SMITH, Judge.

Allan Abraham Lebedun (Lebedun), here seeks to overturn his conviction by a Montgomery County jury of two separate robberies and related handgun violations. He claims: (1) the trial court erred in denying his motion to suppress evidence seized from his motel room and a statement made as a consequence thereof, and (2) that it likewise erred in consolidating for trial indictments pertaining to two entirely separate incidents. We shall hold that there was no error on the first point, but there was error on the second. The Court of Special Appeals affirmed his conviction in an unreported opinion (No. 243, September Term, 1977, decided November 16, 1977). We granted the writ of certiorari that we might consider these two questions.

The first armed robbery took place on January 28, 1976, at a Montgomery County drugstore. The second took place three days later at another pharmacy located about a mile from the first. We shall develop additional facts in the process of the opinion.

1. Suppression of Evidence

On the evening of February 1, the day after the second robbery, Lebedun called the Arlington County, Virginia, fire department rescue squad. He sought their assistance at a motel, saying that his friend, Andrew Bodeau, appeared to be suffering from an overdose of drugs. The dispatcher promptly notified two members of the rescue squad. Immediately thereafter the police department was notified of a "possible overdose" at the motel. One of the rescue squad members testified:

"If a call comes in that is a possible overdose, where you don't have the details, it's customary to notify the police that our unit is responding to a possible overdose, and they dispatch a unit also to cover any situations that might arise for police action."

This witness was a full-time professional employee of the fire department with 10 years service, the last five of which had been exclusively in the rescue unit.

The firemen arrived promptly at the motel. They found Bodeau on the floor, saw Demerol tablets in the room, determined that Bodeau had taken such tablets without a prescription, and noted that the motel room was "full of all kinds of machines" and "medical or drug related items." For that reason, they verified with their radio dispatcher that police were enroute. A police officer arrived on the scene approximately five minutes after the rescue squad had been notified of Lebedun's call. This officer testified that it was police department policy that "at any time there's possibly anything that might endanger any personnel of the Fire Department, that the police ride with them and assist them if possible." He further stated that when he arrived at the scene he saw the rescue vehicle backed up to the room occupied by Lebedun and Bodeau. The front door was open, the lights on, and the curtains drawn. He walked in, without announcement, and found that one paramedic was attending Bodeau while the second was questioning Lebedun.

The police officer observed various items in the room, including some electrical appliances, all of which he suspected were stolen. He heard Lebedun say in response to the question of a paramedic that both Lebedun and Bodeau had taken Demerol. One of the paramedics called the officer's attention to two bottles of Demerol tablets, plainly marked.

The paramedics left when Bodeau refused their offer of transportation to a hospital. The police officer then advised Lebedun and Bodeau of their constitutional rights and requested them to produce a prescription for the Demerol. When they failed to do so, he arrested both men for possession of a controlled dangerous substance. Assistance was requested and a second officer came to the scene.

Lebedun was removed from the motel to the Arlington County Police Department. There a magistrate read to him a form listing his constitutional rights. Ultimately, after an interrogation, Lebedun admitted to the robberies of the two pharmacies involved in this case. Thereafter, pursuant to a search warrant, the motel room was entered and a large quantity of drugs, two ski jackets, and two ski masks were seized.

Lebedun here contends that the trial court erred in denying his motion to suppress the evidence seized from the motel room and the statement made as a result of his arrest and the subsequent search.

The area of warrantless searches has been a particularly unsettled facet of the law. See Bacigal, The Emergency Exception to the Fourth Amendment, 9 U.Rich.L.Rev. 249 (1975); Irons, The Burger Court: Discord in Search and Seizure, 8 U.Rich.L.Rev. 433 (1974); LaFave, Warrantless Searches and the Supreme Court: Further Ventures Into the "Quagmire," 8 Crim.L.Bull. 9 (1972); and Mascolo, The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buff.L.Rev. 419 (1973). See generally J. Israel & W. LaFave, Criminal Procedure in a Nutshell § 14 at 119-49 (2d ed. 1975).

Professor Bacigal points out:

"The fourth amendment consists of two conjunctive clauses: the reasonableness clause, which protects against unreasonable searches and seizures, and the warrant clause, which prescribes conditions for the issuance of a warrant. The proper relationship between these two clauses has been the subject of much debate centering on whether the clauses are dependent or independent of each other." 9 U.Rich.L.Rev. at 257 (footnote omitted).

More recently in Marshall v. Barlow's, Inc., --- U.S. ----, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), Mr. Justice Stevens indicated in his dissent that the clauses are independent:

"This preconstitutional history includes the controversy in England over the issuance of general warrants to aid enforcement of the seditious libel laws and the colonial experience with writs of assistance issued to facilitate collection of the various import duties imposed by Parliament. The Framers' familiarity with the abuses attending the issuance of such general warrants provided the principal stimulus for the restraints on arbitrary governmental intrusions embodied in the Fourth Amendment.

'(O)ur constitutional fathers were not concerned about warrantless searches, but about overreaching warrants. It is perhaps too much to say that they feared the warrant more than the search, but it is plain enough that the warrant was the prime object of their concern. Far from looking at the warrant as a protection against unreasonable searches, they saw it as an authority for unreasonable and oppressive searches . . .' (, citing Taylor, Two Studies in Constitutional Interpretation, 41 (1969)).

"Since the general warrant, not the warrantless search, was the immediate evil at which the Fourth Amendment was directed, it is not surprising that the Framers placed precise limits on its issuance. The requirement that a warrant only issue on a showing of particularized probable cause was the means adopted to circumscribe the warrant power. While the subsequent course of Fourth Amendment jurisprudence in this Court emphasizes the dangers posed by warrantless searches conducted without probable cause, it is the general reasonableness standard in the first clause, not the Warrant Clause, that the Framers adopted to limit this category of searches." Id. at ---, 98 S.Ct. at 1828.

The Supreme Court has at times embraced the view that the clauses are "dependent and complementary; thus making warrantless searches unreasonable except in emergency situations when resort to a magistrate is impossible." Bacigal, Supra, 9 U.Rich.L.Rev. at 257. Thus, in Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), it was asserted "that searches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Accord, Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971).

Support for the view that the Court is today thinking in terms of a broad standard of "reasonableness" as the test for searches without a warrant, and will no longer adopt a "Per se " unreasonableness approach to warrantless searches, may be gleaned from several cases. For instance, in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), Mr. Justice Rehnquist said for the Court:

"The Framers of the Fourth Amendment have given us only the general standard of 'unreasonableness' as a guide in determining whether searches and seizures meet the standard of that Amendment in those cases where a warrant is not required. Very little that has been said in our previous decisions, see Cooper v. California, (386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 30 (1967)), Harris v. United States, (390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968)), Chambers v. Maroney, (399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)), and very little that we might say here can usefully refine the language of the Amendment itself in order to evolve some detailed formula for judging cases such as this." Id. at 448, 93 S.Ct. at 2531.

In Dombrowski the Court upheld the warrantless search of the trunk of a car which had been towed to a service station following a wreck. The police found incriminating evidence of a murder while searching for a police officer's service revolver which the driver was thought to possess.

In United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), the defendant...