Garrison v. State

• Citation: 494 A.2d 193,303 Md. 385
• Decision Date: 01 September 1984
• Docket Number: No. 94,94
• Parties: Harold GARRISON v. STATE of Maryland. ,
• Court: Court of Appeals of Maryland

Page 385

303 Md. 385

494 A.2d 193

Harold GARRISON v. STATE of Maryland.

No. 94, Sept. Term, 1984.

Court of Appeals of Maryland.

June 27, 1985.

Motion for Reconsideration Denied Sept. 3, 1985.

Gerald A. Kroop, Baltimore (Kenneth D. Man and Kroop & Kurland, P.A., Baltimore, on the brief), for appellant.

Ann E. Singleton, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and JAMES C. MORTON, Jr. Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

James C. MORTON, Jr., Judge.

This case presents the question whether a search warrant particularly describing one apartment authorizes a search of an adjacent apartment and a seizure of goods therein, when police executing the warrant mistakenly believed that the search which they conducted was of the premises covered by the warrant.

On May 21, 1982, Detective Albert Marcus of the Baltimore City Police Department applied for a warrant to search the dwelling of Lawrence Meril McWebb. Detective Marcus alleged in an affidavit in support of a search warrant that he had met with a "proven Confidential Reliable Informant" who told him that McWebb was selling marijuana out of his third floor apartment at 2036 Park Avenue, in Baltimore City. Marcus alleged that he took the following actions to verify McWebb's address:

"Upon receiving the above information from the proven confidential reliable informant your Affiant Detective Marcus went to the premises known as 2036 Park Avenue and found it exactly as the Informant had described as a three story brick dwelling with the numerials [sic] 2-0-3-6 affixed to the front of the premises. Further your Affiant made a check with the Baltimore Gas and Electric Company and discovered that the premises of 2036 Park Avenue third floor was in the name of Lawrence McWebb. Your Affiant Marcus then checked with the Baltimore Police Department and discovered that there was a subject by the name of Lawrence Merial [sic] McWebb, black male date of birth 12/20/31 with an address of 2036 Park Avenue third floor who had been arrested in the past with a B. of I. number of 108-147. According to arrest records the subject McWebb is described as being a black male 5'11"' tall weighing 150 pounds. This was exactly as described by Informant."

When Marcus applied for the search warrant, he apparently believed that only one apartment occupied the entire third floor. The search warrant which was issued authorized the police to search for marijuana and related materials "on the person" and "on the premises" of "Lawrence Meril McWebb," at "2036 Park Avenue third floor apartment described as being a three story brick dwelling with the numerals 2-0-3-6 affixed to the front of same." Pursuant to the warrant, several Baltimore City police officers, including Marcus, Detective Russell Shea, and Sergeant Joseph Schanken searched the entire third floor of 2036 Park Avenue. ¹ As a result of the search, the officers seized evidence from two separate apartments on the third floor, McWebb's and Harold Garrison's, the defendant in this case.

Garrison was subsequently charged with violations of the Controlled Dangerous Substance Act, including Maryland Code (1957, 1982 Repl.Vol., 1984 Cum.Supp.), Art. 27, § 286, possession of heroin with intent to distribute. Garrison moved to suppress the evidence seized from his apartment, arguing at a hearing on the motion "that the officers, not having a warrant for [his] apartment, had no right to go into that apartment and, furthermore, that they knew or should have known that ... the apartment ... was a separate apartment." Schanken, Shea and Marcus offered testimony regarding the manner in which the search was carried out. Garrison and McWebb offered testimony that substantially conflicted with the police account. Judge Thomas, presiding in the Circuit Court for Baltimore City, made the following findings of fact and denied the motion:

"One, that on May 21st, 1982, the police executed a search and seizure warrant for premises 2036 Park Avenue, third floor apartment. Two, the police had reliable information to believe the Defendant McWebb resided in a third floor apartment, did not know of another apartment on the third floor. Now, while [there] was evidence that there were a number of apartments in the building, police were unaware where these apartments were located or the character of the building.

"Three, the Defendant McWebb was detained outside of 2036 Park Avenue. With the keys furnished by him, the police gained entrance through a locked front door to the building, next to the door were seven mail boxes with bells, or indicating were bells under each mailbox, but no names were reflected on any of the mail boxes. Further McWebb's name was not visible on any of the mail boxes or any area adjacent thereto.

"Next, the police were directed to the third floor by McWebb without any notice or knowledge of the layout of that area. Five, that entrance to the third floor was gained through a common marked door which gave no indication that there was more than one apartment located on said floor. There was no one to alert anyone to indicate that there were more than one apartment.

"Next, that upon opening said door, police found the Defendant Garrison standing there in his night clothes. Next, seven, upon entrance to the third floor, police saw an open door to the left later identified as McWebb's apartment, and also an open door to the right later identified as Garrison's apartment. In fact, no door was visible at the time the police entered and the police were unaware at that time that there were two apartments.

"Eight, that from that position of the hallway area leading to the two apartments, the police saw and based on their expertise located on top of the dresser in an open room to the right, a quantity of marijuana. Entrance was made into that room later identified as the apartment of the Defendant Garrison where a police or the police found over the front door or the door leading to that area articles of men's clothing.

"No numbers were observed by police upon entering the apartment which would alert them to a separate apartment. ² The room was searched, and in the apartment of the Defendant Garrison was recovered a quantity of heroin and approximately four thousand dollars in cash.

"Nine, also significant or significantly at the time, neither Defendant Garrison nor Defendant McWebb indicated that there were two separate apartments on the third floor. Ten, that a copy of the search and seizure warrant was given to the Defendant McWebb. The inventory listed all the evidence seized from both apartments without indicating which pieces of evidence were found in each location. Eleven, it is clear that there was a common door which could be opened at the time of the search affording access between the two apartments.

"The evidence indicates that while each apartment or the occupant of each apartment could have privacy by locking this door, nevertheless, there was free access judging from all the evidence at the time the police arrived there between the two apartments, and that the Defendants so intended based on the evidence that has been submitted before me.

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* * *

"Now, with respect to the search and seizure warrant. The general rule regarding the searches of multiple units for the purpose of satisfying the Fourth Amendment, searching two or more apartments in the same building, is no different than searching two or more completely separate houses. Probable cause must be shown for searching each house, or as the case may be, each apartment. However, there is an exception to this general rule where the multiple unit character of the premises is not externally apparent and is not known to the officer applying for or executing the warrant.

"It is clear that the warrant specified the premises to be searched as the third floor apartment of the Defendant McWebb, that the officers did not know that there was more than one apartment on the third floor and nothing alerted them of such a fact until after the search had been made and the items were searched [sic]. In view of these findings, the Court will deny the motion of each Defendant to suppress the evidence." (Emphasis added.)

Thus, despite its denial of the defense motions, the trial court determined that the warrant, on its face, was limited to McWebb's apartment.

Garrison proceeded to trial on a statement of facts with a plea of not guilty. On March 18, 1983, he was found guilty on the heroin charge and sentenced to a 15-year term of imprisonment.

Garrison appealed to the Court of Special Appeals, which affirmed the judgment of the trial court. Garrison v. State, 58 Md.App. 417, 473 A.2d 514 (1984). Garrison then filed a petition for a writ of certiorari which this Court granted. 300 Md. 689, 480 A.2d 819.

The question presented here is readily resolved by an examination of elementary search and seizure principles and the uncontested facts of this case. Article 26 of the Maryland Declaration of Rights provides:

"That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grevious [grievous] and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted."

The Fourth Amendment to the Constitution of the United States 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, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Article 26 is in pari materia with the ...