Anglin v. State

• Decision Date: 14 March 1967
• Docket Number: No. 18,18
• Citation: 1 Md.App. 85,227 A.2d 364
• Court: Court of Special Appeals of Maryland
• Parties: Morris ANGLIN, Jr. v. STATE of Maryland.

Page 85

1 Md.App. 85

227 A.2d 364

Morris ANGLIN, Jr. v. STATE of Maryland.

No. 18.

Court of Special Appeals of Maryland.

March 14, 1967.

Certiorari Denied May 4, 1967.

Solomon Liss, Baltimore, for appellant.

Donald Needle, Asst. Atty. Gen., Baltimore, for appellee, Thomas B. Finan, Baltimore, former Atty. Gen.; Donald Needle, Asst. Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Martin B. Levinson, Asst. State's Atty., for Baltimore City, Baltimore, on the brief.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and DYER, Specially Assigned Judge.

ORTH, Judge.

On January 11, 1965, appellant, Morris Anglin, Jr., was convicted of unlawfully breaking, in the daytime, the dwelling house of Milton Volk with the intent to steal, and of feloniously committing burglary, in the nighttime, of the dwelling of Kolliope Pappas, by Judge Meyer M. Cardin, sitting without a jury, in the Criminal Court of Baltimore. He was sentenced to ten years on each conviction, the sentences to run concurrently, but consecutively with a ten year sentence previously imposed in Baltimore County for a conviction of housebreaking. He raises two contentions on this appeal, (1) that a motion to suppress the evidence seized under color of a search warrant should have been granted, and (2) that there was not sufficient evidence to sustain the convictions.

Appellant concedes that the application for the warrant showed probable cause and does not challenge the validity of the warrant. The affidavit and warrant specifically set out twenty-seven articles reported stolen in a burglary in Baltimore County, including a woman's watch, earrings, two fur coats, a fur scarf, a fur stole, a fur hat, six women's cloth coats, miscellaneous men's jewelry, men's clothing, a television set, a table model radio and a transistor radio. These goods listed were not taken from the home of Mr. Volk or mrs. Pappas, and, of course, were not part of the evidence in the trial resulting in the convictions from which appeal is now taken. When the police officers searched the trailer under authority of the warrant, they found and seized a very large number of articles, so many that it was necessary to make a half a dozen trips to transport them to the police headquarters. Included in the articles seized were men's and women's clothing, fur coats, men's and women's jewelry, household appliances, radios, some twenty-five or more men's and women's watches, a dozen wallets, jewelry boxes, phonograph records, suit cases, television sets, silverware, cameras, pictures and electric shavers.

Some of these articles were admitted into evidence in the instant case-a watch, a jewelry box, earrings and miscellaneous jewelry under the Volk indictment, a statute under the Pappas indictment. Appellant contends that since they were not among the items listed in the application attached to the warrant, the articles were the product of an illegal search and seizure, and his motion to suppress should have been granted.

The rules of law in this regard are clearly set out in Brooks v. State, 235 Md. 23, 29, 200 A.2d 177, 180 'The general rule is that property other than that for which a search is being made under the authority of a search warrant cannot be seized under the authority of that warrant because it does not come within the description of the warrant. See People v. Pruess, 225 Mich. 115, 195 N.W. 684 (1923); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). The rule is otherwise, however, when an executing officer, upon entering the premises under a valid search warrant, finds thereon contraband or property, the possession of which is illegal and constitutes an offense against the state or government. See the annotation, Search and Seizure-Different Offense, 169 A.L.R. 1419, 1424. Under the latter circumstances, the officer has a right to seize such property even though it was not described in the search warrant.'

The Court cites a long line of cases in point and quotes Harris v. United States, 331 U.S. 145 (1946) at page 155, 67 S.Ct. 1098, at page 1103, 91 L.Ed. 1399:

'If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by lawenforcement agents of government property, the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated.'

It also refers to Bryant v. United States, 252 F.2d 746 (5th Cir.1958), where it was said in effect that 'the fruits of crime such as stolen property' may be legally seized notwithstanding that the search warrant fails to describe such articles.

Appellant does not quarrel with these rules as such but urges that if property not listed in the search warrant is seized as fruits of crime, the executing officer must know at the time the property has been stolen or at least there must be some proof of knowledge on the part of the officer that in fact the property is the fruit of a crime. We do not agree.

In Brooks v. State, supra, the Court said, page 30, 200 A.2d page 181:

'* * * where the officers had reasonable cause to infer that the packaged hogmeat labeled 'Curtin' found on the premises of a suspected thief named 'Brooks' was stolen property, we think the officers were justified in believing that it was the fruit of a crime and in seizing it as such. The mere fact that the packages of hogmeat were not listed as stolen property in the affidavit supporting the search warrant would not render inadmissible the testimony concerning the recovery thereof on the ground that the hogmeat was a product of an illegal search and seizure.' (emphasis supplied).

The Fourth Amendment to the United States Constitution, as made applicable to the state by the Fourteenth Amendment, prohibits only those searches which are or may properly be classified as 'unreasonable.' Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. In United States v. Rabinowitz, 339 U.S. 56, page 63, 70 S.Ct. 430, 434, 94 L.Ed. 653, was said:

'What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are 'unreasonable' searches, and regrettably, in our discipline we have no ready litmuspaper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.'

The officers conducting the search did not have personal knowledge at the time the warrant was executed that the property seized was in fact the fruit of a crime. But the record discloses that they had ample reasonable cause to believe that it was stolen property.

The trailer designated in the warrant was observed over a period of seventeen days. During that period appellant left on a number of occasions during the day and night and would be gone several hours. On his return, he would often take something from the trunk of his car and carry it into the trailer. On one occasion he carried in a stack of phonograph records and a box loaded with merchandise. The day before the warrant was obtained, the officers were admitted into the trailer by appellant's wife. She refused them permission to search unless they had a warrant stating she feared what her husband might do to her. (She testified she didn't remember making this statement but did not deny she made it.)

When executing the warrant, Sergeant Donovan asked Mrs. Anglin to direct their attention to anything in the trailer that was not hers and 'anything she knew to be stolen or had knowledge to be stolen, to simplify matters, to direct our attention to it.' Mrs. Anglin's version was that she told them that if there was anything there that didn't belong to her they could take it. In any event, she did assist them and 'turned over' to the police many of the articles. The officers were aware of appellant's past character and reputation, including the fact that he was a known house burglar. See Edwardsen v. State, 243 Md. 131, 220 A.2d 547. They also knew that appellant had represented himself to the owner of the trailer park as 'Wesley Point Murphy' and that the trailer was registered in the name of 'Carmella Rose Murphy.' As it later appeared from the testimony of appellant, this was done to obtain financing for the purchase of the trailer under what he called a 'skeletal financial program' from an institution...