Benner v. State, 0633
| Decision Date | 18 May 2016 |
| Docket Number | No. 0633,0633 |
| Parties | DEAN LEE BENNER v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Krauser, C.J., Woodward, Salmon, James P. (Retired, Specially Assigned), JJ.
Opinion by Krauser, C.J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Convicted, upon an agreed upon statement of facts, in the Circuit Court for Howard County, of three counts of second-degree sexual offense, Dean Lee Benner, appellant, contends that the circuit court erred in denying his motion to suppress evidence seized from his home. Finding no error, we affirm.
The evidence presented at the suppression hearing, which we are required to view in a light most favorable to the prevailing party1 - in this instance, the State - shows that on August 29, 2013, police initiated an investigation of appellant after receiving a report that appellant had sexually abused an individual, whom we shall refer to as "the victim," during his childhood. When the police interviewed the victim, then twenty-three years old, he told them that between 1997 and 2003, appellant had repeatedly sexually abused him after holding either a gun to his head or a knife to his throat and threatening him that he would kill him and his family if he did not comply with appellant's sexual demands.
The victim reported that the sexual abuse took place at appellant's residence, which appellant shared with his mother, as well as at a warehouse where appellant worked, and at a farm owned by one of appellant's friends. He further told police that appellant used an "instant-matic" camera to photograph him during the sexual assaults, while he was naked, or performing a sex act, as well as at other unspecified times. The police then sought to obtain a search warrant for his residence.
In support of the warrant, police submitted the affidavit of Detective Aaron Miller, Child Abuse Sexual Assault Investigator for the Howard County Police Department, who had interviewed the victim and recounted the victim's description of the sexual abuse at issue in the affidavit. The detective also described, in his affidavit, typical characteristics of child sexual predators, based on his training and experience. Those characteristics included the practice of collecting "trophies" of sexual and non-sexual interactions with target children so that the predator could re-live those encounters and add to the fantasies the predator had as to those encounters. Those "trophies," he stated, could be items or photographs of the victim, which the sexual predator typically retained, for many years, together with other memorabilia.
The warrant ultimately obtained by police authorized them to search for and seize the following items:
Pursuant to that warrant, the police seized from appellant's home, among other things, a green photo album, a bag of photographs, ammunition, a West Virginia Sporting License application, an application to purchase a regulated firearm, gun parts, a Cannon camera, a Polaroid One Step camera, a Pentax camera, a gray plastic box with a brown wallet, a photograph of appellant with a gun to his head and a photograph of an unidentified boy.
Prior to trial, however, appellant moved to suppress only the seizure of the photograph of the unidentified boy and certain photographs contained in the green photo album and in the large bag of photographs. The court denied that motion, concluding that the seized photographs fell within the first provision of the warrant, "indicia of occupancy or use consisting of articles of personal property tending to establish that [appellant] lives at [the premises]." In so ruling, the court stated:
Clearly, what we have here in the context of the warrant are photo albums and bags of photos that would tend to show he lives at this certain address because that's where you keep those things that are near and dear to you. So, as it relates to the remaining items, the Court is going to find that they would be covered as indicia of occupancy of use as his personal property to show he lives at 6375 Greenfield Road, Apartment 1503, Elkridge, Maryland.
In considering the denial of a motion to suppress evidence, we review only the record of the suppression hearing. State v. Nieves, 383 Md. 573, 581 (2004)(citation omitted). In so doing, "[w]e review the evidence and inferences that may be drawn therefrom in the light most favorable to the party who prevails on the motion." Briscoe, 422 Md. at 396. Then, "in resolving the ultimate question of whether the [search] of an individual's person or property violates the Fourth Amendment, we 'make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.'" Crosby v. State, 408 Md. 490, 505 (2009)(quoting State v. Williams, 401 Md. 676, 678 (2007)).
Appellant contends that the suppression court erred in denying his motion to suppress the seized photographs, because those items, he maintains, were outside the scope of the search warrant at issue. Specifically, appellant claims that, because the photographs were not "instant-matic" photographs, nor evidence of erotica or pornography, nor evidence of any crime, they did not fall within the scope of the warrant. Finally, he asserts that because police seized random items not specifically enumerated in the warrant, they, in effect, turned the warrant into a "general warrant," which is constitutionally prohibited.
It is well settled that a search warrant must "particularly describe the 'things to be seized.'" Shoemaker v. State, 52 Md. App. 463, 484 (1982). This requirement "ensures that the executing officer is able to distinguish between those items within the scope of thewarrant and those that are not." Garcia-Perlera v. State, 197 Md. App. 534, 553 (2011)(citations omitted).
The warrant at issue, here, did precisely that. It specified that the items to be seized included items constituting indicia of occupancy or use, that is, articles of personal property tending to establish that the appellant lived at the premises. The photographs in question appeared to be appellant's personal property, and they were seized in his bedroom, thereby evidencing that appellant occupied the premises described in the search warrant. Moreover, the propriety of recognizing such evidence as indicia of occupancy is well established. See State v. Gore, 758 S.E.2d 717, 723 (S.C. 2014)( that non-prejudicial photographs seized from defendant's residence were sufficient to link defendant to residence); State v. Anderson, 842 So.2d 1222, 1228-229 (La. Ct. App. 2003)( that evidence of...
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