Boone v. State

• Decision Date: 08 March 1978
• Docket Number: No. 227,227
• Citation: 39 Md.App. 20,383 A.2d 412
• Parties: Marcus Angelo BOONE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 20

39 Md.App. 20

383 A.2d 412

Marcus Angelo BOONE v. STATE of Maryland.

No. 227.

Court of Special Appeals of Maryland.

March 8, 1978.

[383 A.2d 414] Geraldine Kenney Sweeney, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Stephen Rosenbaum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Bruce C. Spizler, Asst. Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and F. Anthony McCarthy, Asst. State's Atty. for Prince Argued before MOYLAN and MASON, JJ., and JAMES F. COUCH, Special Judge.

George's County, on the brief, for appellee.

MASON, Judge.

Appellant, Marcus Angelo Boone, was convicted at a bench trial in the Circuit Court for Prince George's County of receiving stolen goods (two counts). On appeal he contends, among other things, that the trial court erred in denying his motion to suppress evidence seized during the warrantless search of his apartment.

On August 10, 1975, Stephen Philip Mach, a member of the Prince George's County Sheriff's Department assigned to the Eviction Squad, went to appellant's residence, 7711 Hawthorne Street, Apartment 301, to execute a warrant of restitution, which stated:

Whereas at the trial of this case in this Court, judgment was rendered in favor of the Plaintiff (landlord) for possession of the premises, described as 7711 Hawthorne Street, # 301, Landover, Maryland 20785.

Now therefore, I do command you forthwith to deliver to the said plaintiff (landlord) possession of the said premises. Issued this 3rd day of August, 1976.

The statutory provision governing this procedure directs the sheriff

to cause the landlord to have again and repossess the property by putting him (or his duly qualified agent or attorney for his benefit) in possession thereof, and for that purpose to remove from the property, by force if necessary, all the furniture, implements, tools, goods, effects or other chattels of every description whatsoever belonging to the tenant, or to any person claiming or holding by or under said tenant.

Md. Real Property Code Ann. § 8-401(d).

According to Deputy Mach:

After checking in at the rental office and ascertaining that the rent in question had not been Mach testified that his search of the premises was done pursuant to a standard Prince George's County Sheriff's Department policy not to put contraband, intoxicants and weapons on the public street. On cross-examination, he further described this procedure:

paid, I proceeded to the apartment site with the resident manager and a crew of movers. I knocked on the door. There was no answer. We unlocked the doors and entered the apartment. I searched the premises for contraband, money, weapons, things that we normally don't put out on the street.

Q. In other words, to find what you considered to be contraband material, what kinds of items do you look into in order to find these items of contraband materials? In other words, do you go through people's drawers, closets, boxes?

A. Yes, sir.

Q. If they have any packages in the apartment, would you also look through the packages in order to see what was inside?

A. In some cases, I would.

Q. Is that what was done in this case?

A. Yes.

Q. Were the drawers, for example, and dressers and chests opened and searched?

A. Always; standard procedure.

Q. What would you do with the items which were not contraband, such as, let's say, credit cards and checks and personal papers that belonged to the occupant of the apartment? Where would those go?

A. If they belonged to the occupant, I would put them in a dresser drawer or a box or a bag and remove them.

Q. And they would go out on the street?

A. Yes, sir.

Q. (A)re there some items which you would hold for the owner?

A. Yes, sir. That would be handguns, jewelry, weapons, things that you don't put out on the street because they would be a health hazard or dangerous.

During the search of the premises before the property was removed from the apartment and placed on the street, Mach found next to the bed a small cardboard box containing some papers. At the bottom of the box he observed a checkbook which he removed and discovered it contained several identification cards and other items belonging to one Gale Acevedo. In a walk-in closet in the bedroom, Mach found several credit cards belonging to Patrick J. Flynn, Robert C. Masterson and appellant. Mach could not remember exactly where in the closet he found the credit cards, but did testify, "They may have been on the floor or on the ledge or in the pockets. Occasionally I go through clothes too."

After obtaining the telephone number of Gale Acevedo from some of the items found, Mach telephoned her. She informed him that her purse had been stolen and some of the recovered items had been reported to the police as stolen. Mach then contacted the police and turned all of the items of Acevedo, Flynn and Masterson over to them. ¹ Mach admitted that at the time he found this property, he did not know that it had been stolen.

The trial court, in denying appellant's motion to suppress, held:

We can, first of all, say that there is no Fourth Amendment problem with regard to a search in that by failing to pay rent Marcus Boone both forfeited his rights in the premises and then the justifiable expectation of privacy that he may have had in the premises, . . .

But, not even looking on it in that vein, the question is whether Sheriff Mach engaged in either an unreasonable search or unreasonable seizure. Certainly, executing a valid warrant of restitution is We feel the activities of the officer, first of all, in determining the character of each and every item he finds there so that he can exercise a different caretaking function depending on the nature of the item is not only sanctioned, it is to be condoned and certainly we feel that the actions of Officer Mach were not improper in any way, shape or form and certainly not violative of any Fourth Amendment right.

in no way, shape or form a search. Secondly, with regard to any seizure, . . . (t)he officer is commanded to pick up and put out on a public street each and every items that belonged in that premises. So there is certainly not a seizure problem.

THE FOURTH AMENDMENT

The threshold question to be answered is whether the search of appellant's apartment and the seizure of the credit cards comes within the ambit of that part of the Fourth Amendment of the United States Constitution, which 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."

The criteria for testing the applicability of the fourth amendment was enunciated by Mr. Justice Harlan in a concurring opinion in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967):

As the Court's opinion state(d), "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to See Venner v. State, 279 Md. 47, 51-52, 367 A.2d 949 (1977). Simply stated, applying this test to the facts here, if appellant had a reasonable expectation of privacy in the seized credit cards, the fourth amendment applies; if he did not, then the fourth amendment does not apply and "questions of probable cause, exigency, and reasonableness are totally irrelevant." Venner v. State, 30 Md.App. 599, 611, 354 A.2d 483, 490 (1976) aff'd, 279 Md. 47, 367 A.2d 949 (1977).

recognize as "reasonable". Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited.

The State contends that appellant had no reasonable expectation of privacy in the premises because "the judgment in the landlord's favor, which precipitated the warrant of restitution, terminated any property interest appellant may have had in the premises." In support of this contention and in ostensible reliance on United States v. Cowan, 396 F.2d 83 (2d Cir. 1968), the State reasons that the present case is analogous to those cases where the courts have uniformly held that a hotel guest who fails to pay his room rent forfeits his right to occupy the room and any right of privacy therein. E. g. United States v. Parizo, 514 F.2d 52, 55 (2d Cir. 1975); State v. Roff, 70 Wash.2d 606, 424 P.2d 643, 646-47 (1976).

In Cowan the defendant failed to pay his hotel bill and the manager removed all his personal effects and luggage to the hotel office. Later with the manager's consent, two F.B.I. agents examined the luggage and its contents, apparently finding incriminating evidence. Cowan contended that the search and seizure of his luggage were unlawful. The Court held:

Here there was no invasion of Cowan's right to privacy. He had lost his right to use the room and with this the law gave the hotel the right to seize the property. . . . (I)t is clear that by leaving the luggage in the room and failing to pay his bill, Cowan forfeited the right to occupy the room undisturbed 396 F.2d at 86-87. The Court further observed that Cowan's luggage and its contents were in legal possession of the hotel pursuant to a statutory lien for unpaid rent. Therefore, it could be examined, inventoried, and sold at public auction. Accord, United States v. Croft, 429 F.2d 884, 887 (10th Cir. 1970). We think the case of United States v. Cowan and the hotel cases adverted to are markedly different from the case at bench.

and, as to the luggage, the right to retain possession...