Duncan v. State

• Decision Date: 28 December 1976
• Docket Number: No. 967,967
• Citation: 366 A.2d 1058,34 Md.App. 267
• Parties: Sherman DUNCAN, alias James Fitz and Cornell Smith v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 267

34 Md.App. 267

366 A.2d 1058

Sherman DUNCAN, alias James Fitz and Cornell Smith v. STATE of Maryland.

No. 967.

Court of Special Appeals of Maryland.

Dec. 28, 1976.

Dennis M. Henderson, Asst. Public Defender, with whom were Alan H. Murrell, Public Defender and Arnold M. Zerwitz, Asst. Public Defender on the brief, for appellants.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen. and Robert S. Rothenhoefer, State's Atty. for Frederick County on the brief, for appellee.

Argued before MORTON, THOMPSON and MOYLAN, JJ.

MOYLAN, Judge.

The appellants, Sherman Duncan (alias James Fitz) and Cornell Smith, were jointly arrested in Frederick County on June 18, 1973. They were jointly charged in a two-count indictment with (1) grand larceny and (2) receiving stolen goods. Although both ultimately elected court trials, a difficulty in arranging for legal representation by Duncan resulted in a trial severance. Smith was tried in the Circuit Court for Frederick County by Judge Robert E. Clapp, Jr., on January 22, 1974, and was found guilty of the first count, charging grand larceny. Duncan was tried in the Circuit Court for Frederick County by Judge Ralph G. Shure on January 24, 1974, two days later, and was found guilty of the second count, charging the receipt of stolen goods. Notwithstanding the separate trials, the evidence produced was so virtually identical and the issues here presented are so overlapping in significant part, that it serves the purpose of judicial husbandry to consolidate the consideration of these appeals within a single opinion. Any minor differences in the relevant testimony will be noted.

The key contention raised by each defendant is that the stolen goods were turned up by the police in the course of an allegedly unconstitutional search of the automobile with which both appellants were linked by several witnesses. Duncan, in the course of his trial, moved to suppress the fruits of that search. His motion was denied. Smith, by a written motion filed just before his trial commenced, moved to suppress the physical evidence. His motion recited:

'1. That your Petitioner was arrested on a public street in the City of Frederick, Maryland without an arrest warrant. That the police after arresting the Petitioner proceeded to search a car in which Petitioner was a passenger and without the Petitioner's permission or with a search warrant.

2. That evidence was illegally seized by the police and should not be introduced at trial.'

Evidence bearing on the motion was adduced during the course of the trial. Smith's motion was also denied.

Both appellants initially appealed their convictions to this Court. In Duncan and Smith v. State, 27 Md.App. 302, 340 A.2d 722, we affirmed. Our affirmance was based upon our conclusions (1) that neither appellant had demonstrated standing to contest the warrantless search of the automobile and (2) that they could not avail themselves of the automatic standing of Cecil Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), because of our belief that the very notion of automatic standing had been eroded to the point of extinction by the Supreme Court's later decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In Duncan and Smith v. State, 276 Md. 715, 351 A.2d 144, the Court of Appeals reversed our decision, holding that automatic standing was still the constitutional law of the land. The Court of Appeals remanded the case to us to determine the search and seizure issue upon its merits.

It is axiomatic, of course, that the resolution of the standing question, either in favor of the appellants or in favor of the State, has no bearing upon the ultimate decision upon the Fourth Amendment merits. Standing is simply the key to the courtroom, giving one access to the adjudicative process but not foretelling success or failure as a result of that process. Because it is now the law of the case that both appellants have standing, they are entitled to litigate the Fourth Amendment merits and we turn our attention, therefore, to the merits.

The victimized store in this case, Montgomery Ward's, is located in the Fredericktown Mall on the north side of U.S Route 40 just west of the city of Frederick. Until several bags of stolen merchandise still containing the price tags were recovered by the police from the trunk of a white Mercury at approximately 5 p.m. on June 18, 1973, the personnel at Montgomery Ward's did not realize that a larceny had taken place. The security personnel at the nearby J. C. Penney store, also located in the Fredericktown Mall, were, however, very alert to an attempted larceny of their merchandise at approximately 4 p.m. Two Negro males had been observed putting clothing into big trash bags and then carrying them out of the store, where they were set in trash cans just outside of a Pappy's Restaurant. A security officer took up a surveillance point to observe whoever might come by to retrieve the merchandise temporarily 'stashed' in the trash cans. He observed two Negro males approach in a white Mercury, with a damaged front end, and bearing Maryland license tags KR 4679. When they, in turn, observed him, they drove off at high rate of speed, 'laying down rubber.' The police were immediately notified.

Mrs. Mary Joan Maher lived on Grove Hill Road, a residential cul-de-sac, located just south of U.S. 40 across from the entrance to the Fredericktown Mall. At approximately 4 p.m. on June 18, she observed a white Mercury drive off the road and park on her front lawn. Two Negro males, strangers to her, alighted from the car, turned away when they saw her looking out of the door, and walked back toward Route 40. She notified the police. The two appellants were ultimately arrested as they were walking along the road several hundred yards away. Mrs. Maher and another neighbor identified them as the occupants of the white Mercury. The Mercury was the car that had been observed a few minutes earlier by the security officer of J. C. Penney's.

A warrantless search of the trunk of the automobile produced the goods stolen from Montgomery Ward's. This was the corpus delicti. The two witnesses from Grove Hill Road (with a peripheral assist from the security man at J. C. Penney's and the proximities of time and place) established the criminal agency of the appellants. The entire case hinges upon the question of whether the police, upon the merits of the Fourth Amendment, were or were not acting reasonably when they conducted the warrantless search of the trunk of the automobile.

We hold that the police action was not unreasonable and that the stolen goods produced from the automobile trunk were properly admitted in evidence. The police were summoned to Grove Hill Road by a resident of that street who complained about the white Mercury. The Mercury was parked not upon the street but as Mrs. Maher testified, 'on her front lawn.'

We believe that the police action was ultimately reasonable for either of two different reasons. There is emanating from the recent Supreme Court decisions of Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), and South Dakota v. Opperman, -- U.S. --, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the new constitutional notion that the police have a 'community caretaking function' with respect to automobiles which bears upon the question of Fourth Amendment reasonableness. The general philosophy of the Supreme Court in this regard was stated by Justice Rehnquist in Cady v. Dombrowski, at413 U.S. 441, 93 S.Ct. 2528:

'Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'

The Cady v. Dombrowski opinion went on to point out that when 'community caretaking' was involved, the warrantless police activity was not based exclusively upon the predicate of exigency arising out of mobility under the Carroll Doctrine. The Court drew the distinction, at 413 U.S. 441-442, 93 S.Ct. 2528:

'Although the original justification advanced for treating automobiles differently from houses, insofar as warrantless searches of automobiles by federal officers was concerned, was the vagrant and mobile nature of the former . . . warrantless searches of vehicles by state officers have been sustained in cases in which the possibilities of the vehicle's being removed or evidence in it destroyed were remote, if not nonexistent.'

Even more pertinent to the factual situation now before us are the words of Chief Justice Burger, writing for the majority of the Supreme Court, in South Dakota v. Opperman at -- U.S. --, at 96 S.Ct. 3096, at 49 L.Ed.2d 1005:

'In the interests of public safety and as part of what the Court has called 'community caretaking functions.' Cady v. Dombrowski, supra . . . automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and...