Duncan v. State

Decision Date30 June 1975
Docket NumberNo. 967,967
Citation27 Md.App. 302,340 A.2d 722
PartiesSherman DUNCAN, alias James Fitz, and Cornell Smith v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

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.

Courts occasionally leap headlong into the merits of a controversy with scant thought to the preliminary question of whether the controversy is even justiciable in the first instance. This appeal permits us to linger upon the threshold and to explore the fascinating, though frequently overlooked, contours, peculiar characteristics and procedural mysteries of the threshold itself. What is the rite of passage by which one crosses? Who bears the peril of the crossing? The prime issue in the case before us is:

Who has the burden of producing evidence on the question of standing to raise a Fourth Amendment protest?

It is, of course, black letter law that only a 'person aggrieved by an unlawful search and seizure' may challenge the constitutional validity of that search and seizure. Jones v. United States, 362 U.S. 257, 261, 80 A.Ct. 725, 4 L.Ed.2d 697, 702 (1960). It is not enough that someone's right to be free of unreasonable search and seizure has been abrogated; it is necessary that the right abridged be that of the defendant personally. Alderman v. United States, 394 U.S. 165, 173, 89 S.Ct. 961, 22 L.Ed.2d 176, 186 (1969). One must establish that it is his own direct or derivative enjoyment of property or expectation of privacy that has been invaded before he may challenge the invasion. Walters v. State, 8 Md.App. 583, 261 A.2d 189; Palmer v. State, 14 Md.App. 159, 286 A.2d 572; Lopata v. State, 18 Md.App. 451, 307 A.2d 721; Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 63 L.Ed.2d 208 (1973).

We are not here concerned with the question of what is the appropriate burden of proof at a suppression hearing once a justiciable issue is properly before the hearing judge. It was settled by Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), that that burden is a preponderance of the evidence. Nor are we concerned with the allocation of the burden of going forward with the evidence on the merits of a search and seizure question. It is clear that that burden shifts, depending on the presence or absence of a search warrant. When the police execute a search under authority of a facially adequate warrant, it is presumptively good and the burden is upon the defendant to establish its invalidity. Where the evidence is inconclusive in this regard, the State wins. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Alderman v. United States, supra; Hignut v. State, 17 Md.App. 399, 408-410, 303 A.2d 173. Where, on the other hand, the defendant establishes initially that the police proceeded warrantlessly, the burden shifts to the State to establish that strong justification existed for proceeding under one of the 'jealously and carefully drawn' exceptions to the warrant requirement. Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514, 1519 (1958). Where the evidence is inconclusive in this regard, the defendant wins. Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564, 576 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, 585 (1967); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59, 64 (1951); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948). Nor are we concerned with the rules of admissibility at such a hearing. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), established that the formal rules of evidence are suspended and that the decision as to the receipt of evidence is left to the broad discretion of the hearing judge.

All of the foregoing questions are involved with what transpires within the forum of the suppression hearing. We are here concerned, rather, with the very passkey to that forum. The fundamental issue before us, on the question of standing even to raise and adjudicate a Fourth Amendment question on its merits, is that of Who has the initial burden of producing evidence? Must the defendant establish standing to raise the issue or must the State establish non-standing to avoid the issue? If, on the motion to suppress, neither establishes anything, who wins the nothing-nothing tie?

The issue is squarely raised, for the present appeal confronts us with a pair of nothing-nothing ties.

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. Unlike the situation facing the Supreme Court in Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972), the State's Attorney, in arguing against the motions in both cases, clearly raised the issue of standing.

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 a 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 evidence at both trials on the question of standing was singularly unilluminating. As to whether either appellant had any proprietary or rightful possessory interest in the searched automobile, or was legitimately in the automobile by virtue of being a guest, invitee, licensee or bailee of the rightful owner or possessor, the record is a virtual blank. Neither appellant took the stand; neither appellant offered any witnesses in this (or any other) regard. The only testimony came from the...

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21 cases
  • Hepple v. State
    • United States
    • Court of Special Appeals of Maryland
    • June 4, 1976
    ...Amendment infringement of his rights.' 21 The court's understanding of the law was correct. We said in Duncan and Smith v. State, 27 Md.App. 302, 304, 340 A.2d 722, 724 (1975), judgment vacated on certiorari for other reasons, 276 Md. 715 'It is, of course, black letter law that only a 'per......
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    • United States
    • Maryland Court of Appeals
    • October 27, 1977
    ...390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) had eroded that rule to the point of extinction. Duncan and Smith v. State, 27 Md.App. 302, 310-325, 340 A.2d 722 (1975). On review by way of certiorari we disagreed. We held that automatic standing was still the constitutional law of the l......
  • Graham v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 6, 2002
    ...shifting allocation of both the burden of production and the burden of persuasion, this Court clearly described those procedural incidents in Duncan and Smith v. State, 27 Md.App. 302, 304, 340 A.2d 722 We are not here concerned with the question of what is the appropriate burden of proof a......
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    • Court of Special Appeals of Maryland
    • February 2, 2001
    ...Coomes v. State, 74 Md.App. 377, 391, 537 A.2d 1208 (1988); Bates v. State, 64 Md.App. 279, 283, 494 A.2d 976 (1985). We pointed out in Duncan and Smith v. State, 27 Md.App. 302, 313, 340 A.2d 722 (1975), how the allocation to the defendant on the threshold issue of standing is but an insta......
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