Duncan v. State

• Decision Date: 27 October 1977
• Docket Number: No. 24,24
• Citation: 281 Md. 247,378 A.2d 1108
• Parties: Sherman DUNCAN, etc. and Cornell Smith v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 247

281 Md. 247

378 A.2d 1108

Sherman DUNCAN, etc. and Cornell Smith v. STATE of Maryland.

No. 24.

Court of Appeals of Maryland.

Oct. 27, 1977.

Dennis M. Henderson, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, and George E. Burns, Jr., Asst. Public Defender, Baltimore, on the brief), for appellants

Alexander L. Cummings, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Clarence W. Sharp and Arrie W. Davis, Asst. Attys. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

ORTH, Judge.

The Grand Jury for Frederick County returned a true bill against Cornell Smith, alias James Fitz, and Sherman Duncan (appellants), jointly, presenting that they did unlawfully steal (1st count) and receive (2nd count) goods of Montgomery Ward and Company, Inc. of a value in excess of $100. At separate bench trials in the Circuit Court for Frederick County, Smith was convicted under the 1st count and Duncan under the 2nd count. In each trial a motion to suppress the stolen goods as seized upon an unlawful search of an automobile was denied and the evidence was admitted. Maryland Rule 729. Smith and Duncan appealed from the respective judgments entered, and the two appeals were submitted to the Court of Special Appeals in one record. Each appellant attacked the denial of his motion to suppress. The Court of Special Appeals affirmed the The question presented on review is the propriety of the denial of the motions to suppress the challenged evidence. The answer to the question lies in the determination of whether the evidence was obtained by the police in violation of the guarantees of the Fourth Amendment to the Constitution of the United States. As in all Fourth Amendment cases, we are obligated to look to all the facts and circumstances of this case in light of the principles set forth in decisions of the Supreme Court of the United States. South Dakota v. Opperman, 428 U.S. 364, 375, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). "(W)hether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case . . . ." Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 790, 17 L.Ed.2d 730 (1967).

judgments in a single opinion, concluding with respect to the search and seizure issue that appellants had not demonstrated standing to contest the search and seizure and that the "automatic standing" rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) was not available to them because Simmons v. United States, 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 land and applicable to appellants. We remanded the case with direction that the Court of Special Appeals determine "whether the evidence in question was properly admitted." Duncan and Smith v. State, 276 Md. 715, 716, 351 A.2d 144 (1976). The Court of Special Appeals [378 A.2d 1111] then held that the motions to suppress the evidence were properly denied and affirmed the judgments. Duncan v. State, 34 Md.App. 267, 366 A.2d 1058 (1976). We granted appellants' petition for the issuance of a writ of certiorari.

THE FACTS

The facts material to the question of the admissibility of the challenged evidence were submitted to us by an agreed statement included in appellants' brief and supplemented in The events leading to the conviction of appellants began in the late afternoon of 18 June 1973 when two unidentified customers of the J. C. Penney Store in the Fredericktowne Mall in Frederick County told a sales clerk that "two black men had stuffed clothing from the store into plastic bags and put the bags in trash cans on the parking lot next to a nearby restaurant." The clerk gave this information to a store security guard who placed the trash cans under surveillance. Around 4:00 p. m. he saw "a white Mercury containing two black men stop near the trash cans momentarily and then speed away." He reported the incident, including a description of the automobile and its license number, to Officer Kirby Maybush of the Frederick City Police Department, who was at the store investigating a shoplifting complaint. Maybush had the description of the automobile broadcast over the police radio network with the request that if the car "was spotted, to stop it, that I wanted to talk to the subjects in reference to possible stolen clothing." He was informed by the Department of Motor Vehicles that the automobile was registered in the name of Shirley Ann Duncan of Baltimore, and, on further check he learned that it had not been reported stolen.

small part in the brief of the State. Maryland Rule 828 g. We summarize.

Mary Jo Maher lived on Grove Hill Road in Frederick County near the point at which the road "joins U.S. Route 40 directly across from the Fredericktowne Mall." About 4:00 p. m. on 18 June 1973 she saw an automobile pull off Grove Hill Road (there were no curbs or sidewalks) "and park by the side of the road on her property." Appellants got out of the vehicle and walked away. "Suspicious about the presence of the two unfamiliar black men in the neighborhood, she called the State Police, who responded within moments." The automobile on the Maher lawn was the one described in the lookout broadcast. A State Trooper searched the automobile for a registration card but did not find one.

Maybush, cruising around looking for the automobile, received word over the radio of its whereabouts. He went to Heerd sent for a Frederick City Police Department Criminal Investigation Division (C.I.D.) unit. "He said he did not search the car when he first arrived on the scene '(d)ue to the fact I had reason to believe it might have been used in a crime and I wasn't going to have the car searched until I had C.I.D. men come and check for fingerprints or for whatever might have taken place at that time.' " Detective Corporal George Himes, Jr. was the C.I.D. man who responded. He was given all the information known to the police at that time and briefed on what action had been taken. "(T)here had been a previous larceny from J. C. Penney's store and that a suspected vehicle in the theft had been found parked in front of the Maher property on the lawn." The police had detained "two colored male subjects which were seen acting in a suspicious manner in the area and that these two colored male subjects denied any connection with the vehicle as to owning it," and that they had identified themselves as James Fitz and Sherman The evidence which served as the basis of the charges against appellants and their convictions was found in the trunk. When Himes unlocked and raised the trunk lid he saw two large green heavy duty plastic trash bags. "A couple pieces of clothing were protruding from the bags. On one piece there was attached a two-part Montgomery Ward tag with both parts intact." Himes knew that when an article is purchased at Montgomery Ward the parts of the tag "are separated. One piece stays with the article and one piece stays with the store." The bags and clothing were seized. Himes testified that he did not know then that the items had been stolen from Montgomery Ward, as was later established, but, he declared, he had "reasonable suspicions they were."

the scene, and shortly thereafter his superior, Lt. Gary Heerd, arrived. The two officers conferred, and Maybush went to the Mall parking lot to look for the suspects. Ten or fifteen minutes later he saw appellants. They left the parking lot, crossed Route 40 and walked up Grove Hill Road toward the automobile. "He radioed this information to Lt. Heerd and the two officers converged on the appellants, arrested them at gunpoint on suspicion of larceny, handcuffed them and placed them in a patrol car. They identified themselves as James Fitz and Sherman Duncan. They were driven a short distance to the Maher property where, at 4:30 p. m., Mrs. Maher identified them as the men she saw getting out of the car. [378 A.2d 1112] Both appellants denied any connection with the automobile." They said it was not their car, that they did not know whose it was or who had it or how it got there. They declared that they had never seen it before. As one witness put it: "(A)t the time they denied any knowledge of the car that was parked in the yard. They repeatedly stated they had no connection with it, had not driven it there, and had not parked it there and answers of that nature." They were taken to police headquarters. Duncan. The automobile had not been reported stolen and was registered in the name of Shirley Ann Duncan. Although the police had been unable to reach her by telephone, a message had been left at her home to call the Frederick City Police Department. A registration card had not been found upon a check of the automobile by a State Trooper. "Himes entered the car, searched the glove box, overhead visors, console between the bucket seats and under the seats. He found the keys under the driver's seat and then proceeded to the trunk and opened it." He vowed that "the search of the car was not made pursuant to his investigation of the larceny at J. C. Penney and that the larceny played no part in his decision to search. He said he felt that it was either a stolen or abandoned vehicle and he entered the trunk to 'verify ownership of the vehicle' and 'to secure the vehicle, to check the vehicle for valuables and for all types of items to be secured into our possession until the owner can be contacted.' "

Upon these facts and circumstances the Court of Special Appeals thought that "(t)he entire case hinge(d) upon the question of whether the police, upon the merits of the Fourth Amendment, were or were not acting...