Duncan v. State

• Citation: 276 Md. 715,351 A.2d 144
• Decision Date: 04 February 1976
• Docket Number: No. 88,88
• Parties: Sherman DUNCAN, etc., and Cornell Smith v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 715

276 Md. 715

351 A.2d 144

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

No. 88.

Court of Appeals of Maryland.

Feb. 4, 1976.

Michael S. Elder, Asst. Public Defender (Alan H. Murrell, Public Defender and Dennis M. Henderson, Asst. Public Defender, Baltimore, on the brief), for appellants.

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

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE, O'DONNELL, JJ., and RAYMOND G. THIEME, Associate Judge, District Court of Maryland for District 7, specially assigned.

SMITH, Judge.

Our grant of the writ of certiorari in this case was 'limited solely to the issue set forth in the petition for writ of certiorari,' which was:

'Did the Court of Special Appeals err in holding that the decision of the United States Supreme Court in Cecil Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), is no longer controlling law in Maryland and that the Petitioners, by relying upon the rule, of automatic standing which that case established, failed to show that they had standing to challenge the legality of the search of an automobile and seizure therefrom of evidence used against them at trial?'

The Court of Special Appeals in Duncan and Smith v. State, 27 Md.App. 302, 317, 340 A.2d 722, 732 (1975), held 'that the 'automatic standing' notion of Cecil Jones' did not apply here 'primarily because of (that court's) considered belief that the very concept of 'automatic standing' has been superseded and rendered a dead letter by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).' We disagree. We hold that there was 'automatic standing.' Therefore, the Court of Special Appeals must determine in this case whether the evidence in question was properly admitted.

Appellants, Sherman Duncan and Cornell Smith (Duncan and Smith), were jointly indicted in Frederick County. Each was charged with grand larceny and receiving stolen goods. Each elected a court trial. Smith was convicted of grand larceny by Judge Clapp. As it is put in the agreed statement of facts filed in this Court under Maryland Rule 828 g in lieu of a printed record extract, in so doing the trial judge based his 'decision on the presumption that one in possession of recently stolen goods is the thief.' Chief Judge Shure convicted Duncan of receiving stolen goods. The agreed statement of facts states, 'Again the trial court grounded its verdict on the presumption which arises from the possession of recently stolen goods.'

The facts leading up to the arrest of Duncan and Smith and the search and seizure here under consideration are set forth in full at pages 307-10 of 27 Md.App., at pages 726-28 of 340 A.2d. We need not recount them here. It will be sufficient for our purposes to say that an important part of the evidence adduced against both defendants was clothing with price tags from Montgomery Ward Co., Inc., attached, which clothing was found in two plastic trash bags as a result of the search of a vehicle parked immediately adjacent to a public road but on private property. Messrs. Duncan and Smith allegedly were returning to this vehicle at the time they were apprehended. They were identified by the owner of the land where the car was parked as the individuals she had seen in the vehicle a short time earlier. ¹ Neither defendant took the stand in his own defense. Both appellants objected to introduction of the evidence thus obtained. A motion to suppress the evidence was filed by Smith, but since it was not filed five days prior to the date of trial, it was not heard in advance of trial. Rule 729 d 1. Smith specifically relied upon Jones in argument by his counsel to the court. No mention of Jones was made by counsel for Duncan. The State argued in Duncan's case that he had no standing to object to the evidence because he was a trespasser. In Smith's case the State argued lack of standing because he was a trespasser and also because it claimed the vehicle in question was abandoned. In Smith's case the trial judge held 'the search and seizure (to be) valid (and) reasonable . . . (and based) on probable cause . . ..' Therefore, he 'admit(ted) the evidence of the articles that were found upon that search of the trunk.' In Duncan's case the court phrased the question as 'whether or not the search of th(e) vehicle without a search warrant was reasonable under the circumstances . . ..' The evidence was held properly admissible. Thus, in each instance the trial judge implicitly found standing.

In one regard this case is similar to United States v. Moody, 485 F.2d 531 (3d Cir. 1973), where the court said:

'(T)he issue (of the continuing validity of Jones) was not raised by the government until this appeal, and as a result, the district court has had no opportunity to examine the question. It goes without saying that the proper function of the court is to review the work of the district court, and not to make initial determinations on complicated issues.' Id. at 533, n. 3.

Indeed, the issue of the continuing viability of Jones appears in this instance to have been raised by the Court of Special Appeals ex mero motu. Although the State in its brief in the Court of Special Appeals mentioned Jones and claimed that there was no standing on the part of Duncan and Smith, it at no time contended that Jones was no longer viable nor did it discuss Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), or Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), which we shall later discuss and which were strongly relied upon by the Court of Special Appeals in reaching its conclusion.

In Jones the first count of the indictment charged him with having 'purchased, sold, dispensed and distributed' narcotics in violation of the statute in that they were not in or from the 'original stamped package.' The second count charged him with having 'facilitated the concealment and sale of' the same narcotics, knowing them to have been imported illegally into the United States. The Court said that '(b)oth statutory provisions under which (Jones) was prosecuted permit conviction upon proof of the defendant's possession of narcotics, and in the case of (the first charge) of the absence of the appropriate stamps.' The seized narcotics were found in a bird's nest in an awning outside of a window in the apartment of a friend of Jones. Jones had been permitted to use the apartment 'as a friend.' He had slept there 'maybe a night.' At the time of the search Jones' friend had been in another city for about five days. The motion by Jones to suppress the evidence was denied on the basis of his lack of standing. Mr. Justice Frankfurter said for the Court that the issue of standing was 'to be decided with reference to Rule 41(e) of the Federal Rules of Criminal Procedure' which accords standing to object on certain grounds to '(a) person aggrieved by an unlawful search and seizure.' The Court pointed out that in order to qualify as a person so aggrieved 'one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.' It perceived a special problem in establishing standing in cases similar to that before it, '(s)ince narcotics charges like those in (that) indictment may be established through proof solely of possession of narcotics (as a result of which) a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him.' The Court said:

'(W)e are persuaded by this consideration: to hold to the contrary, that is, to hold that petitioner's failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the Government to have the advantage of contradictory positions as a basis for conviction. Petitioner's conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put in mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41(e).

'The Government's argument to the contrary essentially invokes elegantia juris.' Id. 362 U.S. at 263-64, 80 S.Ct. at 732.

As an alternate ground for Jones' standing, the Court found that he had made out sufficient interest in the premises. It said:

'No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched. As petitioner's testimony established Evans' consent to his presence in the apartment, he was entitled to have the merits of his motion to suppress adjudicated.' Id. at 267, 80 S.Ct. at 734.

In Simmons the Court viewed from a somewhat different posture a dilemma similar to that passed upon in Jones. Garrett and another were convicted of...