Everhart v. State

• Decision Date: 14 April 1975
• Docket Number: No. 44,44
• Citation: 337 A.2d 100,274 Md. 459
• Parties: Michael Ashton EVERHART v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 459

274 Md. 459

337 A.2d 100

Michael Ashton EVERHART v. STATE of Maryland.

No. 44.

Court of Appeals of Maryland.

April 14, 1975.

Fred R. Joseph, Hyattsville (Feissner, Kaplan, Smith, Joseph, Greenwald & Laake, Hyattsville, and William R. Leckemby, Jr., Public Defender for Frederick Co., Frederick, on the brief), for appellant.

Gilbert Rosenthal, 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 and O'DONNELL, JJ.

O'DONNELL, Judge.

The petitioner, Michael Ashton Everhart, the lessee of a farmhouse upon the Nathan Doody farm, upon his trial in the Circuit Court for Frederick County was found guilty by a jury (Judge Samuel W. Barrick presiding) of 'maintaining a common nuisance' in violation of Maryland Code (1957, 1971 Repl.Vol.) Art. 27, § 286(a)(5). ¹ He also was convicted of possession of a controlled dangerous substance-marijuana-in violation of Art. 27, § 287(a). ²

Admitted into evidence at his trial were approximately 200 items, including various types of pipes for smoking marijuana, numerous scales, weights, eyedroppers, gelatin capsules and 'Baggies,' measuring spoons and syringes hypodermic needles, wire screens, homemade cookers, a quantity of marijuana, 78 growing marijuana plants, an assortment of colored pills, cigarette papers and two twenty dollar bills in an envelope, as well as cherry incense and incense candles. These items were seized on May 19, 1972, from the various bedrooms occupied by subtenants of Everhart, as well as from his quarters and the attic of the farmhouse, pursuant to a search and seizure warrant issued on May 11, 1972, by Judge Byron Thompson of the District Court. That warrant authorized the search of a 1966 Lincoln Continental automobile bearing Maryland registration KJ4872, registered to Jerry Wayne Lawson, Route 6, Frederick, Maryland, as well as a two-story gray dwelling with gray metal brick-type siding located approximately two-tenths miles south of State Route 26, approximately one mile east of State Route 194, on the property known as the Nathan Doody farm, Route 1, Frederick, Maryland.

The affidavit for the issuance of the warrant made by Sgt. Carl R. Harbaugh of the Maryland State Police set forth an abundance of probable cause as to the person of Jerry Wayne Lawson (a codefendant) and his 1966 Lincoln Continental. We are here concerned only with so much of the affidavit as relates to the establishment of probable cause for the search of the farmhouse. The only allegations in the affidavit purporting to relate thereto are as follows:

'That on May 2, 1972 Joe Lewis Petty, a known heroin addict, and distributor, was arrested and charged with several Breaking, Entering, and Larcenies; And

During the course of the investigation, while conversing with your Affiant and other State Police Officers the said Joe Lewis Petty stated he visited the aforesaid Jerry Wayne Lawson on May 1, 1972 at the previously described two story dwelling, located on the Nathan Doody farm, south of State Route 26, in an effort to 'make a deal' concerning purchases of heroin; And

That on May 4, 1972, Tfc. John W. Reburn Maryland State Police, and Detective Lieutenant Paul W. Mossburg, Frederick City Police Department, went to the aforesaid two story dwelling located on the Nathan Doody farm south of State Route 26 and obtained a large amount of narcotic and restricted drugs that had been reported stolen from the Parkview Medical Center on May 3, 1972; And

That the aforesaid Jerry Wayne Lawson was present at the aforementioned two story dwelling at the time officers obtained the stolen drugs; And

That on May 6, 1972 the previously mentioned past proven, confidential and reliable informant advised your Affiant that prior to the arrival of the aforementioned Tfc. John W. Reburn and Det. Lt. Paul W. Mossburg, the said Jerry Wayne Lawson had sold heroin to a known drug user; . . ..' (Emphasis supplied.)

Prior to the petitioner's trial he filed in the Circuit Court, pursuant to Maryland Rule 729 b 1-after his indictment-a motion for suppression of the property seized under the warrant asserting, inter alia, (1) that there was no probable cause for its issuance, (2) that 'the major factor in the application was the illegal search and seizure at the same residence on May 4, 1972,' (3) that the defendant is not mentioned or named or incriminated in any manner by the application and (4) that the application failed 'to satisfy the requirements of the Fourth Amendment to the United States Constitution.'

In his attack upon the validity of the affidavit made in application for the search and seizure warrant counsel pointed out that so much of it as pertained to a visit unto the Nathan Doody farm on May 1st by Petty in an effort to purchase heroin from Lawson was a 'bare allegation that he made an effort to make a deal' in that there was no showing that any such narcotics transaction ever took place at the farm; that so much of the affidavit as pertained to the purchase of heroin by a known informant from Lawson on May 6, 1972, did not provide a sufficient basis for probable cause since it failed to set forth that such transaction had occurred at the farm. The principal thrust of the motion to suppress was addressed to the contention that an illegal warrantless search and seizure of the farmhouse had been conducted by the police on May 4, 1972, 'in violation of the constitution'; that on that date, according to the police report, 'they saw bags outside the house that indicated that they were similar bags to those stolen in a recent robbery of a clinic that contained drugs'; that the police entered the house and told Mr. Lawson, the only one present, that they 'wanted to see Mr. Everhart,' that they were 'going to search the place whether you like it or not,' asked direction to Everhart's room and had Lawson take them up to Everhart's room. He proffered the testimony of Lawson in support of these allegations and, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), asserted that the police 'cannot use the tainted evidence, the results of an illegal search and seizure to form probable cause for the new application for a warrant.' He cited as well Brown v. State, 15 Md.App. 584, 292 A.2d 762 (1972), as authority for his contention that Lawson was without authority to permit an inspection of Everhart's quarters, and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), concerning the need for a search warrant for the May 4th intrusion into the farmhouse.

Counsel for the petitioner repeatedly emphasized that the 'search and seizure (of May 4th) represented the facts upon which the search warrant (of May 11th) was granted,' that the evidence obtained from that illegal search and seizure cannot be used 'to form the probable cause for this application for a warrant'; that the 'illegal seizure in violation of the Fourth Amendment does not represent probable cause, it clearly taints everything . . ..' After again proffering the testimony of Lawson, the trial judge opined that it was not permissible to go beyond the 'four corners' of the application for the search warrant.

Countering these contentions the State's Attorney, in his dialogue with the court, stressed the impermissibility of the court going outside the 'four corners' of the application and in arguing that no testimony could be taken on the motion, contended that the court 'has to assume the validity and trustworthiness of the statements made under affidavit by the officer who secured this warrant.' Conceding that the farmhouse had been 'searched' by the officers on May 4th, he argued that 'what the officers saw from the hallway looking into the room'-when they had seen a green bag in Everhart's room, and through that green bag could see a box of hypodermic needles, as well as having observed on the floor of his room a hypodermic syringe, a needle and a bloody piece of cotton-even though such evidence might be physically inadmissible, the officers' observations, as being within their plain and open view, were admissible. The State's Attorney additionally pointed out to the court that upon their visit to the premises on May 4th the officers had seized, outside the building, a quantity of drugs contained in the same type (green) bag which was 'part of the garbage'; that the officers, having seen these items outside the building, 'went inside' and that even though the trial court might strike down as not admissible in evidence some of the items seized on May 4th the court should not strike down that which was found outside the building 'in the garbage (as) abandoned property'-which would be admissible in evidence. The State's Attorney conceded that if the seizure on May 4th had been pursuant to a search and seizure warrant which was subsequently shown to have been invalid a subsequent search warrant as the basis for the May 19th search and seizure might be tainted by a search under such an invalid warrant.

When, in rebuttal, counsel for the appellant contended that the 'abandoned property' outside the premises did not contain drugs but referred to bags that had allegedly carried drugs, Judge Barrick again hypothetically asked whether or not he could take testimony as to facts outside the 'four corners' of the application 'if the judge who issued the search warrant is satisfied that (such facts) are true.' In urging that he could, petitioner's counsel submitted that if in fact there 'was a tainted search and seizure that that taint carries over to the application' for the search warrant.

By way of surrebuttal the State's Attorney vigorously urged that the determination of probable cause, under the holdings in Henson v. State, 236 Md. 518, 521, 204 A.2d 514, 518 (1964), must be 'determined by the judge or justice who issues the warrant, and if a...