Gahan v. State

• Decision Date: 26 May 1981
• Docket Number: No. 41,41
• Parties: Michael Emmett GAHAN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 310

290 Md. 310

430 A.2d 49

Michael Emmett GAHAN v. STATE of Maryland.

No. 41.

Court of Appeals of Maryland.

May 26, 1981.

Barry J. Diamond, Baltimore (Gerald A. Kroop, Baltimore, on the brief), for appellant.

Deborah K. Handel, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

SMITH, Judge.

Michael Emmett Gahan first contends that seized narcotics were admitted into evidence against him at trial in violation of his rights under U.S.Const. Amend. IV. We shall hold to the contrary. In anticipation of that holding he asks that under Maryland Declaration of Rights, Art. 26 we accord him automatic standing to contend that the evidence was illegally seized as in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), pertaining to the Fourth Amendment. (Jones has since been overruled by United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).) We have never enunciated such a rule and we decline the invitation now. Hence, we shall affirm the judgment of the Circuit Court for Baltimore County.

I

Gahan elected a court trial at which he was convicted of possession of a controlled dangerous substance (marijuana) in sufficient quantity to reasonably indicate an intent to distribute in violation of Maryland Code (1957, 1976 Repl. Vol., 1978 Cum. Supp.) Art. 27, § 286.

The facts are gleaned from an agreed statement of facts printed in Gahan's brief pursuant to Maryland Rule 826 e. They may be briefly stated.

A member of the narcotics squad of the Baltimore County Police force was requested by an agent of the Federal Drug Enforcement Administration to participate in a surveillance which had begun earlier in the afternoon of July 13, 1978. The detective was advised by the agent that an informant had told him that Gahan, Dean Messick, and another individual, then known only as "Bill," were involved in the transportation of marijuana; that Messick and Bill would bring the marijuana into Maryland via a truck or camper-type vehicle with North Carolina license plates; and that the marijuana was to be packaged in large cardboard boxes with the brand name of a nationally known cigarette stamped on them.

A vehicle with Florida license plates was parked near Gahan's apartment when the surveillance was begun. A check relative to its registration disclosed that it was titled in Messick's name. Thereafter the Federal agent observed a camper vehicle with North Carolina license plates drive near where Gahan resided. Efforts to follow it failed. About fifteen minutes after the latter observation, an individual, later identified as Gahan, was seen to leave an apartment in the area where Gahan resided and to enter the Messick vehicle. He was followed to a Baltimore County residence. A camper-type vehicle with North Carolina tags was observed near there. Three individuals, later identified, one of whom was Gahan, were observed removing the camper attachment from the truck. They were then seen carrying large boxes from the rear of the Messick vehicle to the camper attachment and from the camper attachment into the residence. The officers noticed one such box being placed into the Messick vehicle. Messick and Gahan then left the residence in Messick's car. They were followed by the other individual who was driving the truck from which the camper attachment had been removed.

Less than an hour later the suspects were stopped. All were arrested. Messick was chosen by the Federal agent as the individual most likely to cooperate with the police. The officers claimed that Messick advised them that he had control of the camper and that he received the permission of the owner to use it. They asserted that Messick consented to a search of the camper, a fact which Messick later denied.

A search warrant for the residence and the camper was sought from and denied by a District Court judge. ¹ Thereafter, the officers broke into the camper from which they seized over 500 pounds of marijuana.

Gahan and Messick moved to suppress the evidence seized. Gahan testified. Messick's motion to suppress was granted, but Gahan's was denied. The trial judge (Hormes, J.), in ruling on the motion to suppress, noted that "Gahan did not assert a property or a possessory interest in the camper or an interest in the property seized." Thus, he held that since Gahan had " not prove(d) to the Court that he had a reasonable expectation of privacy in the camper, he cannot claim that his own Fourth amendment rights were violated by the alleged search and seizure." He said that Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), "did away with the automatic standing rule of Jones even though the Court did not decide that particular question."

Gahan filed a timely appeal to the Court of Special Appeals. Prior to argument in that court he petitioned us for the writ of certiorari. In granting the writ we directed that argument to us should "include the question of the applicability of Art. 26 of the Maryland Declaration of Rights to this case ...."

The sole contention here is that the trial court erred in permitting admission of the evidence in question. Hence, the judgment must be affirmed unless we find a violation of the mandate in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), as to U.S.Const. Amend. IV made applicable to the states through Amend. XIV, or violation of Maryland Declaration of Rights, Art. 26.

II

We first address Gahan's rights under the United States Constitution because his first contention is that the trial court erred in failing to find that he was denied his rights under that Constitution. He claims that he did in fact have automatic standing to challenge the legality of the search and seizure in this case and that he had a legitimate expectation of privacy in the area from which the marijuana was seized.

U.S.Const. Amend. IV provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In Jones, 362 U.S. 257, 258, 80 S.Ct. 725, 729, 4 L.Ed.2d 697, Mr. Justice Frankfurter pointed out for the Court that the statutory provisions under which the accused was prosecuted permitted his conviction on one count upon a showing of his possession of the seized narcotics and on the other upon a showing of that possession and the absence of appropriate stamps. It said that while ordinarily it is proper to require one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy, that in a narcotics charge like that then before the Court where there could be conviction through proof solely of possession of the narcotics a defendant seeking to comply with the conventional standing requirement had been forced to allege facts the proof of which would tend to convict him. Id. at 261-62, 80 S.Ct. at 731. The holding of Jones was twofold: (1) the alleged possession of an item on the basis of which the possession itself is sufficient to convict suffices to give an accused standing; and (2) anyone legitimately on premises where a search occurred may challenge its legality by way of a motion to suppress when its fruits are proposed to be used against him. This view that the first prong of Jones was so limited is reinforced by the statement of the Court in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). After referring to its decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Court in Brown said it was unnecessary to determine whether Simmons made Jones' automatic standing unnecessary, stating it "reserve(d) that question for a case where possession at the time of the contested search and seizure is 'an essential element of the offense ... charged.' " Id. 411 U.S. at 228, 93 S.Ct. at 1568. ²

In Simmons, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Court viewed from a somewhat different posture a dilemma similar to that passed upon in Jones. There two individuals were convicted of armed robbery of a federally insured savings and loan association. Before trial one of the accused moved to suppress evidence seized at the home of his mother. In order to establish his standing, he testified that although he could not identify the suitcase with certainty, it was similar to the one he had owned and that he was the owner of the clothing found inside the suitcase. His motion to suppress was denied. His testimony at the suppression hearing was used against him at trial. He contended that his constitutional rights were violated when testimony given by him in support of his motion to suppress was so used. The Court held, "(W)hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." Id. 390 U.S. at 394, 88 S.Ct. at 976.

In Duncan and Smith v. State, 276 Md. 715 351 A.2d 144 (1976), we reviewed the holding of the Court of Special Appeals in Duncan and Smith v. State, 27 Md.App. 302, 317, 340 A.2D 722 (1975), to the effect "that the 'automatic standing' notion of ... Jones" did not apply "primarily because of (that court's) considered belief that the very concept of 'automatic standing' ha(d) been superseded and rendered a dead letter by Simmons ...." We found "that the majority of courts regard(ed) (Jones) as viable notwithstanding the fact that there ha(d) been no recent pronouncement...