Garrison v. State, 818

• Decision Date: 10 April 1984
• Docket Number: No. 818,818
• Citation: 473 A.2d 514,58 Md.App. 417
• Parties: Harold GARRISON v. STATE of Maryland. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 417

58 Md.App. 417

473 A.2d 514

Harold GARRISON v. STATE of Maryland.

No. 818 Sept. Term 1983.

Court of Special Appeals of Maryland.

April 10, 1984.

Gerald A. Kroop, Baltimore, with whom were Kroop & Kurland, Baltimore, on brief, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty., for Baltimore City, and Jamey M. Hochberg, Asst. State's Atty., for Baltimore City, on brief, for appellee.

Argued before WILNER, BLOOM and GETTY, JJ.

GETTY, Judge.

Harold Garrison proceeded to trial on a statement of facts following the denial of a motion to suppress evidence. On March 18, 1983, in the Circuit Court for Baltimore City (Thomas, J.), Garrison was found guilty of possession with intent to distribute heroin and was sentenced to a fifteen year term of confinement. On appeal, appellant raises two issues:

1. Whether the warrantless search of 2036 Park Avenue, Apartment 3F, and the seizure of items therein was legal where the police knew or should have known that appellant's apartment was separate and apart from apartment 3R, for which a search and seizure warrant had been issued?

2. Whether the plain view doctrine legitimized the search of appellant's apartment?

On May 21, 1982, members of the Baltimore City Police Department executed a search warrant for the third floor apartment located at 2036 Park Avenue in Baltimore City. Lawrence McWebb was named in the warrant as the occupant of the premises. The warrant described 2036 Park Avenue as a three story brick dwelling.

The affidavit accompanying the application for a search and seizure warrant recited that McWebb was known as "Red Cross;" that a reliable informant, instrumental in successful prosecutions in eight search and seizure cases, had purchased marijuana from "Red Cross" at his third floor apartment within the previous twenty-four hours; that the affiant, Officer Marcus, checked with the Baltimore Gas & Electric Company and determined the premises at 2036 Park Avenue, third floor, were in the name of Lawrence McWebb; and that records of the Baltimore City Police Department confirmed that McWebb resided at that address.

The warrant authorized the search of McWebb and of the premises "known as 2036 Park Avenue third floor apartment." The property authorized to be seized included "Marijuana related paraphernalia, monies, books, papers and photographs pertaining to the illegal distribution of marijuana."

The testimony of three police officers involved in the search must be recounted for a full understanding of what took place on May 21 at the premises.

The infallibility of hindsight establishes that the police searched the right (McWebb's) and the wrong (Garrison's) premises. The difficulty arises in determining whether the warrantless Garrison search is sustainable despite the acknowledged mistake. We turn now to the testimony of Officers Russell Shea, Albert Marcus and Joseph Schanken.

Detective Shea testified that the front door to the premises was locked when the six officers arrived. He observed seven mail box slots with names, but none with the name "McWebb." A forced entry was unnecessary, because McWebb drove up to the house and another officer advised him of the warrant. McWebb then unlocked the front door and the six officers present entered into the first floor hallway.

Without stopping, the entire group proceeded up the stairs to the third floor. The locked door at the top of the stairs was opened by McWebb, permitting the police to enter into a foyer with rooms to the left and to the right. According to Shea, immediately upon entering the third floor he observed a man (Garrison), in a body cast and a pajama top, standing to the right side of the foyer. Shea testified that he did not observe any closed doors to his right or to his left. He did notice, from a distance of five feet, loose marijuana on a newspaper located on a dresser inside a doorway behind where Garrison was standing. The officers split up to conduct the search. Shea went to his left and began searching what was later established to be McWebb's bedroom. He recovered a revolver, marijuana, and two electric bills, one addressed to McWebb and the other to Garrison. He did not notice at the time, according to his account, that one of the utility bills was marked "3F" and the other "3R."

Shea then proceeded across the open foyer through an open doorway to a bedroom on the right side of the third floor entrance. He observed clothing hanging on the door which was opened back to the interior wall and, upon examination, found in the pockets of a jacket, syringes, a cap used for cooking heroin and five bundles of currency totaling $4,940.00. Shea then noticed that the door had a dead bolt lock. Sergeant Schanken, who was also present, observed that the door to the left of the hallway had a similar lock. Schanken then ordered the search stopped, because it appeared that two apartments were involved. Shea maintained that all of the interior doors on the third floor were open when the police entered and that none of the doors had numbers identifying separate apartments.

Officer Marcus, based upon information supplied by an informant, prepared the warrant. The Baltimore Gas & Electric Company, Marcus stated, advised him that the third floor tenant was Lawrence McWebb. McWebb was accosted by Marcus outside of the building and ordered to unlock the front door and the door located at the top of the stairs on the third floor. Upon entering the third floor, Marcus observed a quantity of marijuana on a dresser in a room to his right and immediately proceeded into that area to seize the contraband. He, like Shea, placed Garrison in the foyer. Marcus recovered narcotics from several dressers in Garrison's room before he was advised by Sergeant Schanken to discontinue the search. In preparing the inventory, Marcus did not separate the property taken on a room by room basis.

Detective Schanken was the officer in charge during the search. He saw Garrison when the officers entered and directed him to go into the (McWebb) living room. Neither Garrison nor McWebb, according to Schanken, stated that the third floor contained separate apartments. In walking through the rooms while the search was in progress, Schanken saw two kitchens and two bathrooms and then halted the search.

Appellant Garrison testified that he was not in the hallway as testified to by the police, but remained in his apartment doorway with a police officer present. When the search of McWebb's apartment was completed, Garrison testified, he was taken to McWebb's living room while his apartment was searched. He had lived in the apartment since 1979 and McWebb moved in across the hall in 1981. Garrison asked one of the officers present, "What's going on man?" The only response he received was that another officer was directed to "watch me." Contrary to the testimony of the three police officers, Garrison insists that the apartments are designated "3F" and "3R" by lettering on the door jambs inside the third floor foyer. ¹ Garrison also contended that it was physically impossible to enter the foyer and see into his bedroom, because the door opening into the foyer opened to the right obscuring any view into the bedroom until the common door was closed.

McWebb's testimony corroborated Garrison's account of the entire episode. He added that he told Marcus that he lived in the "third floor rear" apartment. Based upon the conflicting testimony the trial court made the following findings of fact:

THE COURT:

Yes. Now, the Defendant McWebb contends again that it was a general warrant. Now, Defendant argued that argument. That is the police knew or should have known that the Garrison apartment was separate and distinct from the apartment of the Defendant McWebb. He further characterizes the testimony of police as perjured or unworthy of belief.

Now, the Court, based on what it finds to be critical evidence, makes the following findings of facts: One, that on May 21st, 1982, the police executed a search and seizure warrant for premises at 2036 Park Avenue, third floor apartment. Two, the police had reliable information to believe the Defendant McWebb resided in a third floor apartment, did not know of another apartment on the third floor. Now, while it was evidence that there were a number of apartments in the building, police were unaware where these apartments were located or the character of the building.

Three, the Defendant McWebb was detained outside of 2036 Park Avenue. With the keys furnished by him, the police gained entrance through a locked front door to the building, next to the door were seven mail boxes with bells, or indicating were bells under each mail box, but no names were reflected on any of the mail boxes. Further, McWebb's name was not visible on any of the mail boxes or any area adjacent thereto.

Next, the police were directed to the third floor by McWebb without any notice or knowledge of the layout of that area. Five, that entrance to the third floor was gained through a common marked door which gave no indication that there was more than one apartment located on said floor. There was no one to alert anyone to indicate that there were more than one apartment.

Next, that upon opening said door, police found the Defendant Garrison standing in his night clothes. Next, seven, upon entrance to the third floor, police saw an open door to the left later identified as McWebb's apartment, and also an open door to the right later identified as Garrison's apartment. In fact, no door was visible at the time the police entered and the police were unaware at that time that there were two apartments.

Eight, that from the position of the hallway area leading to the two apartments, the police saw and based on their expertise located on top of the dresser in an open room to the right, a quantity of marijuana. Entrance was made into that...