Harris v. State

• Decision Date: 09 April 1973
• Docket Number: No. 495,495
• Citation: 302 A.2d 655,17 Md.App. 484
• Parties: John Russell HARRIS and Michael Francis Schmitt v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 484

17 Md.App. 484

302 A.2d 655

John Russell HARRIS and Michael Francis Schmitt v. STATE of Maryland.

No. 495.

Court of Special Appeals of Maryland.

April 9, 1973.

Lester V. Jones, Hydes, for appellants.

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Harry A. E. Taylor, Asst. Atty. Gen., and John E. Kelly, State's Atty. for Harford County, on the brief, for appellee.

Argued before MORTON, MOYLAN and SCANLAN, JJ.

SCANLAN, Judge.

Following a bench trial before Judge J. Albert Roney, Jr., in the Circuit Court for Harford County, the appellants, John Russell Harris and Michael Francis Schmitt, were found guilty of several violations of the narcotics laws and of maintaining a common nuisance. Each appellant was sentenced to imprisonment for a term of five years, under the jurisdiction of the Department of Corrections.

Incriminating evidence against the appellants was obtained during a police search of a dwelling house occupied by appellants and located on a dirt road in a rural area of Harford County. In their motion to suppress in the court below, and again in this Court, appellants contended that the search was illegal, in that the warrant did not describe the dwelling house with 'reasonable particularity,' as required by Article 27, Section 551 of the Code. ¹ We disagree and so affirm the judgments.

It is appellants' contention that the search warrant on which this case turns was, in effect, a 'general warrant.' In Frey v. State, 3 Md.App. 38, 46, 237 A.2d 774, 779 (1968), we said:

'A general warrant, broadly defined, is one which fails to sufficiently specify the place or person to be searched or the things to be seized, and is illegal since, in effect, it authorizes a random or blanket search in the discretion of the police in violation of the Fourth Amendment to the Federal Constitution, Article 26 of the Maryland Declaration of Rights, and Section 551 of Article 27 of the Maryland Code (1967 Repl.Vol.), all of which require that search warrants particularly describe the place to be searched and the things to be seized, so as to prevent the search of one place, or the seizure of one thing, under a warrant authorizing search of another place, or the seizure of another thing. See Stanford v. State of Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431; Salmon v. State, supra (2 Md.App. 513, 235 A.2d 758).'

The historical genesis of the Fourth Amendment is found in the vivid memory which the framers of the Bill of Rights had of the infamous 'writs of assistance' used against the colonies and especially the Massachusetts Bay Colony, some fifteen years before the Revolutionary War. Boyd v. United States, 116 U.S. 616, 627, 6 S.Ct. 524, 29 L.Ed. 746 (1886). In 1760, William Pitt, then prime minister of England, ordered the Sugar Act of 1733 to be strictly enforced. In order to enforce this unpopular law, the royal customs collectors at Boston applied to the Superior Court of Massachusetts for writs of assistance. These were general warrants allowing an officer to enter any premises at anytime in search of smuggled goods. Morison, The Oxford History of the American People, 183 (1965). ²

Article 26 of the Maryland Declaration of Rights is almost identical in text with that of Article 23 of the original Declaration of Rights, which was embodied in the original Maryland Constitution of 1776. Givner v. State, 210 Md. 484, 492, 124 A.2d 764 (1956). The article was a product of the same history of abuse and protest against general writs which gave birth to the Fourth Amendment. Frank v. Maryland, 359 U.S. 360, 368, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959). The spirit and thrust of the Fourth Amendment and Article 26 of the Declaration of Rights are codified in Article 27, Section 551 of the Code, which requires that a 'search warrant shall name or describe, with reasonable particularity the . . . building, apartment, premises (or) place . . . to be searched . . .'

It is difficult to lay down any test which can be invariably applied to determine the sufficiency of a warrant's description of premises to be searched. In Frey v. State, supra, 3 Md.App. at 46, 237 A.2d at 780, we observed that:

'There is, of course, no formula which can be used to measure the particularity with which premises must be described in a search warrant, the adequacy of such description in every case necessarily depending on the facts and circumstances there present. Tucker v. State, 244 Md. 488, 496, 224 A.2d 111. A description of a place to be searched is ordinarily sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757; Saunders v. State, 199 Md. 568, 87 A.2d 618. In determining whether the description of the place to be searched meets these standards, it is permissible to look to the affidavit as well as the warrant since the affidavit is a part of the warrant and incorporated by reference therein. See Fry v. United States, 9 F.2d 38 (9th Cir.); People v. DeLago, 16 N.Y.2d 289, 266 N.Y.S.2d 353, 213 N.E.2d 659; Ellison v. State, 186 Tenn. 581, 212 S.W.2d 387; Varon, Searches, Seizures and Immunities, Vol. 1, p. 319.' Id. at 46-47, 237 A.2d at 780 (emphasis added).

In other jurisdictions it is also the prevailing rule that the designation of the place to be searched is sufficient if the officer to whom the warrant is directed may locate that place definitely and with certainty. 47 Am.Jur. 522 (1943). It has been held that descriptions of rural property may be sufficient without demonstrating the same degree of particularity which might be required in cases involving a search of property located in a city. State v. Stough, 318 Mo. 1198, 2 S.W.2d 767 (1928); 74 A.L.R. 1502 (1931). Moreover, an error in the description or location of the property set out in the warrant is not automatically fatal to its validity. United States v. DePugh, 452 F.2d 915, 920 (10th Cir. 1971); People v. Flemming, 221 Mich. 609, 192 N.W. 625, 626 (1923). The cardinal consideration is that the premises be described with such particularity or sufficiency, 'that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.' Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925); Frey v. State, supra, 3 Md.App. at 46, 237 A.2d 774. We believe that the warrant involved in this case complied with constitutional and statutory requirements of particularity in the description of the premises which were searched.

The application, which formed a part of the warrant, described the property as follows:

'(A) . . . one story wooden frame dwelling house, white in color with a dark V shape roof. Said dwelling house is located on a dirt road one (1) mile south of Cedar Lane, Bel-Air, Harford County, Maryland. Said dwelling house is situated on the left side of dirt road, front of said dwelling house faces the dirt road. Located on the North side of said dwelling house is a small V shaped garage which is white in color.'

In addition, the affidavit, which also was attached to and made a part of the warrant, contained the following information relative to the premises:

'Lieutenant Tabeling advised that the aforesaid Confidential Informant stated that on November 4, 1971, he was in a house located on Cedar Lane, Belair, Harford County, Maryland, which is the same house as hereinbefore mentioned. This house was occupied by a white male known to the informant as JOHN HARRIS who is approximately twenty (20) years of age, and by a white male known as MIKE SCHMIDT who is approximately twenty-four (24) years of age.'

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