Henson v. State

• Decision Date: 13 November 1964
• Docket Number: No. 48,48
• Citation: 236 Md. 518,204 A.2d 516
• Parties: Norman J. HENSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 518

236 Md. 518

204 A.2d 516

Norman J. HENSON v. STATE of Maryland.

No. 48.

Court of Appeals of Maryland.

Nov. 13, 1964.

Jack E. Richards, Baltimore, for appellant.

Robert C. Murphy, Deputy Atty. Gen. (Thomas B. Finan, Atty. Gen., Carville M. Downes Asst. Atty. Gen., William J. O'Donnell and James W. McAllister, State's Atty. and Asst. State's Atty., respectively, for Baltimore City, Baltimore, on the brief), for appellee.

Before HENDERSON, C. J., and HAMMOND, PRESCOTT, HORNEY, and SYBERT, JJ.

HAMMOND, Judge.

Norman Henson, convicted of possession and control of narcotics, contends in his appeal (a) that no probable cause existed for the issuance of the search warrant used to procure incriminating evidence; (b) that the police officers who executed the search warrant broke open the door of the house being searched without first announcing who they were and making demand that entry be granted, and that this was illegal and vitiated all that followed; and (c) that there was no probable cause to arrest him.

The affidavit in support of the issuance of the search warrant recited that complaint had been made to the police that the laws relating to the possession and sale of narcotic drugs were being violated on the premises known as 1827 McCulloh Street in Baltimore and that officer Robinson (the affiant) and officer Davis (both experienced in narcotics investigations and arrests) observed the premises from 8:30 a. m. to 12 noon on November 5, 1963, and saw a named known narcotic addict enter, remain a minute and leave; saw another named addict open the door of the house and admit an unknown described male, who remained inside for a minute and then left; saw another named known addict be admitted by Walter Henson, the brother of the appellant, who was known to them as an addict; saw Henson come out and stand on the steps until a named known addict drove up in an automobile when Henson walked to the car, handed something to the man in the car, received money in return and went back in the house; saw Norman Henson, the appellant, a known addict, leave the house and shortly thereafter other addicts enter and then leave.

On six following days similar observations involving forty-three known narcotic addicts were made. On a number of occasions Norman Henson would open the door and converse briefly with known addicts (sometimes shaking his head negatively and sometimes taking the visitor into the house for a minute or so). On one occasion a known addict took money from his pocket, gave it to his companion, also a known addict, who put it with some of his own money and rang the bell of the house (while the other man waited on the sidewalk) and Walter Henson answered the door and took the money. Soon after, the man who had rung the bell came out, walked to his companion on the sidewalk and handed him a small white object. (The testimony was that narcotics are packaged and dispensed in small white glassine bags.)

The affiant concluded the affidavit with the statement that the observed events, which were 'the method of operation used by buyer and seller, in the narcotics traffic' led to the conclusion 'that narcotics are being kept and sold on the premises.'

Code (1964 Cum.Supp.), Art. 27, Sec. 551, provides that when it is made to appear to a judge or justice of the peace of this State that there is probable cause to believe that a crime is being committed in a building within his territorial jurisdiction, he may issue as search warrant. Probable cause, which is less than certainty or demonstration but more than suspicion or possibility, is to be determined by the judge or justice who issues the warrant, and if a prudent and cautious man would be justified from the facts presented to show its existence in believing that the offense had been or was being committed, the warrant properly may be issued. In making his determination this judicial, hypothetical, 'cautious and prudent man' may give consideration to the special significance which objects, happenings and individuals may have conveyed to the trained, experienced and knowledgeable police officers who apply for the warrant. Dean v. State, 205 Md. 274, 107 A.2d 88, 48 A.L.R.2d 1096; Bratburd v. State, 193 Md. 352, 66 A.2d 792. Judge Carter was justified in finding probable cause for the issuance of the warrant.

The claim that the evidence seized was inadmissible because the police officers executing the search warrant did not advise those within that they had such a warrant and demand admittance, but broke in forcibly without notice, is an extension of the old rule that a peace officer seeking to arrest an individual who is in a house, either by authority of an arrest warrant or under circumstances making a warrant unnecessary, must give proper notice of his purpose and authority and be denied admittance before the can use force to break and enter. The reasons for these requirements have been said to be that the law abhors unnecessary breaking or destruction of any house, Semayne's Case, 5 Coke's Reports 91, 77 Eng.Rep. 194, because the dweller in the house would not know the purpose of the person breaking in, unless he were notified, and would have a right to resist seeming aggression on his private property, Launock v. Brown, 2 B. & Ald.Rep. 592, 106 Eng.Rep. 482. This rule of long standing has been transferred to the statute books in some twenty-five states, and in the federal law, see Miller v. United States, 357 U.S. 301, 309, 78 S.Ct. 1190, 2 L.Ed.2d 1332, 1338, note 8. However, the rule often has been made subject to qualifications and exceptions even in states with statutes, so that by judicial decision announcement and demand are not a requisite where the facts make it evident the officers' purpose is known or where they would frustrate the arrest, increase the peril of the arresting officer or permit the destruction of evidence. 5 Am.Jur.2d Arrest Sec. 93, p. 778; Restatement Torts Sec. 206; Kauffman, The Law of Arrest in Maryland, 5 Md.L.Rev. 125, 130; People v. Maddox, 46 Cal.2d 301, 294 P.2d 6, cert. den. 352 U.S. 858, 77 S.Ct. 81, 1 L.Ed.2d 65; People v. Hammond, 54 Cal.2d 846, 9 Cal.Rptr. 233, 357 P.2d 289; Commonwealth v. Negri, 411 Pa. 21, 198 A.2d 595, 601; Miller v. United States, supra (p. 309 of 357 U.S., p. 1195 of 78 S.Ct., p. 1338 of 2 L.Ed.2d). See also Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 806

The similar rule as to the execution of a search warrant has often been stated as this Court stated it in Goodman v. State, 178 Md. 1, 8, 11 A.2d 635, and Frankel v. State, 178 Md. 553, 561, 16 A.2d 93 (after noting that the Maryland search warrant statute does not deal with the formalities of the execution of the warrant), that is, that in serving a search warrant a demand is necessary prior to breaking doors if someone is in charge of the premises. Some decisions and some statutes, analogous to those as to arrest, require announcement of authority and purpose and refusal to admit before force can be used. Yet, as in the similar arrest cases, similar exceptions and qualifications have regularly been...