Jones v. State

• Decision Date: 08 November 1971
• Docket Number: No. 59,59
• Citation: 283 A.2d 184,13 Md.App. 309
• Parties: Jether Maryland JONES, 111 v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 309

13 Md.App. 309

283 A.2d 184

Jether Maryland JONES, 111 v. STATE of Maryland.

No. 59.

Court of Special Appeals of Maryland.

Nov. 8, 1971.

Certiorari Denied Jan. 17, 1972.

Gerald Adler, Glen Burnie, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Thomas Howard, Asst. State's Atty., for Baltimore City on brief, for appellee.

Argued before ORTH, POWERS and GILBERT, JJ.

GILBERT, Judge.

In August of 1970, Mrs. Dorothy Jones (Mrs. Jones), the mother of the appellant, Jether Maryland Jones, III, (appellant), went to the Northern District Police Station and requested that appellant be arrested for violation of the narcotic laws. A warrant was obtained for appellant's arrest and Mrs. Jones, the lessee of the house in which she, appellant, age 20, and her two daughters resided, gave permission to the police to search her home. The appellant slept in the small bedroom on the second floor front of the house. He paid neither room nor board. Mrs. Jones stated that she would go into her son's room 'to wake him up or something like that, but not to stay in.' She did not clean his room. When Officer Charles Tinker, Officer Weber and another policeman went to Mrs. Jones' home, accompanied by her, she opened the door. The appellant was in the living room of the house. He was informed of the warrant for his arrest for possession of narcotic paraphernalia and placed under arrest. The police officers then commenced a search of the house. Appellant offered no objection to the search. In the bedroom used by appellant, '* * * on top of the bed was some of this paraphernalia right in plain view as you go down the hallway.' Officer Tinker observed a can of lactose, which he testified is used 'to mix with heroin.' In the room the police recovered the lactose, '312 glassine bags, nylons, one strainer, two pieces of nylons, and two playing cards and eight brown bags.' The appellant, testifying in his own behalf, said that, 'I did have them in my possession, a bag, but its contents, I didn't, you know, because I didn't go into the bag. I was holding the bag for a friend of mine.' He identified the friend to the court. 'When they (the police officers) was telling me about the other paraphernalia, I had no idea what he was talking about until he mentioned the bag, and then I got to thinking back to the bag * * *.' Appellant said the bag just 'set' in the foyer and later in the basement. '* * * two or three days prior to my arrest, I move the bag * * * and just put it on my top bunk bed.' The room that appellant occupied was equipped with bunk beds. He acknowledged he was a user of drugs and stated he applied for assistance from the Maryland Drug Abuse Authority shortly before his arrest. He was, however, arrested before he was able to avail himself of the Authority's services. He acknowledged that he had had the bag in his possession, containing all the paraphernalia, for seven or eight months, but he said he never looked inside it.

Following his conviction in the Criminal Court of Baltimore before Judge Charles D. Harris, in a bench trial, on a charge of possession of narcotic paraphernalia, appellant received a four year sentence. Later the term was reduced to three years, eight months, so as to reflect credit for the time spent in confinement prior to trial.

Appellant mounts a three-pronged attack on the judgment of the Criminal Court of Baltimore. He says:

1. The warrantless search of his room was unconstitutional; hence the fruits obtained from that search are inadmissible.

2. There was no legally sufficient evidence to sustain the conviction.

3. The statute under which he was convicted (Article 27, § 287(d)) is unconstitutionally ambiguous in prohibiting the possession of certain common articles.

I

The appellant argues firstly that the search of his room was unconstitutional. Of course, if the search fails on constitutional grounds, the evidence derived from that search would likewise fail. Appellant states, 'The officers in this case having made their arrest than proceeded to search, not only the area in which the appellant was arrested, but the entire house.' This act, he says, violates the doctrine set forth in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 685 (1969). Chimel provides:

'Arrest does not justify routinely searching any rooms other than that in which arrest occurs or searching through desk drawers or other closed or concealed areas in room itself.'

Additionally, he relies upon Reeves v. Warden, Maryland Penitentiary, 4 Cir., 346 F.2d 915 (1965). Neither is controlling here. In Chimel, there was an objection to the police officers 'looking around,' and in Reeves permission to search the premises rented by the sister of Reeves was given by Reeves' mother who was, like Reeves, a guest in the sister's home. Here, Mrs. Jones, the lessee of the entire house, gave permission to the officers to search her home. She testified that she gave the permission and it is not disputed that she did so.

The Fourth Amendment to the Constitution of the United States does not prohibit all searches. Its protection is afforded against 'unreasonable searches and seizures' and a search and seizure is not unreasonable if grounded upon valid consent. However, when as here, a consensual search is effected, the courts must look to the circumstances surrounding the search in order to ascertain the validity vel non of the consent. The reasonableness of any search depends upon the facts and circumstances of each case. Maxwell v. Stephens, D.C., 229 F.Supp. 205, 210 (1964); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.

'The search of the petitioner's room by the police officers was conducted without a warrant of any kind, and it therefore 'can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant." Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).

It is argued that appellant's mother could not validly authorize the search of her son's room. However, there is authority that a parent may consent to a search of a child's living quarters if the child is living at home. Maxwell v. Stephens, supra; McCray v. State, 236 Md. 9, 202 A.2d 320 (1964); Rees v. Peyton, 4 Cir., 341 F.2d 859 (1965); Commonwealth v. McKenna, 202 Pa.Super. 360, 195 A.2d 817 (1963); United States ex rel. McKenna v. Myers, D.C., 232 F.Supp. 65 (1964). See also the cases collected in 31 A.L.R.2d 1081-1083.

In United States ex rel. Puntari v. Maroney, D.C., 220 F.Supp. 801, 806 (1963), it is stated:

'The immunity from unreasonable searches and seizures being personal, an accused cannot object to the searching of another's premises, particularly that of his parents, if the latter consent to the search.' 31 A.L.R.2d 1081.

Cases holding contrary to the general rule usually turn on a factual finding that there was no real consent because of the parents' ignorance of their constitutional protection, or because they were coerced into allowing the search, United States v. Roberts, D.C., 179 F.Supp. 478 (1959), ¹ or the person authorizing a search has lacked the authority to do so. Reeves v. Warden, supra.

There is no contention in the instant case that the consent of Mrs. Jones was other than freely, intelligently, specifically and unequivocally given.

In McCray v. State, supra, McCray's father, after being informed of the purpose for the police officers visit to his home, granted permission to the officers to search the premises. He explained to the police that his son only stayed there occasionally and 'conducted them to the sum parlor where the son slept when the was there.' In response to a challenge to the search, the Court of Appeals said:

'As an owner and co-occupant of the house, the father was entitled to give such consent and to bind his son in so doing. * * * It appears that what the police did was not unlawful since a search by permission is one of the exceptions to the general rule that reasonable searches must be made under a valid search warrant. * * *.'

The Supreme Court of Minnesota in State v. Kinderman, 271 Minn. 405, 136 N.W.2d 577 (1965) had before it a case wherein a father who owned a house gave consent to a search of the bedroom used by his 22 year old son. In response to an attack on the search, the Court said:

'But in...