Kirsch v. State

• Decision Date: 28 December 1970
• Docket Number: No. 110,110
• Citation: 271 A.2d 770,10 Md.App. 565
• Parties: Louis Anthony KIRSCH v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 565

10 Md.App. 565

271 A.2d 770

Louis Anthony KIRSCH v. STATE of Maryland.

No. 110.

Court of Special Appeals of Maryland.

Dec. 28, 1970.

Alexander R. Martick, Baltimore, for appellant.

Francis X. Pugh, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Fred Grant, and Joseph B. Harlan, Asst. State's Attys., on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON and POWERS, JJ.

MURPHY, Chief Judge.

Appellant claims that his constitutional right to be secure from an unreasonable search and seizure was violated when a police officer, without a search warrant, invaded his privacy while he was in a locked men's room in a gas station and secured evidence of his guilty control of heroin and narcotic paraphernalia. ¹

The evidence at trial showed that on December 7, 1968 at 9:30 p. m., Officer Ronald Arnold went to the gas station in response to a call for assistance from the station attendant. Upon arrival, he met the attendant who told him 'there were three males in the restroom, and they had been in there for approximately thirty minutes, and didn't know whether anything was wrong with them or not.' Arnold testified that the attendant handed him a key, and while the (Arnold) didn't know whether there was anybody in the rest room, 'I went around to the restroom, and I unlocked the door.' Upon entering, Arnold observed three men standing inside with their backs to the door. ² While he was told by one of the men that the rest room was being used, he immediately noticed appellant place a needle and syringe into his coat pocket, and one of the other men drop an Anacin tin (later found to contain opium) into the corner of the room. The men were then arrested.

Appellant's motion to suppress the incriminating evidence was denied by the trial judge, who stated: '* * * he (the officer) had a perfect right to enter; and, in fact, he did it by invitation of the man in charge of the filing station who gave him the key and asked him to enter. He seemed to be concerned about what might be wrong with-or perhaps the three young men were ill or something else had happened to them, because they had been in there an abnormally long time, 30 minutes. So, the officer simply doing what the person in charge of the premises asked him to do. Once he opened the door, he had a right to look around, the policeman is not required to close his eyes, and so if he happened to see the object dropped on the floor by one of the persons there, he had a perfect right to pick it up, abandoned property.'

On the facts of this case, we think the motion to suppress was properly denied.

In Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374, it was held that the Fourth Amendment protects:

'* * * the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure.'

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, a case involving the accused's use of a telephone in a public telephoen booth which had been electronically 'bugged' by the police, it was held that 'the Fourth Amendment protects people, not places'; and that what a person justifiably seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected from unwarranted governmental intrusion.

In Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154, a case involving a warrantless search of a business office shared by the accused with others, it was held that the capacity to claim the protection of the Fourth Amendment 'depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion.'

It was with these principles in mind that we decided Brown v. State, 3 Md.App. 90, 238 A.2d 147. There, a police officer, while making a routine police check in the men's rest room in a tavern, observed a known drug addict standing in a partially enclosed toilet booth; the officer put his head over the door of the booth and observed narcotics paraphernalia. We stated the question to be whether such a physical intrusion into the area 'constituted a trespass or unlawful entry so as to make the observation unlawfully obtained.' Noting that that question was to be resolved, not upon the technicality of a trespass as a matter of state or local law, 'but upon the reality of an actual intrusion...