Knight v. State, 1042

• Decision Date: 10 May 1984
• Docket Number: No. 1042,1042
• Citation: 474 A.2d 947,59 Md.App. 129
• Parties: Paul KNIGHT v. STATE of Maryland. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 129

59 Md.App. 129

474 A.2d 947

Paul KNIGHT v. STATE of Maryland.

No. 1042 Sept. Term 1983.

Court of Special Appeals of Maryland.

May 10, 1984.

E. Thomas Maxwell, Jr., Baltimore, for appellant.

Bernard A. Penner, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Warren B. Duckett, Jr., State's Atty. for Anne Arundel County and Ronald Levitan, Asst. State's Atty., for Anne Arundel County on brief, for appellee.

Submitted before GILBERT, C.J., LISS and GETTY, JJ. LISS, Judge.

Appellant, Paul Knight, was charged in the District Court of Maryland for Anne Arundel County, with two counts of theft. By motion the case was removed for trial to the Circuit Court for Anne Arundel County. Appellant filed a motion to suppress evidence concerning the theft of a silver Ford van bearing Virginia tags XEC 179, which had been removed from the driveway of a house identified as 506 Bruce Avenue, located in Odenton, Anne Arundel County, Maryland.

The evidence at the suppression hearing indicated that a civilian named DeWeese had been engaged in a roofing job in the neighborhood and had observed the silver van parked in the driveway at 506 Bruce Avenue for several days. DeWeese had called the police and reported that the vehicle bearing Virginia license plates XEC 179 had been parked in the driveway for some time. The house at 506 Bruce Avenue was owned by the appellant and occupied by him, his wife and family.

DeWeese's call to the Anne Arundel County Police Department resulted in a radio message to Officer Robert Matikiewicz to respond to 506 Bruce Avenue. The call directed the officer to check a silver Ford van parked in the driveway of 506 Bruce Avenue, the van bearing Virginia tags XEC 179. The officer was further advised, over the radio, that the vehicle bearing these tags had been reported stolen to the Alexandria, Virginia, Police Department. Upon arriving at the scene the officer observed the van parked in the driveway, backed all the way up against and touching a chain link fence at the rear of the house. There was no license tag on the front of the van and the tag on the back of the van could not be seen from the street. Mr. DeWeese was on the scene and advised the officer that he was the person who had called the police and gave them the tag number. The officer, in order to verify the information, walked up the driveway, looked over the fence and back through it and was able to see and verify the number of the Virginia tag. He then knocked on the front door of the house, and received no answer. The officer called his station and arranged for the silver Ford van and another vehicle found in the driveway to be towed to police headquarters.

After consideration of this evidence the hearing judge granted appellant's motion to suppress the evidence with respect to the van and the other vehicle seized by the police.

On June 8, 1983, the case was tried in the Circuit Court for Anne Arundel County without the intervention of a jury. Appellant was acquitted of theft of a second vehicle, which is not involved in this appeal. The case involving the Ford van proceeded to trial and the State, over objection, was permitted to call Howard DeWeese as a witness. He identified the van and the Virginia license tag and was permitted to testify concerning his participation in the discovery of the stolen vehicle and his notification of the police. Officer Matikiewicz was then called as a State's witness. Counsel for the appellant called the trial court's attention to the suppression order granted at a prior suppression hearing. The State's Attorney then proffered that he would not question the officer concerning anything he saw as a result of his intrusion on appellant's property but would only relate the information he received from DeWeese. The trial judge permitted the witness to testify and at the conclusion of the case found the appellant guilty of theft of the Ford van and imposed sentence. It is from that judgment that this appeal was noted.

Appellant raises two issues to be determined by this appeal.

1. Did the trial court err in allowing the State to introduce evidence which had been suppressed by a pretrial order?

2. Should the physical evidence suppressed have been excluded from appellant's trial?

We shall consider the issues together. Maryland Rule 736 sets forth the procedure for the determination of whether evidence allegedly obtained by an unlawful search and seizure shall be suppressed or excluded at trial. Pursuant to Rule 736 a 3 the appellant moved for the suppression of evidence as to the van and its license tag number. After a hearing the judge granted appellant's motion to suppress on the basis that the van and the tag number were unlawfully seized in violation of the appellant's Fourth Amendment rights. Maryland Rule 736 g 1 provides that "[i]f the court grants a motion to suppress evidence, the evidence shall be excluded and shall not be offered by the State at trial ...."

This Court has held that the admissibility of evidence obtained by a search or seizure claimed to be invalid is a matter exclusively for the trial court. If the evidence is found to have been unlawfully obtained it shall be excluded. Cleveland v. State, 8 Md.App. 204, 259 A.2d 73 (1969), appeal after remand, 12 Md.App. 712, 280 A.2d 520 (1971). Appellant argues that suppression of the van and its license tag number was proper because both were seized as a result of an illegal warrantless search of an area in which appellant had a reasonable expectation of privacy. He further contends that the driveway was an area well within the traditional "curtilage" of appellant's residence. Everhart v. State, 274 Md. 459, 337 A.2d 100 (1975). Although curtilage and property concepts are no longer totally determinative of Fourth Amendment intrusions, appellant contends that there can be no question that this was an area in which he could reasonably expect privacy. Appellant urges that the area in which the officer conducted his search was a constitutionally protected area from unreasonable searches and seizures. He contends that the officer's actions amounted to an unlawful, warrantless trespass on the appellant's property and that the hearing judge was correct when he granted appellant's motion to suppress. A fortiori, appellant urges that the trial judge...