Kostelec v. State

• Decision Date: 06 December 1996
• Docket Number: No. 2005,2005
• Citation: 112 Md.App. 656,685 A.2d 1222
• Parties: Joseph KOSTELEC v. STATE of Maryland. Sept.Term 1995.
• Court: Court of Special Appeals of Maryland

Page 656

112 Md.App. 656

685 A.2d 1222

Joseph KOSTELEC v. STATE of Maryland.

No. 2005 Sept.Term 1995.

Court of Special Appeals of Maryland.

Dec. 6, 1996.

Richard D. Neidig, Adam C. Linn, Columbia (Byron L. Warnken, Baltimore, on the brief), for Appellant.

Tarra DeShields-Minnis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Marna McLendon, State's Attorney for Howard County, Ellicott City, on the brief), for Appellee.

Submitted before MOYLAN, HOLLANDER and EYLER, JJ.

EYLER, Judge.

A jury in the Circuit Court for Howard County convicted Joseph Kostelec, the appellant, of possession of more than 16 ounces of phencyclidine ("PCP") with intent to distribute, simple possession of PCP, possession of cocaine, possession of marijuana, and two counts of possession of controlled drug paraphernalia. The court merged simple possession of PCP into possession of PCP with intent to distribute and imposed a mandatory prison sentence of five years without possibility of parole. ¹ It then imposed prison sentences of six months for possession of cocaine and six months for possession of marijuana, to run concurrently with the mandatory sentence. The court further imposed $50.00 fines for each of the convictions for possession of controlled drug paraphernalia.

In this appeal, appellant argues, in essence, that:

I. The trial court erred by denying his motion to suppress evidence, in that the evidence was seized during the execution of an "anticipatory" search warrant;

II. The evidence was insufficient to support his conviction for possession of PCP;

III. The trial court erred by refusing to admit an out-of-court statement made by an alleged accomplice as a statement against penal interest;

IV. The trial court erred by refusing to permit the defense to introduce evidence that he had not previously used PCP or cocaine; and

V. The trial court erred by refusing to ask a proposed voir dire question.

On September 27, 1996, this Court issued, for publication, an opinion by which we affirmed the judgments of the trial court. Kostelec v. State, No. 2005, September Term, 1995, slip op. (September 27, 1996). Thereafter, on October 25, 1996, appellant filed a motion for reconsideration. Appellant does not specify in his motion what actions he desires this Court to take, other than to correct perceived inaccuracies in the September 27 opinion. In particular, appellant asserts that (i) in part III of the opinion, we erroneously indicated that the trial court found that a statement made by a witness was not against the witness's penal interest, and (ii) in part V of the opinion, we erroneously indicated that defense counsel failed to object to the trial court's refusal to ask a proposed voir dire question. Presumably, appellant believes that once these perceived inaccuracies are corrected, reversal of his convictions will follow. Because defense counsel did indeed object to the trial court's failure to ask the proposed voir dire question, we withdraw our September 27 opinion, grant the motion for reconsideration, and issue this revised opinion by which we correct and clarify part V of that opinion. We are satisfied that our characterization of the trial court's finding as to the witness's statement is accurate, so we leave intact part III of the September 27 opinion. Again, we affirm the judgments of the trial court.

Facts

In March of 1995, appellant permitted his long-time friend, Roarke Boulton, who was down on his luck, to move into his Elkridge home. On April 5, 1995, Howard County police intercepted a Federal Express package addressed to "Joey Labaugh, 7118 Dogwood Road, Baltimore, Maryland 21244." Police obtained a search warrant for the package and determined that it contained two bottles of PCP. They then resealed the package and made a controlled delivery to 7118 Dogwood Road. The package was accepted by Randal Lucabaugh, who was placed under arrest.

Lucabaugh told police that a portion of the package was ultimately to be delivered to Roarke Boulton, who lived in Elkridge. Lucabaugh then agreed to make a monitored telephone call to Boulton, who confirmed that he was to receive a portion of the package. Lucabaugh informed Boulton that a third person would deliver the package to Boulton's residence, and that the third person would contact Boulton to make arrangements for the delivery. An undercover officer then telephoned Boulton at the number provided by Lucabaugh, and Boulton stated that he was to receive the entire package. Boulton gave the officer appellant's address. A police check established that the telephone number at which Boulton was reached was listed to appellant.

Police then obtained a search warrant for appellant's home, on the condition that the warrant would not be executed until the package was delivered to and accepted by someone therein. They attached an electronic device to the package that would secretly alert them when the package was opened. Later during the evening of April 5, an undercover officer delivered the package. Appellant answered the door and accepted the package for Boulton, and the officer departed. Within minutes, the electronic device signalled the police that the package had been opened.

The police immediately made a no-knock entry into appellant's home. Both appellant and Boulton were in the living room, with appellant sitting on a love seat and Boulton sitting on the adjacent couch. The opened package was on the coffee table, with one bottle of PCP still inside it. The other bottle of PCP was sitting on the floor between Boulton and the coffee table. Neither bottle had been opened, but the odor of PCP emanated from the bottle on the floor.

Appellant and Boulton were handcuffed and the search warrant was executed. The two bottles of PCP were seized, and subsequent analysis confirmed that together they contained nearly 40 ounces of PCP. Under the kitchen sink, police found an aluminum can that had been crushed and perforated, apparently for use as a pipe. The can proved to contain a trace amount of cocaine. A second pipe, also containing a trace amount of cocaine, was found in a dresser drawer in appellant's bedroom. A third pipe--this one containing marijuana residue--was found in a china hutch in appellant's dining room. Three large bottles of parsley flakes were found in the kitchen. A police expert testified that PCP is commonly poured over parsley, which is in turn ingested by smoking.

I Search Warrant

In State v. Lee, 93 Md.App. 408, 420, 613 A.2d 395 (1992), aff'd, 330 Md. 320, 624 A.2d 492 (1993), this Court commented: "Whether Maryland will or should approve the issuance and use of anticipatory search warrants is an interesting question, which will undoubtedly have to be met squarely and decided some day." That day is upon us.

There is no dispute that the warrant in issue was an anticipatory one, i.e., "based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place." 2 Wayne R. LaFave Search & Seizure § 3.7(c), at 362 (3rd ed. 1996). As we have observed, Howard County Police obtained a warrant to search appellant's home after they confirmed that Boulton was expecting a delivery there but before the controlled delivery was actually made. The affidavit attached to the application for search warrant stated, in pertinent part:

Your affiant ... prays that an anticipatory Search and Seizure Warrant be issued for said premises and persons.

Your affiant will only execute said warrant if the following actions are observed at 5967 Rowanberry Drive [appellant's address], within the next fifteen (15) days:

1. A member of the Howard County Police Department will visit the residence at 5967 Rowanberry Drive and present the package containing phencyclidine for delivery.

2. An individual within the residence accepts the package containing the phencyclidine.

3. This individual is observed to carry the package containing the phencyclidine into said residence after the delivery; and

4. Law enforcement officials conduct a constant surveillance of the residence from the time of delivery until the time the warrant is served.

Other than the anticipated controlled delivery of the Federal Express package, the affidavit set forth no probable cause to believe that evidence of a crime would be found in appellant's home. The warrant itself incorporated the affidavit by reference. ²

The Fourth Amendment to the Constitution of the United States provides, in pertinent part, that "no Warrants shall issue, but upon probable cause...." Article 26 of Maryland's Declaration of Rights directs: "That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grevious [grievous] and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted." Finally, article 27, § 551(a) of the Annotated Code of Maryland (1957, 1996 Repl.Vol.) provides, in pertinent part:

Whenever it be made to appear to any judge of any of the circuit courts in the counties of this State, or to any judge of the District Court, by written application signed and sworn to by the applicant, accompanied by an affidavit or affidavits containing facts within the personal knowledge of the affiant or affiants, that there is probable cause, the basis of which shall be set forth in said affidavit or affidavits, to believe that any misdemeanor or felony is being committed by any individual or in any building, apartment, premises, place or thing within the territorial jurisdiction of such judge, or that any property subject to seizure under the criminal laws of the State is situated or located on the person of any such individual or in or on any such building, apartment, premises, place or thing, then the judge may...