Mills v. State

• Decision Date: 30 June 1971
• Docket Number: No. 545,545
• Citation: 279 A.2d 473,12 Md.App. 449
• Parties: Moses MILLS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 449

12 Md.App. 449

279 A.2d 473

Moses MILLS v. STATE of Maryland.

No. 545.

Court of Special Appeals of Maryland.

June 30, 1971.

MURPHY, Chief Judge.

Appellant Moses Mills was convicted by a jury in the Criminal Court of Baltimore, Judge Charles D. Harris presiding, of (a) conspiracy to violate the narcotics laws, (b) conspiracy to keep and maintain a nuisance house at 2010 Brunt Street, Baltimore, Maryland in violation of the narcotics laws, and (c) conspiracy to violate the narcotics laws with reference to barbiturates. ¹ He was sentenced to two consecutive five-year terms and fined $1,000 on each of the first two charges and, as to the third charge, was finded $2,000 and given a five-year sentence concurrent with the other sentences.

On appeal, he raises fourteen contentions and a miscellany of minor subcontentions. They are best understood in light of a general statement of facts augmented by a recital of specific facts where relevant.

William Mack Holt, Connie Pope, and George Bell testified that they had been employed by appellant and were, prior to their arrests early in 1969, engaged with him in the operation of his Robittusin (codeine-based) 'cough syrup house.'

George Bell had worked one day in the cough syrup house prior to his arrest but testified to having been one of appellant's customers since 1966. He described the continual relocation of appellant's cough syrup house over a three-year period from Shields Street, to Eddying Street, to Brunt Street, ² to Roberts Street, and finally to 2010 Brunt Street. He stated that he had seen appellant at the other locations several times; that at one of the other locations, he saw the appellant come by in the morning about 10:00 to collect the money from the previous night's cough syrup sales; and that he had been employed by appellant to sell cough syrup and dummies (barbiturates).

In addition to corroborating Bell's testimony, Connie Rope testified that she had known appellant since 1967 when she first bought cough syrup from him; that thereafter she worked for appellant selling cough syrup and dummies; that she accompanied appellant and 'Red' (William Mack Holt) down to a Washington D. C. pharmacy and from there would sometimes return to Baltimore with twenty cases of cough syrup; that appellant was head of the operation; and that he was present at 2010 Brunt Street almost every day except Sundays. She identified syrup which the police had seized at the 2010 Brunt Street syrup house.

William Mack Holt had known appellant for over fifteen years. When he was released from jail in 1966, appellant had asked him to work for him selling cough syrup. In addition to generally confirming the testimony of Bell and Pope, Holt testified that appellant sold cough syrup and dummies at various locations in the City; that one of these locations was left in his (Holt's) day-to-day control; that appellant gave all the orders, paid the expenses, collected the daily receipts, and paid for and assisted in the transportation of syrup from Washington to the Brunt Street syrup house. Holt testified that appellant paid him $100 a week; that appellant stored his barbiturates in a garage; that following his arrest on May 12, 1969, appellant paid for his release on bail, and instructed him to return to work but to operate away from the Brunt Street house.

Testimony by police officers was adduced to describe (a) three searches of 2010 Brunt Street pursuant to warrants, the seizures of cough syrup and barbiturates as a result, and the arrests of a number of individuals present at the time of the searches, including Bell, Pope, Holt, and Marguerite Wells; (b) a conversation overheard between appellant and Mrs. Wells at her preliminary hearing, and (c) events subsequent to the shooting of appellant on February 28, 1969 outside 2010 Brunt Street.

The three warrant-authorized searches of 2010 Brunt Street were conducted February 22, April 3, and May 12, 1969; they resulted in the seizure of various items including codeine-based Robittusin cough syrup, morphine, heroin, secobarbital, codeine powder, a 'money box,' a tally sheet or price list, and narcotics paraphernalia.

Officer Anthony Smith testified that he was present when Marguerite Wells was arrested incident to the search of February 22; that he was also present at a preliminary hearing held shortly thereafter, at which time he overheard appellant say to Mrs. Wells, 'I told you not to bring the hard stuff.'

Officer John Williams testified that on February 28 he went to 2010 Brunt Street in response to a call, found the appellant lying in the street twenty feet away from the house and heard him shout that he had been shot. Officer Williams testified that appellant denied knowing who shot him but admitted that he had been visiting Connie Pope and a Miss Campbell at 2010 Brunt Street just prior to when he was shot.

I

Of the three searches made at 2010 Brunt Street, the return on one was not made until one month after the search; the return on another was not made until fourteen days after the search; and the return made on the third was not filled in as to the day, and the searching officer could not recall the exact date that it was made. On the basis of these facts adduced at a pretrial hearing the return of the search warrants was deemed to be defective by the hearing judge on the ground that Maryland Rule 707 c requires a return within five days. As a consequence, the court concluded that the evidence seized under the warrants could not be introduced against Holt who was found on the premises during one of the searches. Left open was the question whether the appellant had standing to object to the introduction of such evidence. At the trial, it was ultimately concluded that appellant lacked standing to object and, therefore, could not properly move to suppress the evidence alleged to have been illegally seized from the Brunt Street house and from the persons there arrested.

Appellant contends that (1) he has standing to object because there was evidence showing that the cough syrup house at 2010 Brunt Street was set up by him and that he daily regulated and profited from its operations, and (2) the seized evidence was inadmissible since the search warrants were not timely returned.

We think appellant had standing to challenge the searches. In Walters v. State, 8 Md.App. 583, 261 A.2d 189, we noted that the stake one need possess in searched premises to object to evidence seized therefrom had been discussed in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, and that Jones generally held that aside from the owner or one who has a right of possession in the premises, anyone legitimately on the premises searched has standing to object. The 'legitimately present non-owner' doctrine has generated much discussion. See Middleton v. State, 10 Md.App. 18, 267 A.2d 759; Anderson v. State, 9 Md.App. 532, 267 A.2d 296; Kleinbart v. State, 2 Md.App. 183, 234 A.2d 288. Jones cannot fairly be read to constrict the standing of one having a strong possessory and/or controlling interest in searched premises, but who was not present while the search was being conducted. See Mancusi v. Deforte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154, and United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59. The evidence indicated that appellant exercised control over the searched premises, giving rise to an inference that no activities would occur there without his permission or over his objection. Therefore, as in Mancusi, appellant had a reasonable expectation of privacy with respect to the activities and items within the searched premises. This expectation of privacy is afforded Fourth Amendment protection notwithstanding appellant's inability to show title (United States v. Jeffers, supra) or because of the commercial form of the activity conducted on the premises (Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771). See also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.

We hold, however, that appellant's standing to object to the introduction of the seized evidence is of no consequence in this case, since we believe that the untimely return of a search warrant under Rule 707 c is no basis for excluding evidence seized under otherwise validly issued and executed warrants.

In Fitez v. State, 9 Md.App. 137, 262 A.2d 765, we held that the purpose and policies behind Maryland Rule 707 a and b (inventory and service of copy) were properly served by viewing those provisions as ministerial, and that a technical violation of those Rules would not preclude admission of evidence seized under otherwise lawfully obtained search warrants.

Maryland Rule 707 c provides:

'The search warrant shall be returned to the issuing judge, or in his abence to another judge of the same circuit in which the search warrant was issued, as promptly as possible and in any event within five days from the date the search warrant was executed or within such earlier time as may be set forth in the search warrant for its return. The return shall be accompanied by a copy of the inventory made pursuant to section a of this Rule.'

The marked similarity in form and substance between Maryland Rule 707 c and provisions in other jurisdictions requiring the timely return of a search warrant is readily evident from the most cursory research. The decisions in those other jurisdictions almost uniformly hold that the return of a warrant is a ministerial act and that failure to comply with the return requirement does not render the search warrant defective or the seizure invalid. See United States v. Haskins, 345 F.2d 111 (6th Cir.); Evans v. United States, 242 F.2d 534 (6th Cir.); United States v. Averell, 296 F.Supp. 1004 (E.D.N.Y.); United States v. Romano, 203 F.Supp. 27 (D.C.Conn.); United States v. Gross, 137 F.Supp. 244 (S.D.N.Y.); United States v. Baldwin, 46 F.R.D. 63 (S.D.N.Y.); People v. Hawthorne...