Munger v. State

• Decision Date: 03 October 1969
• Docket Number: No. 25,25
• Citation: 7 Md.App. 710,256 A.2d 888
• Parties: Frank MUNGER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 710

7 Md.App. 710

256 A.2d 888

Frank MUNGER v. STATE of Maryland.

No. 25.

Court of Special Appeals of Maryland.

Oct. 3, 1969.

Neil J. Lewis, Baltimore, with Donald S. Lebowitz, Baltimore, on the brief, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr, Michael E. Kaminkow and Philip E. Epstein, State's Atty. and Asst. State's Attys. for Baltimore City, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

PER CURIAM.

The appellant was convicted of the possession of narcotic paraphernalia at a court trial and sentenced to five years.

On appeal he contends:

I Evidence was admitted in error as obtained by an unreasonable search; II The evidence was not sufficient to sustain the conviction.

I

During trial the appellant moved to suppress the evidence. Evidence adduced on the issue was that John H. Hennessey of the Baltimore City Police Department received information from Norma Carter and Charles Carter, her brother, that Miss Carter's house had been broken and entered and that her television set had been stolen. Charles Carter said he had seen 'two white males and a colored male' take the set into 643 South Paca Street, about a half a block from the Carter house. Hennessey and another officer went to 643 South Paca Street and from an alleyway Hennessey saw two white males and a colored male on the premises 'in the room above to the right of the entrance, of the side entrance, to the house. * * * I stood there for a few minutes and watched them up there having a conversation, and I was about to knock on the door when the colored male and the white fellow came downstairs and come out the door.' The white man (identified at trial by the officer as the appellant) identified himself as Frank Munger, 'the occupant of the apartment that was upstairs * * * I explained to them what I was looking for.' The appellant said, 'I have the key, it is my apartment, I will take you up there.' The officer testified, 'Mr. Munger then preceeded to open the front door and take us up, take me upstairs to look for the television set, went upstairs and I walked into the room, on a little table by the side was this narcotic paraphernalia in clear view sitting right there * * * I saw three burnt bottle caps, one improvised syringe, two disposable syringes, one improvised syringe and a hypodermic needle attached, containing some fluid. Then identified two hypodermic needles and one piece of rubber tubing.' The officer seized it. The third man was discovered hiding underneath a bed in the front bedroom. The television set was not found.

On the testimony of Hennessey the lower court could properly find that the officer was lawfully on the premises, that no search as to the narcotic paraphernalia was made, it being in plain view, see Minnick v. State, 4 Md.App. 81, 241 A.2d 153, and that being contraband ¹ its seizure was reasonable. The court was not required to believe the denials or explanations of the appellant. Elder v. State, 7 Md.App. 368, 255 A.2d 91; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 is not applicable. Morgan v. State, 2 Md.App. 440, 443, 234 A.2d 762; Lamot v. State, 2 Md.App. 378, 385, 234 A.2d 615.

II

On the general issue there was testimony by Detective Charles Porter assigned to the Narcotic Unit of the Baltimore City Police Department that, from his experience gained during three years and nine months in the Narcotic Unit, the evidence seized was used to inject habit forming drugs. At the close of the evidence the court requested the State and the defense to investigate the appellant's occupancy of the premises and held the verdict sub curia. When trial was resumed about six weeks later it was stipulated that the owner of the property would testify that the apartment, consisting of the entire floor of the building, was rented to the appellant, that the rent was collected only from the appellant and no one else but that when he went to the apartment there were always numerous people there, 'anywhere from 10 to 12 individuals.'

The appellant now argues that the court...