Nestor v. State
| Decision Date | 19 July 1966 |
| Docket Number | No. 276,276 |
| Citation | 243 Md. 438,221 A.2d 364 |
| Parties | Richard NESTOR v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Michael Lee Kaplan, Baltimore (Morris Lee Kaplan, Baltimore, on the brief), for appellant.
Edward L. Blanton, Jr., Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Charles E. Moylan, Jr. and Edward Angeletti, State's Atty. and Asst. State's Atty., respectively, for Baltimore City, Baltimore, on the brief), for appellee.
Before HAMMOND, HORNEY, MARBURY, BARNES, and McWILLIAMS, JJ.
The appellant, Richard Nestor, was indicted on April 13, 1965 in the Criminal Court of Baltimore as follows: No. 1434, assault; No. 1435, larceny; No. 1436, receiving stolen goods, and No. 1437, receiving stolen goods. Pleas of not guilty were entered and Nestor was tried without a jury (William J. O'Donnell, J.), beginning May 7, 1965. On May 11, 1965 he was found guilty as to all charges and was sentenced to six months (No. 1434), eighteen months (No. 1435), three years (No. 1436), and three years (No. 1437)-all terms to be served consecutively in the Maryland Penitentiary.
On this appeal Nestor contends that: (1) the trial court allowed into evidence items taken from his apartment as a result of an illegal search and seizure, and (2) the nature of questions asked by the trial court indicated prejudice and bias against Nestor.
Frances Hankewycz testified that she and her child had lived with Nestor from November, 1964 to March 18, 1965. On February 15, 1965 they both rented an apartment at 211 Preston Street, Baltimore City. On March 18 Nestor and Mrs. Hankewycz had a lover's quarrel and she went with her mother to the apartment on Preston Street to get her child and some of her clothes. Nestor met them at the door, brandished a shotgun and began to beat Mrs. Hankewycz. She left with her child, but without taking any of her clothes or the child's toys.
On March 22, 1965 Mrs. Hankewycz swore out a warrant against Nestor for assault. Mrs. Hankewycz accompanied two Baltimore City police officers to 211 E. Preston Street where the warrant was served on Nestor at 8:30 p. m. on the night of March 22. Nestor met the police at the door of the apartment. After they showed him the warrant he immediately agreed to accompany the officers but told them they could not enter the apartment. Mrs. Hankewycz told Nestor that she wanted to get her clothes, and he said they were not at the apartment but had been sent to his brother's house.
Nestor left the police officers and Mrs. Hankewycz standing inside the doorway of the apartment and he went into the bedroom in order to comb his hair and dress before he accompanied them. The police testified that Nestor 'acted very funny, running around * * *, hollering out, 'Frances you shouldn't have done this, you know what you're putting me into." After Nestor went into the bedroom, one of the police officers signaled another policeman outside on the street, who was covering the rear of the premises, that he should send for the patrol wagon.
Mrs. Hankewycz then asked the officers if she could go into the living room to get her things, and they answered that they didn't see why not, that she had every right to take her clothing. She went into the living room and approached the closet where she kept her belongings. Mildred Srebsoski (Mildred), who was in the apartment when the warrant was served on Nestor, exclaimed 'don't go in that closet.' Mrs. Hankewycz opened the closet door and a golf bag with clubs fell out on top of her. Not only were her clothes not in the closet, but it contained silverware, swords, the golfing equipment and clothes; all of which proved to be stolen goods.
After Mrs. Hankewycz opened the closet door, she called for the police to come into the living room. They entered, observed the articles in the closet and asked Mrs. Harnkewycz whether they were her property. When she answered that they did not belong to her, the officers took Nestor and Mildred into custody along with another man who was sleeping in the bedroom while all this was taking place. 1 The police took photographs of the closet and seized its contents. There is no testimony that a general search of the apartment was made and the trial court found that the police did not search the apartment at all, but merely seized the contents of the closet, which were open and in plain view.
1.
Nestor's counsel on this appeal argues that the police trespassed when they entered the living room of the apartment at Mrs. Hankewycz's invitation since on March 22 she was no longer a co-tenant and had no rights in the premises. It is urged that the articles seized from the closet should not have been introduced into evidence against Nestor at his trial.
Nestor apparently paid the first week's rent for the apartment. All other payments which became due up until March 17 were paid by Mrs. Hankewycz exclusively out of her earnings. Nestor and Mrs. Hankewycz had their alteration on March 18 and he was arrested on March 2. Rent was to have been paid again on March 24.
It is argued that Mrs. Hankewycz abandoned the apartment or was 'evicted' on March 18, and since she had paid no rent covering the period after March 17, she was not a co-tenant and had no rights in the premises on March 22 when she accompanied the police officers to the apartment and Nestor was arrested.
We accept the trial court's determination that the co-tenancy had not been terminated as of March 22. Mrs. Hankewycz kept her key to the apartment, no locks had been changed, the landlady had not been informed that Mrs. Hankewycz was no longer a tenant, Mrs. Hankewycz's belongings were at the apartment on March 18 and some of her things were still there on March 22. She testified that she had planned to pay the rent on March 24. Furthermore, testimony of the landlady tended to show that even Nestor did not consider Mrs. Hankewycz to have abandoned her co-tenancy with him in the partment. The landlady testified that she was told by Nestor that he was going to see whether or not 'his wife' came back to him, and that if she didn't return by March 24 he would be giving up the apartment.
Mrs. Hankewycz, as co-tenant, was not a trespasser when she entered the apartment on March 22 to see if her belongings were still there. When surprised by what she had found in the closet, she asked the police officers to come in from the hall. The rule is well established that one co-tenant may give consent to a search and the evidence there disclosed can be used against the other tenant whose permission to enter and search the premises had not been elicited. See Nelson v. People of State of California, 346 F.2d 73, 77 (9th Cir. 1965). See also Bellam v. State, 233 Md. 368, 196 A.2d 891 (1964) and the cases and authorities therein cited.
In Bellam v. State, supra, we held that a wife could consent to the entrance and search of premises jointly occupied by her and her husband, and articles found during the search could be introduced against the husband at his trial. As we indicated in Bellam, in the case of a husband and wife, the consent of one co-tenant may bind the other, does not stem from the implication that a consenting tenant may waive the other's constitutional rights against trespass and unreasonable searches and seizures, but rather from the possessory rights of the cotenant to admit to the jointly controlled premises whomsoever he wishes, including police officers.
As we have already pointed out, however, Nestor informed the police officers at the door of his apartment that he would submit to arrest, but that he did not want them to enter the premises. In Tompkins v. Superior Court, 59 Cal.2d 65, 27 Cal.Rptr. 889, 378 P.2d 113 (1963) a co-tenant was arrested for a narcotics violation. He gave police the key to his apartment and told them that they could go other and search the premises. The police went to the apartment without a warrant for arrest to search and attempted to open the door. The other co-tenant, who was inside the apartment, opened the door on the chain, saw the police officers (who identified themselves to him) and slammed the door shut. The police then broke the door down, entered the apartment, searched it, found marijuana and arrested the co-tenant and another man who were both inside the apartment at that time. In holding that a police officers committed a trespass and made an unreasonable search and seizure, Justice Traynor said:
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