Scott v. State
| Citation | 243 A.2d 609,4 Md.App. 482 |
| Decision Date | 02 July 1968 |
| Docket Number | No. 264,264 |
| Parties | John Preston SCOTT and Betty Lee Scott v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Sherman W. West, Suitland, for appellant.
Fred Oken, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Donald Needle, Asst. Atty. Gen., Arthur A. Marshall, Jr. and James E. Kenkel, State's Atty. and Asst. State's Atty. for Prince George's County respectively, on brief for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.
The appellants John Preston Scott and his wife Betty Lee Scott were convicted by a jury in the Circuit Court for Prince George's County under one indictment charging unlawful possession of explosives, six indictments charging receiving stolen goods over the value of $100.00, and six indictments charging receiving stolen goods under the value of $100.00. Each appellant was fined $100.00 for unlawfully possessing the explosives. John Scott was sentenced to the Maryland Penitentiary for a total of twenty-three years on the receiving convictions. Betty Lee Scott was sentenced to one year under each of the twelve receiving convictions. Her sentence was then suspended and she was placed on probation for a period of three years. On this appeal from these judgments, the appellants advance twenty-seven reasons for reversal of their convictions, principal among which is that the court erred in failing to grant their pre-trial motion to quash a search warrant and suppress evidence seized by the police from their home and also in admitting such evidence at the trial over their objection.
The pertinent facts are these: On February 2, 1967 Detective Albert Kulle of the Prince George's County Police Department made application for a search warrant, alleging therein that there was probable cause to believe that there were stolen goods in appellants' home at 5303 Cable Avenue, Auth Village, Camp Springs, Maryland. Detective Kulle alleged in the application for the warrant that a Bell & Howell movie projector, Serial # BJ-14809, and a Magnavox stereo, Serial #3059338, had been stolen on January 13, 1967 from designated premises located, respectively in Hillside and Beltsville, Maryland. In his application, Detective Kulle asserted that the 'grounds for the search and the basis of probable cause' were contained in his accompanying affidavit, as well as the appended affidavits of Detectives Ross and Farran, also of the Prince George's County Police Department.
In his affidavit Detective Kulle stated that he placed himself in a position to observe the Branch Avenue coffee shop in Silver Hill, Maryland, a shop which he knew to be operated by John Scott, an individual who had previously been convicted of receiving stolen goods. Kulle's affidavit recited the following observations personally made by him:
January 18, 1967
At approximately noon, Dominic Emelio and Brian Dunleavy drove up to Scott's shop in a red and white Pontiac and carried into the shop what appeared to be a color television set which he, the affiant, believed had been reported stolen that day from a Langley Park address; that at 4:10 p. m. a red Volkswagon operated by Thomas Beavers, a convicted housebreaker, arrived at the rear of Scott's shop; that Scott and Beavers carried a portable television, a suitcase, and an item under a red and white bedspread from the Volkswagon into the rear of the shop, after which Beavers drove off; that at 5:30 p. m. Scott and another man loaded these same items into a 1967 Ford pick-up truck, known to be registered to Scott's wife Betty; that this vehicle, operated by still another man, then drove off to the residence of Charles Bishop at 5376 Auth Road, Camp Springs, Maryland, Bishop being an individual believed by the affiant to have been previously involved with Scott in receiving stolen goods; and that the vehicle was kept 'under observation' until 6:30 p. m. that day and thereafter was followed by the affiant to appellants' home.
In the afternoon the red Volkswagon operated by Beavers arrived at the rear of Scott's shop; that items were removed therefrom by Scott and Beavers, 'under a yellow bedspread' and 'in a green pillow case' and taken into the shop, after which Beavers drove off; that later that afternoon a green 1966 Chevrolet, operated by a man, drove to the rear of Scott's shop and the operator carried a white portable television into the shop; that later the same day, a green 1959 Chevrolet arrived at Scott's shop and another portable television was carried into the shop; that still later the same day, a 1957 Chrysler arrived at the rear of Scott's shop and three portable televisions were carried into the shop; that at 5:00 p. m. a 1961 Ford sedan, known to be registered to Betty Scott, and driven by a man, arrived at Scott's shop and the man loaded a portable television into the trunk of the 1961 Ford and several other items under bedspreads; that John Scott then drove the 1961 Ford to his residence, arriving there at 6:10 p. m., at which time Scott and the man with him unloaded the items from the 1961 Ford and placed them in the Ford pick-up truck, which was then parked on the street in front of Scott's home.
At 12:45 p. m. the Ford pick-up truck was driven to Scott's shop; that at 2:55 p. m. a 1967 Chevrolet operated by a man also came to Scott's shop, at which time Scott transferred six portable television sets and a black zipper bag from the Ford pick-up truck to the Chevrolet.
That at 10:25 a. m. a 1956 Oldsmobile operated by Roger Unger and Michael Errico, both known criminals, drove to Scott's shop, at which time Scott removed a portable television from the Oldsmobile and placed it in the Ford pick-up truck.
At 11:15 a. m. a 1957 Pontiac operated by Emelio and Dunleavy drove to Scott's shop and Emelio carried a portable television into the shop.
At 11:40 a. m. a 1962 Cadillac operated by John Mealy came to Scott's shop and Mealy carried an 'item' into the shop; that at 12:10 p. m. a 1957 Pontiac occupied by Emelio, Dunleavy and John Hazel came to the shop and that a portable television was taken from this vehicle and placed in the rear of the Ford pick-up truck.
At 11:50 a. m. an International Carry-All van driven by George Creighton, a convicted housebreaker, drove to Scott's shop; that Scott looked into the van, a conversation ensued between the two men, and thereafter another man came out of the shop and drove off in the van.
Detective Ross's affidavit recited that on January 26, 1967 he arrested Dominic Emelio who confessed that he was responsible for thirty housebreakings in Prince George's County; that Emelio stated that he sold the stolen goods to John Scott, at Scott's shop; and that he, Emelio, and Dunleavy stole a black portable RCA television on January 24 and sold it to Scott at this shop that same day, Scott knowing that the set was stolen. In his affidavit, Ross further stated that he verified the fact of such housebreakings and also stated that the transaction of January 24 between Scott and Emelio had been photographed. The photograph was appended to Ross's affidavit.
Detective Farran recited in his affidavit that on January 13, 1967 at 4:30 p. m. he was in the rear of Scott's coffee shop and saw Calvin Smith and Thomas Johnson, both convicted housebreakers, inside the shop with Scott; that he entered the shop and observed a Bell & Howell movie projector, Serial # BJ-14809, a Kodak camera, and one Magnavox stereo, Serial #3059338; that Scott told him that he had purchased these items earlier that day; that he, Detective Farran, ascertained later that day that these items had been stolen and that on January 14, he returned to Scott's shop and found that these items were no longer there, Scott stating at that time that Johnson and Smith took the property away and that he, Scott, had not bought it from them.
The application for the search warrant concluded by requesting issuance of a warrant to search the appellants' house and to particularly seize the aforementioned Bell & Howell movie projector and the Magnavox stereo. As issued, the search warrant authorized the search of appellants' home and the seizure of the Bell & Howell movie projector and the Magnavox stereo, and further directed the seizure of 'all paraphenalia used in or incident to the operation or conduct of said criminal activities' (receiving stolen goods), and also authorized seizure of 'any evidence that pertains to said criminal activities.'
Acting under authority of the search warrant, the police searched appellants' home on February 3, 1967. While they did not locate either the Bell & Howell movie projector or the Magnavox stereo, they did seize a large number of other items of personal property found in the house, including 107 sticks of dynamite. The seized items were removed in two paddy wagons. At the time of the seizure, the officers had no specific information that any of the items seized had actually been stolen. A four-page inventory of the seized articles was made and they where photographed at the police station. The police then checked their records and contacted persons whose homes had been burglarized. A number of persons so contacted came to the police station and identified articles seized from appellants' home as having been stolen from them. It was upon this basis that appellants were indicted for twelve separate offenses of receiving stolen goods, and one case of unlawful possession of dynamite. As heretofore indicated, appellants' motion to quash the search warrant and suppress the evidence was overruled and, at the trial, the items seized at the appellants' home were introduced in evidence against them over their objection.
Appellants contend that the search and seizure was unlawful since the warrant authorizing a search of their home was issued...
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