State v. Boone

• Decision Date: 16 November 1978
• Docket Number: No. 20,20
• Citation: 284 Md. 1,393 A.2d 1361
• Parties: STATE of Maryland v. Marcus Angelo BOONE.
• Court: Maryland Court of Appeals

Page 1

284 Md. 1

393 A.2d 1361

STATE of Maryland v. Marcus Angelo BOONE.

No. 20.

Court of Appeals of Maryland.

Nov. 16, 1978.

Stephen Rosenbaum, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on brief), for appellant.

Geraldine Kenney Sweeney, Asst. Public Defender (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

ORTH, Judge.

On our review of the judgment of the Court of Special Appeals upon grant of the State's petition for the issuance of a writ of certiorari, we agree with the claim of Marcus Angelo Boone, as did the intermediate appellate court on direct appeal, that his convictions in the Circuit Court for Prince George's County of two offenses of receiving stolen goods resulted from an unreasonable seizure prohibited by the Fourth Amendment to the Constitution of the United States. ¹ We therefore affirm the judgment of the Court of Special Appeals, with modification as hereinafter set forth, which reversed the judgments of the circuit court. Boone v. State, 39 Md.App. 20, 383 A.2d 412 (1978).

I

Boone was found guilty in the circuit court ² upon two arrest warrants which, as amended, charged him with receiving stolen goods under the value of $100 as proscribed by Md.Code (1957, 1976 Repl. Vol.) Art. 27, § 467(a). Warrant no. 95493 alleged that he had received goods stolen from Jeanne A. Flynn and warrant no. 95494 alleged that he had received goods stolen from Robert C. Masterson. ³ The warrants were issued on the application of Private T. P. Lennon of the Prince George's County Police Department. It came about in this manner.

The Legislature has provided that "(w)henever the tenant under any lease of property, express or implied, verbal or written, shall fail to pay the rent when due and payable, it shall be lawful for the landlord to have again and repossess the premises so rented." Md.Code (1974) § 8-401(a) of the Real Property Article. The procedural requirements for a trial on the matter in the District Court of the county wherein the property is situated, are spelled out in § 8-401(b). If judgment is given in favor of the landlord, § 8-401(c)(2), and the tenant fails to comply with an order to yield and render possession of the premises to the landlord within two days after the trial, § 8-401(c)(3), "the court shall, at any time after the expiration of the two days, issue its warrant, directed to any official of the county entitled to serve process, ordering him to cause the landlord to have again and repossess the property by putting him . . . in possession thereof, and for that purpose to remove from the property, by force if necessary, all the furniture, implements, tools, goods, effects or other chattels of every description whatsoever belonging to the tenant, or to any person claiming or holding by or under said tenant. If the landlord does not order a warrant of restitution within sixty days from the date of judgment or from the expiration date of any stay of execution, whichever shall be the later, the case shall be considered as dismissed." § 8-401(d). See amendment, Acts 1978, ch. 450.

Boone rented an apartment in Prince George's County and, upon his failure to pay the rent when due, appropriate proceedings pursuant to § 8-401 were instituted in the District Court of Maryland in that county, and trial was had. Upon judgment rendered in favor of the landlord, a warrant of restitution was duly issued commanding the Sheriff "forthwith to deliver" to the landlord possession of the premises. It was during the execution of this warrant by Stephen Philip Mach, Deputy Sheriff of Prince George's County, that the goods which Boone was found to have received unlawfully were found. The goods consisted of three credit cards in the name of Flynn and a credit card in the name of Masterson. The circumstances under which they were found and Mach's actions thereafter were recounted by him during a pretrial hearing in the circuit court on a motion to suppress evidence.

Mach, accompanied by a crew of movers, went to the building in which Boone resided. After determining at the rental office that the rent due had not been paid, he went to Boone's "top-floor standard one-bedroom apartment," with the movers and the resident manager. He testified: "I knocked on the door. There was no answer. We unlocked the doors and entered the apartment. I searched the premises for contraband, money, weapons, things that we normally don't put out on the street." The search was thorough. It included going through closets, furniture drawers, clothing and boxes. Mach characterized such a search as "standard procedure," but the authority for it and the limitations on its scope, if any, were not fully disclosed. Whether it was pursuant to rule, regulation, directive or direction of the Sheriff, or simply Mach's method of operation does not appear in the record before us. Mach indicated that there were some items which he would "hold for the owner." He explained: "That would be handguns, jewelry, . . . weapons, things that you don't put out on the street because they would be a health hazard or dangerous." ⁴ Asked specifically about checks, credit cards and personal papers belonging to the occupant of the premises, he said: "If they belonged to the occupant, I would put them in a dresser drawer or a box or a bag and remove them." They would go out on the street with the other articles in the apartment. Mach searched the bedroom last, after he had searched the living room and kitchen. He found the credit cards in a walk-in closet in the bedroom. He was not sure of the exact location of the cards. "They may have been on the floor or on the ledge or in the pockets (of clothes)." ⁵ The Acevedo checkbook with other papers was in a small cardboard box beside the bed. He seized the credit cards and checkbook and then had the remaining contents of the apartment removed to the street.

At the time Mach seized the credit cards and checkbook he did not know that they had been stolen. He subsequently called Ms. Acevedo, whose telephone number and address were listed on the checkbook, "(t)o find out if it was stolen." Ms. Acevedo informed Mach that the checkbook had been stolen and that Lennon was the investigating officer. Mach then contacted Lennon who said he would ascertain whether there were any outstanding reports of thefts from Flynn or Masterson. It seems that Flynn had reported the thefts, but there had been no report to the police of the theft of the Masterson credit card at the time Mach seized it. Mach turned the credit cards and checkbook over to Lennon. The trial court denied the motion to suppress, and the items Mach seized were received in evidence during trial on the merits.

II

The State would invoke the doctrine of abandonment to justify the seizure of the evidence. We have recognized that "(w)ithout question, abandoned property does not fall within that category in which one has a legitimate expectation of privacy to bring it within the protection of the Fourth Amendment, but whether property is abandoned is generally a question of fact based upon evidence of a combination of act and intent." Everhart v. State, 274 Md. 459, 483, 337 A.2d 100, 114 (1975). In Venner v. State, 279 Md. 47, 51-52 and 59, 367 A.2d 949, Cert. denied, 431 U.S. 932, 97 S.Ct. 2638, 53 L.Ed.2d 248 (1977), we adopted and applied the criteria for testing the Fourth Amendment's applicability enunciated by Mr. Justice Harlan in his concurring opinion in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967):

"(T)here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.' Thus a man's home is, for most purposes, a place where he expects privacy . . . ."

We have also noted that one of the exceptions to the general rule, that a search of private premises should be pursuant to a legally issued warrant, permits the search of a dwelling unit which has been vacated and abandoned by its former occupants. Buettner v. State, 233 Md. 235, 239, 196 A.2d 465 (1964). In other words, "one who abandons or discards property cannot complain with effect of the later seizure of such property by the police, or of its use against him in court." Henderson v. Warden, 237 Md. 519, 523, 206 A.2d 793, 795 (1965). See Matthews v. State, 237 Md. 384, 387-388, 206 A.2d 714 (1965). The Deputy Sheriff was lawfully on the premises by virtue of the duly issued warrant of restitution. But he was there for one purpose, to enable the landlord to have the premises again. To accomplish this, the Deputy Sheriff had statutory authority to remove all the goods on the premises. His duties with respect to the goods, as far as the record before us shows, ordinarily ended when he removed them from the premises. They were simply placed on the street at the risk of the tenant. The Deputy Sheriff was concerned however, and with sound cause, we think, about placing on the street contraband and goods which "would be a health hazard or dangerous." In order to prevent this, it was "standard procedure" to search for such items before clearing the premises, and, apparently, when such articles were found, they would be taken into custody. We need not decide whether, in such circumstances, a search of the premises is constitutionally proscribed as unreasonable. Nor need we decide if it would be unreasonable to seize, rather than place on the street, ⁶ contraband and articles which constitute a health hazard or are dangerous, whether discovered in plain view on the premises or found by a search. We do not make such determinations because it is abundantly clear that the taking of the credit cards by the Deputy Sheriff was an unreasonable seizure in the contemplation of...