Stewart v. State

• Decision Date: 19 May 1967
• Docket Number: No. 172,172
• Citation: 229 A.2d 727,1 Md.App. 309
• Parties: William Thomas STEWART v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 309

1 Md.App. 309

229 A.2d 727

William Thomas STEWART v. STATE of Maryland.

No. 172.

Court of Special Appeals of Maryland.

May 19, 1967.

Livingston W. Yourtee, Severna Park, for appellant.

Thomas A. Garland, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Thomas A. Garland, Asst. Atty. Gen., Baltimore, Julian B. Stevens, Jr., State's Atty., for Anne Arundel County, Annapolis, on brief for appellee.

Before ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and RUSSELL, Special Judge.

ORTH, Judge.

Appellant was convicted on April 25, 1966 in the Circuit Court for Anne Arundel County before Judge Matthew S. Evans, presiding without a jury, for illegal possession of a narcotic drug. He was sentenced to imprisonment for a term of five years.

The record discloses that on September 18, 1964 appellant visited Judith Ann Turner, who was confined in the Maryland Correctional Institution for Women. Appellant registered as William Turner, husband of the prisoner. During the visit they were seated at a small table, about three feet in diameter, in the visiting room, under the watchful eye of Mrs. Francis J. Melvin, assistant superintendent of the Institution, who was especially alert because she had received information that the prisoner had been getting narcotics from the appellant. Mrs. Melvin was seated about three feet from them. The prisoner was facing Mrs. Melvin and the appellant was sitting with his back partly toward Mrs. Melvin. The visit lasted thirty minutes, during which period, two of the three men with whom the appellant had driven to the Institution came into the room and got a drink of water. Although they walked back of the chair in which the prisoner was seated, they did not touch her. At the end of the visit, the prisoner stood up and came around to appellant and they kissed. Mrs. Melvin also stood up to get a better view. The kiss lasted about two minutes and Mrs. Melvin Observed the appellant's jaw working 'like you would have your tongue in your jaw and actually trying to dislodge something.' The prisoner attempted to explain this by saying she kissed the appellant by sticking her tongue in his mouth and this was the way she usually kissed everyone. The prisoner started to leave the room. Mrs. Melvin called to her that she wanted to see her and followed immediately behind the prisoner into an office. Mrs. Melvin asked the prisoner to open her mouth, assisting her by holding the prisoner's nose, and removed a package about the size of a half a dollar from her mouth. The prisoner bolted from the room, went out the side door and run up the road. She was later apprehended about a quarter of a mile from the Institution. Mrs. Melvin went to the parking lot and noted the license number of the automobile in which the appellant had driven to the Institution. The police were notified and Mrs. Melvin gave Corporal Wilford H. Lawrence of the Maryland State Police, the package she had obtained from the prisoner's mouth, the description of the automobile and the occupants and the license number. Only the appellant visited the prisoner on the day these events occurred and the prisoner was the only inmate who had a vistor on that day.

The package contained five clear plastic type capsules, each of which contained a white powdery type substance. While still at the Institution, Corporal Lawrence made a field test on a small amount of the powder from one of the capsules and the test indicated the powder was a narcotic. He then had a 'lookout' broadcast for appellant. Less than thirty minutes from the time the 'lookout' was broadcast, the automobile was stopped at Fayette and Caroline Streets in Baltimore City. It was occupied by four men, one of whom was the owner and driver. Appellant was seated in the right rear. The car was taken to the Eastern District Police Station. When Corporal Lawrence arrived at the Station, the owner of the automobile had signed a waiver of search. The automobile was searched and a makeshift hypodermic needle and a burnt cap, used for heating narcotics, were found on the fllor near the seat at the left rear. On the right front seat, a makeshift eye dropper and two handkerchiefs that appeared to have drops of blood on them were found. A handkerchief was recovered from the right rear floor and a shotgun from the trunk.

The contents of the capsules were tested by a chemist at the United States Customs laboratory and found to be heroin hydrochloride. Corporal Lawrence, a member of the police force for eight years and experienced in investigation of violation of narcotics laws, testified that instruments of the type of hypodermic needle were used by addicts to inject themselves with narcotic drugs. The capsules and contents and the hypodermic needle were admitted in evidence over objection.

Appellant's contentions on this appeal may be summarized as follows:

1) The narcotic drug and the hypodermic needle were improperly admitted in evidence.

2) The evidence was not sufficient to sustain the conviction.

Appellant's contention with respect to the narcotic drug is that it was obtained from Judith Ann Turner by an unreasonable search and seizure and is therefore inadmissible against him. The short answer is that Maryland follows the majority view of the federal and state courts, requiring the objector to present to the court an alleged violation of his own constitutional rights as a prerequisite to his right to object to 'tainted' evidence. In McChan v. State, 238 Md. 149, at page 158, 207 A.2d 632, at page 638 (1965), the Court of Appeals said:

'* * * the right of immunity from unreasonable search and seizure is personal and one who disclaims ownership or other possessory interest has no right to protest the legality of a search and seizure. Carter v. State, 236 Md. 450, 204 A.2d 322 (1964).' See Lingner v. State, 199 Md. 503, 86 A.2d 888 (1952).

The record does not disclose that appellant, in the instant case, claimed ownership or a possessory interest in the heroin. But in any event, we do not find the search and seizure to be unlawful. Amendment IV of the Constitution of the United States and Article 26 of the Maryland Declaration of Rights do not prohibit a search and seizure; they only require that it must not be unreasonable. There are exceptions to the general rule that the search of a person without a warrant and the seizure of things which are evidence of the commission of a crime are unreasonable and therefore unlawful. The search of a person without a warrant incident to a lawful arrest is not unreasonable. A person may freely and voluntarily consent to a search of his property or person without a warrant. McChan v. State, supra, and cases cited. See Vauss v. United States, 370 F.2d 250 (D.C.Cir. 1966) in which it was held that the search of one found in an unconscious condition is both legally permissible and highly necessary and narcotics found by the search gave grounds for the arrest and were admissible in evidence. We feel that the search of inmates of a penal institution, which does not amount to harassent or oppression to the extent that it constitutes cruel or unusual punishment, is another exception to the general rule. In McCloskey v. State, 337 F.2d 72 (4 Cir. 1964), the Court said, at page 74 'Imprisoned felons and inmates of such institutions as Patuxent cannot enjoy many of the liberties, the rights and the privileges of free men. They cannot go abroad or mount the housetops to speak. They are subjected to rigid physical limitations and to disciplinary controls which would find no shred of justification in any other context. Even the disciplinary powers of military authorities are not so absolute.

Because prison officials must be responsible for the security of the prison and the safety of its population, th...