Venner v. State

• Decision Date: 26 March 1976
• Docket Number: No. 166,166
• Citation: 30 Md.App. 599,354 A.2d 483
• Parties: Charles VENNER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 599

30 Md.App. 599

354 A.2d 483

Charles VENNER v. STATE of Maryland.

No. 166.

Court of Special Appeals of Maryland.

March 26, 1976.

Arnold M. Zerwitz, Asst. Public Defender, with whom were Alan H. Murrell, Public Defender, George E. Burns, Jr., Asst. Public Defender, and Aldridge L. Lees, Assigned Public Defender, on the brief, for appellant.

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, States Atty., and H. Gary Bass, Asst. States Atty., Baltimore, on the brief, for appellee.

Argued before POWERS, DAVIDSON and MOORE, JJ.

POWERS, Judge.

May the State obtain evidence in a narcotics case from the excrement of a hospital patient, without a warrant, and use that evidence against the patient in a criminal trial?

This question was posed by a motion filed in the Criminal Court of Baltimore by Charles Venner. A two count information charged Venner with unlawfully possessing marihuana extract in sufficient quantity to indicate an intent to manufacture or distribute it, and with simple possession of the same substance. He moved to suppress the evidence and dismiss the information.

Both the issue raised by the motion, as well as the ultimate issue of guilt or innocence, were submitted to Judge Solomon Liss, without a jury, in a series of appearances from 12 December 1973 to 20 November 1974. Evidence which it was stipulated that the court should consider on both issues consisted of an agreed statement of facts, supplemented by testimony and exhibits. Judge Liss denied the motion and found Venner guilty on the first count. After sentence was imposed, Venner appealed.

The Facts Before The Court

The agreed statement was submitted on 27 September 1974. The transcript reads:

'THE COURT: All right, Mr. Bass (Assistant State's Attorney), will you please give us the facts that are agreed on in this case?

Now as I understand it, Mr. Gede, these facts are stipulated and agreed and are to be accepted by the Court as if they had been introduced into evidence by the witnesses. Any facts that are not agreed on you will, of course, promptly let the Court know?

MR. GEDE (Defense counsel): Yes.

THE COURT: Very well.

MR. BASS: Your Honor, on July 21, 1973, at 3:45 P.M., Charles Venner, a twenty year old male, was taken to Sinai Hospital in Baltimore, Maryland by several friends. The defendant was admitted to the emergency room in what appeared to be a semi-conscious state. The friends gave certain information to the attending physician, Dr. Robert Egbert of the Sinai Hospital Staff, and based on this information Dr. Egbert had reason to believe that perhaps the defendant had taken in his stomach, contained in balloons, a substance known as hashish oil; and he also, on the basis of looking at the patient, believed that either one of the many balloons had burst inside the defendant, thus an overdose.

The doctor ordered x-rays taken by the hospital radiologist, and these photographs revealed 12 to 15 balloons still inside the defendant's stomach.'

'MR. BASS: as I said, the x-rays revealed what looked like 12 to 15 balloons still inside the defendant's stomach. Dr. Egbert then notified the Baltimore City Police Department, and Officer Russell Smeak of Northwest District. Officer Smeak, after hearing the situation, made arrangements with the Supervisor of Nurses, Intensive Care, if any stools contained balloons the hospital was told to contact Northern District, and they would respond and take custody of the contents.

On July 22, 1973, at 8:10 P.M., Officer Michael Leonard of the Northwestern District responded to a call of the hospital and took custody of 8 balloons. In July 23, 1973, Officer Wendell France responded to a call to the hospital and received 4 balloons. At approximately 6:30 Officer Allen Taylor went to the hospital to retrieve one more balloon passed by the defendant. On July 24, 1973, about 11:00 A.M., Officer Joseph Lombardi responded to the hospital call to receive eight more balloons found in the defendant's stool. A total of 21 balloons were recovered, plus a fragment of a broken balloon.'

'THE COURT: Is it further stipulated between counsel that the balloons that were turned over to Officer Leonard, Officer France, Officer Taylor, and Officer Lombardi were, in fact, retrieved from the stools that were passed by the defendant in the hospital?

MR. GEDE: Yes, sir.

THE COURT: Very well. Now that still leaves, obviously, the open question as to whether or not the nurse was entitled-the nurses were entitled to take these stools and to examine them, and whether the police officers were entitled to receive them without a search and seizure warrant.

MR. BASS: Chemist William Butler of the Baltimore City Police Department analyzed the contents of the rubber balloons and obtained a positive test for hashish oil.

Your Honor, that is as far as we can go with the statement of facts.

MR. GEDE: Your Honor, just for the record, I will stipulate that that is what he would say without seeing the chemist's report and analysis of it.'

'THE COURT: I think what you ought to do is bring your expert in. This is an essential part of the case. There's a question of whether he should be held for possession or distribution, and I think that we ought to have testimony on this. I suggest to you, when we meet again two weeks from today, that the expert be here so we can qualify him and have him bring his report in and have him give us the benefit of any expertise as to what this means from the standpoint of dosage as well as from the standpoint of quantity.'

There followed a discussion among the judge and counsel as to additional evidence. Judge Liss set a time for taking further evidence. At a later hearing the State called a qualified chemist, who testified that he had received the balloons and examined their contents. They contained what the chemist referred to as hashish oil, or marihuana extract, the principal agent extracted being tetrahydrocannabinol. The quantity of the extract was 200 grams, which the witness said could easily involve a hundred pounds of marihuana. He said that that much extract could be used to produce a hallucinogenic effect in thousands of cigarettes.

The record of Venner's admission and treatment at Sinai Hospital, in Baltimore, which was before Judge Liss and is a part of the record before us, provides more detail than was included in the agreed statement. The hospital summary shows, as the history of the present illness:

'Patient has been in apparent good health without any significant medical history. Three months ago, he went to Morocco for a vacation and on returning home he was caught with illegal possession of narcotics (name ? unknown). He was jailed for three months, and was released a few days prior to admission. Before boarding the plane, he allegedly swallowed 24 to 25 bags of hashish oil and on that night he became dizzy, weak, nauseated, with dry mouth. He arrived at New York Kennedy Airport and passed 5 balloons the next day. The night prior to admission he developed nausea, hallucinations, increased appetite, drowsiness, and disorientation. His condition remained the same and he was brought to the Sinai Hospital Emergency Room the next day, euphoric, disoriented and lethargic, but responding to verbal orders.'

The summary contains this description of 'Hospital Course':

'Patient was admitted to Mt. Pleasant ICU, and on the 2nd hospital day, he was coherent, and oriented x3. He was noticed to be persistently bradycardeic, which did not respond to Atropine. At 5:40 p. m., on that day, he passed through the rectum 8 balloons of different colors. Another five balloons were passed on the next day, then four balloons on the 4th day and two balloons on the 5th day. Vital signs remained stable in spite of the bradycardia, ranging between 34 to 60/min. Serial abdominal films revealed the presence of numerous foreign bodies, and the last film taken the day before discharge disclosed no evidence of such foreign body. Police report on the contents of one of the balloons was positive for marihjuana (sic).'

Progress notes in the hospital record contain these entries:

'7/2 6 pm Passed at 5 40/pm 8 bags (balloons) of diff colors-yellow, green blue. They were given to the nursing supervisor at once. 11 more bags to go (if count is correct).'

'7-23 He passed 5 balloons more.'

'7/24 passed 4 balloons (intact) plus a small fragment. Total = 8 5 4 = 17. (2 more if count is correct & if all are intact, however, apparently at least one got burst).'

'7/25 12N passed 2 more balloons at 3 30/pm yesterday. Everything accounted for, however, on further questioning, he says that he could not remember if they were really 24 or 25.'

On the Doctors Order Sheet an entry at 1:00 A.M. on 22 July 1973 says, 'Foreign bodies in stools to be handed over to security.' Relevant entries in Nurses Notes are:

'7-22 5 40/pm Had large stool including 8 colored articles which were removed and given to Dr. Uy.

6 P.M. Miss Keithly given the foreign bodies taken from stool. Dr. Uy gave them to Miss Keithly.'

'7-23 10 45/AM Passed large brown formed stool (with) 5 balloons.'

'7-24 9 10/AM Had large formed bowel movement & passed four balloons.

3 30/PM Passed 2 more balloons loose bowel movement. Balloons kept-locked security. To be analyzed.'

Contentions on Appeal

The questions in this appeal, as appellant presents them in his brief, are:

1. Did the trial court err in admitting evidence obtained as a result of Appellant's medical treatment for drug abuse?

2. Was there sufficient probable cause to justify a warrantless search and seizure?

3. Did the State show sufficient exigent circumstances to justify a warrantless search and seizure?

Numbers 2 and 3 could well be combined and restated: Was the contraband lawfully obtained by the police?

Statutory Protection Against Disclosure

Appellant's first contention invokes the protection of Code, Art. 43B, § 10(b), which says:

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