Wilson v. State
| Decision Date | 03 February 1976 |
| Docket Number | No. 513,513 |
| Citation | 30 Md.App. 242,351 A.2d 437 |
| Parties | Rayfield Zeke WILSON v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Donna Aldridge, Assigned Public Defender, Hyattsville, for appellant.
Francis B. Burch, Atty. Gen., Bernard A. Raum, Asst. Atty. Gen., Arthur A. Marshall, Jr., State's Atty., for Prince George's County and Arthur Kravetz, Asst. State's Atty., for Prince George's County, for appellee.
Submitted to MOYLAN, DAVIDSON and LOWE, JJ.
Stemming from the initial abhorrence of the 'general warrant' felt by the colonists, there has been so much written on the subject of the Fourth Amendment 'right of the people to be secure in their . . . homes . . . against unreasonable searches and seizures . . .,' that it is hard to believe there yet exists a circumstance untreated somewhere in our appellate reports. We look forward to the time when we may affirm or reverse by mere recitation of authority to one or more cases of identical factual context, much in the manner of comedians who amuse one another by numerical reference to a joke index, avoiding the tedium of repetitive verbiage. While we are aware of the enormous force of few words, it is as yet beyond our ken to articulate briefly the reasons for our holdings while clearly limiting them lest they be misapplied in another case, yet we will try once again.
Rayfield Zeke Wilson was convicted by a jury of the Circuit Court for Prince George's County of receiving stolen goods. Crucial to his conviction was the introduction of a cassette recorder recovered by police from his residence. The room occupied by Wilson as his residence was searched by federal agents who were accompanied by a Prince George's County officer (who was there as a 'back-up to the Feds'). The subject of the search was restricted by a valid warrant to narcotics and narcotics paraphernalia. No narcotics or paraphernalia were found. During the course of the search, the attention of the county officer was caught by a quantity of stereophonic equipment. His decision to make a list of the serial numbers of those items is at the heart of this appeal.
'Q. Officer, did there come a time when you were there that you had occasion to observe some electronic equipment, stereo equipment?
A. Yes, sir.
Q. And what, if anything, did you do upon observing those items? Could you describe the items that you observed and what, if anything, you did upon observing them?
A. Well, I can't describe them exactly. There were various t.v. sets, stereo equipment, speakers, one or two clock radios, camera and various items in the house that I looked over and jotted down the serial numbers of all of them.
Q. And approximately how many items were there?
A. Somewhere around twenty, twenty-five.
Q. And where in the house did you observe those items?
A. In the upstairs bedroom.
Q. And what did you do with the serial numbers that you jotted down?
A. When I got the serial numbers jotted down I attempted to contact or teletype to S.I.I. to get an N.C.I.C. telecheck.
Q. What do you mean by that?
A. National Computer, where any type of anything stolen, the serial numbers are entered into it and all these serial numbers are on file in this computer.'
Appellant objected to succeeding questions which sought to elicit what the submission of the serial numbers to the computer disclosed. While pointing out that the objection may have been somewhat premature, the court sequestered the jury and permitted appellant to proceed as if the objection were a motion to suppress. It became clear during the hearing that appellant was attempting to preclude the State from introducing into evidence a cassette recorder which was seized by a Prince George's County detective the day following the narcotics search. Continuing its examination of the county officer, the State sought to justify the seizure by eliciting the fact that appellant consented thereto:
'Q. How did the policemen get it or how did the county get it?
A. The Detective Shapiro went back later.
Q. With a Search Warrant?
A. No, without a Search Warrant.
Q. Was it consented to?
A. Yes.
Q. In other words he took physical possession of this Sony cassette recorder by consent of the accused?
A. That is correct.'
The appellant, on the other hand, argued that the
Presumably what appellant contended was that the circumstances surrounding the consent were tainted by an illegal search and, as a consequence, the consent was not voluntary, In Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-2048, 36 L.Ed.2d 854, the Supreme Court made it clear that, while consent to search supplanted the need to obtain a warrant, such consent must be voluntary and
'. . . whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.'
Perhaps because the evidentiary question was somewhat premature, as the judge below pointed out, the 'circumstances' giving rise to the consent were not before him when he ruled upon the admissibility of the cassette. However, by not responding to appellant's contention that the wrongful search tainted the subsequent seizure, he seemed to rule implicitly either that the subsequent consent absolved the wrongful search, or that the initial search was a valid offshoot of the federal warrant. He said:
'My ruling is, that you told me that this item was seized by the consent of your client, therefore it is admissible.
Bring the jury back. I don't have to pass on the other question.'
The unanswered 'other question' 'was obviously whether it was proper for the county police officer to make a list of the serial numbers of the electronic equipment in order to determine if any of the articles had been stolen. As a result of the officer's action, one of the items was determined to have been stolen-a cassette tape recorder, and was subsequently seized. It was not until after his ruling on the legality of the seizure, however, that the judge heard the details of the computer report.
'A. I got a reply-well, the teletype operator got a reply from the N.C.I.C operator.
Q. And which item was that?
A. It was a Sony cassette tape recorder.'
Acting upon this information, a county detective went to appellant's residence the next day, without a warrant, and the following ensued:
'A. I approached the Defendant, advised him of his Constitutional rights and explained that the stolen property was observed and verified in his home the night before by the uniformed officer.
Q. Now, what rights specifically did you advise the Defendant of?
A. From my Waiver of Rights card I advised Mr. Wilson that Then I asked him if he understood the rights I have explained to him and he acknowledged that he did.
Q. And what happened next?
A. I asked him if he would relinquish the property that was in his home, the cassette, Sony cassette tape player and I provided the serial number.
Q. And what did Mr. Wilson tell you in regard to that?
A. It was in his room and he led me up there.
Q. And did there come a time when you examined the cassette that looks similar to the one that had previously been described to you?
A. I did.
Q. And what, if anything, did you observe about that cassette?
A. Well, the serial number of 30185 was affixed to the cassette player and matched to the one reported by the claimant in the break-in of his home in February.
Q. Now, who was the person that returned that cassette to you?
A. The Defendant.
Q. What, if anything, did you do after that?
A. The recovered stolen property and the Defendant were transported to Crimes Against Property, Oxen Hill.'
Guided by the directive of Schneckloth v. Bustamonte, supra, we have looked at the circumstances of the consent to seize and, as in Whitman v. State, 25 Md.App. 428, 456, 336 A.2d 515, we find the atmosphere of the search and seizure critically suggestive of coerced consent.
It was made abundantly clear by Judge O'Donnell in Everhart v. State, 274 Md. 459, 337 A.2d 100, that, when information serving as a basis for probable cause was obtained or derived as a result of an illegal search, the doctrine of the 'fruit of the poisonous tree' (set forth in Wong sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, and held applicable to the states by Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416) applies to preclude the use of such information as the basis of a search warrant. Judge O'Donnell wrote:
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State v. Wilson, 26
...for receiving stolen goods in the Circuit Court for Prince George's County, the Court of Special Appeals, in Wilson v. State, 30 Md.App. 242, 252, 351 A.2d 437 (1976), held that a police officer violated appellee's rights under the Fourth Amendment by engaging in an illegal search and in un......
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...v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Johnson v. State, Md.App., 352 A.2d 349 (1976); Wilson v. State, Md.App., 351 A.2d 437 (1976); Whitman v. State, 25 Md.App. 428, 336 A.2d 515 (1975).2 If one puts apples and oranges in the same pot, he gets neither applesauc......
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...the arrest poisons its fruits 2 may affect the flavor of the consent, but does not render it poisonous in all circumstances. Wilson v. State, Md.App., 351 A.2d 437 (filed February 3, It is hard to imagine a more coercive atmosphere than appears from the facts of the instant case. While unde......
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