Garrison v. State

v. HAROLD GARRISON STATE OF MARYLAND 1128, September Term, [No. 1974.]

Decided October 1975. argued Melvin, cause before was Powers, Gilbert

JJ. Assigned Kroop, Defender, appellant. A. Public for

Gerald General, Allen, Attorney David B. Assistant whom Allen, Burch, Attorney General, Milton B. Francis B. were Attorney City, Nathaniel Baltimore State’s for City, Moorehead, Attorney Baltimore Assistant State’s for brief, appellee. on J., opinion delivered the of the Court. Powers

Melvin, concurring J., JJ., filed a concur and Gilbert, Powers, and opinion page which concurs at Gilbert, J., 277 infra. Following non-jury in the trial Criminal Court Baltimore, “Truck”, Garrison, Harold also known was felony possession convicted of unlawful of heroin quantity sufficient an intent to distribute it. indicate (Code (a)(1). Art. §286 appeal appellant

Tnthis contests the correctness denial, judge’s evidentiary hearing, trial after an of two pre-trial suppress motions certain evidence.

sought suppressed ultimately to be introduced at the appellant’s timely objections. trial over The basis for the pre-trial suppress objections motions to and the at trial was challenged evidence was obtained as a allegedly entry result of their unlawful into and search of apartment building appellant where awas tenant. In short, invokes the doctrine the “fruit of the poisonous tree”, entry claiming alleged illegal “poisonous search to be the gained tree” and the information and evidence found aas result thereof to be the “fruit” and against therefore inadmissible him under well-established exclusionary Supreme rules enunciated the U. S. binding upon

and thus Mapp the courts of Ohio, this state. v. (1961). 367 U. S. 643 specifically,

More appellant claims that the information gained by alleged illegal police the activity should not have been used to form probable the of basis a cause affidavit for a search seizure pertaining warrant to the basement of appellant’s apartment the building where, pursuant warrant, by police heroin was seized and introduced as appellant’s timely evidence trial over objection, and that without this probable information there was no cause for the of issuance a warrant to search the basement. He therefore claims that the poisonous doctrine of the “fruit of the tree” against bars as only evidence him not the information gained by police during prior alleged illegal search tangible (170 but packets evidence heroin) of subsequently by found as a result of that information. State,

In Everhart v. (1975) 274 Md. 459 the Court of Appeals, speaking through Judge O’Donnell, said at 479-80: applying by

“In the criteria laid down the Fourth opinions Amendment and as established of Supreme applying the United States that Amendment, prescribed California, Kerr v. as in 23, 33-34, 1623, 374 U. S. 83 S. Ct. 10 L.Ed.2d 726

260 in Silverthorne

(1963), find hpldings we that supra, Lumber Co. v. United in Nardone v. States, States, United 338, 266, U. S. 60 S. L. Ct. 84 Ed. (1939), Wong States, v. Sun United in 371 U. S. 471, 407, (1963), 83 S. Ct. 9 L.Ed.2d 441 States, Alderman v. United 165, 394 U. S. 89 S. Ct. v. in Carter (1969), explicated L.Ed.2d 176 as State, supra 411], compel Md. the conclusion [274 data set as basis the existence if forth for of probable application an cause in a search for warrant, upon come or derived an result of seizure, illegal primary illegality such — in the absence attenuation or a of of — independent precludes such ‘taint’ source of being a use such derivative evidence valid establishing probable basis the existence for cause, under the doctrine fruit ’ poisonous tree. added) (Emphasis writing

As was stated Mr. Justice White States, supra, majority in Alderman v. United State, v. in Carter approval supra quoted [at 435]: of a unwarranted search police make an

‘If the belonging to tangible property and seize house — transcript of a even a parties third — homeowner third-party conversation him, against because may object to its use any in seized items the interest he had Amendment, by Fourth protected the ‘effects’ of an the fruits were but because house, which is of his search unauthorized Fourth protected the expressly itself on the Nothing or seen Amendment. found the an may legally basis premises for form [Emphasis in warrant or arrest the homeowner’s testimony at or original] for using the be prosecution would the trial, since ’ ” violation. Amendment a Fourth of fruits added) (Emphasis Appeals Everhart, of in supra, further said 481-82: poisonous “The doctrine the the tree’ of fruit of scope exclusionary

extends rule to bar not of only directly seized, but also evidence indirectly obtained as a result of information search; learned leads obtained in the in unlawful prohibits prosecution its broadest sense it from using any manner, in prejudicial accused, information derived from learned as facts a result agents. the unlawful acts law enforcement defendant, requisite standing, Once a has timely factually challenged asserted that evidence was derived from information obtained in an seizure, unlawful search and the court must opportunity explore him afford an in detail the circumstances under which the evidence was acquired; establishes if defendant evidence resulted an search and unlawful seizure such evidence cannot be used at all unless prosecution can convince the court that trial it independent origin had an or that the information gained in the directly search did not lead unlawful or indirectly discovery challenged ” evidence. (Emphasis added) evidentiary hearing At the afforded the on his suppress, supporting motions to affidavit the issuance the search and seizure warrant was introduced. The part affidavit in relevant reads as follows: support “Affidavit in of a Search and Seizure premises for warrant of: 839 Druid Park Lake Apartment Al, Drive described this affidavit as a story multiple dwelling three white known as: Lake Apartments. Side support person

Also of: Harold 1/28/37, N/male, 6'0, 175 lbs. B. of Garrison O.O.B. 97-976,

I. name, who also known the alias “TRUCK”. support

Also for the basement of 839-841 by your Lake Druid Park Drive which is known Laundry for to contain facilities affiants — Park occupants Druid Lake Drive of 839-841 Apartments (basement Lake also contains Side gained Large entrance a metal area which is same.)” firedoor, Lock on June, 1973, “During your fourth week information from a reliable affiants received “Truck” was that Harold Garrison alias informant distributing bundles of heroin from 839 presently Apt. Al. The informant Park Lake Drive Druid purchasing he heroin further stated that has been past two weeks. from “Truck” he informant would call Truck 728-4568 stated to: that 728-4568 was listed (investigation revealed Garrison, Virginia B. 839 Druid Park Lake Drive coming he Al.) inform “Truck” that Apt. and meaning (term resupply). The “Re-Up” over to Druid he would then enter 839 informant stated (Lake Apts.), Side walk down Park Lake Drive A1 written on hallway knock on the door with the door. (door open does have then the door

“Truck” would locks) escourt the informant additional informant would hand over kitchen where selling (20 money. (“Truck” is bundles “Truck” the tinfoil) wrapped in which is bags) for tinfoil $250.00 would then leave the “Truck” informant in the keys. apartment with After leave the kitchen and — 4 minutes “Truck” would return approximately 3 (20 tinfoil one bundle give to the informant depart. then bags heroin). informant would June, your during fourth week of Again placed premises of 839 Druid Park affiants approxi- Lake Drive under After observations. mately one hour Harold Garrison was seen Temp. parking Volkswagen Tags Blue E81078.

“Truck” Park then entered 839 Druid Lake Drive. your

All three of affiants familiar are “Truck”. sight. him

And know on Again during your the 4th week of June 1973 affiants contacted the who informant stated that continuing “Truck” was to sell bundles heroin for employing $250.00 same method of distribution. The informant stated he this to knows be true for he had returned to 839 Druid Park Lake purchased Apt. Drive Al and another bundle since your he last talked to affiants. agreeded

It was then that a Controlled Purchase of Narcotics be would made from order “Truck” attempt hiding place locate “Truck’s” find the heroin. your On June along affiants with the informant went the area of the 800 Block Druid Park Lake Drive. Detective James Welsh then searched the informant found him money, drugs to be free of and other items. gave

James Welsh then the informant $250.00 departmental your funds. At this time 1st and Third (Det. T. officers West and Murrey) R. entered 839 Druid along Park Lake Drive with the informant. The informant was observed both apt. detectives knock on Al. The informant then apt. entered approximate Á1. After minutes, two both detectives observed Harold Garrison alias apt. “Truck” proceed come out Al and to walk At down the both hall. this time detectives positioned themselves in the basement behind the steps leading down to the basement. Both detectives then observed “Truck” entered the produced basement walk to the end and then key to a metal “Truck” large then entered this fire-door.

vacant room sight and both detectives lost him. approximately one minute After reappeared

“Truck” the door. and relocked “Truck” then turned to exit the basement and at this both detectives observed in time approxi- packet “Truck’s” hand one A tinfoil mately egg) of a “Truck” then walked size up back the stairs and was observed both to re-enter 839 Druid Park Lake detectives ("Truck” apt. Apt. opened Drive A1 the door to key). A1 with a informant two minutes the approximately

After directly apt. Al and walked out of walked by (followed both James Welsh Detective gave detectives). The informant then to Detective containing packet tinfoil Welsh one James powder. packets The tinfoil of white smaller by again Det. James Welsh informant was searched money, drugs free of and found to be The informant then stated other items. And apt. Al and was he had entered your affiants that gave to where he again to the kitchen escourted apartment “Truck” then left the “Truck” $250.00. approximately 4 minutes later and and returned packet with 20 tinfoil gave the informant one packets. informant then tinfoil smaller departed. by was then field tested suspected heroin kit) positive and a (marquis test Welsh

Det. James opiate-evidence obtained reaction was chemical lab for further to crime submitted SF 67-36.” by Welsh. C.C. analysis Det. James # added) (Emphasis City by three Baltimore signed

The affidavit affidavit, Detectives in the mentioned police detectives the affidavit portions Murrey Other West, and Welsh. experience the three training and established reliability unnamed of the as the well detectives the District presentation of the affidavit On informant. authorizing a issued a warrant judge Baltimore appellant, Al, 2) person 1) apartment Drive. Lake Druid Park 3) of 839-841 the basement Appellant dispute does not that based on the informant’s information set out in the affidavit there was sufficient probable cause for the issuance of a warrant to search apartment Al person appellant. However, he vigorously illegality asserts the of the warrant as to the basement, claiming forth, infra, as set probable that the searching cause for only basement was obtained prior alleged illegal entry means of the apartment into the building and its basement. The dispute State does not only probable indeed the cause shown for a search of the basement was the observations made detectives West and Murrey they were, while to use Murrey’s words, Detective steps” “secreted the basement under the approximately at 30, 1973, 2:35 A. M. on June some six hours before the warrant was obtained.

In executing the warrant detectives, the three approximately 30, M. 8:30 A. on June went first to the padlock basement and broke off the on the fire door to the large empty they room had seen enter at 2:35 A.

M. that same date. In a corner of the room found an electric pipes cord “tied around one of dropped down inside the cord, wall”. The other end of the which was out of sight, lady’s was found to be tied to a bag black hand containing packets 170 tin foil of heroin. This was the heroin introduced at the in appellant’s trial chief over objection.1 The Apartment officers then went to Al and recovered “from person Mr. key Garrison’s . . . (sic) one which fitted padlock the which secured” the basement room where the heroin had been inculpatory found. No other evidence was in apartment. found the Appellant placed was then under “charged arrest and possession of heroin”.

In affidavit, addition to the other evidence adduced at the pre-trial suppression hearing established that tenants the apartment building permission large had no to use the testify, Murrey Although judge to over allowed Detective 1. the trial buy”, concerning appellant’s objections, his observations of the “controlled packet” attempt foil evidence the “one tin no was made to introduce as appellant’s apartment; presumably nor obtained from which the informant packet any illicit that the contained at the trial chief was there testify. drugs. The informant did not 266 where heroin On room the was found. this

basement appellant judge ruled that when the evidence the trial trespasser he as such had that room became and entered rights his had been standing no to claim Fourth Amendment may though police have been violated, the also even trespassers building the hid behind when entered appellant. steps to the basement observe of this case particular in the circumstances We think that judge standing and that trial did have suppressing as evidence both the observations in error'in not building apartment of the detectives inside as a result thereof. tangible evidence found Standing Object To Police Observations properly necessary standing To the issue of it is determine fully layout apartment building. more of the describe Evidence, including photographs diagrams, at suppression hearing building showed that is a three story frame structure located at 839-841 Druid Park Lake City. Drive is one in Baltimore There front entrance building consisting single of a No. solid door feet wide. 839 3 apartments is the of the on the hand side of the address left entrance and No. 841 the address of those on the hand “approximately apartments” in side. are thirteen There building. apartments There are four on the first floor. opens building

The front door into a small vestibule deep. 5 To first floor 8 feet wide and feet reach the steps apartments must from vestibule to a one ascend landing”, approximately deep and 8 feet “1st floor feet directly landing. apartment opens wide. onto the One open apartments floor a narrow other three first onto rear hallway leading landing” from floor the “1st feet to in width hallway building. varies 3-V2 (Al) appellant’s apartment The door 2 feet inches. from the hallway, distance 49 feet 1st the rear of the landing. floor manager building that the testified resident only kept building door to locked

entrance manager building superintendent tenants, resident Anyone visiting keys door. would have to have to the tenants by telephone building tenants from outside the “and call the they would come down” and unlock the door. He further you however, key front door testified, that “if had a to the forgot again and came in and to lock it back then it would be unlocked”. steps leading

Beside the from the the 1st vestibule to floor landing leading is a door to the basement. This door is also kept only locked. It is the access to the basement. Aside building superintendent manager, only tenants keys keys have to this door. The tenants are issued so they washing “laundry can use the machines in the room” located in the basement. There is evidence that at suppression time of hearing (March 15, 1974), sign there was a on reading the basement door “Laun- - — dry Room, Open M., 7:30 A. Closed 9:30 P. M”.

But there any sign is no posted evidence that such on 30, 1973, June or that was ever told he could not enter the key basement with his after 9:30 P. M.

In addition laundry room there are two or three other rooms in the basement. The doors to these other rooms kept were locked and no permitted tenants were in them.

The entrance to one of these through rooms is a metal fire 30, door. On 1973, June the door was padlock. locked with a superintendent maintenance put testified that he a keeper May on the door June, 1973, “they because had buy they lock because had trouble before with some people”. The record is silent “they” as to who are. The witness further put said he did not padlock on the door and did not know who did. large It was empty room, this feet feet, that Murrey Detectives and West observed appellant enter at 2:35 A. 30, M. on June and from which emerge saw him carrying packet a tinfoil the size (sic) egg”. “a It is evident judge trial believed that appellant, having key basement, right had a to be in the basement go but no through the metal fire door large into the empty room. In ruling on the motion

268 suppress, judge “And, so, effect, the trial said: in he came through laundry an area the room was in [where located] right be, which he had a and went area to into an back [the room], very least, right anybody ... as at the he had little supports finding. had ...”. to be The evidence this Unfortunately, however, support the it does conclusion appellant standing propriety that the lacked to contest the of using probable police as the observations of the a basis cause back or as trial over his to search the room evidence at objection. in

When the two detectives observed the the right be”; in an “in which to basement he was area he had a then, testimony according to the affidavit and the they chief, large trial in him enter vacant saw “this room They sight of him”. did not see him both detectives lost emerge in him while he was the back room. When saw later, he in area the room a minute was back an where point to judge the trial found he had a be. At this egg-sized packet. tinfoil detectives observed that he had Moylan, opinion by Judge In a recent this Court reviewed standing object development of the law of to a search to State, App. (1975). Duncan v. 27 seizure. See Md. 302 Initially first hurdle a defendant must overcome at a hearing suppression producing is of that that his personal rights constitutional were violated.2 “One must enjoyment his that it is own direct or derivative establish property expectation privacy or that has been invaded State, may Duncan v. challenge before he the invasion”. supra, at 304. S., v. U. Supreme Jones decision in 362

Prior to the Court many required courts (1960), U. S. lower defendant in possessory prove interest he had either premises (See e.g. Gaskins v. object seized. or searched Medalie, 58 F. 2d 34; Connolly S., App. v. U. 95 U. S. D. C. guest 902). or 629; a mere DeBousi, Thus F. 2d U. S. v. as not regarded generally prior invitee Jones required to offer defendant before a 2. indication that There is some standing. lack proof of defendant’s must the issue such the State raise sufficiently raised S., (1972). The has S. State Combs issue in 408 U. v. U. at hand. the case premises object having sufficient interest ownership necessity proving rejecting In search. challenging prerequisite

possessory interest as a said, seizure, Supreme of a search and legality Jones, at 267: just

“No interest of the in the Government rigorous effective and enforcement of the criminal hampered by recognizing anyone law will be that legitimately premises on the where a search occurs may challenge legality by way its motion a to suppress proposed when its are to be used fruits against him. This would of course not those avail who, by wrongful presence, virtue of their cannot privacy premises invoke the of the searched.” (Emphasis added). appellant

At the time the in was observed the basement at was, 2:35 A. M. he held, place as the trial “in court a he had a i.e., be”, “legitimately to he was premises”, on the in an tenants, area common to all public but excluded in to the general. person The fact that a does not have exclusive use only person or is not the legitimately who is premises on the having standing not a bar to his object to a search of Forte, that In Mancusi v. De area. (1968), 392 U. S. 364 Supreme U. S. standing Court held that a union official had object to a search of the offices where he worked even though it was an office shared several union officials and though even not defendant did claim the records were seized from personal an area set aside for his use. The Court Jones, supra, S., relied on and Katz v. U. (1967), 389 U. S. 347 capacity and held protection to claim the “depends upon property right Fourth Amendment not in place, upon the invaded but in whether the area was one expectation which there was a reasonable of freedom from government intrusion.” 392 U. S. at 368. circumstances,

In the appellant we hold that while the basement, except large was for the time he was empty room, expectation he had a reasonable that he would governmental be “free expectation intrusion”. The “legitimately premises”, he was on the

“reasonable” because knowledge public’s area that the was excluded from sight. presence Appellant establishing his burden met standing object into his warrantless intrusion basement area. Prior Search

Reasonableness of having standing, the burden established upon justification for to show then fell the State apartment A. search at 2:35 M. of the basement. warrantless finding for, as judge no on this issue an trial made motions, denying suppression ground he alternate that, Calandra, v. opinion U. S. was of the based on U. S. 338, “if the of the Poisonous Tree’ doctrine does not ‘Fruit appears grand jury, the evidence which before the affect proceeding for proceeding a later than the which is warrant, logically seizure then . . . issuance of apply ought ought be it well to the the conclusion remarked, the He then “.. . issuance of warrant either”.3 may illegally may not have been [T]his poisonous Having ruled that the tree doctrine did obtained”. validity, testing search it was not apply not warrant’s necessary primary issue of taint at for him to determine the hearing, regardless whether pre-trial suppression of appellant standing or not. had appellate should we as an court question is whether determining validity prior of the undertake task State, In Walters v. not. 8 when the trial court has 588, n. 5: (1970), Judge Orth said at App. Md. 583 Chief prius to not in nisi “This does sit as Court contradictory does questions. This appraise factual may not, mean, however, where that we necessary of constitutional to the determination of the independent examination rights, make an we determine facts, findings record so that can judge, course, recent 3. The trial did not have the benefit of the Court contrary. Appeals State, supra, holding decision in Everhart v. to the in the decision as to whether reasonableness constitutional search the criteria have been respected.” no unresolved the record reveals

In before us the case entry surrounding prior and search disputes factual appropriate we think it police. In circumstances independent record and make an examination of the have determine for ourselves the reasonableness thereof. We prior entry search were hold that done so. We under the circumstances. unreasonable apartment police that the entered the

The record is clear “attempt[ing] purpose of building A. M. for the sole at 2:35 hiding place ‘Truck’s’ to find and locate heroin”. for the building they permission to enter the police had no admitted building. or, inside, enter the basement of the once Murrey Detective West testified that when he and Detective However, it was unlocked. unlike entered the front door State, v. Eisenstein 200 Md. there situation in (1952), reasonably from could have no evidence which hallways building or its common were that the concluded open public A. M. at 2:35 warrant, Eisenstein, police officers,

In without a search opened door and entered the vestibule the unlocked entrance They looking person apartment house. were for a of a small they suspected of violation of the narcotic named Drake they laws. While in the vestibule observed Eisenstein come “shoving lottery pocket”. into his One of out of a door tickets caught grabbed his hand in the the officers Eisenstein and away lottery slips slips pocket with the and took him. claimed his arrest and the seizure Eisenstein said, “If slips illegal. The at 597: the officers were lawfully apartment house when were in the vestibule of the lottery tickets, with the observed warrant, they although had the to arrest the without a incriminating person articles appellant, his and seize search upon person within with the crime found his connected possession”. no immediate control or There was his use and in Eisenstein that the entrance door was ever evidence evidence that “it was the custom of

locked other everyone entering apartment this house to use this vestibule public as that door a entrance and this unlocked entrance open public .... It could on was be concluded admissibility lottery slips], question of of this evidence [the hallway”, public this vestibule a at 600. produced warranting such The State no evidence contrary, noted in the instant case. On conclusion testimony by earlier, the resident there was uncontradicted only kept door was locked and manager that the entrance keys management personnel had the door. tenants and way visiting gain only a tenant could entrance was one unlock telephoning a tenant who “would come down” and accompanying In their the search the door. affidavit application, police officers swore that warrant “along informant”, door with the who had entered the front previously previous informed them that on occasions he telephone coming “Truck” and inform him “he was would meaning ‘Re-Up’ (term resupply)”; and that “he over to (Lake would then 839 Druid Park Lake Drive Side enter hallway Apts.), walk and knock on the door with Al down (See supra). This set forth written on the door” affidavit manager’s testimony resident consistent early morning supports inference that in the hours clear 30, 1973, appellant, response June telephone call, for him and unlocked door informant’s arrival. apartment to await the informant’s returned to his n Murrey that it was Detective testified trial in chief At.the informant, West, than the who rather he or Detective walking by turning the actually opened knob the door circumstances, an this was under the opinion, in. In our expressed purpose of entry part for the their illegal on appellant. against the searching for of crime entry, based on may of their initial at the time be that It concerning appellant’s informant from the the information probable operation, cause to had method basement, including perhaps building, apartment States, v. United in Katz Supreme as stated but supra, at 356-57:

273 upon never sustained a . has . [T]his expected reasonably ground that officers sole voluntarily particular crime and of a find evidence to the least intrusive their activities confined that end. Searches consistent with means been held have without warrants conducted unquestionably ‘notwithstanding facts unlawful States, Agnello cause,’ v. United probable showing requires ‘that 33, 20, the Constitution 269 U. S. judicial deliberate, impartial judgment of a interposed the citizen and between ... be

officer States, Wong v. United U. Sun . . .’ . has again this Court 471, 481-482. ‘Over and S. emphasized mandate [Fourth] that judicial adherence requires Amendment Jeffers, 48, 51, S. States v. 342 U. processes,’ United judicial conducted outside and that searches approval by judge or prior process, without se per- under the magistrate, are unreasonable — subject only to a few Amendment Fourth and well-delineated specifically established exceptions.” warranting the in this case

There is no evidence any specially and “few established application Certainly, exceptions” rule. warrant well-delineated on its exigent The affidavit no circumstances. there were under had been face establishes days. There was no evident reason for several surveillance entry seeking initial into the warrant before the for not building. States, McDonald v. United concurring opinion in his

In (1948), said: Mr. Justice Jackson S. 335U. each tenant of a it me that

“But seems to exclude from the building, while has no he lawfully, hallways does those who enter common constitutionally protected personal have security integrity of the entire interest breaking entry. Here building against unlawful police gained post access to their peeking by merely means that were unauthorized but means that were forbidden law and denounced Having entry as criminal .... an forced without either a search warrant an arrest warrant to justify it, entry, the felonious character their it me, step every journey seems to followed of their inside the house and tainted its fruits with illegality. States, Weeks v. United 383; U. 232 S. Cf. States, Taylor v. United 1; 286 U. S. Johnson v. States, United 10.” 333 U. S. entry if

Even we were to assume the initial into the building lawful, was somehow there can be no doubt that the entry into again, police the basement was not. Here the they permission anyone concede no had to enter cases, Eisenstein, supra, basement. There are such as where courts have it held reasonable certain circumstances police lobbys hallways officers to enter common apartment buildings to general public. found be used none, No case has been cited to us and we have found that, holding exigent circumstances, absent consent or police may make a warrantless search a basement area public only by closed be to and to used tenants of building.

Prom what we have said it follows that evidence concerning police the observations of the inside the apartment building early morning in the hours of June 1973, should not have been admitted as evidence at the trial in chief or used to form the basis for the search warrant S., See v. U. subsequently Alderman obtained. U. S. 165 State, State, (1969); supra; Everhart v. Carter v. 411Md. (1975).

ADMISSIBILITY OF TANGIBLE EVIDENCE

(HEROIN) argues that even if the search warrant is held The State basement, appellant since the “had no invalid as to the any privacy expect to at all the vacant room” where police found obtained heroin was after had object warrant, standing to appellant no to had indicated, admissibility. judge have the trial its As we agreed not. We think that with this contention. We do once standing object has it has been established that building once inside it is observations direct fruits those of a shown that observations were rights, appellant’s Amendment violation of Fourth indirectly appellant’s right object obtained as to evidence result that violation is also established. differently, a defendant once it determined that Stated object standing to evidence in a criminal trial has direct of violations of his Fourth result obtained as object rights, standing to evidence Amendment his indirect an result of those violations derives obtained as standing object to prior of from the establishment his directly think is mandated obtained. We this result (See, by Supreme Court of the United States decisions of States, Company Lumber v. United 251 e.g. Silverthorne U. States, (1939); Nardone v. United 308 S. 338 (1920); U. S. 385 States, Wong (1963)), Sun v. United U. S. 471 as Maryland Appeals in Everhart v. explicated by the Court of State, State, supra. supra, Carter v. and Sun, brought Wong Supreme full flower In In poisonous of the of the tree”. that case the doctrine “fruit Sun, defendants, Wong Toy there were two and both illegally charged with narcotic violations. Both had been agents. by federal A verbal statement arrested narcotics agents Toy given immediately after his arrest was Toy against (as “the ‘fruit’ of held official inadmissible police illegality”). to a The verbal statement directed selling person, Johnny Yee, as one who was narcotics. third home, thereupon it police went to entered Yee’s in his bedroom. After a discussion found Yee quantity agents, Yee took from a bureau drawer a small of agents. questions One it to the of the heroin surrendered admissibility Supreme of Court was the this before Toy Wong against both Sun. As to heroin in evidence admissible, Wong Sun the Court held heroin “[t]he seizure of right privacy person this heroin invaded no premises Wong which would entitle object Sun to to its that, use at his trial”. It vacuo, is clear to us considered in the same could admissibility against Toy. be said as to its Toy privacy had no more in Yee’s home than did Wong Toy, however, 487, Sun. As to said, 488, the Court 492: Toy’s

“We now consider whether the exclusion of requires declarations also the exclusion of the Yee, narcotics taken from to which those candidly prosecutor police. led declarations told the trial court that ‘we wouldn’t have found drugs except Toy helped those that Mr. us to.’ Hence this is not the case envisioned this Court exclusionary application where the rule has no because the Government learned of the evidence independent source,’ ‘from an Silverthorne Lumber States, Co. v. 385, 392; United 251 U. S. nor is this a case which the connection between the lawless discovery conduct of the and the challenged evidence has ‘become so attenuated as to dissipate States, the taint.’ Nardone v. United U. S. 341. We need not hold that all evidence is poisonous simply ‘fruit of the tree’ because it would light illegal have come to but for the actions of police. Rather, apt question the more such ‘whether, granting case is establishment primary illegality, the evidence to which instant objection exploitation made by is has been come at illegality by sufficiently or instead means of distinguishable ’ purged primary to be taint. Maguire, Guilt, (1959). Evidence of think it We by clear that the narcotics were ‘come at exploitation illegality’ of that and hence that may against Toy.” (Emphasis added) not be used Toy “. . . The exclusion of the narcotics as to was relationship by to solely required their tainted Toy, not unlawfully obtained information connected with their any impropriety with official added) (Emphasis Yee”. surrender the heroin us, it clear that we think record before On the charged possessing was the defendant with which illegality and that exploitation” primary at “come “it legally evidence that produce sufficient failed to the State gained in origin the information independent or that an had directly indirectly” its did lead search the unlawful State, discovery. supra. v. Everhart

Judgment case reversed and new trial. remanded City paid by Mayor & to be Costs City. Baltimore Council of Powers, concurring: J., opinion fully written to the I subscribe

Judge Gilbert Melvin, as in the as well by Judge panel for the unanimous upon effect however, further wish, to comment result. appellant’s upon A. M. illegal 2:35 in this joins me Judge Gilbert rights. constitutional comment. holding that be that we are not

It should clear standing object appellant had Fourth Amendment He entry at A.M. such. and ultimate seizure 8:30 as second object standing clearly not. His rather was did gathered of information as the direct use use well indirect intrusion, did during as to which he the earlier 2:35 A.M. standing. definitely have Amendment That most Fourth — poisonous was the tree unconstitutional intrusion earlier precisely primary illegality. emphasize I which wish to functionally parallel several distinct uses of but — unconstitutionally A.M. obtained 2:35 information — primary illegality precisely exploitation of that which may case. Poisonous trees bear the one that counts this immaterial may fruits as well as material ones and bear simultaneously. both

It was not the use of the unconstitutionally obtained spell probable evidence to out cause for the search warrant that matters here. Since the has no Fourth protection Amendment in the inner room searched at 8:30 A.M., warrant, rights no search concerned, as far as his were necessary. very was being existence of a warrant immaterial, validity probable constitutional of its cause thereby equally simply immaterial. It does not matter probable whether cause is tainted or untainted for a warrant which is itself redundant. exploitation primary illegality of the that does matter

was the use of unconstitutionally obtained information go to know when and where to and where to look at 8:30 A.M., irrespective any Fourth Amendment consideration at that later time. On us, the record before but for the use of illegally knowledge, obtained the contraband would never have been found. arguable There was no attenuation precise poisoned taint. The use of a fruit which cannot permitted, therefore, be obtaining of an warrant, unneeded exploitation most, an immaterial but very going act of to an hiding place unforseeable in the knowledge sure found, contraband would there be directly most incriminating material and exploitation. It justification was not the ostensible going for the very landlord’s basement going room but the act of to that room that mattered.

Case Details

Case Name: Garrison v. State

Court Name: Court of Special Appeals of Maryland

Date Published: Oct 3, 1975

Citation: 345 A.2d 86

Docket Number: 1123, September Term, 1974

Court Abbreviation: Md. Ct. Spec. App.