*1 tо, consider its verdict. attention has not been called nor Our found, for an instruction request have we additional Thus, presented. the issue here would have embraced point argued preserved appellate here has not been review. affirmed;
Judgment appellant to pay the costs.
ALLAN ABRAHAM LEBEDUN v. STATE OF
MARYLAND Term, 154, September [No. 1977.] July Decided *2 J., and argued The cause was before Murphy, Smith, C. JJ.
Digges, Levine, Eldridge, Cole, Orth Defender, Assistant with Peabody, Bradford C. Public brief, Murrell, Defender, for H. Public on the whom was Alan appellant. General, B. with whom
Stephen Caplis, Attorney Assistant Burch, General, Bill and Clarence W. Attorney Francis General, brief, for appellee. Assistant Sharp, Attorney on opinion C. delivered Court. Smith, J., Murphy, J., concurring part dissenting part an in opinion filed page 283 infra. (Lebedun) here seeks to overturn
Allan Abraham Lebedun separate of two Montgomery County jury by a his conviction (1) He claims: handgun violations. and related robberies suppress erred his motion to denying triаl court made as a from his motel room and a statement seized (2) thereof, it likewise erred consequence entirely to two consolidating pertaining trial indictments no on hold error incidents. shall that there was separate We *3 second. The Court point, first but error on the the there was unreported in an Appeals of his Special affirmed conviction Term, 1977, (No. decided September November opinion 16, 1977). might of that we granted We the writ certiorari consider these two questions. 28,1976, at place January
The first took on robbery armed place took three Montgomery drugstore. a The second County a mile from the days pharmacy later another located about process shall in the develop first. We additional facts opinion. of Suppression Evidence evening February after the second day
On the Virginia, fire Arlington County, robbery, Lebedun called a sought He their assistance at department squad. rescue Bodeau, motel, friend, appeared saying that his Andrew The suffering drugs. dispatcher from an overdose squad. the rescue promptly notified members of two notified of Immediately police department thereafter was squad the motel. of the rescue “possible a overdose” at One testified: members overdose,
“If a call in that is possible comes details, you customary don’t it’s where have that our unit is notify police responding overdose, they dispatch a unit also possible might police that arise any cover situations action.” the fire employee of professional
This a full-time witness was service, last department years with five which had in the rescue unit. exclusively been found They at the motel. promptly The firemen arrived room, floor, in the Demerol tablets Bodeau on the saw taken such that Bodeau had tablets without determined roоm was “full all prescription, and noted that the motel drug related items.” For kinds of and “medical machines” reason, dispatcher radio that that with their verified on the scene police police enroute. A officer arrived squad after the rescue had been five minutes approximately that it was call. This officer testified notified of Lebedun’s possibly “at there’s police department any that time policy of the Fire endanger any personnel anything might them ride them and assist Department, police that the with he arrived at the that when if He stated possible.” further room up to the scene he saw the rescue vehicle backed open, The door and Bodeau. front was occupied Lebedun in, on, He without lights and the curtains drawn. walked announcement, attending one paramedic and found that questioning Bodeau while second was Lebedun. room, various in the officer observеd items he suspected including appliances, some electrical all to the response say were stolen. He heard Lebedun *4 had and Bodeau question paramedic of a that both Lebedun the officer’s paramedics taken Demerol. One of the called tablets, marked. plainly attention bottles of Demerol to two Bodeau refused their offer paramedics The left when The officer then advised transportation hospital. to a rights constitutional Lebedun and Bodeau their for the Demerol. prescription them to a requested produce so, men for do he arrested both When failed to dangerous a substance. Assistance possession of controlled officer came to the scene. requested and a second Lebedun was removed from the motel to the Arlington Police County Department. a magistrate There read to him a listing form his rights. constitutionаl Ultimately, after an interrogation, Lebedun admitted to robberies the two Thereafter, in pharmacies involved this case. a pursuant to warrant, search motel large room was entered a ski quantity drugs, jackets, and ski masks two two seized. here trial
Lebedun contends that the court erred denying his motion to suppress evidence seized from motel room and the statement made result of as a his arrest and the subsequent search.
The area of warrantless searches has particularly been facet Bacigal, unsettled of the law. The Emergency See Exception Amendment, to the Fourth 9 U. Rich. L. Rev. 249 (1975); Irons, Burger The Court: Discord Search and Seizure, 8 (1974);LaFave, U. Rich. L. Rev. 433 Warrantless Searches and the Supreme Court: Further Into Ventures “Quagmire,” (1972); Mascólo, 8 Crim. L. Bull. 9 Emergency Exception Doctrine Requirement to Warrant Amendment, Under the Fourth (1973). 22 Buff. L. Rev. LaFave, See generally J. Israel & W. Criminal Procedure in § (2d 1975). Nutshell at 119-49 ed. Baсigal Professor points out:
“The fourth amendment consists of two conjunctive clause, clauses: the reasonableness protects which against unreasonable searches and seizures, clause, and the warrant prescribes conditions for the issuance of warrant. The proper relationship these between two clauses has been the subject of much centering debate on whether the are dependent clauses or independent of each other.” (footnote omitted). U. Rich. L. Rev. Barlow’s, Inc., recently More in Marshall v. 436 U.S.
98 S.
(1978),
Ct.
“This includes the con- troversy England general over the issuance of *5 of the seditious libel to aid enforcement
warrants with writs experience and the colonial laws the collection of issued to facilitate assistance The by Parliament. duties import imposed various the attending with the abuses familiarity Framers’ the provided warrants general issuance of such arbitrary restraints on stimulus for the principal in the embodied Fourth intrusions governmental Amendment. fathers were not constitutional
‘[0]ur searches, concerned warrantless but about perhaps is overreaching It about warrants. feared, they the say too much to that search, it is plain than the but warrant more prime the the warrant was enough that at looking their concern. Far from object of against a protection the as warrant searches, it an as saw unreasonable oppressive authority for unreasonable ...’[, searches citing Taylor, Two Studies Interpretation, (1969)]. Constitutional warrant, not the warrantless general “Since search, at Fourth evil the immediate directed, that surprising it is not Amendment was The on its issuance. placed precise Framers limits showing issue on requirement only that a warrant means cause was the particularized probable power. warrant While adopted to circumscribe the course of Fourth Amendment subsequent emphasizes dangers jurisprudence this Court conducted without posed warrantless searches cause, is reasonableness probable general it Clause, clause, not the Warrant standard in-the first category limit adopted this that Framers Id. searches.” 98 S. atCt. at times the view Supreme has embraced Court making thus “dependent complementary; clauses are except emergency
warrantless
searches unreasonable
Bacigal,
magistrate
impossible.”
situations when resort to a
*6
Thus,
L.
in Katz v. United
supra, 9 U. Rich.
Rev. at 257.
(1967),
States,
347, 357,
507, 19
389
88
L.Ed.2d 576
U. S.
S. Ct.
judicial
“that searches
outside the
it was asserted
conducted
are
process,
prior approval by
magistrate,
without
judge
subject
under the Fourth
se unreasonable
per
Amendment —
only to a few
established and well-delineated
specifiсally
exceptions.” Accord, Coolidge
Hampshire,
v. New
403 U. S.
443, 454-55,
2022,
(1971).
91 S. Ct.
Support
today thinking
view that the Court is
terms of a broad
as the test for
standard of “reasonableness”
warrant,
longer adopt
“per
searches without a
a
and will no
searches,
approach
may
se”unreasonableness
to warrantless
gleaned
instance,
from
For
in
v.
Cady
several cases.
Dombrowski,
433,
2523,
413
“The Framers of
given
the Fourth Amendment have
us only
general
standard
‘unreasonableness’
guide
determining
as a
searches and
whether
seizures meet the
standard of that Amendment
those cases
required. Very
where warrant is not
decisions,
little
previous
that has been said in our
see
California,
58,
788,
Cooper v.
17
U. S.
S. Ct.
[386
States,
L.Ed.2d 30 (1967)],Harris
U.
v. United
[390
234,
992,
(1968)]
S.
S. Ct.
In United States v. 415 U. S. S. Ct. (1974), 39 L.Ed.2d 771 the defendant was arrested for attempting to into post Investigation office. revealed break on a at wire paint chips
that
windowsill
there were loose
up in
pryed
had been
apparently
mesh screen. The window
morning
entry.
following
attempt
an
to make an
him,
evidence, and
from
held as
clothes
taken
Edwards’
that had
samples
matched the
analyzed.
chips
Paint
clothing.
In
the window were found
his
been taken from
(6th
1973),this
Edwards,
F.
v.
2d
Cir.
United States
the Fourth
had
found
violate
warrantless search
been
“concluding]
disagreed,
Supreme
Amendment. The
Court
not be extended to
the Fourth Amendment should
in the
invalidate the
and seizure
circumstances
search
802, “The
rule under the
prevailing
It
case.”
noted
th[at]
may
seizures
not be
Amendment that searches and
Fourth
exceptions.”
various
subject
made without a warrant
California,
58, 87 S. Ct.
Referring
Cooper
386 U. S.
*7
807,
(1967),
at
“It was no
said
L.Ed.2d 730
the Court
a
obtained
search
to
that the
could have
say
answer
be, not
it was
warrant,
held the test to
whether
for the Court
warrant,
a
but whether
search
procure
reasonable
reasonable,
it was.”
search itself
which
was
1,
2476,
Chadwick,
In
97 S. Ct.
States v.
433 U. S.
United
upon the
(1977),
emphasis again was
Later in said for the Mr. Justice Chadwick Chief Court: Fourth inquiry considering fundamental
“Our or not a search Amendment issues is whether under all seizure is reasonable the circumstances. California, (1967).” Cooper Id. at 9. S. 58 U. However, search not in Chadwick was held to be agents reasonable. Federal narcotics had arrested Chadwick custody and taken of a locked footlocker suspected containing marijuana or hashish. An hour and opened a agents half after the arrest the footlocker without Chadwick’s consent and without a search warrant. said, The Court being exigency, “There no it was unreasonable for the this Government to conduct search safeguards provides.” without the a Id. judicial warrant at 11. immobilized, “With footlocker it safely was unreasonable to undertake and greater the additional intrusion of a search а without warrant.” Id. at 13.
New
Aid
York’s
to Families
Dependent
With
Children
(AFDC)
program,
James,
involved Wyman v.
400 U. S.
(1971),
required
S. Ct.
“When case type involves home some home, official intrusion into that this appears as case do, an immediate and natural reaction is one. concern about Fourth rights Amendment and the *8 protection which that Amendment is intended to emphasis afford. indeed is one upon Its of the most precious aspects of personal security in the home: ‘Theright of the people to be in secure their persons, effects____’ houses, papers, and This has Court сharacterized right that as to a ‘basic free society.’ Colorado, v. 25, (1949); Wolf 338 U. S. v. Camara Court, Municipal (1967). 387 U. S. And over years the Court consistently has most been of the of protective privacy See. for dwelling. States, 116 U. S. example, v. United Boyd (1961); Ohio, Mapp v. 367 U. S. (1886); 626-630 California, (1969); Vale v. 395 U. S. Chimel Louisiana, (1970). In Camara Mr. Justice 399 U. S. White, noting the ‘translation after that “unreasonable searches prohibition against abstract guidelines seizures” into workable task,’ a difficult went of cases is particular decision observe, on to
'Nevertheless, governing principle, one current by justified by history followed: consistently has been experience, defined classes except carefully in certain cases, private property of of a search is “unreasonable” proper consent without a valid by authorized unless it has been S., 387 U. 528-529. search warrant.’ out, too, Fourth Amendment one’s pointed He that being suspected his apart from subsists protection S., Id. at 316- at 530.” 387 U. of criminal behavior. “the not fall Wyman concluded that visit The Court does This is because proscription. the Fourth Amendment’s within It is does not descend to level unreasonableness. it Amendment’s which is the Fourth unreasonableness Id. at 318. standard.” .general to the recognized exceptions
One pursuant made to a valid search be requirement a. emergency valid is “the doctrine.” warrant order never “Although exception has been emergency it Supreme has been definitively explained Court to a courts by the lower recognized applied consistently Mascolo, L. 22 Buff. supra, of factual situations.” myriad doctrine: emergency 419-20. Mascolo says Rev. at search in the law of emergency “The doctrine its never defined terms and seizure has been for a has been concept. practice The usual overall the circumstances of its definition tо court tailor *9 each case. Within the context of this study, doctrine may be defined as follows: Law enforcement officers enter may private premises without either an arrest or a search warrant preserve life or property, to render first aid and assistance, or to general inquiry conduct a into an crime, unsolved provided have they reasonable grounds to believe urgent that there is an need for action, such assistance protective promptly launch a criminal investigation involving a life, substantial danger threat of imminent to either health, further, or property, provided, that they do not enter with an intent to either accompanying If, arrest or search. premises while on the inadvertently incriminating discover evidence in view, plain or as a result of activity some on their part that bears a material relevance to the initial purpose for their entry, they may seize it lawfully Thus, without a warrant. to qualify as an emergency exception, there must reasonably appear exist an exigency in the course of which a discovery related to the purpose of the is made. entry exigent legitimate circumstances the presence, and the relevance of the discovery to the justification entry (footnotes sanctions the seizure.” Id. at 426-27 omitted).
The Supreme Court has most
recently applied
emergency doctrine
uphold
a warrantless
search to
investigate
Michigan
Tyler,
cause of a fire in
436 U. S.
(1978), nothing,
S. Ct.
suppose that firemen warrant to burning put a structure entering consent before purpose, in a for this building out And once the blaze. is in may seize evidence of arson that firefighters 403 S. plain Coolidge Hampshire, v. New view. U. 1950. at 509, Ct. 443, 98 S. Id. at 465-466.” investigators search upheld by The Court the warrantless extinguished the fire had had left the scene after been who to collect of the following morning and the returned found no necessity cause of the fire. The further Court though again once left the scene investigators a even warrant morning still the after the fire. In and returned later on the place searches took upholding these warrantless fire, said, morning find that the day.after the Court “[W]e first, of the entries were no more than an actual continuation resulting and the lack of a warrant thus did not invalidate Subsequent at 1951. seizure evidence.” Id. 98 S. Ct. later, howevеr, occurring entries warrantless weeks Id. at 98 Ct. at 1951. disapproved. S. emergencies right police property during
The
to enter
In United
numbq;r
has
discussed in a
of other cases.
been
(2d
denied,
Barone,
Cir.),
v.
“The accompanying in an intent emergency without nature very in or arrest is inherent either search from the officers-,and derives duties as peace their Case, Read v. Conn. generally See common law. that had (1822). it is obvious Indeed entry apartment to the denied patrolmen been gain not the right, duty, had if would have States, supra Wayne United entry forcibly. See v. J., concurring).” Id. at (Burger, of a discussion in an extended Judge Burger engaged opinion of the portion duties emergency officer’s denied, (D.C. Cir.), cert. Statеs, F. 2d 205 Wayne United (1963), concurring opinion S. 860 which was U. holding: alternative exigent circumstances sur- appraisal
“The rounding or forc- execution of search warrants presents diU without search warrant ible entries problems. These cases do not ficult and delicate a courtroom or pervades arise in the calm which except courts by are if ever seen library. They rarely criminal has uncovered activity cases where been are not challenged police They actions. by matters meditation reflection resolved likely are participants. events tension, frequently emotion-charged, filled with Constitution, risks. Neither the by grave attended *11 home statutes or decisions have made the judicial Collectively they in an absolute sense. inviolable great protection have surrounded the home with but needs of ordered protection qualified by which is society. in a civilized liberty if it
“Breaking
illegal
into a home
force is not
by
is reasonable in the circumstances. The standards
controlling a
in
are those
breaking without a warrant
§
prescribed in
3109. Miller v. United
[18 U.S.C.]
States,
U. S.
78 S. Ct.
with are dead often apparently process. Even judicial myriad A response. police swift saved ‘exigent the terms fall within could circumstances States, to in Miller v. United referred circumstances’ under or out a window coming e. smoke supra, g., house, threats from in a door, gunfire the sound police, the door through to shoot the inside seriously injured an grounds to believe reasonable 211-12 Id. at within.” being held person ill (emphasis original). officers public or other firemen policemen,
“When lead which would are confronted with to act see a need official to and reasonable prudent act are authorized property, they life or protect found information, if ultimately even on that erroneous.” Id. at to an responding purpose an officer’s
Relative to said: Burger emergency, Judge from patrolmen expect “If could we when the instant pinpoint cruisers would be able emergency, if treating this as civil they stopped terms, did, of it in criminal began thinking resolve, under pressure them to asking we would be minutes, legal and delicate and in a most subtle *12 which, now on as we problem constitutional demonstrate, months of agree cannot after judges Id. at 212. study deliberation.” court in sharply to the divided The last sentence referred Wayne. (8th Gauper, 1971), v. Root F. 2d the court
In Cir. said: case, emergency the
“For of the instant purposes as may doctrine be stated follows: exigency a to dwelling officers enter a without warrant may emergency render aid assistance to person a in they whom to be distress and reasonably believe in need of that Id. at 364. assistance.” However, court testimony the said that there was no anywhere indicating in record in “that the officers fact believed or had reasonable believe that an emergency cause to adding, existed at time of in entry,” “Other evidence suggest record would did not that have.” (5th Cir.), In Green, United F. 2d 1385 States cert. denied, (1973), S. 829 of copper plates U. a number used counterfeiting aby fire while he discovered marshal was in the of process of a investigating possible cause fire. He agent called a promptly proceeded Secret who to Service the scene immediately. The was seized without agent warrant. When firemen and arrived trucks were still on the scene. The court at 1389 to referred “[t]he absurdity requiring of investigator the fire to secure a warrant to order search for fire’s cause....” In upholding the seizure by agent the Secret it said: Service purpose
“The of a search warrant is to ensure judicial authorization, advance, of into intrusions constitutionally protected privacy. Where a lawful intrusion has already occurred and a aby seizure State officer has place taken as of validly a result intrusion, privacy invasion is in- not officer, creased an additional albeit a of- federal ficer, expert who is identifying type discovered, premises to enter the contraband confirm the belief of the State officer take and to custody privacy evidence. Once the of a dwelling lawfully invaded, has been require second officer from another law enforcement agency arriving on the scene a valid seizure prem- he secure warrant before enters the ises to the seized confirm that evidence is con- custody just traband and to take it as sense- requiring less as interrupt an officer a lawful stop procure search to a warrant for evidence *13 272 inadvertently seized.” found and already
he has Id. at 1390. (3d Cir.), denied, Anderson,
In
“We find that the entrance under reasonable into the house was in order to determine existing then circumstances Lt. seen therein the feet which were whether distress, immediate person in those of a Denell were *14 circumstances, might, aid to whom under similar preserved have human life.” Id. at 395.
The quoting Judge Burger’s Court further before from said opinion in Wayne:
“Basic that offer aid humanity required the officers to the distinct person very within the house on the had at the hands person that this suffered possibility of the of the homicide in the perpetrator discovered yard. delay necessarily back The which have would resulted application from an for a search warrant might the have difference life and been between death for seen of person exhibiting signs the no life within preservation the human life has house. been paramount considered constitutional to the demand of precedent a search warrant as a condition to the invasion the privacy dwelling of a house.” Id. at 395-96.
The Court in concluded Davis:
“We find no error the the house search of the seizure the Finding the therein. person distress, in the house was not in the officers justified observing the condition the house, interior of the the on appellant lying what appeared to abe blood stained sheet inside a bed room which showed evidence of a demonstrable bloody struggle, and from a trail of which house blood body led to a brutally beaten to death. United McDaniel, 1957). States v. Supp. 1, (D. 154F. C. At this time the officers became of that possessed degree of knowledge sufficient them warrant belief appellant reasonable that had felony committed the caused the death State, man in yard. 1, the back Braxton v. 234 Md. State, 197 A. [(1964)]; 385, 2d 841 Shorey v. Md. 227 177 A. [(1962)].” 2d 245 Id. at 397.
A case similar to the strikingly case at is United bar States Brand, (5th denied, F. 2d 2d rehearing F. (1978). 1977), denied, cert. Cir. U. S. 98 S. Ct. Judge detailed facts of the Wisdom case for court: 23, 1974, the July
“On Tallahassee Memorial sent an Hospital 500 Laura Lee Drive ambulance to assist drug victim. The Tallahassee overdose Department dispatched Police Officer George help Greene to the ambulance attendants. When house, and the entered Greene attendants found Charles Brand lying Demetrios unconscious on floor room. living Greene testified needles, butts, he saw hypodermic marijuana pills living several in the room. He also heard ambulance attendant ask Brand’s wife her whether *15 responded was on drugs. reportedly husband She had drugs. that he taken hard Wayne Crawley “Officer arrived at house as the placed Brand was in the ambulance. Mrs. Brand and one of the defendant’s hospital; brothers went to the brother, Brand, Another at the David remained house with the policemen. Crawley reported also seeing hypodermic and pills living needles in the room when he first He and entered. Officer Greene then apparently walked into one of the bedrooms where they hypodermics, pills, found more powdered substances, and blood stains around a and on table a needle. he did Crawley investigate said not the scene further but instead called a narcotics investigator, Walter Beck to the scene. bottles, pills,
“Beck testified that numerous pill bottles, injection syringes were on the table living room of the house when he He arrived. spoke Brand, with David who said brother that his had probably reacted to the cocaine had that shooting. been that the reportedly David also said part shipment cocaine was of a his just brother had attic of received stored in the the house. Beck Greene, Sergeant George then called directed who that the house be secured that Beck obtain a (footnote omitted). search warrant.” Id. at 1314 when ended emergency medical that The court noted as a in an second officer arrived placed ambulance Brand was upheld n. 8. court nevertheless on scene. Id at second officer’s to the place subsequent search which took arrival: that Officer argues only first defendant
“The he assisted When legally. the house entered Grеene in the attendants, presence the ambulance Greene’s circumstance permitted by exigent house was Brand, According to emergency. the medical cannot however, subsequently entered officers who exigent same with the presences their justify ended emergency the medical circumstance because suggests Consequently, he to their arrivals. prior Beck and and Officers Sergeant that Greene house, tainting thereby Crawley illegally entered probable for the they gathered the information cause affidavit. it contention because reject
“We
defendant’s
of the fourth amendment
misconceives the nature
protects
interest at stake. The amendment
Once
against
privacy.
citizen
invasion
State,
an official of the
legally by
interest is invaded
expectation
the citizen has lost his reasonable
this
As
Court
to the extent
invasion.
privacy
investigators
additiоnal
repeatedly,
has held
property
enter a citizen’s
officials
therefore
may
*16
g.E.
legally.
one
intruded
already
after
official has
1385,
Green,
1973, 474 F.2d
v.
United States
Cir.
38,
55,
1390,
denied,
829, 94 S.Ct.
cert.
414 U.S.
63;
Herndon,
States v.
Fla.
L.Ed.2d
United
S.D.
1017,
1976,
1975,
aff'd,
F.2d
5 Cir.
F.Supp.
1027;
Steigler
Anderson,
1974,
3 Cir.
see
797-98,
denied,
1002,
793,
F.2d
cert.
419 U.S.
may join
S.Ct. colleagues though exigent circum their even the entry longer justifying no exist. stances the initial Thus, validity Id. of the affidavit is not vitiated the the other entry of the affiant the late (footnotes omitted).
policemen.” Id. at 1317-18 persuasive opinion highly makes this of facts similarity in the case at bar. article, Rich. L. Rev. 9 U. supra, Bacigal’s
In Professor the clause strict warrant he out that even a view points always are searches not mean that warrantless does it is unconstitutional, means that when “It saying, only obtain a warrant before so the must practical to do his view a strict Under search.” Id. at 265. conducting a be as follows: clause would of the warrant aрplication applicable, clause is warrant “When the if the only is constitutional warrantless search First, tests. separate meet two government can searching, interest in government there a legitimate There right privacy? the to prevail sufficient to over emergency search from is to an distinguish no need intrusion, government’s the an because emergency investigation and the interest interest in criminal interests, and, if legitimate life are both protecting belief, to probable cause on a reasonable based government interest point search exists. At this reasonable, but legitimate identified as must be categorize the interest as there is no need to further The second test the or investigation. civil criminal is there were must meet whether government procedure. for the warrant grounds bypassing only bypassing ground Under Camara the obtaining burden of warrant is when ‘the procedure governmental likely is frustrate warrant is There no need the search.’ purpose behind emergency from an distinguish an search emergency frustrating intrusion because the likelihood nature of the upon search not turn does purpose government’s Whether purpose. incriminating search is to obtain life, when only frustrated preserve purpose would make a a warrant delay obtain *17 is, meaningless. in the time That subsequent search warrant, event some required obtain search evidence, sought loss of after of (¡e.g.,destruction life) make the imperiled an will occur which will only proper justification search fruitless. Thus the the when bypassing procedure the warrant government the sole to have way can establish that (be investigation accomplished its it criminal purpose interest) legitimate acted or some other was have obtaining precluded a warrant immediately, and that original) (emphasis action.” Id. at 264 immediate omitted). (footnotes would present easily
It seem case the State would the of the Fourth be able to meet even the strict construction Amendment. unfold as follows Bacigal would analysis
Application the search, (1) justified emergency An situation in this case: of probable requirement the would have satisfied therefore (a) (2) have been: purpose would 263 n. 68. cause. Id. at entering an unknown squad the rescue protect To could which, problems, case of overdose in the environment (b) investigate possible drugs; illicit well involve by to be discovered (3) drugs illicit activity. criminal If adverse witnesses potential their status as squad, the rescue endanger safety the might personal present to those squad Further, assuming the rescue (4) squad. rescue contraband, required delay reported discovery easy destruction permit would a search obtain warrant Therefore, plumbing via оr otherwise. intrusion, time emergency situation justified Michigan necessity of a warrant. See excused the constraint 1942; v. and United States 98 S. Ct. Tyler, 436 U. S. 1974). (9th Curran, Cir. 498 F. 2d The suggestions assisting proper purpose squad fictional, rescue are not as is demonstrated purely inter-departmental memorandum into introduced *18 evidence by suppression Lebedun at the hearing. requires It as standard operating procedure:
“F.A.H. automatically request will a P.D. unit to respond on of the any following incidents: “1. ...
“2. Whenever F.A.H. personnel suspect play foul unit, i.e.,
or
gunshot
need of P.D.
injuries,
assaults,
accidents,
cases,
auto
dog bite
overdoses, D.O.A., etc.”
Given that the
presence
officer’s
in the motel room
in light
exigent circumstances,
reasonable
it
plain
follows under the
view doctrine that the arrests and
seizures
Morell,
were valid. See United States v.
“It is
disputed
not
that once inside
apartment
Agent Scharlatt discovered the cocaine plain
view
as he was returning upstairs from the basement.
However, the appellants contend that
the ‘plain
exception
view’
to the
requirement
warrant
inapplicable in this case because the
discovery
heroin
inadvertent,
was not
as the plurality opinion
in Coolidge
443, 469,
v. New Hampshire, 403 U.S.
91
2022,
(1971),
S.Ct.
2. Consolidation 1,1977. Hence, the matter prior place July This trial took Rules by Maryland then was covered and severance joinder present with purposes for all practical 734 and identicаl provides pertinent part: c Rule of which subsection party prejudiced
“If will be appears any it counts, court may, ... joinder for trial of any party, or the motion of upon its own motion counts,... other grant any order trials of separate added.) (Emphasis requires.” relief justice State, 604, 607-612, A. 2d In 280 Md. McKnight v. *19 for (1977), carefully discussed Judge thoroughly Levine holdings background varying of the rule and the the Court the by P. 14. He concluded counterpart, under its R. Crim. Fed. for the Court: saying similar charged that a with
“We think defendant is entitled to a severance but unrelated offenses to each as where he establishes that evidence admissible mutually offense not be individual would separate trials.” Id. at McCormick, Judge quoted In from C. McKnight Levine § signature (2d 1972) Evidence 190 ed. relative to of other exception of evidence providing admissibility exception relevance here: description crimes. The of that has by other like crimes the aсcused so prove “To them as the identical method as to earmark nearly more Here much handiwork accused. repeated than the commission of
demanded mere class, burglaries as repeated crimes of the same such or must be so unusual and thefts. The device used Id. at 449 signature.” as to be like a distinctive (footnotes added) omitted). (emphasis State, 468, recently A. in Cross v. 282 Md. 386 Still more (1978),Judge when Digges 2d 757 discussed for the Court at the trial of another crime introduced may 280
an unrelated offense under the common scheme plan exception: general rule,
“As a
in order to gain the admission
of evidence of other criminal acts under the common
scheme or plan exception it is necessary that the
crimes, including the crime charged, so relate to each
other that proof of one tends to establish the other.
State,
Westcoat
364,
v.
368,
Md.
544,
190 A. 2d
(1963);
State,
Wilson
1, 3,
v.
181Md.
770,
26 A. 2d
(1942);
State,
see Young v.
89, 91-92, 136
152 Md.
46, 47
A.
(1927).Moreover, there must be ‘not merely
a similarity
results,
in the
but such a concurrence of
common features that the various acts are naturally
to be explained
general
as caused
aby
plan of which
they are the individual manifestations.’ 2 J.
§
Wigmore,
304,
(3d
1940)
Evidence
at 202
ed.
(emphasis in
original).
concurrence of common
features under
exception, however,
this
must be
more than simply
operation,
a manner of
which is
possessed to some extent
most
by
criminal
not,
itself,
recidivists. A method of operation is
scheme,
common
but
merely repetitive pattern.
Fiore,
People
174, 178,
N.Y.2d
312 N.E.2d
(1974).
Thus,
N.Y.S.2d
evidence of other
crimes can be introduced under the common scheme
*20
exception only
the relationship
when
between the
time, place, circumstances or parties involved in the
crimes is such that the uncharged crime or crimes
‘support the inference that
there
single
exists a
inseparable plan encompassing both the charged and
uncharged crimes, typically, but not exclusively,
embracing uncharged crimes committed in order effect the primary crime for which the accused has
been indicted.’ 312
N.E.2d at
fact that follows: area, are as general GOVERNOR’S
APOTHECARY 31, 1976 January 28, 1976 January afternoon PM late 3:30 3:00 or males two white males two white 510" about both six feet both about lbs; other app. one medium build both 165 lbs. ski caps caps red red ski wore both wore
both and taken money drugs money drugs specific and specific taken put were drugs drugs put into
money money were laundry bag” “a cloth sack” type into “white it “play told victims advised cool” victims “be cool” as follows:
The differences were GOVERNOR’S APOTHECARY sheepskin both wore red wore jackets both “windbreakers” jeans both wore one wore blue doubleknit slaсks guns had both gun one had a only one had mustache both clean shaven faces uncovered sunglasses both wore or distinctive about nothing is unusual particularly
There is anything Nor there caps. frequently. are seen They red ski males of medium fact that white distinctive about the two robbery conduct a height to six feet in five feet ten build drugs and were specific money that the afternoon. The fact taken, sack” or a “white into “a cloth put that were told to it cool” “play laundry type victims bag” pattern comes much closer or advised to cool” “be If, instance, the had been committed conduct. robberies other, here set forth within minutes of each like a and distinctive to might sufficiently unusual be existing, here signature. the facts and circumstances Under *21 282 McKnight Judge said for the Court
what Levine applicable: ‘ existed “fit into an
“Such similarities as here suggest itself tactical which would pattern obvious depredation to commit a disposed to almost anyone ’ Foutz, [733,] F. 2d this sort.” 540 of United States States, F. [(4th 1976)]; Cir. Drew v. United [(D.C. 1964),] High’s [85,] (robbery 2d Cir. two male wearing sunglasses); cream by ice stores black (D. Carter, F. 2d 350-51 see United States v. curiam) (two an 1973) and (per C. Cir. robberies and man a fur coat by wearing assault in midwinter hat; Arnold fur But cf. similarity). held insufficient States, 1976),] [335,] [(D.C. 358A. 2d 338-39 v. United (each Volkswagen, rapists light of two drove blue friendly as his an act into which he invited victims apparently purpose concern for innocent an angry and suddenly, provocation, without became allegedly of some injury made threats because one him his relative or perpetrated on victim Md. relatives; similarity).” of her held sufficient at 614. produced prove here to conclude that the evidence
We
separate
would not
guilt of these two
offenses
Lebedun’s
separate
for
same
trials
mutually
have been
admissible
therefore,
hold,
sufficiently
that he was
offenses. We
separate
of his motion for
trials
by the denial
prejudiced
an
to the
tо constitute that denial
abuse
relative
two incidents
discretion,
mandate a reversal.
and thus
Special
Judgment
Court
case
reversed
Appeals
with
remanded
that court
instructions
reverse
judgment
the Circuit Court
Montgomery County
trial;
remand for a
costs
new
paid by Montgomery County.
*22
in
dissenting
part
J., concurring
part
in
Murphy, C.
the search and arrest were
that
agree
majority
I
with
from the
lawful,
incriminating statement taken
that the
agree,
in
I do not
admitted
evidence.
appellant
properly
appellant’s
in
however,
denying
the trial
erred
judge
that
that
error mandates
trials and that that
separate
motion
afforded new
appellant
and the
judgments
be reversed
as to each offense.
separate
trials
604,
State,
RONALD *23 Term, 172, September 1977.] [No. July
Decided J., argued cause before Smith, Murphy, C. JJ. Digges, Levine, Cole, Eldridge, Orth Eyler appellants. James R.