Petition — Conklin v. Maryland

IN THE

Supreme Court of the United

OCTOBER TERM, 1977

no. 7% =- 482

JOHN BRAINARD CONKLIN and

JULIETTE DURAND PERRY,

Petitioners,

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS OF MARYLAND

GERALD A. KROOP

800 Court Square Building

Baltimore, Maryland 21202

(301) 547-1670

Attorney for Petitioners

ETS ESE | aR RERS ON aTe QER ETS tTrENE EERSTE EET EEE MOSEL IES

The Paul M. Harrod Company, Baltimore, Maryland 21234

INDEX

TABLE OF CONTENTS

Page

ORDERS AND OPINIONS BELOW................. 2

IR eR ae aR re a aR Bee oe 2

QUESTION PRESENTED FOR REVIEW............. 2

CONSTITUTIONAL PROVISIONS ..nwccccccwcacces 2

ee RE RR aE ea RR ee EE 3

Ua IE a es ie ot 5

REASONS RELIED ON FOR THE GRANTING

ee Eo a ol a a ete take sae a 6

EE, 6 iG ko 60 0.0% ook eh eee Reh ene 12

TABLE OF CITATIONS

Cases

Page

Air Pollution Variance Board v. Western Alfalfa,

SG Gah SO MOP Pe 6 a's oe os bwlsutae we eNWE DES 11

Commonwealth v. Janek, Pa. Super, 363 A.2d 1299 (1976) . .8

Everhart v. State, 274 Md. 459, 485-86 (1975) .......... 9

Fullbright v. United States, 392 F.2d 432 (10 Cir. 1968) ... .8

Hester v. United States, 265 U.S. 57, 59 (1924) .......... 6

Katz v. United States, 389 U.S. 347, 351 (1967) ......... 6

McDowell v. United States, 383 F.2d 599 (8th Cir. 1967) ...7

ii

TABLE OF CITATIONS — Continued

Cases

Page

Patler v. Slayton, 503 F.2d 472 (4th Cir. 1974) .......... ©)

People v. Abruzzi, 52 A.D.2d 499 (1976) .............. 8

State v. Schrader, 196 Neb. 632 (1976) ............... 7

United States v. Boswell,

ee A rr ne CRN OID 5. vob es 60064966 10

United States v. Cruz Pagan, 537 F.2d 554 (lst Cir. 1976) . .10

United States v. Freie, 545 F.2d 1217, 1223 (9th Cir. 1976). 10

United States v. Hartsell, 294 F. Supp. 414 (1968) ........ 7

United States v. Holmes, 521 F.2d 859, 869 (Sth Cir. 1975) .7

United States v. Pruitt, 464 F.2d 494,

ee ed ba oe oo b-6 00 so 0 o-4 10

United States ex rel Saiken v. Bensinger,

PU eg Ss | 10

United States v. Santana, 427 U.S. 38, 42 (1976) ........ 11

United States v. Whitmore, 345 F.2d 28 (6th Cir. 1965) ....7

Wattenburg v. United States,

388 F.2d 853, 858 (9th Cir. 1968) .............. 10

Wong Sun v. United States,

Ue Se OE PRUE sv cowie ee eecevcewnve 6

Constitution, Rules and Statutes

Annotated Code of Maryland

Article 27

I a oe ee ween esau 3

RETR I Ie re Ny Sea > 3

a i ee CE ies cu R ibe. e 3

Maryland Rules of Procedure

Pele 72> Creme Gr Belews) .. ccc ccc ccc cccccs 3

IS We So irs oo Wig 6 0s eb eh abnor 4

United States Constitution

Ne ee ea bie die 2,4

Deen Eee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

_ eee

JOHN BRAINARD CONKLIN and

JULIETTE DURAND PERRY,

Petitioners,

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS OF MARYLAND

The Petitioners, John Brainard Conklin and Juliette

Durand Perry, pray that a Writ of Certiorari issue to review

the judgment of the Court of Special Appeals of Maryland,

entered in this case on April 19, 1977.

2

ORDERS AND OPINIONS BELOW

The order of the Court of Appeals of Maryland was

entered on June 29, 1977 and was unreported. (Appendix A,

A. 1) The opinion of the Court of Special Appeals of Maryland

was unreported. (Appendix B, A. 2) The Circuit Court for

Caroline County, Maryland, filed an unreported opinion on

May 7, 1976. (Appendix C, A.)

JURISDICTION

The judgment of the Court of Special Appeals of Mary-

land now sought to be reviewed was entered on April 19, 1977.

The jurisdiction of this Court is predicated upon 28 United

States Code 1257 (3).

QUESTION PRESENTED FOR REVIEW

Whether or not the Fourth Amendment to the United

States Constitution applies in an open field?

CONSTITUTIONAL PROVISIONS

The Fourth Amendment to the United States

Constitution:

“The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

en

3

STATEMENT OF THE CASE

On September 23, 1975 two search and seizure

warrants were executed upon the property of the

Petitioners, John Brainard Conklin and Juliette Durand

Perry, and, as a result of the evidence seized. the Petitioners

were charged with five (5) counts of possession of a

controlled dangerous substance in violation of Article 27,

Section 287(a) of the Annotated Code of Maryland, two

(2) counts of possession of a controlled dangerous substance

in sufficient quantity to indicate an intent to distribute in

violation of Article 27, Section 286 (a) (1) of the Annotated

Code of Maryland, one (1) count of manufacturing a

controlled dangerous substance in violation of Article 27,

Section 286 (a) (1) of the Annotated Code of Maryland, and

one (1) count of maintaining a common nuisance in

violation of Article 27, Section 286 (a) (5) of the Annotated

Code of Maryland. On November 21, 1975 in accordance

with Rule 729 (Search or Seizure), Maryland Rules of

Procedure, Annotated Code of Maryland, the Petitioners

timely filed in the Circuit Court for Caroline County a

pre-trial Motion to Suppress and Exclude the Evidence that

had been seized pursuant to the search and seizure warrants.

On that same day a hearing was held before the Honorable

Harry E. Clark, Associate Judge of the Second Judicial

Circuit of Maryland, who denied the motion as to the first

warrant but granted the motion as to the second warrant.

On November 24, 1975 Judge Harry E. Clark granted

Petitioners’ Motion for Removal and ordered the case

transferred to the Circuit Court for Kent County, Maryland.

On January 19, 1977 in the Circuit Court for Kent

County a second hearing was held on the Motion to

Suppress and Exclude the Evidence seized pursuant to the

4

first warrant and Judge Harry E. Clark again denied the

motion. Trial by jury commenced that same day and was

concluded on January 21, 1976. Both Petitioners wan

found guilty of possession of marijuana in sufficient

quantity to indicate an intent to distribute and, in addition,

Petitioner, John Brainard Conklin, was found guilty of

manufacturing marijuana. On March 10, 1967, Judge Harry

E. Clark ordered Petitioner Juliette Durand Perry committed

to the Caroline County Jail to serve a ninety (90) day

sentence and Petitioner John Brainard Conklin committed to

the Department of Correction to serve two consecutive two

(2) year sentences. On May 7, 1977 Judge Harry E. Clark

filed in support of his ruling with respect to evidence seized

pursuant to the first warrant an opinion wherein he held

that the Fourth Amendment to the United States

Constitution does not extend to a garden growing in an

open field. (Appendix C, A. 14).

Notices of appeal were timely filed and on October 18,

1976 argument was held before the Court of Special

Appeals of Maryland. On April 19, 1977 the Court of

Special Appeals filed a per curiam opinion affirming the

judgment of the trial court. On May 10, 1977 pursuant to

Rule 1050 a, Maryland Rules of Procedure, Annotated Code

of Maryland, Petitioners filed a Motion for Reconsideration

of Decision. On May 18, 1977 the Court of Special Appeals

denied the motion and on May 19, 1977 issued its mandate.

On May 26, 1977 a Petition for a Writ of Certiorari to the

Court of Special Appeals was filed in the Court of Appeals

of Maryland by Petitioners. On June 29, 1977 the Court of

Appeals issued an order denying the Petition for a Writ of

Certiorari.

5

STATEMENT OF FACTS

Joseph Gitta, Sr. owned with his wife, Maria, as

tenants by the entireties, a seven and one-half acre farm in

Caroline County, Maryland. The farm was divided into two

parcels, one containing the residence of the Gittas and their

two sons, and the other outbuildings and a two-story barn.

In the spring of 1975 due to both his friendship with

Petitioner John Brainard Conklin and Conklin’s help on a

number of tasks concerning the Gitta farm, Mr. Gitta gave

exclusive use of the back part of his property

(approximately three and one-half acres) to Mr. Conklin. Mr.

Conklin cleared a garden approximately twenty feet by

thirty feet on his half of the property. Around this garden

he erected two fences approximately six feet apart. The

inner fence was five feet high made of American wire while

the outer fence was three and one-half feet high made of

barbed wire. Appellant Conklin did not live on the property

but rather resided in a house trailer with Petitioner Juliette

Durand Perry several miles from the property.

In November of 1974, Jozsef Gitta (one of Mr. Gitta’s

two sons) began working as a cadet for the Easton County

(Maryland) Police Department. [The Court of Special

Appeals of Maryland assumed without deciding that Jozsef’s

position was comparable to that of a police officer. ]

(Appendix A, A.3) On several occasions Mr. Gitta, Sr.

admonished his son not to venture back to Mr. Conklin’s

half of the property. However, Gitta’s son went back to

Conklin’s land, entered the garden and seized a leaf he

Suspected to be marijuana. He took this leaf to his superior

at the Easton Police Department. Additionally, he obtained

information concerning Petitioner Conklin’s car registration

number from the D.C. Motor Vehicle Administration. The

6

following day he went back onto Mr. Conklin’s one-half of

the property and entered the barn located there, and

observed suspected marijuana. He informed his superior of

his discovery and agreed to take Maryland State Police

Officer Edwin David Horner to the barn. Subsequent to a

search of the barn on September 22, 1975, Officer Horner

used his observations to obtain two search and seizure

warrants, one for the barn and the other for Petitioners’

trailer home. On September 23, 1975, Maryland State Police

Officers entered the barn and the trailer, executed the

warrants, arrested Petitioners and seized the marijuana.

REASONS RELIED ON FOR THE

GRANTING OF THE WRIT

The taking of a leaf from a marijuana plant growing

inside a cultivated, wire-enclosed garden situated in an open

field led to the issuance of search and seizure warrants for

Petitioners’ property. Upon execution of these warrants,

contraband was seized that culminated in the instant

convictions. Petitioners claim the initial taking constituted

an illegal governmental intrusion into an area they

consciously sought “to preserve as private”, Katz v. United

States, 389 U.S. 347, 351 (1967), and the “fruits” of such

an illegality — the seized contraband — should have been

suppressed at their trial. Wong Sun v. United States, 371

U.S. 471, 484-88 (1963).

Both the trial court and the Court of Special Appeals

of Maryland rejected Petitoners’ claim under the authority

of Hester v. United States, 265 U.S. 57, 59 (1924) that

“the special protection accorded by the Fourth Amentment

to the people in their ‘persons, houses, papers, and effects’,

is not extended to the open fields.” Therefore, whether or

7

not the Fourth Amendment applies in open fields is the

question and one that has resulted in considerable diversity

of opinion in the federal courts of appeal. When a question

as fundamental as the application of a constitutional

amendment creates such patent conflict, the need for

Supreme Court guidance is warranted.

Until the advent of Katz, the ‘open fields’ doctrine of

Hester was unassailable. However, when in 1967 Justice

Potter Stewart wrote that “the Fourth Amendment protects

people, not places...”, Katz, 351, the solidarity among the

circuits began to crumble.

In only two circuits has the doctrine first enunciated in

Hester remained unblemished by those seven words. The

principle of Fourth Amendment inapplicability in open

fields remains unchanged in the Eighth Circuit, McDowell y.

United States, 383 F.2d 599 (8th Cir. 1967), State y.

Schrader, 196 Neb. 632 (1976), and the Sixth, United

States v. Whitmore, 345 F.2d 28 (6th Cir. 1965), United

States v. Hartsell, 294 F.Supp. 414 (1968).

In the Fifth Circuit, the doctrine appears to have lost

ground through the addition of a requirement of

inadvertence. In United States v. Holmes, 521 F.2d 859,

869 (Sth Cir. 1975), rehearing granted 525 F.2d 1364

(1976), affirmed 537 F.2d 227 (1976), where the questioned

search was the warrantless peering into a shed located on

private property, the Court of Appeals for the Fifth Circuit

held that Hester does not condone governmental trespasses

“solely to secure evidence of crime”. Furthermore, the

Court expressed its belief that “ta dweller in a rural area

whose property is surrounded by extremely dense growth

need not anticipate that government agents will be crawling

through the underbrush ...” Holmes. 870.

In both the Second and Third Circuits, a retreat from

the holding in Hester has only been recently suggested in

the state appellate courts. In People v. Abruzzi, 52 A.D. 2d

499 (1976), the Supreme Court of New York (the second

highest court in that state) had to mule on the

constitutionality of a police officer climbing a ladder and

peering into a doctor’s examination room. Both the

affirming and dissenting judge spoke of the doctor’s

reasonable expectation of privacy. Additionally, Judge James

D. Hopkins (in dissent) noted that the open fields principle

of Hester “does not appear viable after Katz v. United

States... ”. Abruzzi, 99, fn. 1. Within the Third Circuit,

Pennsylvania’s second highest court — the Superior Court of

Pennsylvania — confronted a factual scenario similar to the

case at bar and upheld the ‘search’ under Hester's ‘open

fields’ doctrine. Commonwealth v. Janek, Pa. Super, 363

A.2d 1299 (1976). However, the Court went on to Say,

“Rven if we were to conclude that Hester is distinguishable

from the case before us, or that it no longer has legal

validity in light of Katz v. United States ...(the conclusion

drawn by the lower court in granting Appellee’s suppression

motion), we find that the police were on the property

with... consent...”. Commonwealth v. Janek, 1300-01.

Dissenting Judge J. Sydney Hoffman found no consent and

followed the reasoning of the Fifth Circuit in United States

v. Holmes, supra, in holding that the field, which was

surrounded by wire, was “not an open one, inviting casual

intrusion...” and that “[t]he police incursion was not

happenstance.” Janek, 1303. He concluded that Appellee

“had preserved his Fourth Amendment rights”. Janek, 1305.

Both the Tenth and Fourth Circuits, although stil

steadfastly supportive of Hester, have left open the question

of the applicability of Katz to open fields. In Fullbright v.

9

United States, 392 F.2d 432 (10th Cir. 1968), government

agents stood on Appellant’s property (outside the curtilage)

and with binoculars observed him conducting _ illicit

transactions in his shed. The Court upheld the agents’

actions but commented, “...we do not mean to say that

surveillance from outside a curtilage under no circumstances

could constitute an illegal search in view of the teachings of

Katz v. United States ...however,...on the record before

us in light of Hester the observations in question may not

be deemed an unreasonable search... ”. Fullbright v. United

States, 435. The Fourth Circuit reaches the same conclusion

in Patler v. Slayton, 503 F.2d 472 (4th Cir. 1974),

Factually, “[s]pent bullets and shell casings matching the

murder weapon were seized from the pasture of a farm

owned by Patler’s father-inlaw...”. Patler v. Slayton, 477.

Patler used the pasture for target shooting. Like the Tenth

Circuit, the Court found that, in light of Hester, there was

no reasonable expectation of privacy in the pasture.

It is worth noting that even in a bastion of support for

Hester as the Fourth Circuit, the late Judge William

J. O’Donnell, speaking for the highest court in Maryland,

stated that “[t]he Supreme Court,...,no longer seems to

speak concerning the ‘curtilage’ as opposed to ‘an open

field’...” and suggested that “[e] volving from the holdings

in Katz is a protection within the Fourth Amendment of an

area within which ‘one has a legitimate expectation of

privacy’...”. Everhart v. State, 274 Md. 459, 485-86

(1975).

In the Ninth Circuit, the impact of Katz was

immediate and lasting. In 1968, the year following Katz, the

Court of Appeals for the Ninth Circuit commented that if

the constitutionality of a search turned “upon the degree of

10

privacy a resident is seeking to preserve as shown by the

facts of the particular case,...attention will be more

effectively focused on the basic interest which the Fourth

Amendment was designed to protect.” Wattenburg v. United

States, 388 F.2d 853, 858 (9th Cir. 1968). In 1972, the

Court made no mention of Hester and its ‘open fields’

doctrine in its decision on whether there was a “justified

expectation of privacy” in a camping site situated in an

open field immediately adjacent to a highway. United States

v, Pruitt, 464 F.2d 494, 496 (9th Cir. 1972). Most recently,

the Court concluded that “[i]t now appears that Hester no

longer has any independent meaning but merely indicates

that open fields are not areas in which one traditionally

might reasonably expect privacy.” United States v. Freie,

545 F.2d 1217, 1223 (9th Cir. 1976).

The three remaining circuits — the first, seventh, and

eleventh — have not had the opportunity to directly

confront an open fields scenario since the advent of Katz.

However, the acceptance of the philosophy of Katz that

‘the Fourth Amendment protects people not places’ and its

concommitant eroding of property distinctions is evident.

United States v. Cruz Pagan, 537 F.2d 554 (ist Cir. 1976);

United States Ex Rel. Saiken v. Bensinger, 489 F.2d 865

(7th Cir. 1973), cert. denied in 417 US. 910 (1974);

United States v. Boswell, D.C. App, 347 A.2d 270 (1975).

Thus, it appears that there is a genuine diversity of

judicial opinion over the applicability of the Fourth

Amendment in open fields. Only two circuits, the Eighth

and Sixth, firmly follow the ruling of Hester that the

Fourth Amendment does not apply. One circuit, the Fifth,

requires the element of inadvertence before determining

Fourth Amendment inapplicability. The First, Second, Third,

1]

Seventh and Eleventh Circuits speak of Katz’ reasonable

expectation of privacy and raise doubts as to the continuing

viability of Hester. Even the Tenth and the Fourth Circuits,

bastions of support for the ‘open fields’ doctrine, no longer

speak of Fourth Amendment inapplicability but rather

reasonable expectations of privacy in light of Hester.

Finally, the Ninth Circuit in fully applying Katz’ words that

‘the Fourth Amendment protects people, not places’ to

Hester’s ‘open fields’ doctrine concludes that “Hester no

longer has any independent meaning.” United States vy.

Freie, supra.

Consequently, guidance from the Supreme Court is

warranted. It is no solution to cite Air Pollution Variance

Board v. Western Alfalfa, 416 U.S. 861 (1974), as support

for Hester. For the government inspector in Air Pollution

Variance Board v. Western Alfalfa, 865, “had sighted what

anyone in the city who was near the plant could see in the

sky — plumes of smoke”. Therefore, there could be no

reasonable expectation of privacy and even under Katz, the

governmental intrusion was not unreasonable. Moreover, this

Court’s recent abandonment of the common law of property

in favor of Katz’ expectation of privacy in determining the

legality of an arrest in the doorway of a house, United

States v. Santana, 427 U.S. 38, 42 (1976), raises questions

as to the continued vitality of a doctrine predicated upon

the ancient common law distinction between a house and an

open field. Hester v. United States, supra, 59.

12

CONCLUSION

Patently, since there is genuine diversity of opinion

throughout the courts of appeal with respect to the

applicability of the Fourth Amendment in open fields, it is

respectfully submitted that this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

GERALD A. KROOP,

Attorney for Petitioners.

A. 1

APPENDIX A

IN THE COURT OF APPEALS OF MARYLAND

JOHN BRAINARD CONKLIN and

JULIETTE DURAND PERRY

we

STATE OF MARYLAND

Petition Docket No. 123

September Term, 1977

(No. 257, September Term, 1976

Court of Special Appeals)

ORDER

June 29, 1977

Upon consideration of the petition for a writ of

certiorari to the Court of Special Appeals in the above

entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that

the said petition be, and it is hereby, denied as there has

been no showing that review by certiorari is desirable and in

the public interest.

/s/ Robert C. Murphy

Chief Judge -

A. 2

APPENDIX B

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 257

September Term, 1976

JOHN BRAINARD CONKLIN and

JULIETTE DURAND PERRY

STATE OF MARYLAND

Davidson, Moore, Melvin, J

Per Curiam

Filed: April 19, 1977

In the Circuit Court for Kent County, a jury, presided

over by Judge Harry E. Clark, found the appellant, John

Brainard Conklin, guilty of unlawful manufacture of

marijuana, and possession of marijuana in sufficient quantity

to indicate an intent to distribute that controlled dangerous

substance. It found the appellant, Juliette Durand Perry,

guilty of possession of marijuana in sufficient quantity to

A. 3

indicate an intent to distribute. On appeal, both contend

that the trial court erred in denying a motion to suppress

evidence obtained as a result of an illegal search and seizure.

Appellant Perry additionally contends that the evidence was

insufficient to sustain her conviction.

The answers to the appellants’ contentions are as

follows:

1. The protection of the fourth amendment to people

in their “persons, houses, papers and effects,” does not

extend to open fields. Air Pollution Variance Board of

Colorado v. Western Alfalfa Corp., 416 U.S. 861, 865

(1974); Hester v. United States, 265 U.S. 57, 59 (1924).

See also Brown vy. State, 15 Md. App. 584, 605 (1972).

Here, a leaf of marijuana growing in an open field enclosed

by a set of wire fences was seized before a warrant was

obtained.! The field was located more than 200 feet away

from the owner’s residence and had not been used by the

owner or his family for a number of years. Thus, the open

field was not a part of the curtilage. United States y.

Swann, 377 F. Supp. 1305, 1306-07 (D. Md. 1974). Because

the marijuana seized was growing in a _ constitutionally

unprotected area, no search warrant was necessary.

2. Consent to a warrantless search by a person who

has joint control, access or use of a premises is valid against

an absent, nonconsenting person who shares common

authority over the premises. United States v. Matlock, 415

U.S. 164, 169 (1974); Tate and Hall v. State, 32 Md. App.

613, 619 (1976); Streat v. State, 11 Md. App. 543, 546,

cert. denied, 262 Md. 750 (1971). Here, there was

conflicting evidence as to the degree of appellants’ control,

access or use of a barn searched by a police officer,

' We have assumed without deciding that the person

who seized the marijuana leaf was a police officer.

A.4

accompanied by the son of one of the owners of the

property, before a warrant had been obtained. One of the

owners of the property, Mr. Gitta, Sr., testified that he had

given the appellant Conklin the exclusive use of the barn,

and had either given or intended to give the appellant Perry

the same right. A police officer testified that Mr. Gitta, Sr.,

told him that the appellant had “access to a plot of land

which he was using for a garden, and didn’t have any right

to use the barn or other property around it.”” The owner’s

adult son testified that before the appellants were given

permission to garden he had, on various occasions, walked

through the barn. He also testified that his father never

prohibited him from going anywhere on the property. Upon

our independent appraisal of the record, we are persuaded,

as was the trial judge, that the appellants did not have an

exclusive right to use the barn. At best, they, along with

the owners, their sons, and their invitees, had joint control

over, access to, and use of the barn. Under these

circumstances, the son’s consent to a police officer’s

warrantless search was valid as to the appellants. The

protection of the fourth amendment was waived.

3. In determining when there is joint possession of a

controlled dangerous substance the factors to be considered

are: 1) proximity between the defendant and_ the

contraband; 2) the fact that the contraband was within the

view or otherwise within the knowledge of the defendant;

3) ownership or some possessory right in the premises in

which the contraband is found; or 4) the presence of

circumstances from which a reasonable inference could be

drawn that the defendant was participating with others in

the mutual use and enjoyment of the contraband. Nutt ».

State, 16 Md. App. 695, 706, cert. denied, 269 Md. 764

(1973); Folk v. State, 11 Md. App. 508, 518 (1971). Here,

the appellant Perry was apprehended in the barn in which

large quantities of marijuana were present. Proximity could

not be more clearly established. The marijuana was in plain

view. There was some evidence to show that the owner

either gave the appellant Perry permission to use the barn,

A. 5

or intended to give her permission so that she was

legitimately on the premises. Thus, while there was no

evidence to show that she had a “possessory”’ interest in the

premises, there was at least some evidence to show that she

had some authority over it. Finally, there was evidence to

show that when she entered the barn, in the company of

the appellant, her then lover, he felt the marijuana and

stated, “It’s time to work, work, work.” Appellant Perry

walked toward a screen upon which marijuana leaves were

drying. She asked appellant Conklin if “he knew where any

more buckets were so she could use it for a seat.” She then

continued walking toward the screen and sat down on the

floor about one foot away from it. The presence of these

circumstances supports a reasonable inference that appellant

Perry was about to go to work processing the marijuana

drying on the screen, thus, participating with appellant

Conklin in the mutual use of the contraband. The evidence

was sufficient to sustain her conviction. Williams and

McClelland v. State, 5 Md. App. 450, 458 (1968), cert.

denied, 252 Md. 731, 734 (1969).

JUDGMENTS AFFIRMED.

COSTS TO BE PAID BY APPELLANTS.

A. 6

APPENDIX C

IN THE CIRCUIT COURT FOR CAROLINE COUNTY

STATE OF MARYLAND

v.

JOHN BRAINARD CONKLIN

JULIETTE DURAND PERRY

Criminals Nos. 957 & 958

MEMORANDUM OPINION ON RULING DENYING

MOTION TO SUPPRESS EVIDENCE OBTAINED AS A

RESULT OF A SEARCH AND SEIZURE

CONDUCTED ON THE GITTA PROPERTY

Two hearings were held on the Defendants’ Motion to

Suppress. The first was held on 21 November 1975 in the

Circuit Court for Caroline County at Denton, Maryland, and

the second was held on 19 January 1976 in the Circuit

Court for Kent County at Chestertown, Maryland. After

each hearing, the Motion to Suppress the Search and Seizure

Warrant and all evidence obtained thereunder was overruled.

FACTS

The scene of the crimes charged in these cases was the

7.5 acre chicken farm titled to Joseph and Maria Gitta as

tenants by the entireties located almost adjacent to the

corporate limits to the Town of Denton in Caroline County,

Maryland. This 7.5 acre spread was divided into two parcels

of approximately equal size. One parcel contained the

residence in which Mr. and Mrs. Gitta lived with two of

their children — namely: Jozsef Gitta, Jr., an adult, and his

younger brother Peter Gitta, who was 13 years old last

A.7

year. Also located on this parcel was a shop and several

other outbuildings used in connection with Mr. Gitta’s auto

repair business and his other activities including that of

gardening and bee keeping. It does not appear from the

record whether Mr. Gitta, Sr. was engaged in gardening and

bee keeping as an avocation and purely for home

consumption or as a commercial enterprise, nor is it clear

whether this parcel was completely fenced on all sides.

The other parcel contained three brooder houses, a

two-story barn and other outbuildings. This parcel was

completely enclosed by the brooder houses and a shed and

fencing in between these buildings. The fencing consists of a

combination of barbed wire, American wire and electric

fences and was used to contain Mr. Gitta’s goats. The gates

to these fences did not have locks and there were no “NO

TRESPASSING” signs posted anywhere on the property. As

Mr. Gitta had not raised any chickens or used this parcel

for any purpose other than to pasture his goats for several

years, the buildings located thereon were in somewhat of a

dilapidated state and the land not occupied by the buildings

was given over to such weeds and bushes as had escaped the

attention of the goats. The barn is located a little bit to the

rear of the middle of this parcel and is 456 feet from the

residence on the other parcel.

The Defendants Conklin and Perry have for the past

three years occupied a trailer in a rural setting about three

miles North of the Town of Denton and at least that far

from the Gitta farm. At the time of his arrest, the

Defendant Conklin was unemployed except for doing the

usual household chores and the Defendant Perry taught

handicapped children in Talbot County, Maryland, under a

contract with the Talbot County School Board.

Mr. Conklin met Mr. Gitta, Sr. sometime during

January of 1975 when he stopped by his home to find out

if he could tell him where he might rent a woodlot from

which to cut some fire wood. Conklin and Gitta found they

A.8

had a lot in common and soon became fast friends and it

was not uncommon for Conklin to visit Gitta several times

a week. During these visits, Conklin sometimes helped Gitta

with his chores and became quite interested in his bee

keeping operation, so much so that he bought some bees

from Gitta and started a modest bee keeping operation on

his premises.

When it became time for Gitta to put in his vegetable

garden, Conklin helped him. One day while they were

working in the garden, Gitta asked Conklin why he hadn’t

put a garden in for himself. Conklin replied that he didn’t

have the space; whereupon, Gitta told him that he wasn’t

using his back lot except for a goat pasture and that he

could put his garden in there. Conklin thanked him and

soon thereafter cleared a 20 foot by 30 foot plot between

the barn and one of the brooder houses and fenced it in

with wire and fence posts furnished by Gitta. Actually, he

fenced it in with two fences to keep the goats out. The

inner fence, which stood five feet high was a 6 inch by 6

inch American wire fence, and the outer fence, which was

six or seven feet distant from the inner fence and stood

about three high, consisted of three strands of barbed wire

spaced about a foot apart. The inner fence had a gate made

out of one of the doors to one of the brooder houses. The

gate was not equipped with a lock but held shut with a

piece of wire. The outer fence had no gate and there were

no “NO TRESPASSING” signs posted anywhere in the

vicinity of this garden. _

After the plot had been cleared and fenced, Conklin

planted a few rows of corn and tomatoes under the

direction of Gitta and, later on, a lot of marijuana. Conklin

testified that the goats ate all of his corn and some of his

marijuana.

According to the undisputed testimony, Gitta gave

Conklin and Perry the use of this plot of land for a

vegetable garden and permitted them to pass over any part

A. 9

of the back lot to get to and from the garden. No written

or oral lease was ever contemplated or consummated by and

between the parties to this transaction. It was simply an

oral permit or license given by Gitta to the Defendants for

the purpose hereinbefore mentioned, which it was

understood Gitta could terminate without notice at any

time he chose.

Gitta said he did it out of friendship and in the hope

that by having someone back there frequently some of the

vandalism he had suffered in the past would be prevented

and that the Defendants’ activities back there would help

keep the weeds down. There is nothing in the record to

indicate that the Defendants ever cut down any weeds

except where they established their garden. Also, it is

difficult to understand how their presence in the garden in

the daytime would deter vandals who usually operate at

night. In any event, no money or other consideration passed

from the Defendants to Gitta for the use of his land.

In November 1974, Jozsef Gitta, Jr. started working

for the Easton Police Department, which exercises police

power within the corporate limits of Easton and in an area

within a one mile radius thereof. Easton is approximately

eighteen miles from the Gitta farm. Young Gitta was

employed by the Department as a clerk-cadet at all times

pertinent to this case and is now serving as a security guard

at some plant in Delaware. At no time was he ever a

member of the police force or clothed with investigatory or

arrest powers. His position was strictly clerical. Furthermore,

Jozsef was never at any time requested or authorized by

any law enforcement agency to initiate or conduct the

investigation on his family’s property which we are about to

relate.

In June of 1975, Jozsef noticed the garden in the back

lot and on mentioning it to his father was told that his

father had given the Defendants permission to put in a

vegetable garden there. Around the last of August or the

A.10

first part of September, Jozsef observed from his yard what

he positively believed to be marijuana growing in this

garden. He reported it to his father and Mr. Gitta told him

that it was none of their business and it would be better if

he did not go back there. As the marijuana began to ripen,

the fact that this unlawful activity was being conducted on

his family’s property worried Jozsef to the point that he

went to the garden and plucked a leaf from one of the

marijuana plants hanging over the fence (the plants at this

point were then eight to ten feet high) and took it to Cpl.

Marshall, a friend of his on the Easton Police Force, as

proof of his previous statement to Marshall that the

Defendants were growing marijuana on his parents’ property.

Marshall examined the specimen and agreed that it was a

marijuana leaf and then took it to Det. Sgt. Duncan of the

Maryland Siate Police, who also agreed that it was a leaf

from a marijuana plant.

The day after he took the leaf, he noted that he could

not see the marijuana through the fence that divided the

back lot from the front lot and, on going back to the

garden to investigate, he discovered that the marijuana had

been cut about an inch or an inch and a half above the

ground and removed from open view. He then went over to

the barn, which was wide open as always, looked in and

saw some of it protruding through the entrance of the loft.

He climbed up to the loft and found it jammed full of

marijuana plants hanging in bunches from the rafters.

However, these plants had roots on them and appeared too

wilted to have been recently cut, so he concluded that they

had come from somewhere else.

After reporting this discovery to his friend Marshall, he

was contacted by Cpl. Edwin D. Horner, Jr., Regional

Supervisor of the Narcotics Section of the Maryland State

Police, at about 6:00 P.M. on September 22, 1975. As a

result of this contact, Jozsef agreed to take Horner to the

barn that evening. Upon arriving at the bam with Jozsef,

Horner noted the marijuana protruding through the loft

A.ll

opening and on going up into the loft found it to contain

the marijuana plants hanging in bunches from the rafters

just as Jozsef had previously told him.

After making these observations, Horner made a written

application for and obtained subject Search and Seizure

Warrant from Judge James A. Wise. After obtaining the

warrant, Horner, in company with another State Policeman,

returned to the loft at about 8:00 A.M. on tle morning of

September 23 to await the arrival of the Defendants.

Shortly after 1:00 P.M., the Defendants climbed up into the

loft with certain paraphernalia used in manicuring and

preparing the marijuana for market. Just as they were about

to start to work on the marijuana, Conklin, in the course of

looking for a bucket for Miss Perry to sit on, saw one of

the officers hiding behind the marijuana plants hanging from

the rafters. At this point, the officers placed the Defendants

under arrest and, in due course, seized the contraband and

paraphernalia.

To support their contention that the warrant and all

evidence seized thereunder should be suppressed, the

Defendants claim that they were given exclusive possession

of the entire back lot and the barn in which the marijuana

was found for the purpose of conducting their gardening

operations and that, therefore, whenever Jozsef went on the

back lot and in the barn and he and Horner went to the

barn, they were government agents trespassing upon an area

constitutionally protected by the Fourth Amendment to the

Federal Constitution.

This argument is based on Conklin’s testimony that the

Defendant’s right of user and possession covered the entire

back lot and the barn and was exclusive to the point of

even excluding Mr. Gitta from using or having access to his

back lot. Either due to his friendship for the Defendants or

out of fear of becoming criminally involved with them, or

both, the testimony of Mr. Gitta to some extent supports

that of Conklin as to the exclusivity of the right to user

A.12

and possession. However, Cpl. Horner testified that after he

had arrested the Defendants and seized the contraband, he

reported to Mr. Gitta what he had found on his property

and what he had done in consequence thereof. Whereupon,

Mr. Gitta told him that he had only given the Defendants

the right to use any portion of the back lot for a garden

and the right to use whatever route they might choose to

go to and from it and went on to state that he had not

given them any right to use any buildings, including the

barn. Furthermore, Jozsef testified, and was not

contradicted, that he had always been allowed to take

anyone he chose over any part of his parents’ property and,

except for the hereinbefore mentioned fatherly admonition,

this right had never been withdrawn. He also testified that

as far as he knew, no other member of his family had ever

been forbidden free access to the back lot. Indeed, it seems

utterly fantastic under all the attendant circumstances to

believe that the Defendants would expect, much less

demand and receive from their benefactor, a right of user

and possession of the entire back lot and barn that would

not only exclude Mr. Gitta’s family but Mr. Gitta himself

from access to or the use thereof of any portion of the

back lot not used by the Defendants for a garden.

While Conklin testified that the marijuana could not be

seen growing in his garden unless one entered the back lot,

we simply find his testimony incredible and choose to

believe that of Jozsef and his father. Jozsef said it could be

easily spotted through the fences by anyone standing

outside the Gitta property and that he had spotted it from

a point outside of the back lot before his father had

advised him that he should stay away from the garden as it

belonged to Conklin and was none of their business. Mr.

Gitta was finally forced to concede on cross-examination

that even he could vaguely see the garden from outside the

back lot.

Jozsef further testified that he had gone to the barn

on a number of occasions during that summer and had

Oe DE es

A.13

never been told by his father that he couldn’t go to the

barn whenever it suited him.

In short, after carefully observing all of the witnesses

that testified at the suppression hearings and evaluating their

credibility, the Court finds that it cannot in good

conscience believe any of the testimony that was adduced

to show that the Defendants had any more than a mere

license, revokable at the will of the licensor, to plant,

cultivate and harvest a vegetable garden containing only

vegetables and plants that were lawful to grow at the spot

picked out by the Defendants and free access thereto for

those purposes and no other. We find that they had no

other rights in the back lot or the buildings thereon,

including the barn; and further find that Mr. Gitta and

every member of his family and their invitees had a perfect

right to go through any part of the back lot, including the

barn, except that part that had been fenced in by Conklin

for his garden. Lastly, we find that Mr. Gitta’s admonition

to Jozsef was no more than fatherly advice to keep out of

other people’s business and not to go into the garden itself,

and cannot, and certainly should not, be construed as an

unconditional command not to enter the barn or any part

thereof.

STANDING

Since the crimes with which the Defendants were

charged involve the possession of property, the mere

possession of which is a crime, the Defendants have

automatic standing to challenge the admissibility of the

evidence seized under subject Search Warrant. Cecil Jones v.

United States, 362 U.S. 257; 4 L. Ed. 2d 697 (1960);

Anderson v. State, 9 Md. App. 532 (1970).

A.14

APPLICABILITY OF THE FOURTH AMENDMENT

By no stretch of the imagination can it be said that

the Defendants were protected by the Fourth Amendment

to the Federal Constitution from any _ evidence or

information gathered through Jozsef’s observations of the

marijuana in the garden and his so-called intrusion when he

took a leaf from one of the marijuana plants, for the

Fourth Amendment does not extend to open fields and this

garden was certainly growing in an open field. Hester v.

United States, 265 U.S. 57; 68 L. Ed. 898; Air Pollution

Variance Board of the State of Colorado vy. Western Alfalfa

Corporation, 416 U.S. 861; 40 L. Ed. 2d 607. Therefore,

regardless of whether or not Jozsef is held to be a police

agent, the protection afforded the Defendants by the Fourth

Amendment could not apply to the discoveries he made

prior to entering the barn and we believe and hold that

these discoveries in and of themselves afforded sufficient

probable cause to justify the issuance of a good and valid

search warrant for the back lot and all the improvements

thereon including the barn, and thus constituted an

independent source of probable cause free from any taint of

illegality.

Before proceeding any further, we must determine

whether or not Jozsef was a police agent. Based on the

facts as we have found them, we hold that Jozsef was never

a law enforcement officer any more than some girl who

answers a switchboard at a precinct station is a policeman.

Furthermore, he initiated and conducted this investigation

on his own and no law enforcement agency took any

interest in it until September 22, 1975 when Cpl. Horner

contacted Jozsef. Whether Cpl. Horner asked Jozsef to take

him to the barn or Jozsef suggested that he go with him to

the barn is not clear from the record, but really does not

matter, since in either case Jozsef played the role of host

and Horner the role of an invited guest, so Jozsef was not

converted by this contact with Horner into an agent for the

police. Therefore, we hold that Jozsef was not a police

A.15

officer or an agent of any law enforcement agency. Since

the Fourth Amendment only protects a citizen against the

conduct of government agents, it cannot be extended to

protect the Defendants from the activities of Jozsef Gitta,

Jr. Therefore, Jozsef’s search of the barn and discovery of

the marijuana hanging in the loft thereof provided an

independent source for ample probable cause to justify the

issuance of a valid search warrant that would authorize the

police to search said barn and seize whatever contraband

they found therein. This source of probable cause is also

free from the taint of any illegality.

For the sake of argument, even if we had found that

Jozsef was a police agent, since we have already found as a

fact that Jozsef was authorized and permitted to go into

any part of the barn or to take anyone with him into any

part of the barn by the lawful owners thereof and that he

did invite Cpl. Horner to accompany him to the barn, we

find that no trespass was ever committed by Jozsef or Cpl.

Horner in searching the barn and discovering the marijuana

therein. By way of dicta, we further hold that the accused

had no right whatsoever to be in the barn, much less store

their contraband therein, and, therefore, had no reasonable

expectation to be free from governmental intrusion.

For these reasons, we hold that the facts in this case

are clearly distinguishable from and inapposite to the facts

in the recent case of Garrison v. State, 28 Md. App. 257,

where the police were trepassing in the course of their

search for probable cause, and require a result opposite to

that reached in Garrison.

Finally, after carefully examining the Search Warrant

and the Application therefor, we found both to be in order

and valid on their face. The Application simply abounds

with probable cause and both the Application and the

Warrant meet all constitutional and statutory requirements.

A.16

For the above reasons, we overrule the Motion to

Suppress, having found that the Defendants’ contention that

the obtention of probable cause was tainted by the illegal

conduct of the police to be entirely without merit.

/s/ Harry E. Ciark,

Judge

True Copy, Test:

Earl H. Pinder, Clerk

By /s/ Carolyn Will

Deputy Clerk