Opposition Brief — Kille v. Maryland

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Supreme Court of the United States

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Ocroser TERM, 1973

No. 73—1034

FREDERICK KILLE,

Petitioner.

Vv.

STATE OF MARYLAND,

Respondent.

On APPEAL FROM THE Court OF SPECIAL APPEALS

OF MARYLAND

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

FRANcIs B. Burcu,

Attorney General of Maryland,

CLARENCE W. SHarp,

Assistant Attorney General

of Maryland,

Chief, Criminal Division,

BERNARD A. Raum,

Assistant Attorney General

of Maryland,

1400 One South Calvert Strect,

Baltimore, Maryland 21202,

Attorneys for Respondent.

The Daily Record Co., Baltimore, Md. 21203 ew

TABLE OF CONTENTS

PRELIMINARY COMMENTS ..__.—ss—ssts—(<C—tCSCStCSCSC—s—CSS—S—S—

OPINION BELOW... ASPEN AE SLE

QUESTIONS PRESENTED... sss.

CONSTITUTIONAL PROVISIONS INVOLVED... ..._....

STATEMENT OF Facts...

ARGUMENT:

I. The evidence seized should not have been sup-

pressed as the “fruits” of an unlawful and un-

reasonable intrusion into the privacy of the Peti-

tioner’s home .

II. The evidence aaa duns not ia ‘ieee sup-

pressed because of the failure of Trooper Sherman

to appraise the Petitioner of the real purpose of

his visit and to advise the Petitioner of his rights

under the Fourth Amendment to refuse a war-

rantless search and seizure in the Petitioner’s

home _.... pL MBS GRE AA ES tt MORTON

I ne ee ee ee NE A Ee,

TABLE OF CITATIONS

Cases

Boykin v. Alabama, 395 U.S. 238 (1969) . ae

Coolidge v. New Hampshire, 403 U.S. 443 (1971) pee

Culombe v. Connecticut, 367 U.S. 568 (1961)

Gorman v. United States, 380 F.2d 158 (1st Cir., 1967)

Hoffa v. United States, 385 U.S. 293 (1966) _..

Johnson v. Zerbst, 304 U.S. 458 (1938) .

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

Killie v. State, No. 755, “a beanie 1972 72 (unreported

decision filed 8/1/73) .

PAGE

Leeper v. United States, 446 F.2d 281 (10th Cir., 1971) 13

Lewis v. United States, 385 U.S. 206 (1966) 10, 11

Miranda v. Arizona, 384 U.S. 436 (1966) ... _.-s- 8,1

Morgan v. State, 2 Md. App. 440, 234 A.2d 762 (1967) 13

Napue v. People of the State of Illinois, 360 U.S. 264,

79 S. Ct. 1173 (1959) . 5

Osborn v. United States, 385 US. 323 (1966) . 10

People v. Roberts, 55 Cal. Rptr. 62 (1966) 13

Schneckloth v. Bustamonte, US. _.., 93 S. Ct.

| __ a aaa ale 6, 7, 8, 9, 13

United States ex rel. Cole v. Mancusi, 429 F.2d 61 (2nd

RSE ec 13

United States v. Goosbey, 419 F.2d 818 (6th Cir.,

a 13

.United States ex rel. Harris v. Hendricks, 423 F.2d

1096 (3rd Circuit, 1970) 0... : 13

United States v. King, 472 F.2d 1 (1973) ee 11, 12

United States v. Mendoza, 473 F.2d 692 (1972) 10

United States v. Noa, 443 F.2d 144 (9th Cir., 1971) _.. 13

United States v. Vickers, 387 F.2d 703 (4th Cir., 1967) 13

United States v. White, 401 U.S. 745 (1971) ss: 11-12

United States v. Wilmoth, 325 F. Supp. 1397 (D. Ct.

Re CS eea oR iaeea a 12

Vale v. Louisiana, 399 U.S. 30 (1970) 5 ssi 6

Statutes

Title 28, U.S.C., Section 1257 (3) _... 2

United States Constitution:

Fourth Amendment ... 2, 5, 6, 8, 10,

Fourteenth Amendment ___. Toei Ae 5

In THE

Supreme Court of the United States

Ocroser TERM, 1973

No. 73-1034 :

FREDERICK KILLE,

Petitioner,

STATE OF MARYLAND,

Respondent.

On APPEAL FROM THE CourT OF SPECIAL APPEALS

OF MARYLAND

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

PRELIMINARY COMMENTS

This Brief is in Opposition to Petition for Writ of Certiorari

filed pursuant to the request of this Honorable Court.

OPINION BELOW

In Kille v. State, No. 755, September Term, 1972, the

Court of Special Appeals of Maryland in an unreported per

curiam decision filed August 1, 1973, affirmed the Petitioner’s

conviction for possession of marihuana which was entered in

the Circuit Court for Cecil County, the Honorable J. Albert

Roney, Jr., Judge presiding with a jury. The Court of Ap-

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peals of Maryland denied a Petition for Writ of Certiorari on

October 9, 1973. A copy of the per curiam opinion filed by

the Court of Special Appeals of Maryland in the premises is

attached hereto as Respondent’s Appendix A, and a copy of

the Court of Appeals of Maryland decision denying a Writ of

Certiorari to the Court of Special Appeals of Maryland is

attached hereto as Respondent’s Appendix B.

JURISDICTION

Petitioner has evoked the jurisdiction of this Honorable

Court pursuant to the provisions of Title 28, U.S.C., Section

1257 (3).

QUESTIONS PRESENTED

I. Should the evidence seized have been suppressed as the

“fruits” of an unlawful and unreasonable intrusion into the

privacy of the Kille home?

II. Should the evidence seized have been suppressed be-

cause of the failure of the governmental agent to appraise

Kille of the real purpose of his visit and to advise him of his

rights, under the Fourth Amendment, to refuse a warrantless

seizure in his home?

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner alleges that the Fourth Amendment to the Con-

stitution of the United States is involved.

STATEMENT OF FACTS

At the original hearing under a Motion to Suppress the

evidence seized held at the first trial of the case, Robert D.

Sherman, a Maryland State Trooper, testified that after

being called in to investigate a narcotics complaint, he went

to the Four Corners Bar in Elkton, Maryland, on September

19, 1970. At the bar he met George Baluta, the person who

had originally given the police the compiaint two days prior.

Baluta was acquainted with the Appellant and upon Baluta’s

suggestion Sherman was introduced to the Appellant, another

defendant, Robert Raech, and a third person. Sherman was

introduced to all the persons and a general conversation

began. Sherman was not, however, identified as a Maryland

State Trooper but rather was working in an undercover

capacity. After Sherman had commented that there was

very little to do in Elkton on a Saturday night, Sherman and

Baluta were invited to Petitioner’s residence. After arriv-

ing there, they were admitted by the Petitioner and they

went into a kitchen area where the other defendant, Raech,

was seated at a table. After refusing a pack of cigarettes,

Sherman was offered a pipe filled with a greenish brown sub-

stance and after the pipe was lit, Sherman simulated smoking

it. The pipe was passed back and forth among the persons in

the kitchen. Sherman was able to distinguish the aroma

of marihuana. Additionally, he was advised by a co-defendant

Raech that there was an unlimited supply of grass available.

The Petitioner was present in the kitchen throughout the

entire course of the incident. Upon a pre-arranged signal

another State Trooper entered the home and the Petitioner

and the co-defendant were placed under arrest.

At a subsequent hearing on a Motion to Suppress held

on August 31, 1972, the trial court received into evidence the

transcript of the first Motion to Suppress, considered it along

with the testimony then to be taken.

Robert Raech, a co-defendant, testified at the second

hearing and he stated that there was no invitation to Sher-

man to go to the Petitioner’s residence, but that on cross-

examination, he admitted stating at a previous trial that,

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with regard to the information, “They [Sherman and Baluta]

said that if we were going to be home would it be alright for

them to come, and we said we didn’t care, but we didn’t

know exactly what time we would be there because we were

going to stay at the bar for a while.” Raech indicated that

when they finally did arrive at the Petitioner’s home, they

partially expected both Sherman and Baluta to show up. The

Petitioner himself stated at the Motion to Suppress that in

response to Baluta’s request to go to his home that he had

said, “Something to the effect that I didn’t care, but that

we weren’t planning to go home then”. The Petitioner also

indicated that when Baluta and Sherman arrived at the

house, he opened the door and Baluta and Sherman walked

in and that although he did not invite them in, he did not

try to keep them out.

ARGUMENT

THE EVIDENCE SEIZED SHOULD NOT HAVE BEEN SUPPRESSED

AS THE “FRUITS” OF AN UNLAWFUL AND UNREASONABLE IN-

TRUSION INTO THE PRIVACY OF THE PETITIONER’S HOME.

In the instant case, the Petitioner filed a Motion to Sup-

press the Evidence which he claimed was illegally seized

‘: from his home. Judge Roney, after hearing testimony sub-

4 ject to the Motion and after also agreeing to consider testi-

- mony at a prior Motion to Suppress filed under an earlier

_ trial of the case, concluded in a Memorandum Opinion that

: Trooper Sherman entered the Petitioner’s home as an in-

' _-vitee and a guest. Subsequently, the Court of Special Appeals

concluded in its per curiam opinion that:

“We find nothing in the additional testimony of the

appellant or his witness Raech (separately charged and

convicted of the same offense) that permits any other

conclusion than that the [Petitioner], either directly,

&. Ra ENE h

or by necessary implication, invited Trooper Sherman

into his home.”

(Appendix A, infra).

The Memorandum Opinion of Judge Roney filed on March

4, 1971, is attached herewith as Respondent’s Appendix C,

and the Memorandum Opinion of Judge Roney filed on Sep-

tember 1, 1972 is attached hereto as Respondent’s Appendix

In determining whether or not there was a violation of the

Petitioner’s Fourth Amendment rights as ayplied to the

states through the Fourteenth Amendment, this Court must

conduct an independent review of the facts which give rise

to the circumstances surrounding the intrusion. Napue v.

People of the State of Illinois, 360 U.S. 264, 79 S. Ct. 1173

(1959). A review of the testimony taken at the first Motion

to Suppress on March 4, 1971, which resulted in a Memo-

randum Opinion filed on the same date, and the testimony

taken under the subsequent Motion to Suppress on remand

on August 31, 1972 resulting in a Memorandum Opinion on

September 1, 1972, is sufficient to support the trial court’s

finding of fact that Trooper Sherman was a guest and invitee

on the Kille premises at the time the contraband was seized.

It is significant to note that the Court of Special Appeals

in the second Kille decision (Appendix A) concluded that:

“We find nothing in the additional testimony of the

appellant or his witness Raech (separately charged and

convicted of the same offense) that permits any other

conclusion than that the appellant, either directly, or by

— implication, invited Trooper Sherman into his

ome.

It should be noted that in the transcript of the second

trial on the merits a significant portion of the testimony is

directed toward the circumstances surrounding the invitation

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and subsequent entrance into the house gained by Trooper

Sherman, and while it is submitted, as it has been stated

before, that the testimony taken subject to the Motion to

Suppress is sufficient to support the trial court’s conclusion,

a reading of the subsequent testimony as part of the entire

record on review clearly establishes the nature of the invita-

tion and the entry on the premises.

Having isolated the facts that are determinative of the

case, it is next necessary to establish what standard to apply

to the facts in order to determine whether or not Trooper

Sherman was properly on the premises.

In this connection it would seem that the recent case of

Schneckloth v. Bustamonte, ...... US. ...., 93 S. Ct. 2041

(1973), is determinative of the standards to be applied.

Schneckloth dealt squarely with the issue of what must be

proved to establish that a consent to search under the Fourth

Amendment was voluntarily given. After concluding that a

search conducted pursuant to a valid consent is constitution-

ally permissible, citing Katz v. United States, 389 U.S. 347

(1967) and Vale v. Louisiana, 399 U.S. 30 (1970), the Court

concluded that in looking to a discussion of voluntariness,

the issue has been most discussed under the determination

of the voluntariness of a confession. In rejecting flat state-

ments which afforded definition for voluntariness, the Court

cited Culombe v. Connecticut, 367 U.S. 568 (1961) when it

said:

“The ultimate test remains that which has been the

only clearly established test in Anglo-American courts

for two hundred years: the test of voluntariness. Is the

confession the product of an essentially free and un-

constrained choice by its maker? If it is, if he has willed

to confess, it may be used against him. If it is not, if

his will has been overborne and his capacity for self-

determination critically impaired, the use of his confes-

sion offends due process.”

Schneckloth v. Bustamonte, supra, at page 2047. Thus, the

Court concluded that in determining whether or not a par-

ticular individual’s will was overborne, the Court should

assess the totality of all the surrounding circumstances to-

gether with the characteristics of the accused and the details

of any interrogation. The Court pointed out that in all the

cases cited dealing with individual factors, the factual cir-

cumstance surrounding the confession, an assessment of the

psychological impact on an accused, and an evaluation of

the legal significance of how the accused reacted was the

ultimate determination. Mr. Justice Stewart concluded that

with regard to all of the confession cases:

“The significant fact about all of these decisions is

that none of them turned on the presence or absence of

a single controlling criterion; each reflected a careful

scrutiny of all the surrounding circumstances. ... In

none of them did the Court rule that the Due Process

Clause required the prosecution to prove as part of its

initial burden that the defendant knew he had a right

to refuse to answer the questions that were put. While

the state of the accused’s mind, and the failure of the

police to advise the accused of his rights, were certainly

factors to be evaluated in assessing the ‘voluntariness’

of an accused’s responses, they were not in and of them-

selves determinative.” Schneckloth, supra, at p. 2047

(Citations omitted) .

Thus, the question of whether or not a search was in fact

voluntary or was a product of duress, coercion, impressed or

implied, is a question of fact to be determined from a totality

of all the circumstances. Significantly, Mr. Justice Stewart

further stated:

“While knowledge of right to refuse consent is one factor

to be taken into account, the government need not estab-

lish such knowledge as the sine qua non of an effective

consent. As with police questioning, two competing con-

cerns must be accommodated in determining the mean-

Mag pRracegs

ing of a ‘voluntary’ consent — the legitimate need for

such searches and the equally important requirement of

assuring the absence of coercion.” Schneckloth, supra,

at 2048.

Going further on the issue, the Court stated that the doc-

trine established in Johnson v. Zerbst, 304 U.S. 458 (1938)

had no applicability in the instant case because Johnson held

that in order to establish a waiver of a constitutional right,

the State must establish that the waiver was a result of an

intentional relinquishment or abandonment of a known right

or privilege. The Court then distinguished the standards in

Johnson v. Zerbst in that they were held to be in the con-

text of the safeguards of a fair criminal trial. In rejecting

Johnson v. Zerbst, the Court held that there was nothing

which suggested that the Johnson standard should be ex-

tended to the constitutional guarantee against unreasonable

searches and seizures. In doing so, the Court pointed out

that the protections of the Fourth Amendment are of a

wholly different nature than those governed by Miranda v.

Arizona, 384 U.S. 436 (1966), having nothing to do with the

promoting of the fair ascertainment of truth of a criminal

trial. The Court stated that the Fourth Amendment is not

an adjunct to the ascertainment of truth, but rather affords

standards for protection of quite different constitutional

values and thus are distinguishable from the Miranda cir-

cumstances. In fact, the Court went so far as to say:

“, .. unlike those constitutional guarantees that protect

a defendant at trial, it cannot be said every reasonable

presumption ought to be indulged against voluntary re-

- 9 Citing Coolidge v. New Hampshire, 403

In this connection, compare Boykin v. Alabama, 395 U.S.

238 (1969), as to standards for gauging intelligent waiver

and the lack of a requirement therein as to showing a waiver

of right to raise Fourth Amendment objections as a con-

dition of accepting a guilty plea.

Quite clearly under the instant circumstances as applied

to the reasoning in Schneckloth, it can be seen that the

Petitioner, Frederick Kille, consented under the circum-

stances to allow Trooper Sherman to enter his house for

the purposes, apparently, of consuming marihuana. Clearly

the Petitioner had no objection to Trooper Sherman observ-

ing the marihuana since in fact he was permitted to join

in the smoking of marihuana in the kitchen as the pipe was

passed from person to person. Thus, Kille’s misplaced re-

liance on Trooper Sherman has no effect in the instant case

since it was Sherman who was permitted to enter without

any further inquiry into his background. Had Kille been

so concerned with police officers entering his house and dis-

covering his marihuana, then he should have inquired fur-

ther into Trooper Sherman’s credentials and identity then

he did. Once again, perhaps a significant aspect of this par-

ticular case is established, not by the testimony which in-

dicated the initial invitation of Trooper Sherman into the

premises, but by the subsequent acts of the parties in Kille’s

residence once Trooper Sherman was in there, that is, the

passing around of the pipe and the display of the marihuana.

Clearly, if Kille did not want Sherman on his premises, his

acts once Sherman was there were clearly inconsistent with

the voluntary nature of the invitation and the subsequent

acquiescence to his presence. When these facts are viewed

in this light, it is submitted that this Court can conclude

under Schneckloth that Kille had voluntarily consented,

under all the circumstances, to Sherman’s presence in his

house and took him for what he was, an unknown person

with a very scimpy credentials, and so risked the disclosure

of possession of marihuana by so admitting a person who

was not clearly identified to him, if his testimony is to be

Bevsiossninc:

believed at all. Taking it in this light, Kille’s testimony

weighs heavily against himself because it establishes that

with little or no inquiry into Sherman’s identity, he nonethe-

less allowed him (Sherman) to enter his house and he

should not now be heard to complain if the sanctity of his

home means so much to him as his petition would have this

Honorable Court believe. Sherman was given such complete

and unrestricted freedom over the premises that Kille aban-

doned any expectation of privacy. See United States v.

Mendozo, 473 F.2d 692 (1973) at 696.

The Petitioner asserts that, “It is vital that this Court not

permit constitutional rights to be determined on the out-

come of the ‘pitting’ of the guileful and garrulous under-

cover agent against the gullible and unsuspecting home

owner” (Br. 6). This Court has on a number of occasions

concluded that the use of undercover agents is perfectly

acceptable. In a series of cases in 1966, this Court addressed

itself to the question of use of undercover agents, surveil-

lances, and searches and seizures. Hoffa v. United States,

385 U.S. 293 (1966); Lewis v. United States, 385 U.S. 206

(1966) ; and to a lesser extent, Osborn v. United States, 385

U.S. 323 (1966). Chief among these cases in the instant

circumstance is Lewis v. United States, supra. Petitioner

seeks to distinguish Lewis on the grounds that this Court

held that Lewis’ Fourth Amendment right to resist an

unlawful search was waived because he invited the police

agent into his home to sell him marihuana and that conse-

quently he turned his home into a commercial establishment

for the purposes of selling marihuana and thereby waived his

rights. Such a limitation of the Lewis decision is incon-

sistent with the theory behind the conclusion that the Court

drew. In Lewis, the Court stated that there was clearly a

necessity for undercover police activity and that the Govern-

ment is, of course, entitled to use decoys and to conceal the

Oren wes

identity of its agents. Lewis, supra, at p. 209. While the

Court in Lewis, under the facts in that case, did hold that

the conversion of the home into a commercial center and

the conduct of the petitioner’s business therein waived his

Fourth Amendment right, there is no logical distinction from

the instant case. In Lewis, the Court said:

“A government agent, in the same manner as a private

person, may accept an invitation to do business and

may enter upon the premises for that very purposes

contemplated by the occupant. Of course, this does not

mean that, whenever entry is obtained by invitation and

the locus is characterized as a place of business, an

agent is authorized to conduct a general search for in-

criminating materials; ...” (Lewis at p. 211).

The Court went further and said:

“Were we to hold the deceptions of the agent in this case

constitutionally prohibited, we would come near to a

rule that the use of undercover agents in any manner is

virtually unconstitutional per se.” (Lewis at 210).

In quoting the Government’s conclusion, it is significant

to note that the posture of the cases relied upon by the

State of Maryland is virtually the same as the posture in

which the Government presented its case in Lewis in that

it is contended by the Respondent that the Petitioner Kille

did no less by way of invitation and subsequent revelation

of his possession of marihuana to Sherman as Kille would

have done to any other person which Baluta brought with

him. In this context, perhaps most significant is the lan-

guage relied on in Lewis taken from United States v. King,

472 F.2d 1.

“, .. the risk of being betrayed by an informer is one of

those risks that conspirators necessarily assume.” King

at 696.

Lastly, the use of undercover agents per se has been up-

held in numerous occasions, see United States v. White, 401

U.S. 745; United States v. King, 472 F.2d 1; United States v.

Mendoza, 473 F.2d 692 (5th Cir., 1972); and United States

v. Wilmonth, 325 F. Supp. 1397 (D. Ct. Mass., 1971).

From these decisions it can be clearly distilled that this

case is analogous to Lewis in that in Lewis the agent was

voluntarily admitted for the purposes of the petitioner, and

in this case, Trooper Sherman was voluntarily admitted for

the purpose of the Petitioner Kille. Thus, the Petitioner

in the instant case should not be allowed to rely upon his

misplaced confidence in Sherman and thus avoid the con-

sequences of his voluntary actions and his voluntary dis-

closures to Sherman. Because of the lack of inquiry into

Sherman’s background plus the lack of restrictions placed

upon Sherman in the disclosure of possession of marihuana,

the Petitioner cannot now expect to limit the use of the in-

formation freely given to Sherman on the grounds that he

did not know who Sherman was for, as it has been stated

before, it is a self-defeating argument. If Petitioner was

concerned with what Sherman would do with the informa-

tion, he should have made a more detailed examination as

to who Sherman was or he should have withheld his invita-

tion or his acquiescence to Sherman’s presence at his home

and should have also withheld the marihuana from Sherman.

He did none of these, and thus, Sherman should be allowed

to use that information freely for any purposes.

II.

THE EVIDENCE SEIZED SHOULD NOT HAVE BEEN SUPPRESSED

BECAUSE OF THE FAILURE OF TROOPER SHERMAN TO APPRAISE

THE PETITIONER OF THE REAL PURPOSE OF HIS VISIT AND TO

ADVISE THE PETITIONER OF HIS RIGHTS UNDER THE FOURTH

AMENDMENT TO REFUSE A WARRANTLESS SEARCH AND SEI-

ZURE IN THE PETITIONER’S HOME.

The short answer to the Petitioner’s question as to whether

or not he should have been advised of his right under the

Fourth Amendment to refuse a warrantless search and sci-

zure is, of course, that Kille had no such right. Initially, it

can be said that the Petitioner does not have a right to refuse

every warrantless search and seizure but only unreasonable

searches and seizures, and, of course, if the search was not

unreasonable then he would not have a right to refuse it.

Thus, if Trooper Sherman is determined to have been law-

fully on the premises, then there was no reasonable search

and seizure which the Petitioner had a right to refuse. See

Argument I, supra. In any event, this Court has specifically

rejected the contention which the Petitioner asserts herein.

In Schneckloth v. Bustamonte, supra, this Court stated

that:

“One alternative that would go far towards proving

that the subject of a search did know he had a right to

refuse consent would be to advise him of that right be-

fore eliciting his consent. That, however, is a suggestion

that has been almost universally repudiated by both

federal and state courts, and, we think, rightly so. For

it would be thoroughly impractical to impose on the

normal consent search the detailed requirements of an

effective warning.” (footnote in Gorman v. United States,

380 F.2d 158 (1st Cir.); United States ex rel. Cole v.

Mancusi, 429 F.2d 61 (2nd Cir.) ; United States ex rel.

Harris v. Hendricks, 423 F.2d 1096 (3rd Cir.) ; United

States v. Vickers, 387 F.2d 703 (4th Cir.) : United States

v. Goosbey, 419 F.2d 818 (6th Cir.) ; United States v. Noa,

443 F.2d 144 (9th Cir.); Leeper v. United States, 446

F.2d 281 (10th Cir.) ; People v. Roberts, 55 Cal. Rptr. 62,

et al., including Morgan v. State, 2 Md. App. 440, 234

A.2d 762.) Schneckloth, supra, at pp. 2049-2050.

Mr. Justice Stewart pointed out in Schneckloth that in

the Court’s prior decision in Miranda v. Arizona, supra, the

Court refused to extend the need of a warning under Miranda

to Fourth Amendment situations. Thus, the answer to this

contention by the Petitioner has clearly been passed upon by

PINE IEE SLY TD i “eRe amen

this Honorable Court and the issue should be disposed of in

accordance with this Court’s prior decisions and the great

weight of authority which holds that a person need not be

advised of his right to refuse a search and seizure before such

search and seizure can be conducted.

CONCLUSION

For the aforegoing reasons, it is respectfully submitted

that this Petition for Writ of Certiorari to the Court of

Special Appeals of Maryland should be denied.

Respectfully submitted,

Francis B. Burcu,

Attorney General of Maryland,

CLARENCE W. SHARP,

Assistant Attorney General

of Maryland,

Chief, Criminal Division,

BERNARD A. Raum,

Assistant Attorney General

of Maryland,

Attorneys for Respondent.

APPENDIX A

Unreported

In the Court of Special Appeals of Maryland

No. 755

September Term, 1972

Frederick Killie a/k/a Frederick Kille,

State of Maryland.

Orth, C.J., Moylan, Menchine, JJ

Per Curiam

Filed: August 1, 1973

Per CuRIAM:

Frederick Kille was convicted by a jury in the Circuit Court

for Cecil County of possession of marihuana. He was sen-

tenced to the Cecil County Jail for the term of ninety days.

His appeal contends that the trial court wrongfully refused

to suppress evidence allegedly taken in violation of consti-

tutional rights assured by the fourth amendment.

We rejected the precise contention in an earlier appeal.

Killie v. State, 14 Md. App. 465 (reversed on other grounds)

In that prior appeal we said at page 472:

The appellant’s first contention is that the State Trooper

only gained the vantage point within the appellant’s

Bhs 4

PER LYOW RETIRE LT RIOT Toe ane ne eRena

4 YR TRE nC MTEC OM

home from which he could observe criminal activity and

from which he could observe incriminating evidence by

a subterfuge. He claims this to be a violation of the

Fourth Amendment. He reads the Amendment over-

broadly. Its office is to protect persons against unwar-

ranted physical intrusions carried out against the will

and without the consent of the victim. It is not intended

to guard against the mistaken belief, howsoever pro-

duced, which leads an occupant to the imprudent issuing

of invitations. Lewis v. United States, 385 U.S. 206, is

completely dispositive of the appellant’s contention in

this regard. In Lewis, a government undercover agent

assumed the role of a narcotics addict and, in that guise,

was invited into Lewis’s apartment for the purpose of

purchasing narcotics. Incriminating evidence was dis-

covered by the undercover agent, was seized and was in-

troduced at Lewis’s trial. Lewis claimed that the entry

into his apartment by means of a stratagem constituted

a violation of the Fourth Amendment. He found sup-

port only in the lone dissent of Justice Douglas.

The appellant here seeks to distinguish Lewis on the

ground that the invitation in the case at bar was issued

for social purposes and not for commercial purposes. The

appellant may find moral comfort in the concurring

opinion of Justices Brennan and Fortas which upheld

the conviction in Lewis solely on the ground that the

use of the apartment for commercial purposes operated

to divest it of Fourth Amendment protection. The ma-

jority opinion of Chief Justice Warren, speaking for

six members of the Court, on the other hand, offers the

appellant no such refuge. The Court held squarely that

a government agent, “in the same manner as a private

person,” may accept invitations and may enter upon

premises “for the very purposes contemplated by the

occupant.” In commenting generally upon the need for

undercover activity as an indispensable investigative

technique, the Court said, at pp. 208-209:

“His only contentions are that, in the absence of

a warrant, any official intrusion upon the privacv

of a home constitutes a Fourth Amendment violation

and that the fact the suspect invited the intrusion

cannot be held a waiver when the invitation was

induced by fraud and deception.

Both petitioner and the Government recognize the

necessity for some undercover police activity and

both concede that the particular circumstances of

each case govern the admissibility of evidence ob-

tained by stratagem or deception. Indeed, it has

long been acknowledged by the decisions of this

Court, ... that, in the detection of many types of

crime, the Government is entitled to use decoys and

to conceal the identity of its agents.”

Although additional testimony was taken on the motion to

suppress at a second hearing, (with the transcript of the

hearing on the earlier motion incorporated as an integral part

of the second) the trial court found no basis for a change of

his original position. He said in a memorandum opinion:

“The additional testimony does not change the Court’s find-

ing of facts * * *. The Court remains convinced that Trooper

Sherman entered the Defendant’s home as an invitee and

guest. His entry was lawful and for the reasons stated * * *

and * * * the opinion of Judge Moylan, speaking for the

Court of Special Appeals, * * * filed * * * on February 14,

1972, the subsequent arrest and search and seizure was

lawful”.

We find nothing in the additional testimony of the appel-

lant or his witness Reach (separately charged and convicted

of the same offense) that permits any other conclusion than

that the appellant, either directly, or by necessary impli-

cation, invited Trooper Sherman into his home. Accordingly,

we adhere fully to the previously quoted excerpts from our

prior decision.

Two cases in the Supreme Court, while quite dissimilar

factually, use language bringing the subject case into sharp

focus. One — Katz v. U. S., 389 U.S. 347, said at page 351:

“What a person knowingly exposes to the public, even in his

own home or office, is not a subject of Fourth Amendment

protection.” The second — Hoffa v. U. S., 385 U.S. 293, said

ERTS RAPIST UIA fea ae err ee

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PED By SRS

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at page 302: “The petitioner, in a word, was not relying on

the security of the hotel room (home) ; he was relying upon

his misplaced confidence that Partin (Sherman) would not

reveal his wrongdoing.” (Parenthetical insertions added.)

JUDGMENT AFFIRMED.

APPELLANT To Pay THE Costs.

ORDER

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/ Rogpert C. Murry,

Chief Judge.

Date: October 9, 1973.

APPENDIX C

In the Circuit Court for Cecil County

Criminal No. 2392

Criminal No. 2391

State of Maryland,

Frederick Kille and Robert Ulmer Raech.

MEMORANDUM OPINION

The Defendants, Frederick Kille and Robert Ulmer Raech,

each move to suppress as evidence in this case “all property,

tangible objects, papers, and documents illegally and un-

lawfully taken from him on the grounds that said property

was the production of an unlawful search and seizure.”

To support its contention that the evidence sought to be

suppressed was lawfully taken at the time of the arrest of

the Defendants and should be admitted into evidence, the

State produced as witnesses Trooper Robert D. Sherman of

the Maryland State Police, who has had two years experi-

ence working in the narcotics section of the State Police

and who has investigated well over 100 narcotic cases, most

of them being marihuana cases, and Trooper Leon Ordway,

also of the Maryland State Police, working out of the nar-

cotics section.

Trooper Sherman testified that a complaint was received

at the North East Police Barracks from a bartender by the

name of George Baluta that the defendants frequented the

bar where he worked and were involved with marihuana.

Trooper Sherman and Trooper Ordway were assigned to

make the investigation, and on September 17, 1970, Trooper

Sherman visited the North East Police Barracks and re-

ceived what information was available and further instruc-

tions. On September 19, 1970, he and Trooper Ordway, as

undercover agents of the police, arrived in Elkton around

10:30 p.m. and Trooper Sherman went alone into the tavern

where he recognized the bartender Baluta from the descrip-

tion given him. The bartender pointed out the defendant

Kille. Trooper Sherman became involved in a conversation

with Kille and asked if he might sit at his table and was told

that he might do so. At the table were the two defendants

and an unidentified subject. Trooper Sherman inquired as

to where he might find some “action” in the Town and the

Defendant Kille replied that he knew of no place in Town.

Kille then invited the Trooper to visit his home. Not know-

ing where Kille lived, Baluta drove Sherman to Kille’s house

at Cherry Hill in Cecil County. Baluta and Sherman ap-

proached the front door of the house and Baluta knocked on

the door; Kille came to the door and invited them in. They

walked through the house to the kitchen. Upon entering the

kitchen Sherman noticed that the room was filled with smoke

and he detected an odor that he recognized as resulting from

one

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smoking marihuana. He observed on the table in the kitchen

two long stem pipes and a plastic bag containing a greenish-

brown vegetable substance as well as an ashtray with residue

in it. He and Baluta sat at the table with the defendants,

Kille and Raech, whereupon Raech offered Sherman a cig-

arette. Sherman declined and then he was handed a pipe

and he pretended to smoke it. He offered to return the pipe

and the Defendant, Raech, told him to keep it, indicating

that they had plenty to smoke. The defendant Kille con-

firmed this. Then Sherman gave a prearranged signal which

was observed by Trooper Ordway who had arrived at the

Kille house alone and who had remained on the outside of

the dwelling. Thereupon Trooper Ordway entered the house

through the front door and as he entered the kitchen, Trooper

Sherman identified himself as a police officer, as did Trooper

Ordway, and they then placed the defendants under arrest.

Immediately thereafter Trooper Sherman took into custody

the pipes, the ashtray, and the plastic bag containing a

greenish-brown vegetable substance which were in full view

upon the kitchen table. The police officers then looked

through the cabinets and in the pantry or closet in the kit-

chen and recovered a homemade water pipe with water and

residue, a blue Tupperware container with residue, one set

of scales, an envelope containing pictures of defendant Kille

and an electric bill addressed to Kille. There is a conflict in

the testimony of the officers as to whether or not the de-

fendants were advised of their Constitutional Miranda rights

at anytime after the arrest. When the set of scales was re-

covered from the closet, the defendant Kille remarked to

the officers that they belonged to the school, and there is

some discrepancy between the officers as to Kille’s state-

ment as to the purpose for which he brought home the scales.

Trooper Sherman indicated that he said he brought home

the scales to weigh the substance in the plastic bag without

mentioning it by name, while Trooper Ordway’s recollection

was that Kille’s remark was to the effect that he brought the

scales home to weigh the marihuana. Thereafter a uniformed

police officer from the North East Barracks arrived and the

defendants were taken to the Barracks in a police car.

The arrest of the Defendants were made without a warrant,

and no search warrant was ever obtained for a search of any

part of the house or of the Defendants.

The Defendants contend that all the articles seized and

taken by the police officers from Defendant Kille’s house and

intended to be offered as evidence against the Defendants

at their trial was the result of an illegal search and seizure

and therefore should be suppressed.

In this case the Court finds that Trooper Sherman was an

invitee to the Kille home into which he was voluntarily ad-

mitted by the Defendant Kille himself, and he was there-

fore in the house lawfully. Defendants contend that he ob-

tained the invitation to the house by ruse or guileful means

and that his sole purpose in going to the house was to obtain

sufficient evidence upon which to make an arrest of the

Defendants for the offenses upon which they were subse-

quently indicted, and that inasmuch as he had no search

warrant or other warrants for their arrest, his entry into

the house was unlawful.

Assuming such to be the case, the officer’s entry into the

house cannot be construed by any stretch of the imagination

as having been made forcibly. The mere fact that Trooper

Sherman may have hoped to find sufficient evidence upon

which to affect an arrest of the Defendants when he was

voluntarily admitted to the house pursuant to the invitation

of the Defendant Kille does not without more constitute

the officer a trespasser or an intruder.

Chief Judge Murphy, speaking for the court in Mullaney

v. State, 5 Md. App. 246 at page 257 cited the Supreme Court

case of Sabbath v. U. S., 391 U.S. 585, in which it was ob-

served “that entry into private premises obtained by ruse

has been viewed as not involving a ‘breaking’, the rule being

entry gained by the use of deception for the purpose of affect-

ing an arrest is constitutionally permissible so long as force is

not applied.”

The Court therefore concludes that Trooper Sherman was

not in the Defendant Kille’s house unlawfully. The Court

further finds that Trooper Sherman, when he entered the

kitchen of the Defendant’s house and observed that it was a

smoke-filled and detected an odor which he recognized as

that which results from the smoking of marihuana, and that

he sees before him on the table two pipes and a plastic bag

containing a greenish-brown vegetable substance which, in

his opinion based on his expertise as a special investigator

in the narcotics divsion of the State Police, he believes is

marihuana, had probable cause to believe that a felony was

committed or was being committed within his presence and

based thereon to make an arrest without the necessity of

first having obtained a warrant. As an incident to the arrest

the officer could lawfully seize and take into custody those

articles connected with offenses charged.

The Defendants also argued that it was violative of their

rights under the 4th Amendment to the Constitution for

the officer to seize the named articles without a search war-

rant first having been obtained. They say that the officer

should have first obtained the search warrant, if they had

probable cause, and then returned to the house to seize the

articles that were in fact seized by the officers. If under the

circumstances of this case this was required of the officers

to make the arrest and seize the property connected with the

offenses for which the Defendants have been charged, then

there is a strong possibility that by the time they returned

to the house not only the offenders, but the physical evi-

dence, of the crimes would have disappeared. This happened

at about midnight on a Saturday evening. It would have

been extremely difficult, if not impossible, to have prepared

the necessary affidavit and the search warrant itself, which in

itself takes considerable time, and then find a magistrate

or judge to issue the necessary warrants, all within such a

reasonable time as to permit the officers to return to the

house with any possible chance or likelihood of finding the

Defendants and the physical evidence of the offenses still

there. It would have amounted to an exercise in futility.

Furthermore, Article 27, Section 594B of the Annotated

Code provides for situations in which a police officer may

make an arrest without a warrant. It provides that he may

arrest without a warrant when a felony is committed in his

presence or when he has probable cause to believe a felony

is being committed in his presence or within his view. It

further provides that a police officer may arrest a person

without a warrant if he has probable cause to believe 1)

that an offense listed in subsection (e) of this section,

which includes specifically offenses relating to drugs and

other dangerous substances as codified in Sections 276

through 313D of Article 27, has been committed, and 2)

that the person has committed such an offense, and 3)

that unless the person is immediately arrested (a) he may

not be apprehended, or (b) he may cause injury to the per-

son or damage to the property of one or more other persons,

or (c) he may tamper with, dispose of, or destroy evidence.

Certainly in this case the police officer acted within the

authority of Article 27, section 594B when he became aware,

based on his personal observations, that there was probable

cause to believe that a felony was being committed in his

presence by the defendants and that unless the persons were

immediately arrested they might tamper with, dispose of, or

destroy the evidence. The offense for which the arrest was

made falls directly under the provisions of subsection (e)

governing the offenses set forth in Sections 276 through

313D of Article 27 of the Annotated Code relating to drugs

and other dangerous substances. The arrest having been

lawfully made, the police officers had a right to seize and

take into custody such physical evidence as was within their

sight, and had some relation to the crime for which they

were charged. Therefore, the ashtray with residue, the two

pipes, one a brown pipe with black stem containing greenish-

brown vegetable substance and the other a corn cob pipe

with residue, and a plastic bag containing a greenish-brown

vegetable substance, being on the kitchen table in clear view

of the officers are clearly admissible in evidence and the

Defendants’ motion to suppress such evidence will be denied.

As to the objects obtained upon a search of the closets

and cabinets in the kitchen, and the articles taken from a

stand in the hall leading to the kitchen, the Court concludes

that these articles were not within the view of the police

officers at the time of the arrest, and constituted no basis

2a OTR?

FER IE Ie pe a5

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for probable cause for the arrests. These items were not

within the reach of the Defendants at the time of their arrest

and were not likely to be tampered with, disposed of, or

destroyed by them. Under the circumstances the search of

the premises following the arrest and the seizure of these

particular articles, namely, the blue Tupperware container

with residue, the homemade water pipe, the set of grey

scales, the pictures of the Defendant Kille, his mail and

the electric bill addressed to him, was not made in accord-

ance with the guidelines set out in the case of Chimel v.

California, 395 U.S. 752, 23 L. Ed. 2d 685. The Court will

therefore grant the motion to suppress these particular

articles as evidence in the case.

The State has indicated that it intends to offer as evidence

the statement made by the Defendant Kille following his

arrest at the time when the scales were recovered from the

cabinet. The Court finds that he was not advised of his

Constitutional rights in accordance with the directions of

the Miranda case. The statement therefore would not be

admissible and the Court so holds.

Wherefore, the Court denies the motion of the Defendants,

Frederick Kille and Robert Ulmer Raech, to suppress as

evidence in the case against them the following articles

seized at the time of their arrest on or about September 19,

1970, to wit: ashtray with residue; brown pipe with black

stem containing greenish-brown vegetable substance; corn

cob pipe with residue, and a plastic bag containing a greenish-

brown vegetable substance.

The Court grants the motion of said Defendants to sup-

press all of the other objects so seized at the time of their

arrest, exclusive of those aforementioned, and to return them

to their rightful owners.

J. ALBERT RoNEY, JR.,

Judge.

March 4, 1971.

lla

APPENDIX D

MEMORANDUM OPINION

In the Circuit Court for Cecil County

Criminal No. 2392

State of Maryland

Frederick Kille

The Defendant’s motion to suppress is submitted to the

Court upon the testimony heard by this Court on March 4,

1971, a transcript of which the Court has before it, plus the

additional testimony of Robert Raech and the Defendant

himself which was received on August 31, 1972, at a hear-

ing on the Defendant’s latest motion to suppress. The addi-

tional testimony does not change the Court’s finding of

facts as expressed in its Memorandum Opinion dated March

4, 1971. The Court remains convinced that Trooper Sher-

man entered the Defendant’s home as an invitee and guest.

His entry was lawful and for the reasons stated in said Memo-

randum Opinion and in the Opinion of Judge Moylan, speak-

ing for the Court of Special Appeals, which was filed in this

case on February 14, 1972, the subsequent arrest and search

and seizure were lawful.*

The Court therefore denies the motion of the Defendant

Kille to suppress as evidence in the case against him the

following articles seized at the time of his arrest on or about

September 19, 1970, to wit: ashtray with residue; brown

pipe with black stem containing greenish-brown vegetable

substance; corn cob pipe with residue; and a plastic bag con-

taining a greenish-brown vegetable substance.

J. ALBERT Roney, Jr.,

Judge.

September 1, 1972.

* 14 Md. App. 465 (1972).

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.